Employee Discipline: Nevada
Federal law and guidance on this subject should be reviewed together with this section.
Author: Dora Lane, Holland & Hart LLP
- Nevada is an at-will employment state. While at-will employees can generally be disciplined or discharged for any reason or no reason, exceptions apply. See Protection from Wrongful Discharge.
- Oral statements or handbook language contradicting at-will employment may be enforced as binding agreements against the employer if intent to form such an agreement is not disclaimed. See Protection from Wrongful Discharge.
- Employees may not be terminated if the reason would violate either law or strong public policy, such as the right to file for workers' compensation, or to be free from illegal discrimination. See Protection from Wrongful Discharge.
- Other restrictions on employer retaliation also exist, such as when employees report workplace hazards to regulatory authorities, or exercise their right to time off for specified purposes such as voting or teacher conferences. See Other Retaliation Protections.
- Employers may not impose discipline that violates the Nevada Fair Employment Practices Act. See Discipline, Discrimination and Protected Leaves.
- Nevada employers are restricted from disciplining employees for certain off-duty, lawful conduct. See Restrictions on Off-Duty Conduct.
- Employers may not discipline employees in violation of laws designed to protect employee privacy, such as the restrictions on use of polygraph testing. See Disciplinary Restrictions Based on Employee Privacy.
- Private employers may test employees for alcohol or drugs and discipline them accordingly, but there are restrictions in this area for public employers. See Disciplinary Restrictions Based on Employee Privacy.
- Employers generally can enforce noncompete agreements against ex-employees where they are reasonable. See Violation of Noncompete Agreements.
- Employers may discipline employees for theft of trade secrets, and seek redress for damages under the Uniform Trade Secrets Act. See Theft of Trade Secrets.
- Employers should avoid forcing employees to submit to disciplinary interrogation or investigation by requiring them to remain in any confined area, as it can provoke common law claims for false imprisonment. See False Imprisonment.
Protection from Wrongful Discharge
Generally, employment in Nevada is at will. The essence of at-will employment is that employees can be terminated at any time for any reason, because they have no separate contract for specific terms. Therefore, if employers determine that disciplinary action is appropriate, up to and including termination, they are generally free to do so when the employee is at will.
There are exceptions to the employment at will doctrine. Oral statements or written terms in a handbook can be enforced by a court as a contract for other than at-will employment depending on the particular language used, or in combination with other facts. For example, handbook provisions stating employees may be terminated only for cause, or only after receiving written warnings, may become binding on an employer if there is enough evidence to conclude that these terms could be reasonably understood as intended by the parties to govern the employment relationship. D'Angelo v. Gardner, +107 Nev. 704 (1991).
Therefore, employers should include a disclaimer in any handbook which declares their intent that:
- All employees are at will;
- The handbook should not be understood otherwise; and
- Both parties remain free to terminate employment at any time for any reason.
D'Angelo v. Gardner, +107 Nev. 704 (1991).
Handbooks should also omit language suggesting mandatory restrictions or conditions for discipline or termination, and at-will employers should avoid similar oral statements or promises.
Public Policy Exception
Another at-will employment exception is that employees may not be terminated if the reason would violate other law or strong public policy. Dillard Dep't Stores, Inc v.. Beckwith, +989 P.2d 882 (Nev.1999). Examples of reasons for termination which could violate public policy include:
- Filing a workers' compensation claim;
- Refusal to engage in illegal conduct;
- Refusal to work in unreasonably dangerous conditions;
- Whistleblowing, provided the report is made to an outside agency. Internal reports do not suffice; and
- Absence due to jury duty or witness testimony.
At-will employees are also protected under the state's false claims statute, which prohibits employers from enforcing rules forbidding employees to disclose information to government or law enforcement or participating in an action under the False Claims Act or a related investigation. See +Nev. Rev. Stat. Ann. § 357.010 through +Nev. Rev. Stat. Ann. § 357.250.
