The Nevada Supreme Court recently issued a decision regarding the interplay between Nevada’s wage and hour laws and the Portal-to-Portal Act under the Fair Labor Standards Act (FLSA). That decision caught some employers off guard and caused concern that current practices may not be aligned with the law.

As explained further below, the Nevada Supreme Court ruled that Nevada’s wage and hour laws regarding compensable time did not incorporate the Portal-to-Portal Act, which provides exceptions for certain pre- and post-shift work.

Understanding Amazon.com Services LLC v. Malloy

During the COVID-19 pandemic, Amazon instituted a companywide policy, as many employers did, requiring employees to undergo screening prior to their shift. Dwight Malloy worked for Amazon as an hourly, non-exempt warehouse employee during the height of the COVID-19 pandemic when this policy was in place. Amazon did not pay its employees for the time spent doing this pre-shift screening.

Malloy filed a lawsuit on behalf of himself and other Amazon employees, alleging that Amazon employees should have been compensated during pre-shift screenings. Despite Amazon’s efforts to dismiss the case, arguing that this pre-shift screening was not compensable time under the Portal-to-Portal Act, the District Court found that Nevada law did not incorporate that exception from federal law. Therefore, time spent in pre-shift screening was time worked and needed to be compensated. The Nevada Supreme Court agreed.

What is the Portal-to-Portal Act?

The Portal-to-Portal Act is an amendment to the FLSA that clarifies what is compensable time and what is not compensable.

As defined in the FLSA, “time worked” is all time an employee must be on duty, or on the employer’s premises, or at any other prescribed place of work, as well as any additional time the employee is allowed to work. Relevant to this case, Section 254 of the Portal-to-Portal Act explains that time spent on activities that are preliminary or postliminary to their principal work duties is not compensable time. This would include things like time spent waiting in line to clock in or clock out, time spent walking from the entrance to the workplace and the employee’s workstation, and time spent changing clothes if not required by law or for that job.

Amazon’s argument was that pre-screening for COVID was a preliminary activity under the Portal-to-Portal Act and, therefore, not compensable time. The Nevada Supreme Court didn’t address that argument. Instead, it focused on whether those exceptions from the Portal-to-Portal Act were incorporated into Nevada’s wage and hour rules.

Nevada Wage and Hour Law on Compensable Time

While Nevada’s wage and hour laws do generally mirror the FLSA, they are not identical in all respects.

Like the FLSA, Nevada law requires employers to pay employees for all time worked. You can see this in several areas. NRS 608.016 states that, “[e]xcept as otherwise provided in NRS 608.0195 and 608.215, an employer shall pay to the employee wages for each hour the employee works. An employer shall not require an employee to work without wages during a trial or break-in period.” NAC 608.115 states, in relevant part, that, “[a]n employer shall pay an employee for all time worked by the employee at the direction of the employer, including time worked by the employee that is outside the scheduled hours of work of the employee.”

However, unlike the FLSA, Nevada law does not address non-compensable activities broadly. Nevada law only recognizes two very narrow exceptions to the requirement that employees must be paid for all time worked. Those are for periods for sleep and meal periods.

Those narrow exceptions and lack of broader language regarding non-compensable activities were sufficient for the Nevada Supreme Court to find that Nevada law did not incorporate the Portal-to-Portal Act.

Takeaways for Nevada Employers

The Nevada Supreme Court’s decision in Amazon.com Services LLC v. Malloy underscores the importance of some key pieces of advice that we have always given employers:

• If you’re requiring employees to participate in something – regardless of whether it occurs during or outside of normal work hours – they should be compensated for that time. Whether it is pre-shift screenings, mandatory meetings, or checking emails and answering calls, employees are engaging in work activities and should be paid for their time. Additionally, even if an employer doesn’t specifically require participation, if the employer benefits from it, the time spent by the employee would be compensable.
• Employers should evaluate all potentially applicable laws before making a decision on how to proceed. Do not assume because you are complying with federal law that you are in compliance with state law. They can and do differ. Additionally, do not assume because one law doesn’t create any obligations that there isn’t another law that does.
• When Nevada law and federal law differ on an issue, follow the law that provides the most benefit to employees or is the most restrictive on employers. Providing more benefits than an employee would otherwise be entitled to does not typically result in claims or lawsuits. Employees are unlikely to sue because they were overpaid or received too much of a benefit.

While the Nevada Supreme Court’s decision in Amazon.com Services LLC v. Malloy is something that employers need to be aware of, it is not a reason to panic. On the contrary, employers should see this as an opportunity.

Now is a good time to review your policies and practices to ensure they are in compliance with state and federal wage and hour rules. If your review reveals that changes need to be made, implement those changes as soon as possible to mitigate any ongoing risks and communicate those changes to all affected employees.

This case serves as a timely reminder that wage and hour obligations continue to evolve, and staying ahead of those developments is the best way to protect both your workforce and your organization.

By: Audra L. Parton

Is Nevada Already Taking Action?

Governor Joe Lombardo has called a Special Session of the Nevada Legislature to address legislative and budgetary matters requiring urgent action. The Special Session will revisit some bills from the last couple of legislative sessions, as well as new legislation.

One such bill, Senate Bill 8, appears to address the issue that was the subject of the Nevada Supreme Court’s decision in Amazon.com Services LLC v. Malloy. Early language of the bill would revise NRS 608.016 to incorporate those exemptions from the Portal-to-Portal Act. Specifically, excluding from hours of work such time as outlined in sections 2 and 4 of the Portal-to-Portal Act, including preliminary and postliminary activities. The bill also adds language clarifying that employees must be compensated when donning or doffing a uniform or personal protective equipment when employees are not allowed to bring or wear them from home.

If signed by the Governor as written, the law would apply to any action pending as of the effective date of the law and for such act, omission, or underlying event that occurred before the effective date of the law.

There are still a lot of things that can change between now and when that bill reaches the Governor’s desk. We will continue to monitor the latest developments regarding this bill and any other notable bills that emerge from the Special Session. You can review the bill language at: https://www.leg.state.nv.us/App/NELIS/REL/36th2025Special/Bill/13005/Text.

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