Nevada Wage & Hour Claims – What Workers Need to Know

Workers who are owed back wages in Nevada may either (1) file a wage and hour claim with the Office of the Labor Commissioner, or (2) bring a civil lawsuit. Common reasons for bringing a wage and hour case include:

• the employer is misclassifying an employee as “exempt” or an independent contractor
• the employer is making an employee work through lunch breaks and rest breaks
• the employer is not paying employees for overtime or working “off the clock”

Depending on the claim, the Labor Commissioner can issue a binding decision ordering an employer to pay the employee unpaid wages. And if the employee sued the employer, the court can award not only back wages but also attorneys’ fees and possibly punitive damages.

In this article, our Las Vegas Nevada labor law attorneys discuss:

• 1. Process for filing a claim
• 2. Bases for filing a claim
  • 2.1. Misclassification of nonexempt employees as exempt
  • 2.2. Misclassification of employees as independent contractors
  • 2.3. Lunch breaks
  • 2.4. Rest and meal breaks
  • 2.5. Overtime
  • 2.6. Working off the clock
  • 2.7. Expense reimbursement
• 3. Damages

1. Process for filing a wage and hour claim in Nevada

Workers who have been underpaid or overworked in Nevada should first try to resolve the matter privately with the employer. But if the employer rejects the worker’s “good faith effort” to address the issue, the worker may then file a claim with the Nevada Office of the Labor Commissioner. (Alternatively, note that employees may be able to file a federal claim with the U.S. Department of Labor.)

The quickest way to file a claim is to complete the Commissioner’s claim and wages form and to submit it online. These forms may not be faxed or emailed. The form allows claimants to attach supporting documentation, including:

• pay stubs
• time records
• receipts
• witness information

The Commissioner may then

• investigate the claim,
• hold a hearing (similar to a trial), and
• issue a decision that would then be binding upon the parties and enforceable in court.

There is a two-year deadline following the non-payment of wages for filing a claim with the Commissioner, so workers are advised to file as quickly as possible.

If the Commissioner fails to acknowledge the claim or provide adequate relief, workers may consider filing a civil lawsuit. (Note that employees may bring a lawsuit without having to file a claim with the Commissioner first.) And there is also only a two-year statute of limitations from the time the employer wronged the employee for the employee to bring a lawsuit.

Employees with wage and hour claims are always encouraged to consult with a Nevada labor law attorney. An experienced lawyer knows the most effective ways to compose a claim that will get the Commissioner’s attention. And if the worker chooses to sue, an attorney is all but required to navigate the civil ligation minefield.¹

1.1. Class action lawsuits

When more than one worker has a wage and hour grievance against an employer, the workers can consult with an attorney about the possibility of waging a class-action lawsuit. If the plaintiffs are seeking a relatively small amount of money, a class action can be far more cost-effective than a regular lawsuit.

However, note that class action lawsuits are more difficult to get off the ground than regular lawsuits. All the plaintiffs must be “ascertainable” — a legal term that means identifiable as a class member — which is a very high standard. And the workers may have signed arbitration agreements that prevent class actions to begin with.

Furthermore, the plaintiffs must prove the following four elements before the court would consider granting “class certification”:

1. numerosity – whether the number of members in the class is large enough, and the impracticability of the plaintiffs simply joining in a regular lawsuit;
2. commonality – the plaintiffs’ grievances share a common question of law or fact;
3. typicality – whether there is an adequate overlap between the claims of the named representatives of the class and the rest of the class members; and
4. adequacy of representation – whether the named plaintiffs and attorneys sufficiently serve the interests of the class members²

Still, class actions may be the best option to pursue depending on the case. A skilled labor law attorney can help determine whether attempting a class action is worthwhile.

2. Bases for filing a wage and hour claim in Nevada

Whenever employers deprive employees of wages and benefits they are lawfully entitled to, the employees may have a legal basis to bring file a claim with the Labor Commissioner and/or file a civil lawsuit. Common “wage and hour” claims are discussed below:

2.1. Misclassification of non-exempt employees as exempt

Employers have different duties to non-exempt employers versus exempt employees. For instance, non-exempt employees under Nevada law may be entitled to:

• minimum wages,
• paid rest breaks,
• lunch breaks, and/or
• overtime pay

In contrast, exempt employees may not be eligible for these benefits and protections. When an employer misclassifies an employee as exempt when he/she is really non-exempt, the employer likely owes the employee money for unpaid wages.

Example: James employs a housekeeper, Helen, who works in his house from breakfast through dinner and then goes home to her own apartment. James pays her below minimum wage because he believes domestic servants are not entitled to minimum wage. But in truth, domestic servants are entitled to minimum wage. Therefore, Helen is non-exempt and is owed by James the difference between minimum wage and the subminimum wage he paid her.³

Learn more about the misclassification of non-exempt employees as exempt in Nevada. 

2.2. Misclassification of employees as independent contractors

Unlike employees, independent contractors are usually not eligible for the following wage and hour benefits and protections:

• minimum wages,
• paid rest breaks,
• lunch breaks, and/or
• overtime pay

In addition, employers usually have no obligation to cover independent contractors under workers’ compensation insurance. So when an employer misclassifies a worker as an independent contractor when he/she is really an employee, the employer likely owes the worker unpaid wages and other benefits.

