minimum wage, labor, nevada, labor commissioner, court

Nevada Courts vs. The Labor Commission, RE: Minimum Wage

A recent decision by a district judge in Carson City indicates that Nevada courts are willing to overrule Nevada’s government agencies in order to protect the state’s workers.

 

Voters increased the minimum wage by referendum in 2006

In 2006, Nevada voters voted to amend the Nevada Constitution’s minimum wage provisions. Article XV, Section 16 now states employers must pay a wage of not less than $5.15 per hour if the employer provides health benefits of $6.15 per hour if they employer does not provide health benefits. The minimum wage is actually $7.25 per hour without providing health benefits and $8.25 with health benefits to comply with the federal minimum wage. The Nevada Constitution states that if the employer chooses to pay the lower wage and offer health insurance they cannot charge more than a certain portion of the employee’s pay. “Offering health benefits within the meaning of this section shall consist of making health insurance available to the employee for the employee and the employee’s dependents at a total cost to the employee for premiums of not more than 10 percent of the employee’s gross taxable income from the employer.” Nev. Cons. Art. XV Section 16(A). The language seems clear, right? Apparently not.

 

Where there is the slightest bit of ambiguity, a lawsuit will soon follow

Of course, employers would want to interpret this provision to mean that they could charge employees for health insurance up to 10% of all gross taxable income, including tips and other gratuities. It’s not an illogical interpretation since tips are a large part of some employee’s income and taxes must be paid on tips and hourly wages. But, the problem is, the Constitutional language clearly states that the 10% calculation only applies to gross taxable income “from the employer.” It is these three little words that spurred one big lawsuit.

In Hancock v. the Nevada Labor Commissioner, the Plaintiff challenged the Nevada Department of Labor’s implementing regulation which stated that “gross taxable income” for the purposes of calculating health insurance costs included all income reflected in a W-2 including “tips, bonuses, and other compensation.” NAC 608.104(C). The Plaintiff, Mr. Hancock, argued that the Constitution means what it says: that the only income that can be considered for calculating the cost of health insurance is that income from the employer. The Nevada Labor Commissioner argued that the language of the Constitution really meant “all income attributable to the employer” including tips which are earned only because the employer provides the job. The Court found that the language was so clear and that the Labor Commission wanted to simply write out the phrase “from the employer” which was not within their rights, or even the Court’s rights to do. The Court noted that bonuses or other compensation could certainly count as part of the 10% calculation if the employer pays them, but that tips do not come “from the employer” as the language requires. Notably, the Court pointed out that finding tips to be a proper part of the calculation for health insurance costs would go against the whole point of the amendment which was to provide cost effective health insurance largely at the expense of the employer.

The Labor Commission’s position was not unreasonable, it was just wrong in light of the plain language of the Constitution. As the Commissioner pointed out, not including tips in the 10% cost of health insurance provides a great advantage to tipped employees that non-tipped employees do not receive. In Las Vegas, tips contribute much to the income for so many jobs, that I have to agree, the Constitution’s language does provide an advantage to tipped employees, who often make much more money than strict hourly or salaried employees. As a former cocktail waitress, I can vouch for this. It is unlikely the voters were aware of the ambiguity when the Amendment was voted upon at the polls. Tips are part of income for which taxes have to be paid, so it is unclear to me why the Constitution would make such a distinction. On the other hand, tips can be unreliable so maybe the idea was that people can only afford to pay insurance based on income that’s guaranteed. But in a right to work1)some might say “fire” state, no income is really guaranteed…

A ruling such a this is a huge deal in Nevada with so many casino dealers, casino hosts, cocktail waitresses, bartenders, valets, bellhops, and countless other tipped jobs who make up such a huge part of our labor force. I suspect that casinos and other employers of these job categories will do some major lobbying to get the Constitutional amendment changed to better suit their financial needs. A more inclusive definition of income means that employers can charge employees more and pay less for health insurance. I assume that 10% of a minimum wage salary does not entirely cover the cost of health insurance these days, so any additional money that employers can collect from their workers would directly benefit their bottom line. Based on the plain language of the Constitutional amendment, the judge got it right. Plain language rules over all else, right or wrong. For now, the regulation cannot be enforced.

