Wynn Las Vegas, L.L.C. v. Baldonado, 129 Nev. Adv. Op. 78 (Oct. 31, 2013)

Before the Court en banc. Opinion by Justice Douglas.
In this appeal, the Court considered whether Nevada law allows employers to require employees to pool their tips with other employees of a different rank. The Court held that NRS 608.160 permits employers to require tip-pooling as long as the employer does not take and keep the employees’ tips. In reaching this conclusion, the Court clarified that the United States District Court for the District of Nevada’s interpretation of NRS 608.160 as set forth in Moen v. Las Vegas International Hotel, Inc., 402 F.Supp. 157 (D. Nev. 1975), and adopted by the Nevada Supreme Court in Alford v. Harolds Club, 99 Nev. 670, 674, 669 P.2d 721, 723 (1983), did not create a “direct-benefit” test for tip-sharing because every tip-pooling policy benefits the employer in some way, and the benefit discussed in Moen was the keeping of employees’ tips by the employer. The Court then remanded this matter because the district court did not consider claims brought under NRS 608.100 and NRS 613.120, and NRS 233B.130 requires judicial review when an aggrieved party meets all applicable procedural requirements. The Court further determined that whether employees should be granted class certification is within the Labor Commissioner’s discretion. Accordingly, the district court erred in failing to defer to the Commissioner’s interpretation that NAC 607.200 did not permit class certification in this case. Reversed and remanded. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson.)

State of Nevada v. Tatalovich, 129 Nev. Adv. Op. 61 (Sept. 19, 2013)

Before the Court en banc. Opinion by Chief Justice Pickering.
In this opinion, the Court considered whether services performed for the purposes of developing and providing expert opinion testimony in a civil case required a private investigator’s license under NRS 648.060. Appellant, State of Nevada Private Investigator’s Licensing Board (the “Board”) cited Respondents for engaging in the business of a private investigator without a Nevada license. Dwayne Tatalovich was hired as an expert witness and in preparation for such testimony, performed several functions which, as the Board asserted, constituted activities of a private investigator. The Court explained that, in Nevada, a person engaging in the business of a private investigator (as defined by NRS 648.012) must obtain a license to do so; however, the Court noted that such licensing restrictions exist to protect the public from unqualified individuals who lack the skills necessary to perform the tasks of professionals in that field. Furthermore, the Court emphasized, such policies are not served by applying the licensing requirements to experts whose credibility and qualifications are tested in court and subject to a separate set of rules. As such, the Court determined that the licensing scheme set forth in NRS 648.060 was never intended to encompass the conduct of expert witnesses performing tasks in preparation for testimony before a court. Importantly, the Court highlighted that, after the Respondents were cited by the Board, the Legislature amended the language of NRS 648.012 to specifically exempt expert witnesses from the licensing requirements of NRS 648.060. Thus, the Court concluded that expert witnesses are not required to obtain licenses to perform investigative work in preparation for developing and giving expert opinion testimony. Affirmed. (Amanda Perach, Associate in the Las Vegas office of McDonald Carano Wilson.)

City of Las Vegas v. Evans, 129 Nev. Adv. Op. 31 (May 2, 2013)

Before Justices Gibbons, Douglas, and Saitta. Opinion by Justice Saitta.
In this appeal from a denial of a petition for judicial review in a workers’ compensation matter, the Court considered two issues: (1) whether a firefighter could still seek workers’ compensation benefits without obtaining the benefit of a specific rebuttable presumption provided by NRS 617.453; and (2) whether substantial evidence supported an appeals officer’s decision that a firefighter’s cancer was a compensable occupational disease. NRS 617.440 outlines the requirements for proving a compensable occupational disease and NRS 617.358(1) requires that an employee prove “by a preponderance of the evidence that the employee’s occupational disease arose out of and in the scope of his or her employment.” These two provisions, however, do not apply to claims filed under NRS 617.453, which establishes a conditional rebuttable presumption that a firefighter’s cancer arose out of his or her employment if he or she has been employed as a firefighter full-time for five or more years. The Court analyzed the relationship between these statutes and concluded that when a workers' compensation claimant fails to meet a condition necessary to receive the benefit of the presumption set forth in NRS 617.453, this results in only the loss of the presumption and does not preclude the claimant from obtaining compensation under the more general statutory requirements. In this case, the employee had only been employed as a full-time firefighter for four years. Even though he was not entitled to the rebuttable presumption of NRS 617.453, he could still obtain compensation by demonstrating the disease arose out of and in the scope of his employment. The court further held that substantial evidence supported the appeals officer’s conclusion that the employee’s cancer was a compensable occupational disease. Affirmed. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).

Clark County v. S. Nevada Health Dist., 128 Nev. Adv. Op. 58 (Dec. 6, 2012)

Before the Court en banc. Opinion by Justice Douglas.
In this appeal, the Court addresses whether NRS 439.365 provides counties the authority to modify a health district’s budget from the figure requested by the health district pursuant to NRS 439.365(1) and to allocate this modified amount, rather than the amount requested, for the support of the health district. On a petition for writ of mandamus and prohibition, the district court concluded that the statue was ambiguous and, based on the legislative history, NRS 439.365 required Clark County to approve Southern Nevada Health District’s (SNHD) budget at the amount requested up to the statutory maximum. On appeal, the Supreme Court agreed that, when read as a whole, the statute is ambiguous; thus the Court turned to the legislative history to determine the statute’s proper construction. The Court concluded that NRS 439.365 requires a county to adopt the budget submitted by a health district, without modification, so long as the amount requested does not exceed the statutory maximum. With regard to the remedy utilized by the district court, the Court found no abuse of discretion in its grant of a writ of mandamus, but concluded that prohibition relief was improperly granted, as Clark County’s participation in the budgeting process did not involve the exercise of judicial functions. Affirmed in part and reversed in part. (Anthony Carano, Associate in the Reno office of McDonald Carano Wilson.)

State, Bus. & Indus. v. Nev. Ass’n Servs., 128 Nev. Adv. Op. 34 (Aug. 2, 2012)

Before Justices Douglas, Gibbons, and Parraguirre. Opinion by Justice Gibbons.
This action arose out of a dispute between the State of Nevada Department of Business and Industry, the Financial Institutions Division and its Commissioner (Department) and Nevada Association Services (NAS). In November 2010, the Department issued an advisory opinion in which it interpreted certain statues within NRS 116, in particular NRS 116.3116, and their importance in the Department’s regulation of collection agencies. NAS filed its complaint and motion for preliminary injunction in district court, arguing that the Department lacked jurisdiction to issue advisory opinions interpreting provisions of NRS Chapter 116. The district court granted NAS’s request for a preliminary injunction. The Court affirmed the district court’s order. In reaching this conclusion, the Court reviewed several sections of NRS 116. Under NRS 116.615, the Court found the language to be clear that the Commission for Common Interest Communities and Condominium Hotels and the Real Estate Division are responsible for regulating and administering the chapter and there is no provision granting any other commission or department the authority to regulate or interpret the language of the chapter. Consequently, the Court found the Department lacked jurisdiction to issue an advisory opinion interpreting NRS Chapter 116 and thus the district court did not abuse its discretion in determining that NAS had a likelihood of success on the merits. Furthermore, the Court held the district court properly determined that the mere act of filing a disciplinary action against NAS would cause irreparable harm. In its findings, the Court explained that it was possible for the Department to revoke NAS’s license without a hearing under its powers , thus if such an instance occurred, NAS would be unable to conduct business during that time which could lead to irreparable harm. Affirmed. (Anthony Carano, Associate in the Reno office of McDonald Carano Wilson LLP).