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«EMPLOYEE RIGHTS 1 (People’s Law School) I. Types of Employment: A. Private Sector Employment: 1. “Golden Rule” Employment”At-will” ...»

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Although regulation of speech in a traditional public forum is disfavored, it is not impermissible. The government may place reasonable time, place, and manner restrictions on speech. However, these restrictions must be justified without reference to the protected speech's content. They must be content-neutral and narrowly tailored to serve a significant government interest, leaving open ample alternative channels of expression. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). "The failure to satisfy any single prong of this test invalidates the requirement." Grossman v. City of Portland, 33 F.3d 1200, 1205 (9th Cir.1994).

In George v. Pacific-CSC Work Furlough, 91 F.3d 1227 (9th Cir. 1996), the Ninth

Circuit Court of Appeals held that:

Under the First Amendment, as made applicable to the states through the Fourteenth Amendment, a public employer may not fire an employee by reason of his exercise of free speech rights. Mt. Healthy City School Dist. v. Doyle, 429 U.S.

274, 283-84, 97 S.Ct. 568, 574-75, 50 L.Ed.2d 471 (1977); see also Clements v.

Airport Auth. of Washoe County, 69 F.3d 321, 334 (9th Cir.1995). But the First Amendment protects individuals only against government, not private, infringements upon free speech rights. See Rendell-Baker v. Kohn, 457 U.S. 830, 837, 102 S.Ct. 2764, 2769, 73 L.Ed.2d 418 (1982). Individuals bringing actions against private parties for infringement of their constitutional rights, therefore, must show that the private parties' infringement somehow constitutes state action.

See Dworkin v. Hustler Magazine, 867 F.2d 1188, 1200 (9th Cir.), cert. denied, 493 U.S. 812, 110 S.Ct. 59, 107 L.Ed.2d 26 (1989).

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In Ponsock v. K-Mart, 103 Nev. 39, 47, 732 P.2d 1364, 1369 (1987), the Nevada Supreme Court stated that an employer can dismiss an at-will employee with or without cause, so long as the dismissal does not offend the public policy of the state of Nevada.

In Ponsock, the Court recognized a “bad faith discharge” when a large, nationwide employer terminated an employee for the improper motive of defeating contractual retirement benefits.

In Wiltsie v. Baby Grand Corp., 105 Nev. 291, 774 P.2d 432 (1989) the Nevada Supreme Court held that it violated the public policy of the State of Nevada for an employer to terminate an at-will employee for reporting illegal conduct of the employer to the appropriate authorities. This is a narrowly drawn exception to the at-will doctrine. In

Wiltsie, the Court stated:

Lyons Law Firm th 512 South 8 Street ΠLas Vegas, Nevada 89101 Employee Rights Peoples Law School Page 20 Other courts have recognized that public policy protects workers who report illegal activity in their jurisdictions. See Harless v. First Nat'l Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978); Petrik v. Monarch Printing Corp., 111 Ill.App.3d 502, 67 Ill.Dec. 352, 444 N.E.2d 588 (1982); Brown v. Physicians Mut.

Ins. Co., 679 S.W.2d 836 (Ky.App.1984). No public policy is more basic than the enforcement of our gaming laws. "We believe that whistleblowing activity which serves a public purpose should be protected. So long as employees' actions are not merely private or proprietary, but instead seek to further the public good, the decision to expose illegal or unsafe practices should be encouraged." Wagner v.

City of Globe, 150 Ariz. 82, 722 P.2d 250, 257 (1986). In this case appellant alleged that he was discharged for reporting illegal activity to his supervisor.

Because appellant chose to report the activity to his supervisor rather than the appropriate authorities, he was merely acting in a private or proprietary manner.

Cf. Zaniecki v. P.A. Bergner & Co., 143 Ill.App.3d 668, 97 Ill.Dec. 756, 493 N.E.2d 419 (1986) (reporting suspected illegal activity to a supervisor is a purely private action). Thus, even accepting appellant's allegations as true, he is not protected in this case.