 

The Labor Commissioner lost on a second issue as well

A second regulation, indicating that employers only had to “offer” health insurance to lower paid employees, rather than actually “provide” it was also declared invalid. NAC 608.100(1). The Plaintiff argued that the whole point of the Constitutional amendment was that employers need to “provide” health insurance, not just “offer” it. The Labor Commission argued that “offering” insurance is “providing” it and all that they were required to do was make health insurance available. The Court disagreed and found in favor of the Plaintiff noting that the amendment requires employers to “provide, furnish, and supply” health insurance rather than just offer it to ensure that employees are in fact insured. As such, the regulation was also declared invalid and its enforcement postponed.

Both of these decisions relied on strict interpretation of the constitutional amendment, and in my opinion the Court made the right decision. When the language is clear, the amendment must be applied according to what it says.

But it is interesting that the Labor Commission would create implementing regulations that were somewhat brazenly contradictory to the plain language of the Constitution. We will keep an eye out for any appeals to see how this plays out.

Want to learn more? KNPR recently had a nice discussion.

Footnotes   [ + ]

1. some might say “fire”
demdebate, vegas, hillary, bernie, democrats, democratic, wynn, cnndebate

Behind the Scenes Photos from the DemDebate

“Enough with the damn emails” is right. The punditry spend the last 12 hours telling you who won the debate (stop arguing and just agree with them already. They know best cause they are the ones on the TV. Duh.)

Yet again, the online polls contrast greatly with what the talking heads are telling us. Is it possible that the Chris Matthew’s crowd desires different characteristics in their candidates than the voting public? Will the punditry ever notice or care? How does someone win a debate if only the people on the tv thinks she did? Lucky for us, they still have about 30 more of these to figure it out.

CNN was kind enough to allow your humble blogger to join in the fun from the press scrum. I spent much of the time before the debate outside the hotel with the activists hopefully capturing the feel of the first DemDebate.

Not one person rejected my request for picture, so thank you all.

Now, on with the show!

 

Pre Demdebate from Inside the Press Area

No, contrary to popular belief, the press is not permitted in the debate hall itself. This is as close as we got. And by close, I mean to each other. I think I left my complimentary Wynn mug!

 

This here is the spin room, a few hours before the scrum. Keep this picture in mind for later.

Our new friend Sammy, who has already covered more debates in person than I have.

Another shot of the spin room.

Thefacebook had a lounge inside of the spin room. Them employees live in serious fear; I had to ask three people before someone would answer a question. After responding with boilerplate boringness when I asked him why thefacebook is so involved with politics now, I asked if they only planning on partnering with cable news until they have their own cable channel, to which the facebook spokesman responded with a terse “Nice try.” Whatever that means.

You wouldn’t guess from TV that all the stations broadcast from right on top of each other. That’s Andrea Mitchell on the left. Never found Mr. Greenspan though (And oh did I ever want to).

 

Pre DemDebate from Outside the Wynn

Hillary supporters cheering outside of the Wynn 4 hours before the debate. Someone told me they had been there since early in the morning, though I cannot confirm.

Affable Hillary supporters photographed around the LV Strip.

The Nurses Union was not kidding around. Above are pictures taken in front of the Fashion Show Mall, pre demdebate.

“We got a public display of democratic socialism…code red!”

A selection of Bernie fans from the street. Also people who drive 6-figure cars for Bernie!

Sorry I forgot one.

A special thanks to our friends at Metro for keeping the event running smoothly. These two officers were kind enough to pose.

Team Hillary came out in force as well! How the mariachi band played with such good tone on a pedestrian bridge on the Las Vegas Strip is beyond me. They were terrific!

Yes, there were counter-rallies on the surrounding pedestrian bridges! “More debates now?” May we at least have one first?

 

Post DemDebate, from Behind the Curtain

Who can come up with the hottest take the fastest?? Ready, Set…Go.

Reporters were literally running to the Spin Room upon Hillary’s last word. My toe still hurts.

That’s our friend Sammy interviewing Ed Schultz, now a surrogate for Bernie.

 

Oh the mainstream media.

You may remember Van Jones from the few minutes he spent with the Obama administration. He’s getting good at this TV punditry business. Bet it pays better than social activism.

Action shot from inside the spin room.

Note: if you want to be scolded by an the MSNBC producer, take photos like this while Chris Matthews is on air.

That John Depodesta, Chairman of Hillary for President. He did not have much spinning to do.

I heard someone ask Don Lemon how he keeps that figure of his. He responded “brussels sprouts.”

