1. What legal protection does Nevada provide employees in regard to whistleblowing and retaliation?
The general rule is that most employees may be fired at any time for any reason or for no reason at all under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make “common law protections” or (2) the legislature, which enacts “statutory protections.” Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers’ compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to “fill the gaps” where no statute exists for a given situation.
Common Law Protections
Nevada recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that violates an established pubic policy of Nevada. An employee has a cause of action in other words, the employee may sue for wrongful discharge when the motivation for the discharge violates public policy.
To determine what constitutes public policy, Nevada courts will look to statutes and constitutional provisions to determine if a given practice has been endorsed (e.g. the right to collect workers’ compensation benefits) or prohibited (e.g. criminal laws prohibiting perjury). So, for example, because a Nevada statute endorses an employee’s right to collect workers’ compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening Nevada’s public policy. In both situations, employees are protected from retaliatory discharge.
In addition, the Nevada Legislature has adopted narrow statutory protections for certain activities. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: compensation, discrimination, lie detectors, medical misconduct, and occupational safety and health. Additionally, public employees are protected under the Ethics in Government Act.
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.
2. What activities does state law protect, and to whom does this protection apply?
Common Law Protections
An employee may not be discharged in retaliation for performing a protected activity. Nevada courts have recognized the following protected activities:
- Filing a workers’ compensation claim
- Refusing to work in unreasonably dangerous conditions
- Refusing to participate in illegal activities
- Reporting illegal activities to the appropriate authorities
Thus, under the fourth provision, whistleblowers receive protection. However, an employee who reports illegal activities must make the disclosure to a public official, not to a supervisor. Reporting illegal activities to a supervisor is seen as a private act that does not invoke the public good, and therefore is not protected.
A whistleblower’s suspicion does not need to turn out to be correct to be protected; however, the suspicion must be reasonable and must be made in good faith. So, if an employee erroneously suspects that his employer is breaking the law, the employee is still protected from a retaliatory discharge, so long as the employee’s belief was reasonable and in good faith.
Compensation, Wages & Hours: An employee may not be discharged or penalized in retaliation for testifying in an investigation or proceeding concerning the enforcement of Nevada’s compensation, wages, and hours laws. These laws cover such topics as minimum wage, overtime compensation requirements, meal/rest periods, and working hours in particular fields of work (such as underground mining). Nev. Rev. Stat. Ann. § 608.015.
Discrimination: An employee may not be discharged (or discriminated against) in retaliation for opposing an unlawful discriminatory employment practice. Nor may an employee be discharged (or discriminated against) in retaliation for making a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing concerning employment discrimination. Nev. Rev. Stat. Ann. § 613.340(1).
Lie Detectors: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testifying at a proceeding, or exercising a right concerning the use of lie detectors in employment. Nev. Rev. Stat. Ann. § 613.480(4).
Medical Personnel: An employee of a medical facility may not be retaliated against for reporting information to the Board of Medical Examiners or the State Board of Osteopathic Medicine regarding physician misconduct. Nev. Rev. Stat. Ann. § 449.205.
Occupational Safety and Health: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testifying in a proceeding, or exercising a right concerning occupational safety and health. Nev. Rev. Stat. Ann. § 618.445.
Public Employees: A public employee may not be retaliated against for reporting improper conduct in government. Nev. Rev. Stat. Ann. § 281.641.
3. How do I file a whistleblower or retaliation claim in Nevada?
Generally: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 2 years of the retaliatory action, unless otherwise specified by statute. If you believe you have a claim, you should contact a lawyer. Nev. Rev. Stat. Ann. § 11.190(4)(e).
Lie Detectors: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 3 years of the retaliatory action. If you believe you have a claim, you should contact a lawyer. An employee may also wish to report the incident to the Labor Commissioner, who may pursue a separate action.
Occupational Safety and Health: An employee may file a written complaint with the Nevada Division of Industrial Relations (NDIR). The complaint must be filed within 30 days of the retaliatory action. However, an employee must first notify his employer of his intention to file a complaint. NDIR will investigate and may pursue legal action on your behalf. If you believe you have a claim, you should contact NDIR immediately at:
Nevada Division of Industrial Relations
1301 North Green Valley Parkway
Henderson, Nevada 89074
Phone: (702) 486-9020
Fax: (702) 990-0360