Id. at 293, 774 P.2d at 433 - 434. Therefore, if an employee reports illegal activity in house, he or she can be fired. However, if the employee reports the illegal activity to the police or the gaming control board and the employer fires the employee, the employer will have violated the public policy of the State of Nevada.

2. Worker’s Compensation:

In Hansen v. Harrah’s, 100 Nev. 60, 675 P.2d 394 (1983), the Nevada Supreme Court upheld a “tortious discharge” or “public policy” tort for retaliatory discharge of an employee dismissed for filing a workmen’s compensation claim. In Dillard Dept.

Stores, Inc. v. Beckwith, 115 Nev. 372, 989 P.2d 882 (1999), the Nevada Supreme Court again addressed the issue of what constitutes a tortious discharge when an employee is constructively discharged for filing a workmen’s compensation claim. The

Court stated:

[A] tortious constructive discharge is shown to exist upon proof that: (1) the employee's resignation was induced by action and conditions that are violative of public policy; (2) a reasonable person in the employee's position at the time of resignation would have also resigned because of the aggravated and intolerable employment actions and conditions; (3) the employer had actual or constructive knowledge of the intolerable actions and conditions and their impact on the employee; and (4) the situation could have been remedied.





115 Nev. at 377, 989 P.2d at 885. Beckwith had been employed by Dillards for twentyfive (25) years. Furthermore, she was an area manager for nineteen (19) years. She injured her back at work trying to move a large mahogany table and filed a workers’

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compensation claim. She was certified by two different doctors as temporarily disabled secondary to acute lumbosacral strain. The Store Manager asked her to return to work prior to being released by the doctors. When she did not return to work another person was given her position and the Store Manager notified Beckwith by telephone that she had been replaced.

Approximately a month later she was released for light duty and returned to Dillards. She was assigned an entry-level position, which included document filing.

When she attended a management meeting she was asked to leave as she was no longer a manager. She was ultimately given a choice, resign or accept a permanent entry-level sales associate position with a forty-percent cut in wages and benefits.

Beckwith accepted the position because she was her sole support and needed the medical benefits. She was assigned to the ladies’ ready-to-wear division, one of the most difficult departments in which to make daily sales quotas. The teenage sales associates laughed about her behind her back and the store employees talked about Beckwith’s situation and why she was demoted. One time she walked into the employee lounge at lunchtime and the room went silent. Beckwith twice complained to management about the humiliation she was experiencing and its effect on her health.

She finally resigned one week before her twenty-fifth year with Dillards. The jury awarded $425,028 in compensatory damages on the tortious constructive discharge claim and $200,000 on the intentional infliction of emotional distress cause of action.

The jury also awarded punitive damages and after reduction of each claim to three times the compensatory damages the punitive damages totaled $1,872,084. The total damages awarded were $2,496,112. In addition, the Court awarded $518,455 to Beckwith as and for attorney’s fees and costs.

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Nevada Revised Statute 612.385 states that:

A person is ineligible for benefits for the week in which the person has filed a claim for benefits, if he or she was discharged from his or her last or next to last employment for misconduct connected with the person’s work, and remains ineligible until the person earns remuneration in covered employment equal to or exceeding his or her weekly benefit amount in each of not more than 15 weeks thereafter as determined by the Administrator in each case according to the seriousness of the misconduct.

Furthermore, a person in not eligible for benefits if the person left their last or next to last employment without good cause or to seek other employment. See Nevada Revised Statute 612.380.

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In Clark County School District v. Bundley, 122 Nev. 1440, 1445-1446, 148

P.3d 750 (2006), the Nevada Supreme stated:

that the protective purpose behind Nevada's unemployment compensation system is to provide "temporary assistance and economic security to individuals who become involuntarily unemployed." To further this purpose, the unemployment compensation law, NRS Chapter 612, presumes that an employee is covered by the system and does not allow the employee to waive his or her rights under the system. Because the system is not designed to provide assistance to those persons who are deemed to have become voluntarily unemployed, however, NRS 612.385 disqualifies a person from receiving unemployment benefits "if [she] was discharged from... employment for misconduct connected with [her] work."