I was thankful for the Funny or Die folks for coming, they were some of the few that understood the appropriate amount of gravity necessary to cover a debate for an election more than a year away. Unfortunately, this is a family friendly blog so I cannot repeat her question for Sen. Gillibrand (of New York. She actually won Hillary’s seat.)

Chairwoman of the DNC.

The spin room stampeded toward Bernie. The cat from “Insider” promised me he would ask Bernie “What are you wearing?”

The good Reverend reminiscing about campaigns past.

You cannot have a Vegas spin room without Wayne and the Goodmans!

That’s friend of the blog (he wouldn’t agree, but then again, he aint writing this) Jon Ralston (if that is his real name) on the MSNBC with Chris Matthews and the person whose name I won’t use because she tweets nasty thoughts about our fair city before going back to her fiefdom.

If I would have caught the spelling error at the time, I would have offered cash for that hat.

Lincoln! No..not that Lincoln.

 

And of course, Trump loomed large over the whole event..

 

wrongful death, tony stewart, nevada, las vegas, speedway

How the Tony Stewart Wrongful Death Case Would Turn Out in Nevada

I am sure that most of you have heard, at least in passing, about the horrible accident that took the life of race car driver Kevin Ward Jr.. Because the case has gotten so much play1)for better or worse in the press, I thought it might be an opportune time to apply the known facts of the incident to Nevada law so our readers have a better idea how a wrongful death tort works in practice.

 

What Happened

You should watch the cellphone video yourself and make your own determination of the facts (Warning: Graphic.). Ward died shortly after being hit by a race car that was driven by Tony Stewart.

On August 9, 2014, Ward and Stewart were racing winged sprint cars, which are the unusual looking buggy-like vehicles that have oversized spoilers on their roof and hood.2)Source They were racing on a short dirt oval track in the town of Canandaguia, New York.

Ward’s car crashed while the cars of Stewart and Ward were next to each other, possibly as a result of a relatively minor collision between the two. Ward exited his car and walked toward the middle of the dirt racetrack while the other race cars were still driving. Since the racetrack is a short oval, it only took about 22 seconds for Stewart’s car to come back around to where Ward was walking and pointing in the general direction of Stewart’s approaching car. It was then that Stewart’s car hit Ward and knocked him further down to the ground.

 

 

A Little Background on the Cars/Track/Drivers

The race involved 360 Winged Sprints; “360” refers to the cubic inch iron block size of the engine, which produce between 700 and 800 horsepower; the vehicles are light, typically less than 1,475 pounds, which results in a very powerful and light vehicle. For comparison sake, the top selling small car for 2014 was the Toyota Corolla, the mid-range LE model of which weighs 2,855 pounds and has 132 horsepower.

The oval track is 1/2 mile in total length, which just about double the length of a high school 400 meter track. The track appears slightly sloped with the outside being a little higher than the inside of the track; it is otherwise flat. In the middle of the oval, there are very few obstructions preventing spectators or racers to see the opposite side of the track.

It was nighttime and moderately well lit. It did not appear as well lit as a baseball park at a good community field, but lighting was sufficient to show many details from the stands on the opposite side of the oval.

Tony Stewart was 43 years old at the time; he was and is well known and a very experienced and successful NASCAR and sprint car racer. Kevin Ward Jr. was a local 20 year old sprint car racer who graduated from a South Lewis Central high school. His high school is located in the small town of Turin, New York, which is just a two and a half hour drive away from Canandaigua.

 

The Scope of Our Discussion

This is purely a hypothetical because it is an analysis of the claims of Ward’s estate and his decedents if the accident occurred in Nevada.

There are persons who may claim that Tony Stewart may have intended to harm Ward, but that issue will not likely prevail and will not be addressed here. The issues addressed here are whether Stewart’s actions were negligent, regardless of whether he intended on intimidating Ward or not. Next, even if it can be proved that Stewart was negligent, Ward was almost certainly negligent by placing himself in harm’s way through his actions of walking towards moving race cars during an active race. What would Ward’s negligence be and how would it affect the claim of his estate and heirs?

 

The Relevant Wrongful Death Law

In order to succeed on a wrongful death action in Nevada, a party must prove that “the death of any person, whether or not a minor, is caused by the wrongful act or neglect of another.”3)NRS 41.085. A legal cause is a “cause which is a substantial factor in bringing about the injury.”4)Nevada Jury Instructions – Civil 2011 Edition Inst. 4.16; Cnty. of Clark, ex rel. Univ. Med. Ctr. v. Upchurch, 114 Nev. 749, 759, 961 P.2d 754, 760 (1998).

