Tens — perhaps hundreds (by some estimates) — of thousands of Nevadans have gotten, or will soon get, the bad news: They’ve been laid off due to the coronavirus crisis business stoppage. It’s an emotional, frightening time.
Coronavirus: What You Need To Know
What should they do first? With the caveat that none of this is legal advice for any individual’s particular situation, UNLV Law Professor Ruben Garcia, who co-directs the William S. Boyd School of Law’s Workplace Program, offers this step-by-step guide to making the best of a difficult situation.
- Make sure you’ve been paid the wages owed you. “In terms of the employer’s responsibilities, paying unpaid wages comes up pretty quickly (after letting employees go),” Garcia says. “The law says final pay is due upon termination … If they don’t do it, there can be penalties under Nevada state law.”
- Related agency: Nevada Labor Commission
- Complaints, with forms and tutorials in English and Spanish: http://labor.nv.gov/About/Forms/FORMS_FOR_EMPLOYEES/
- Stay in touch with your fellow employees. Consider required notice under federal law, Garcia says. In most cases, employers don’t have to give any notice — that’s what “at-will employment,” the law in Nevada, means. “But,” he adds, “when they’re big enough and they’re doing a mass layoff of 100 people or more, even if they intend to come back into business later, they have to give 60 calendar days’ pay and benefits.” There are exceptions to this rule, including disasters, but the law talks about fires and floods, not pandemics. There’s also the question of foreseeability (could the employer anticipate what was coming enough in advance to give employees proper notice?). According to Garcia, these and other thorny issues will likely have to be settled in legal disputes.
Employees’ best defense, he says, is to talk to each other about what everyone is experiencing: “Keep in touch with all kinds of information about what was said to everyone, who was paid, who wasn’t. Are some people being paid and other not? Is there some kind of discrimination going on? Go to your union, if you have one … This may give (employees) some time or standing to work out some other kind of deal.”
- File an unemployment insurance claim, whether you think you’re eligible or not. There may be a dispute about whether you’re actually terminated, because if you’re laid off, you may be eligible, but if you voluntarily quit, you’re not. In any case, Garcia says, “you have to be an employee under the law. What that means again is, you’re not an independent contractor.” However, he says, you may think you’re a contractor, but actually be an employee.
“Most people are going to be employees, even if their employers tell them they’re contractors,” he says. “Most people are misclassified. It’s a factual discussion about how the employer exercises control over your job,” not, as many people think, a matter of the number of hours you work, or whether you have employer-provided benefits.
- Claims filing, with video tutorials in English and Spanish: http://ui.nv.gov/css.html
- Our article on unemployment insurance, with more information: https://knpr.org/knpr/2020-03/unemployment-official-everyone-should-try
- Find out what your COBRA options are. The federal Consolidated Omnibus Budget Reconciliation Act gives certain employees, in certain circumstances, the right to continue their employer-provided health insurance. Ask your employer what the company is offering. Governor Steve Sisolak has also opened access to the Silver State Health Insurance Exchange, which is the network where Nevadans can shop for Affordable Care Act (“Obamacare”)-certified plans, so that uninsured people can sign up outside the usual open enrollment period.
- COBRA: https://www.dol.gov/general/topic/health-plans/cobra
- Nevada Health Link special enrollment period information: https://www.nevadahealthlink.com/coronavirus/
- Look for government agencies and nonprofits that can help. Amid the problems specific to the coronavirus crisis, the usual workplace issues, such as discrimination, will continue to happen.
Unions, which have historically helped Americans through tough times, represent only about only 15 percent of the state’s entire workforce (and that’s more than twice the national average). And it’s hard for plaintiffs to find attorneys to represent them, while employers have their in-house or contracted legal teams.
“You’re your own attorney,” Garcia says. “It may be hard to find attorneys to consult with, and there aren’t a lot of attorneys who specialize in this. It’s a big need in the community.”
- Union issues: National Labor Relations Board
- Workplace discrimination: Nevada Equal Rights Commission
- Legal Aid of Southern Nevada: https://www.lacsn.org/
- Nevada Legal Services: https://nlslaw.net/
- State Bar of Nevada Pro Bono Referral: https://www.nvbar.org/lawyerreferral/pro-bono-for-the-public/
No matter where you are in the process, Garcia says, gather everything you can — forms you receive, written communications, notes from conversations. He stresses the importance of keeping in touch with coworkers. And, finally, remember self-care. You can’t be your own best advocate without a healthy life balance.