Disqualifying misconduct occurs when an employee deliberately and unjustifiably violates or disregards her employer's reasonable policy or standard, or otherwise acts in such a careless or negligent manner as to "`show a substantial disregard of the employer's interests or the employee's duties and obligations to [her] employer.'" As we have previously suggested, because disqualifying misconduct must involve an "element of wrongfulness," an employee's termination, even if based on misconduct, does not necessarily require disqualification under the unemployment compensation law. Instead, determining whether misconduct disqualifies a person from receiving unemployment benefits "requires a separate and distinct analysis": "[w]hen analyzing the concept of misconduct, the trier of fact must consider the legal definition [of disqualifying misconduct] in context with the factual circumstances surrounding the conduct at issue." Generally, then, an employee's absence will constitute misconduct for unemployment compensation purposes only if the circumstances indicate that the absence was taken in willful violation or disregard of a reasonable employment policy (i.e., was unjustified and, if appropriate, unapproved), or lacked the appropriate accompanying notice.

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The Fair Labor Standards Act states:

(a) No provision of this chapter or of any order thereunder shall excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this chapter or a maximum work week lower than the maximum workweek established under this chapter, and no provision of this chapter relating to the employment of child labor shall justify noncompliance with any Federal or State law or municipal ordinance establishing a higher standard than the standard established under this chapter. No provision of this chapter shall justify any employer in reducing a wage paid by him which is in excess of the applicable minimum wage under this

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chapter, or justify any employer in increasing hours of employment maintained by him which are shorter than the maximum hours applicable under this chapter.

29 U.S.C. § 218. The federal minimum wage for covered nonexempt employees is $7.25 per hour effective July 24, 2009. However, under federal law various minimum wage exceptions apply under specific circumstances to workers with disabilities, full-time students, youth under age 20 in their first 90 consecutive calendar days of employment, tipped employees and student-learners. Furthermore, under federal law overtime pay for covered nonexempt employees must be at a rate of not less than one and one-half times their regular rate of pay is required after 40 hours of work in a workweek.

However, federal also allows employers to pay covered nonexempt employees a set salary. In that circumstance if an employee is entitled to overtime, the employer would calculate the rate of pay by dividing the regular salary by the number of hours for which the salary is intended to pay. If the employee’s salary meets the minimum wage requirement in every workweek and is paid as straight time for whatever number of hours are worked in a workweek, the regular rate is obtained by dividing the salary by the number of hours worked each week.

Examples: Your hours of work vary each week and the agreement with the firm is that you will be paid $420 a week for whatever number of hours of work are required. Under this agreement, the regular rate will vary during the weeks you work overtime.

1. If you work 50 hours, the regular rate is $8.40 ($420 divided by 50 hours). In addition to the salary, half the regular rate, or $4.20 is due for each of the 10 overtime hours, for a total of $462 for the week.

2. If you work 60 hours, the regular rate is $7.00 ($420 divided by 60 hours). In that case, an additional $3.50 is due for each of the 20 overtime hours, for a total of $490 for the week. However, if minimum wage is $7.25 per hour, the regular rate is 7.25 (or $435 per week) and an additional $3.625 is due for each of the 20 overtime hours, for a total of $507.50 for the week.

If you are an exempt employee you are not paid overtime. Furthermore, many of the federal exemptions to minimum wage do not exist pursuant to state law.

Nevada Revised Statute 608.018 states:

1. An employer shall pay 1 1/2 times an employee’s regular wage rate whenever an employee who receives compensation for employment at a rate less than 1 1/2 times the minimum rate prescribed pursuant to NRS 608.250 works:

(a) More than 40 hours in any scheduled week of work; or (b) More than 8 hours in any workday unless by mutual agreement the employee works a scheduled 10 hours per day for 4 calendar days within any scheduled week of work.

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Furthermore, under Nevada law effective July 1, 2010 minimum wage is $7.25 per hour if the employer provides qualifying health benefits. If an employer does not provide qualifying health benefits minimum wage under Nevada law is $8.25 per hour.

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