Since wrongful death is a negligence claim, the family of the person who passed away must show that the “tortfeasor,” the person alleged to have caused the death, was actually negligent. The Nevada Supreme Court held that in order to demonstrate negligence the plaintiff must show:

(1) there was a duty owed;

(2) there was a breach;

(3) causation; and

(4) damages were suffered.5)Scialabba v. Barndise Const. Co., 921 P.2d 928, 930 (Nev. 1996) (citing Perez v. Las Vegas Med. Ctr., 107 Nev. 1, 4, 805 P.2d 589, 590 [1991]

 

The determination of duty is adjudicated by the court6)Turner v. Mandalay Sports Entm’t, LLC, 124 Nev. 213, 220, 180 P.3d 1172, 1177 (2008). The remaining issues of negligence are fact intensive for a jury to decide.7)Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, 1106, 864 P.2d 796, 802 (1993).

In Nevada, a defendant may assert a defense that the injured or deceased plaintiff was also negligent and the claim should be reduced by that percentage of negligence or eliminated.8)(NRS 41.1410). Nevada is a state that prevents recovery completely only if the plaintiff was more than 50% at fault9)Id.. If the plaintiff is 50% or less responsible for the incident, s/he may recover damages reduced by his or her share of the negligence.

 

How Does Nevada Law Apply to This Accident?

At this point, there are a number of facts that are not known that may be found through discovery in litigation. Aside from background information about the track and race, the only real piece of evidence available for analysis is the 52 second video taken by a cell phone of a witness. Other videos may exist as taken by other witnesses, Canandaigua Motorsports Park, or the organizers of the race, which has videos of other races on their website. We do not have the testimony of any depositions from Stewart, other racers, and other witnesses. They may be able to provide some important facts that we do not have. The opinions and testimony of experts will likely be required to explain to a judge or jury safe practices of drivers, track operators, and race organizers.

The rules of the Canandaigua Motosports Park and Empire Super Sprints also provide useful standards for determining the duties of the operators, organizers, and drivers. Under Section B.12 of Empire Super Sprints 2014 Rules of Conduct and Procedure, it states:

If there is an accident, the field will be restarted with the car or cars causing the restart, plus any stopped car, going to the rear of the field.

 

The rules leave much to be desired, for example, they do not define accident, restart, and or the procedures of a restart. The rules make multiple references to colors of flags indicating actions, but do not state what flag is flown after an accident to indicate a restart. They also do not state what actions are to be taken by the drivers upon notice of a restart. If the flag person communicated to the drivers that there was an accident, or just that there is to be a restart, then the drivers have no reason to be racing, driving quickly, or passing one another because rule B.12 also states that, except for those involved in the accident, the order of racers will be preserved for the restart. In the beginning of the video, there is a person on a raised stand near the spectator bleachers who has multiple colored at his feet. If the race organizer or director did not properly train its employees on how to respond to an accident, they may be subject to liability as well.

It makes sense that a restart was communicated to the drivers after the accident because in the first 13 seconds of the video, which was before and immediately after the crash, many of the racers traveled on the far outside of the track on the straight portion after the turn (one car passed just after the collision and while Ward’s car was still moving). After the first 13 seconds, approximately 18 cars can be seen in the foreground passing between Ward and the inside of the track prior to Stewart’s car hitting Ward, most of which appear to be much closer to the inside of the track than the outside. Only 3 more cars passed after Stewart’s, immediately after which a waiting ATV and truck quickly entered the track, which indicated that the people waiting to help Ward were probably able to see that these last 3 racers were the last to enter a line for the restart. According to the race results, there were a total of 22 racers. This makes a total of 24 cars, including Stewart’s and another that passed Ward’s car after the first collision. It is quite possible that a restart flag did not go up until after the first two cars passed the flag position and had to pass the accident scene twice.

Assuming that a restart was communicated, this shows three big reasons why a driver should have been traveling slowly. First, the cars should slow down and drive to avoid any stopped or disabled cars. There was not much dust to prevent visibility, the track was small, and the visibility out of the side of a sprint car is quite good; thus, a racer should easily be able to see a stopped car even from the opposite side of the track and on the approach sufficient to be able to avoid it.

Second, the cars had to be slowing down because they would presumably have to stop for the line-up in preparation for the restart. All three of the cars that came after Stewart’s second collision drove past less than five seconds later; they were not driving quickly and one was moving so slowly you can almost read the words on the side of the tires.