Nevada law defines independent contractors as meeting the following five conditions:

1. The worker has — or applied for — an employer identification number or social security number, or has filed an income tax return for a business or for earnings from self- employment with the IRS within the prior year (unless the person is a lawfully present foreign national);
2. The worker is required by contract with the employer to hold any necessary state or local business license and to maintain any necessary occupational license, insurance, or bonding;
3. The worker may hire employees to help with the work;
4. The worker gives a substantial investment in his/her business; and
5. The worker meets at least one of the following criteria:
   1. The worker has control over the means and manner of the performance of any work and the result of the work;
   2. The worker has control over the time the work is performed (with some exceptions); or
   3. The worker is not required to work solely for the employer (with some exceptions)

Therefore, any worker who does not qualify as an independent contractor is an employee. And unless the employee is “exempt” (as discussed above in section 2.1), the employee may be entitled to standard wage and hour benefits.⁴

Learn more about the misclassification of employees as independent contractors in Nevada.

2.3. Lunch breaks

Nevada employers generally have to grant employees who work at least eight hours an unpaid half-hour lunch break. However, employees are not eligible for an unpaid half-hour lunch break if either:

• the employer employs only one employee in a particular workplace;
• the employee waived his/her right to a lunch break, such as through a collective bargaining agreement or on his/her own; or
• the Nevada Office of the Labor Commissioner exempted the employer from providing meal breaks

Employer-provided lunches can count against an employee’s wage by 45¢ if the employee agrees to it.⁵

If an employer makes an employee work through his/her lunch break, the employee may have a claim for overtime pay. Learn more about Nevada lunch break laws.

2.4. Rest and meal breaks

Nevada employers generally have to grant employees a 10-minute paid rest break for every four hours (or major fraction thereof) they work. However, employees are not eligible for paid rest breaks if either:

• the employer employs only one employee in a particular workplace;
• the employee waived his/her right to a rest break, such as through a collective bargaining agreement or on his/her own; or
• the Nevada Office of the Labor Commissioner exempted the employer from providing meal breaks⁶

If an employer refuses to pay for an employee’s rest break, the employee may have a claim for unpaid wages or overtime pay. Learn more about Nevada rest break laws.

2.5. Overtime

Nevada employers generally have to grant employees who work more than 40 hours a week an overtime pay of 1½ times their standard hourly rate. Employees may also be eligible for “time and a half” pay for working more than 8 hours in a day if they earn less than 1½ times the Nevada minimum wage.

Employees who are generally not entitled to “time and a half” overtime pay include:

1. Professional, administrative, or executive employees;
2. Employees covered by a collective bargaining agreement which provides for overtime;
3. Railroad or airline employees;
4. Certain motor carrier employees, including drivers, loaders, and mechanics;
5. Taxi, limo, or delivery drivers;
6. Automobile salespeople and mechanics;
7. Farmworkers;
8. Employees of businesses with a gross sales volume of less than a quarter-million dollars annually;
9. Domestic servants who live where they work and agree in writing to forgo overtime pay; and
10. Employees in a retail or service business if:

• • their regular rate is more than 1.5 times the minimum wage, and
  • more than half their compensation comes from commission⁷

If an employer refuses to pay eligible employees a “time and a half” rate for working extra hours, the employee may have a claim for overtime pay. Learn more about Nevada overtime pay laws and bringing overtime lawsuits in Nevada.

2.6. Working off the clock

Nevada law requires employers to pay their employees for the time they work, even if the time occurs outside of their scheduled shift (“off the clock”).⁸ Employers are not allowed to “round” the employees’ time down in an effort to avoid paying extra wages or overtime.

Typical scenarios of “off the clock” work that employers should pay for include:

• Employees working from home outside of a scheduled work shift
• Employees checking and writing emails outside of a scheduled work shift
• Employees attending pre- or post-shift work meetings

If an employer refuses to pay employees for “off the clock” time, the employee may have a claim for unpaid wages and overtime pay. Learn more about Nevada’s “off the clock” laws.

2.7. Expense reimbursement

Employers are required to pay for or reimburse employees for certain expenses. For instance, employers are generally required to pay employees no less than minimum wage for travel between work sites during a workday. (Employers are not required to reimburse employees for commuting between home and work.)⁹

Employees who do not get eligible expenses reimbursed may have a claim for unpaid wages. Learn more about Nevada expense reimbursement laws and travel expense reimbursements in Nevada.

3. Damages for wage and hour claims in Nevada

If an employee files a wage and hour claim with the Nevada Labor Commissioner, the employee may be able to recover any unpaid wages plus interest.

If an employee sues the employer in civil court, the employee may be able to recover:

• unpaid wages plus interest;
• attorneys’ fees & court costs; and/or
• punitive damages if the employer acted maliciously or in an egregious way

Note that some employers have indemnity insurance that covers any settlements and judgments arising out of wage and hour claims.

Also see our article on Nevada pay stub violations.

Work in California? Read our article on California wage and hour laws.

Legal References