1. Labor and Employment Issues Facing Nevada Employers Presented by Lionel Sawyer & Collins Cam Ferenbach, Esq., Shareholder, Lionel Sawyer & Collins Steve Shapiro, Senior Vice President & General Counsel, Lake Las Vegas Resort

2. Legislative Session 2005: AB 44 The Old Overtime Exemption, NRS 608.018 The Old Overtime Exemption, NRS 608.018 NRS 608.018 governs the payment of overtime to non-exempt employees in Nevada NRS 608.018 governs the payment of overtime to non-exempt employees in Nevada Non-exempt employees were entitled to overtime if: Non-exempt employees were entitled to overtime if: They worked more than forty (40) hours a week; or They worked more than forty (40) hours a week; or They worked more than eight (8) hours a day and earned less than one and one-half the minimum wage per hour ($7.73/hour) They worked more than eight (8) hours a day and earned less than one and one-half the minimum wage per hour ($7.73/hour)

3. Legislative Session 2005: AB 44 The Old Overtime Exemption The Old Overtime Exemption NRS 608.018 specifically exempted from its coverage employees who received compensation at a rate of one and one-half the minimum wage ($7.73/hour) NRS 608.018 specifically exempted from its coverage employees who received compensation at a rate of one and one-half the minimum wage ($7.73/hour) An employee with an overtime claim had no redress with the Nevada Labor Commissioner An employee with an overtime claim had no redress with the Nevada Labor Commissioner Only recourse was the Department of Labor Only recourse was the Department of Labor

4. Legislative Session 2005: AB 44 AB 44 AB 44 Legislative session passed AB 44 in 2005 Legislative session passed AB 44 in 2005 Purpose to amend NRS 608.018 to eliminate the exemption from Nevada’s overtime laws for employees earning $7.73/hour Purpose to amend NRS 608.018 to eliminate the exemption from Nevada’s overtime laws for employees earning $7.73/hour Result, non-exempt employees with overtime claims can now bring those claims with the Nevada Labor Commissioner Result, non-exempt employees with overtime claims can now bring those claims with the Nevada Labor Commissioner

5. Legislative Session 2005: AB 44 What does this mean? What does this mean? Employees have a friendlier forum for overtime claims Employees have a friendlier forum for overtime claims Increase in State policing of employers: Increase in State policing of employers: Proper classification of employee as exempt or non-exempt Proper classification of employee as exempt or non-exempt Proper payment of overtime to employees Proper payment of overtime to employees

6. Legislative Session 2005: AB 44 Consider an audit of your employees to determine correct classification Consider an audit of your employees to determine correct classification Ensure compliance with August 2004 changes to Fair Labor Standards Act & Nevada’s AB 44 Ensure compliance with August 2004 changes to Fair Labor Standards Act & Nevada’s AB 44

7. Will Your Defense Stand Up? How will you defend yourself in a harassment or discrimination case? How will you defend yourself in a harassment or discrimination case? Do you have an employee handbook or policies against harassment and discrimination? Do you have an employee handbook or policies against harassment and discrimination? Not just harassment, but discrimination too Not just harassment, but discrimination too Not just sexual harassment but all forms of harassment Not just sexual harassment but all forms of harassment

8. Will Your Defense Stand Up? Ellerth-Faragher Affirmative Defense Ellerth-Faragher Affirmative Defense What is it? What is it? No tangible adverse employment action against employee; No tangible adverse employment action against employee; Evidence employer took steps to prevent and correct harassing conduct; Evidence employer took steps to prevent and correct harassing conduct; Employee unreasonably failed to use policy to complain of harassing conduct Employee unreasonably failed to use policy to complain of harassing conduct

9. Will Your Defense Stand Up? Ellerth-Faragher Affirmative Defense Ellerth-Faragher Affirmative Defense Original application in hostile work environment sexual harassment cases Original application in hostile work environment sexual harassment cases No longer applies solely to sexual harassment claims No longer applies solely to sexual harassment claims Wright-Simmons v. The City of Oklahoma City, 10 th Cir. 1998: Racial harassment Wright-Simmons v. The City of Oklahoma City, 10 th Cir. 1998: Racial harassment Wallin v. Minn. Dep’t of Corr., 8 th Cir. 1998: Disability harassment Wallin v. Minn. Dep’t of Corr., 8 th Cir. 1998: Disability harassment Oleyar v. County of Durham, M.D.N.C. 2004: Age harassment Oleyar v. County of Durham, M.D.N.C. 2004: Age harassment