Public employers or officials are prohibited from using their position to prevent disclosure of improper government action by other officials or employees. Further, officers or employees who report improper governmental action are protected from "reprisal or retaliatory action" by their employer for two years after the disclosure. +Nev. Rev. Stat. Ann. § 281.611 through +Nev. Rev. Stat. Ann. § 281.671.
Other Retaliation Protections
Nevada has specific retaliation protections for certain employees, which prevent employee discipline where they apply. First, employers are prohibited from discriminating against employees for participating in any proceeding related to the Nevada Fair Employment Practices Act, which bans discrimination on the basis of race, sex or other protected traits. +Nev. Rev. Stat. Ann. § 613.340; see also EEO - Retaliation: Nevada.
Second, employees are also protected when making a hazardous substance or other complaint under occupational health and safety laws, or when they are participating in the investigation of such complaint. +Nev. Rev. Stat. Ann. § 618.445; see also HR and Workplace Safety: Nevada.
Further, employers of medical facilities are prohibited from retaliating or discriminating against employees who:
- Report or participate in investigations regarding physician misconduct or physician competence;
- Report or participate in investigations regarding unexpected incidents of death or serious injury or risks of the same; or
- Refuse certain nursing or other particular types of job assignments.
Other protected employees include those who:
- Participate in a complaint for unpaid wages with the Nevada Labor Commissioner. +Nev. Rev. Stat. Ann. § 608.015;
- Take time off for jury duty. +Nev. Rev. Stat. Ann. § 6.190;
- Take time off for witness duty. +Nev. Rev. Stat. Ann. § 50.070; +Nev. Rev. Stat. Ann. § 62D.130;
- Take time off to vote. +Nev. Rev. Stat. Ann. § 293.463;
- Take time off due to active military duty. +Nev. Rev. Stat. Ann. § 412.139;
- Take time off to attend a school conference, event, or volunteer opportunity regarding a child for whom they are responsible. +Nev. Rev. Stat. Ann. § 392.920.
Discipline, Discrimination and Protected Leaves
Employers should keep in mind that any adverse employment action, such as discipline, negative performance review, discharge or failure to promote, is subject to challenge if motivated, in whole or in part, by illegal discrimination or by an employee's use of protected job leave.
In particular, along with federal protections under Title VII and similar laws, employers (with limited exceptions) may not impose discipline that violates the Nevada Fair Employment Practices Act, which protects employees against discrimination in employment based on race, sex, sexual orientation, age, disability or the need to utilize a service animal at work. +Nev. Rev. Stat. Ann. § 613.330; see EEO - Discrimination: Nevada; EEO - Retaliation: Nevada.
While Nevada has no family or medical leave requirements beyond the federal Family and Medical Leave Act (FMLA) for private employers, public employers may not discipline employees in contravention of the additional leave benefits provided to state personnel. +Nev. Admin. Code § 284.523 through +Nev. Admin. Code § 284.598; see FMLA: Nevada; Other Leaves: Nevada.
Domestic Violence Leave Law
Nevada law allows employees to take leave and to request reasonable accommodations if the employee or the employee's family or household member is a victim of domestic violence. +2017 Bill Text NV S.B. 361, amending Nev. Rev. Stat. Ann. § 608; see Other Leaves: Nevada. The leave law prohibits an employer from:
- Denying an employee the right to take leave in accordance with the law;
- Requiring an employee to find a replacement worker as a condition of taking leave; and
- Retaliating against an employee for using leave.
The law specifically prohibits an employer from terminating, disciplining, discriminating against in any manner, denying employment or promotion to, or threatening to take any such action against an employee because:
- The employee requested to take leave due to domestic violence;
- The employee participated as a witness or interested party in court proceedings related to an act of domestic violence that triggered the use of leave;
- The employee requested a reasonable accommodation related to domestic violence; or
- An act of domestic violence was committed against the employee in the workplace.
An employer may require an employee to provide documentation that confirms or supports the reason the employee provided for requesting leave.
