From Lexology, Z. Kathryn Branson reports that the Nevada Labor Commissioner is seeking public comments on recently enacted legislation including a bill that changes the standard for classifying workers as employees or independent contractors. Kathryn writes:
The Nevada Legislature’s 80th session recently came to a close after a flurry of activity resulted in over 25 new laws affecting employers. Now, the Nevada Labor Commissioner, charged with enacting and/or amending regulations interpreting the new laws (through the Nevada Administrative Code or NAC), is inviting public comments on a few of the newly enacted laws. Comments “should include proposed changes and/or additions and discuss any potential impacts to small businesses” and are due to the Labor Commissioner within a very short time frame—by August 1, 2019. In addition, the comments sought at this time are limited to the following:
- Assembly Bill 456 (Minimum Wage)
- Senate Bill 192 (Prescribing Certain Requirements for Health Benefits for Purpose of Determining Minimum Wage)
- Senate Bill 493 (Employee Misclassification Task Force and Employee Misclassification)
The comments are intended to assist the Nevada Labor Commissioner in crafting regulations through the NAC that will clarify, without modifying or conflicting with, the language of the new laws. Ideally, commentary provided to the Office of the Labor Commissioner will identify immediate concerns about the bills that employers will face and provide suggestions as to how proposed updates to the NAC can address those concerns. Thereafter, the Office of the Labor Commissioner will prepare draft regulations and invite public comment.
The Nevada Supreme Court gives great deference to an agency’s interpretation of a statute that the agency is charged with enforcing. As such, this public comment period is an excellent opportunity for employers to shape interpretation of the laws identified above.
Below is a brief summary of the laws that are open for public comment, including links to articles analyzing them in greater detail, where applicable.
SB 493 (employee misclassification task force and employee misclassification): Existing Nevada law provides that a person is conclusively presumed to be an independent contractor in certain circumstances (NRS 608.0155). SB 493 clarifies existing law to require that individuals presumptively assumed to be independent contractors must also hold a state or local business license to operate in Nevada, and adds that certain contractors or subcontractors also may be presumed to be independent contractors. SB 493 requires various state agencies to share among their respective offices information related to suspected employee misclassification that is received in the performance of their official duties, depending on confidentiality requirements. SB 493 also defines employee misclassification as “the practice by an employer of improperly classifying employees as independent contractors to avoid any legal obligation under state labor, employment and tax laws, including, without limitation, the laws governing minimum wage, overtime, unemployment insurance, workers’ compensation insurance, temporary disability insurance, wage payment, and payroll taxes.” SB 493 further creates and sets forth the membership of the Task Force on Employee Misclassification, including its duties. This law took effect on July 1, 2019.
Comments are to be sent directly to the Office of the Labor Commissioner, via e-mail at firstname.lastname@example.org or the addresses below:1
Office of the Labor Commissioner
1818 College Parkway, Suite 102
Carson City, Nevada 89706
Office of the Labor Commissioner
3300 W. Sahara Ave., Suite 225
Las Vegas, NV 89102