10. Will Your Defense Stand Up? Ellerth-Faragher Affirmative Defense Ellerth-Faragher Affirmative Defense What about the 9 th Circuit? What about the 9 th Circuit? Only Three District Court Cases Only Three District Court Cases El-Hakem v. BJY Inc., D.Or. 2003: Racial harassment (Section 1981 claim) El-Hakem v. BJY Inc., D.Or. 2003: Racial harassment (Section 1981 claim) Hogan v. Henderson, D.Ariz. 2000: Racial harassment Hogan v. Henderson, D.Ariz. 2000: Racial harassment Williams v. Multinomah Educ. Services Dist., D.Or. 1999: Racial harassment (unreported) Williams v. Multinomah Educ. Services Dist., D.Or. 1999: Racial harassment (unreported)

11. Will Your Defense Stand Up? Ellerth-Faragher Affirmative Defense Ellerth-Faragher Affirmative Defense Other Circuits have applied the defense in race and national origin, ADEA, ADA cases Other Circuits have applied the defense in race and national origin, ADEA, ADA cases Only a matter of time for Ninth Circuit Only a matter of time for Ninth Circuit

12. Will Your Defense Stand Up? What should you do? What should you do? Review employment policies and procedures Review employment policies and procedures Ensure prohibition on all forms of harassment and discrimination Ensure prohibition on all forms of harassment and discrimination Conduct annual employee and management training on all forms of harassment and discrimination Conduct annual employee and management training on all forms of harassment and discrimination

13. Early Neutral Evaluations The Beginning… The Beginning… Special Order 102, adopted in 1997 Special Order 102, adopted in 1997 For two years, ½ all employment cases were randomly assigned to Early Neutral Evaluation Program (“ENE”) For two years, ½ all employment cases were randomly assigned to Early Neutral Evaluation Program (“ENE”) Results From Participant Questionnaires: Results From Participant Questionnaires: Increased early settlement/resolution Increased early settlement/resolution Lower mean cost of litigation Lower mean cost of litigation Reduced litigation time Reduced litigation time

14. Early Neutral Evaluations ENEs were officially adopted for use in all employment cases in 2000 ENEs were officially adopted for use in all employment cases in 2000 Proposed Local Rule 16-6 Proposed Local Rule 16-6 All employment cases All employment cases Greater detail of Magistrate’s role than Special Order 102 Greater detail of Magistrate’s role than Special Order 102 Presentation of claims, defenses Presentation of claims, defenses Stipulations of fact Stipulations of fact Damages assessment Damages assessment Discussion of expedited discovery Discussion of expedited discovery

15. Early Neutral Evaluations ENE Process ENE Process Within 10 days of responding party’s appearance, notified of assignment to ENE Within 10 days of responding party’s appearance, notified of assignment to ENE Court will scheduled ENE session within 75- days of responding party’s appearance Court will scheduled ENE session within 75- days of responding party’s appearance Parties, insurers and counsel must attend (exceptions may be granted) Parties, insurers and counsel must attend (exceptions may be granted)

16. Early Neutral Evaluations ENE Process ENE Process The ENE Statement The ENE Statement CONFIDENTIAL CONFIDENTIAL Outline facts and educate Judge on the law Outline facts and educate Judge on the law Discuss significant factual, legal issues Discuss significant factual, legal issues Provide copies of relevant documents Provide copies of relevant documents Attendance at the ENE Attendance at the ENE Informal atmosphere Informal atmosphere Conducted like mediation Conducted like mediation Be prepared to stay all day Be prepared to stay all day

17. Early Neutral Evaluations Utility of ENE Utility of ENE Serious early evaluation of facts and claims, identify potential exposure Serious early evaluation of facts and claims, identify potential exposure Assess opponent, client, taste for litigation Assess opponent, client, taste for litigation Judge’s perspective on success or failure – for both sides Judge’s perspective on success or failure – for both sides Legitimate opportunity to discuss settlement Legitimate opportunity to discuss settlement If at first you don’t succeed, try and try again If at first you don’t succeed, try and try again

18. Labor and Employment Issues Facing Nevada Employers Presented by Lionel Sawyer & Collins Cam Ferenbach, Esq., Shareholder, Lionel Sawyer & Collins Steve Shapiro, Senior Vice President & General Counsel, Lake Las Vegas Resort March 2006