SENATE BILLS 166 & 177: INCREASING PENALTIES, REMEDIES, AND STATUTE OF LIMITATIONS ON CLAIMS OF WORKPLACE DISCRIMINATION
In the active 2019 Legislative Session, Nevada lawmakers managed to pass several bills that have a significant impact on employers doing business in Nevada. However, lost behind the headliner bills of AB456 (minimum wage increase) and SB312 (mandatory paid time off), the Nevada Legislature passed two equally important bills in SB166 and SB177, both of which deal with workplace discrimination. While the existence of state and federal laws prohibiting workplace discrimination is not news to Nevada employers, the changes brought through the passage of SB166 and SB177 could have significant financial ramifications.
First, in passing SB166, the Nevada Legislature has effectively empowered the Nevada Equal Rights Commission (NERC) to impose civil penalties against employers found to be violation of Nevada’s anti-discrimination statutes. Nevada joins a handful of other states that allow a commission to impose a civil penalty outside of a court or administrative judge setting.
Under SB166, if NERC finds that there has been an unlawful employment practice committed by an employer who employs 50 or more employees, and subsequent mediation or conciliation fails, they may now impose escalating civil penalties, ranging from $5,000 to $15,000, if the violation is found to be willful. Importantly, SB166 precludes these sanctions if the violation is remedied within 30 days.
In cases of sex-based discrimination, the penalties are even more severe. NERC may now award compensatory damages that include lost wages or other economic damages resulting from sex-based discrimination, including lost payment for overtime, shift differential, cost of living adjustments, merit increase or promotions, or other fringe benefits. This essentially allows an individual to obtain damages that would normally be awarded only through litigation at the district court level, where discovery protections and the rules of evidence apply.
Additionally, SB166 dramatically increases the time to file a complaint for an unlawful compensation decision or practice with NERC. The Nevada Legislature adopted the Lilly Ledbetter federal standard for claims of pay discrimination, finding that an unlawful compensation decision or practice occurs “each time wages, benefits, or other compensation is paid…” See 42 U.S.C. 2000e-5(e)(3)(A). This increase puts the employer at risk as the passage of time could result in the loss of evidence and key witnesses the employer could use to challenge these claims.
SB166 goes into effect January 1, 2020.
In the same vein, Nevada lawmakers passed SB177 in an effort to expand the remedies available to individuals who have been the subject of discrimination on the basis of their race, color, sex, sexual orientation, gender identity or expression, age, disability, religion or nation origin. Previously, the remedies available to individuals at the state level only included reinstatement and two years back pay and benefits. Now, however, individuals can seek the same remedies available under a federal Title VII claim. This includes compensatory and punitive damages, as well as a longer period of back pay.
This not only puts the remedies available for workplace discrimination at the state level on par with the federal courts, but it also expands remedies for LGBQT, age, and disability discrimination that were not previously available at either the state or federal level.
Lastly, SB177 imposes new obligations on NERC regarding right-to-sue notices and expands the statute of limitations on filing a complaint in the district court. It is now required that NERC must, as soon as practicable, provide notice to a person who has filed a complaint that they may request NERC to issue a right-to-sue notice and such request shall be honored if at least 180 days has passed after a complaint was filed. Moreover, the notice is required to state that the person may bring the civil action in district court no later than 90 days after they received the right-to-sue notice.
Additionally, SB177 revises the timeframe in which to bring a civil action in the district court when NERC concludes that an unlawful employment did not occur. Previously, an individual must file their complaint in the district court no later than 180 days after the act constituting the unlawful employment practice occurs, with the 180 days being tolled during the pendency of the claim. Now, an individual has the 180 days (plus tolling) to file their complaint, or within 90 days of receipt of the right-to-sue letter, whichever is later.
SB177 goes into effect October 1, 2019.
Nevada employers must be conscious of these legislative changes as there are significant financial ramifications as well as new challenges to the employer’s ability to defend against claims of workplace discrimination. Nevada Association of Employers can assist you through this process and better help you defend against claims of workplace discrimination. Contact us today!
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