Nevada Minimum Wage Going Up 7/1/2010

Our neighbor to the east will raise its minimum wage on July 1. In Nevada, there are different minimum wage levels for employees who receive qualifying health benefits and those who do not.

The Nevada minimum wage will increase to the federal level of $7.25 per hour for employees who receive qualifying health benefits. The rate goes up to $8.26 per hour for those workers who do not receive health benefits. The increase is covered in this article. It is not yet posted on the Nevada Labor Commissioner's website, but likely will show up here. Qualifying health benefits are defined here.

Megan's Law and SLAPPs

The court of appeal's decision in Mendoza v. ADP Screening and Selection Services is interesting and perhaps dangerous for employers. The plaintiff, Mendoza, applied for an unspecified job with an unnamed employer. The employer conducted a background check through ADP Selection Services. ADP, as part of its services, checked the Megan's Law website, where information about registered sex offenders is kept. Although he does not definitively say so, the implication is that he was denied employment because of his appearance on the Megan's Law website.
Mendoza sued ADP, alleging that its use of the website was unlawful - because it was supplying the information to the employer. He claimed the disclosure violated Megan's Law itself, as well as the California investigative consumer report law.
ADP filed a motion to strike the complaint, claiming Mendoza's lawsuit was a "SLAPP" - strategic lawsuit against public participation. ADP claimed it has the right to republish the Megan's Law information, doing so is a protected activity, and Mendoza was seeking to interfere with that right by filing suit.
And both the trial court and court of appeal agreed. So, ADP won this case on the motion and on appeal, and obtained a huge award of attorney's fees, as the anti-SLAPP statute provides.
But do not be fooled. Mendoza did not sue the prospective employer for denying him employment. Had he done so, the court of appeal acknowledged, he might have had a good case.
So, why would an employer agree to receive the information from a third party, when it faces liability for using that information?
Of note, the court did say that an employer MAY use the information on the Megan's Law website "to protect a person at risk" even if for employment purposes. So, employers with operations exposing employees to minors, for example, possibly can use the Megan's Law website's information. The question remains whether the employer's use fits within the definition of "protecting a person at risk."
The bottom line is that unless the employer is using the information from the Megan's Law website to "protect a person at risk," which is not defined, it remains illegal for the employer to "use" that information to deny employment, whether it comes from the website itself or a third party. Therefore, notwithstanding this decision, employers should carefully consider whether to permit third party background investigators to disclose information found on the Megan's Law website.
The case is Mendoza v. ADP Screening and Selection Services and the opinion is here.

Ninth Circuit Changes Its Mind a Little

We posted about Rutti v. Lojack Corp. here, and wrote an article about compensation for preliminary/postliminary work here. Rutti was a case in which the plaintiff and a class of workers for Lojack claimed they were not paid for off-the-clock work performed at home, as well as for their commutes to and from work. The initial panel opinion shut down most of Rutti's claims, holding Rutti's activities were either de minimus or not compensable under the FLSA and California law. The panel did find that Rutti's uploading data at the end of the day potentially was compensable, however.

The first panel voted 2-1 that Rutti's use of a company vehicle to commute to and from home was not compensable under California law. But, on rehearing, the panel changed its position. Judge Cynthia Holcomb Hall flipped her vote. So, the new opinion gave Rutti a trial on his claim that driving to and from work is compensable under California law. The issue is the amount of control Lojack exercised over the use of the company truck. Money quote from Judge Silverman's separate majority opinion (which looks a lot like his previous dissent):

Rutti was required to drive the company vehicle, could not stop off for personal
errands, could not take passengers, was required to drive the vehicle directly from home to his job and back, and could not use his cell phone while driving except that he had to keep his phone on to answer calls from the company dispatcher. In addition, Lojack’s computerized scheduling system dictated Rutti’s first assignment of the day and the order in which he was to complete the day’s jobs. There is simply no denying that Rutti was under Lojack’s control while driving the Lojack vehicle en route to the first Lojack job of the day and on his way home at the end of the day.

So, employers who provide employees with company vehicles, take note. Too many restrictions on use of a company vehicle could turn commuting time into compensable time. And that means overtime, and maybe more meal periods, etc.

The case is still Rutti v. Lojack Corp. The new, fractured opinion, is here.