Nevada prohibits an employer from requiring in-person attendance for certain notifications from employees. +2019 Bill Text NV A.B. 181, amending Nev. Rev. Stat. Ann. Title 53, Chapter 613; see Employee Handbooks - Work Rules - Employee Conduct: Nevada. The law prohibits an employer from requiring an employee's physical presence at the employee's place of work in order to notify the employer that the employee:
- Is sick; or
- Has sustained an injury that is not work-related and cannot work.
However, an employer may require an employee to notify the employer that the employee is sick or injured and cannot report for work.
In addition to any other remedy or penalty, the Labor Commissioner may impose an administrative penalty and recover the cost of any administrative enforcement proceeding.
Restrictions on Off-Duty Conduct
Nevada employers are restricted from disciplining employees for certain off-duty, lawful conduct. Nevada law protects employees' off-duty political activities. +Nev. Rev. Stat. Ann. § 613.040. Employees may file a claim for damages for employers' violations of this law. +Nev. Rev. Stat. Ann. § 613.070.
In addition, Nevada employers with 15 or more employees may not restrict their employees' use of legal substances while off-duty, except under limited circumstances. +Nev. Rev. Stat. Ann. § 613.333. Employers may only restrict employees' off-duty use of substances or products if those products affect job performance or the safety of co-workers.
Clean Indoor Air Act
- Casino areas where minors may not loiter under +Nev. Rev. Stat. § 463.350;
- Standalone bars or taverns;
- Strip clubs;
- Retail tobacco stores;
- Convention/trade show facilities during tobacco business-sponsored trade shows that display tobacco and are closed to the public; and
- Home office/workplaces, except those used as child or adult care facilities or healthcare facilities.
Disciplinary Restrictions Based on Employee Privacy
Employee discipline in Nevada may not be imposed where it conflicts with various laws designed to protect employee privacy. However, private Nevada employers are free to require random or for-cause drug or alcohol testing as a condition of employment, subject to general common law rights to privacy. Nevada Empl. Sec. Dep't v. Holmes, +112 Nev. 275, 283 (1996).
Other permissible testing includes preemployment, post-accident and periodic screening. Any positive result may be cause for discipline or discharge at the employer's option. Employers should be mindful of the federal requirements regarding preemployment drug and alcohol testing under the Americans with Disabilities Act. See Recruiting and Hiring > Preemployment Screening and Testing; Employee Management > Disabilities (ADA).
An employee will not be eligible for unemployment benefits if fired for failing a drug test so long as:
- The employee is aware of the policy;
- The employee is found to have willfully or intentionally violated it; and
- The policy has a reasonable relationship to the work to be performed.
Clevenger v. Employment Security Dep't, +770 P.2d 866, 868 (Nev. 1989).
In contrast, drug and alcohol testing rules exist for most state agency employees. +Nev. Rev. Stat. Ann. § 284.406 ; +Nev. Rev. Stat. Ann. § 284.407. Most state agency employees testing positive may be subject to discipline up to and including discharge, or referral to an employee assistance program.
Marijuana. Federal law continues to prohibit use of marijuana. Marijuana, or cannabis, is scheduled as a Schedule I controlled substance, which means that it has no acceptable medical use. Therefore, an employer:
- Does not have to accommodate marijuana use, including ingestion, possession or intoxication, in the workplace; and
- May take adverse action, including discipline up to and including termination, against an employee who is under the influence of marijuana at work.
Nevada law permits the use of marijuana (cannabis) for medical and recreational purposes. See Employee Health: Nevada. However, an employer need not permit or accommodate marijuana use or ingestion in the workplace, or an employee working while under the influence of marijuana.
An employer should continue to follow applicable drug testing and drug-free policies and document any facts that would show impairment while at work, such as those relating to dexterity or appearance.
Nevada restrictions on discipline based on polygraph or similar tests are similar to those under federal law. In addition, Nevada law provides:
- No exemption for national security;
- No restrictions on the use of federal exemptions under the Employee Polygraph Protection Act. +29 U.S.C. § 2007 ; +29 U.S.C. § 2008; and
- That results of, or refusal to submit to, a polygraph test may not be the sole basis for any discipline or adverse employment action against an employee or applicant.
Nevada has no restrictions on the use of background checks for applicants or employees, although overly intrusive investigations may be subject to common law, or court-made, invasion of privacy claims.
If an employer disciplines an employee, or rejects an applicant, based on a consumer report from a reporting agency, the employer must notify the employee of the action taken and the name and address of the reporting agency, and also explain the right to obtain a copy of the report from the agency. +Nev. Rev. Stat. Ann. § 598C.060.
Regarding information about arrests, Nevada preemployment guidelines mirror the Equal Employment Opportunity Commission's (EEOC's) guidelines, which discourage inquiries regarding arrests that did not result in conviction. Inquiries into convictions should be accompanied by a statement that convictions will not necessarily bar the applicant from employment. An employer or its authorized agent may request information regarding certain criminal offenses if the employee provides written consent. Nevada Equal Rights Commission Preemployment Inquiry Guide; see also +Nev. Rev. Stat. Ann. § 179A.100.
Theft of Trade Secrets
Regarding employee theft of trade secrets, Nevada has adopted the Uniform Trade Secrets Act. +Nev. Rev. Stat. Ann. § 600A.010. Under the Act, if an employee or ex-employee acquires or discloses a trade secret improperly, discipline or discharge can be imposed. Generally, employers can apply to a court for an injunction against such misappropriation. If successful, they can seek actual or other damages against the employee, including punitive damages and attorney fees.
A written policy and nondisclosure agreement clearly outlining the nature of the employer's trade secrets and requiring confidentiality is good practice, in order to clarify an employee's duties and responsibilities, as well as the applicable penalties for any breach.
Violation of Noncompete Agreements
Employers generally can enforce noncompete agreements against ex-employees where they are reasonable, i.e., those agreements that impose no greater limits than required to protect the business and goodwill of the employer. See, e.g., +Nev. Rev. Stat. Ann. § 613.200; Camco, Inc. v. Baker, +113 Nev. 512 (1997); Jones v. Deeter, +112 Nev. 291 (1996); Hansen v. Edwards, +83 Nev. 189 (1967); Traffic Control Servs. v. United Rentals Northwest, Inc., +120 Nev. 168 (2004); HD Supply Facilities Maint., Ltd. v. Bymoen, +210 P.3d 183 (Nev. 2009).
Wholesale restraint of an ex-employee from garnering employment is a criminal offense in Nevada, but restraints under certain circumstances are lawful, e.g., trade secret protection. +Nev. Rev. Stat. Ann. § 613.200; see also Theft of Trade Secrets. However, employee blacklisting is unlawful in Nevada. +Nev. Rev. Stat. Ann. § 613.210.
Employee claims of false imprisonment can arise from discipline situations where employees are physically confined within or commanded not to leave the workplace.
The elements of such a claim are restraint or confinement under probable use of force without any legal justification, and the restrained person is aware of the confinement or suffers harm from it. See Jordan v. State ex rel. DMV & Pub. Safety, +121 Nev. 44 (2005).
Employers should avoid forcing or intimidating an employee to submit to disciplinary interrogation or investigation by requiring them to remain in any confined area. Better practice is to request cooperation, or failing that, to suspend the employee pending further action.
Effective January 1, 2020, covered employers are required to provide paid time off that covered employees may use for any reason. +2019 Bill Text NV S.B. 312; see Other Leaves: Nevada. The law contains retaliation protections for covered employees. (The law does not apply to temporary, seasonal or on-call employees.)
Specifically, the law prohibits an employer from:
- Denying an employee the right to use paid leave available for use by that employee in accordance with the law;
- Requiring an employee to find a replacement worker as a condition of using paid leave available to that employee; or
- Retaliating against an employee for using paid leave available to that employee.
Clean Indoor Air Act Amendments
Effective January 1, 2020, amendments to the Nevada Clean Indoor Air Act expand the prohibition of smoking in indoor places of employment to include the use of an electronic smoking device that creates an aerosol or vapor, in any manner or in any form, and the use of any oral smoking device.
There are no other developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.