Third, there was no reason to hurry because the order of the racers is preserved unless you are Stewart and Ward, both of whom were supposed to be sent to the back of the race for being involved in the collision (assuming Stewart’s car actually made contact with Ward’s car).

Based upon the information obtained from the video in combination with the rules and some assumptions, it appears that Stewart was likely negligent for failing to drive slowly and avoid Ward walking on the track. While it is difficult to tell exactly, it appears that after Ward exited his vehicle, three of the 18 passing cars did not drive past on the very inside of the track. Stewart was the last of the three. He had the most time to slow down of the three and he was the 17th of now-21 cars to enter the line for the restart. He likely had ample time to observe Ward on the track and to take actions to avoid him by traveling on the inside of the track just like most of the other safe drivers.

Some individuals have commented that Ward should not have been on the track so Stewart should be excused. That is similar to stating that any driver who hits a pedestrian on a freeway should face no liability. Drivers on a freeway still have obligations to drive safely and avoid hazards and other people, even if the pedestrian is not supposed to be there.

In regards to comparative negligence, there is little doubt that Ward is at least partially at fault for the unfortunate incident. Common sense dictates that a pedestrian does not belong in the middle of dirt racetrack where multiple vehicles are traveling. Furthermore, the 2015 Canandaigua rules, which were likely the same in regard to this section state:

Any driver involved in an accident, spin, or has a mechanical failure on the track MUST stay in their car until the Safety Crew arrives. If there is imminent danger of fire or leaking fluids you may exit the car and stand as close to the car as possible. If you exit your car you will be penalized.10)Source

 

Ward clearly violated this rule, which was for his own safety. The most difficult determination is whether Ward’s negligence exceeded Stewart’s. This decision would probably be affected by evidence not available to the public at this time such as whether Stewart “revved” his engine while passing Ward in an attempt to intimidate Ward, which would also suggest that the location of Stewart’s car closer to Ward was also part of an intimidation tactic. If so, this would show Stewart was behaving even more dangerously than the video shows. Assuming that there was an order for the racers to restart, Ward had some expectation of safety in walking on the track because the cars would be slowing down to get in line. While additional facts could tip my opinion either way, I am going to slightly side with Ward and argue that he was 45% at fault and Stewart was 55% at fault.

 

Concluding Thoughts from Our Hypothetical Wrongful Death Discussion

It would ultimately be up to a jury to decide whether Stewart should be held at fault for wrongful death of Kevin Ward Jr.. After Stewart’s and Ward’s cars appeared to have collided, causing Ward’s car to lose control and crash, it appears a restart of the race was ordered. Ward negligently walked on foot towards the middle of the track before all the cars stopped and approached Stewart’s car, which was moving when Ward’s body was tragically thrown. Stewart likely knew of the importance to slow down and stay away from the accident scene and appeared to only partially perform these actions. Thus, both men appeared to be negligent, yet Stewart appeared to be slightly more so.

Footnotes   [ + ]

1. for better or worse
2. Source
3. NRS 41.085.
4. Nevada Jury Instructions – Civil 2011 Edition Inst. 4.16; Cnty. of Clark, ex rel. Univ. Med. Ctr. v. Upchurch, 114 Nev. 749, 759, 961 P.2d 754, 760 (1998).
5. Scialabba v. Barndise Const. Co., 921 P.2d 928, 930 (Nev. 1996) (citing Perez v. Las Vegas Med. Ctr., 107 Nev. 1, 4, 805 P.2d 589, 590 [1991]
6. Turner v. Mandalay Sports Entm’t, LLC, 124 Nev. 213, 220, 180 P.3d 1172, 1177 (2008
7. Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, 1106, 864 P.2d 796, 802 (1993).
8. (NRS 41.1410
9. Id.
10. Source

What is the Difference Between a Revocable and Irrevocable Living Trust?

 

What to know about a revocable and irrevocable living trust

Transcript:

Hi, I’m Jordan Flake, managing partner of Clear Counsel Law Group. A lot of our clients ask us what’s the difference between a revocable trust and a irrevocable trust. As the names imply, a revocable trust you can revoke it. That includes amending it, changing it. Altering it over time, adapting it to your life circumstances. One other subtle feature of a revocable trust a lot of people don’t know about is that you can access the assets that are held in the trust at any time. You can liquidate them and use them however you want.

An irrevocable trust is very different because, as the name also implies, you can’t revoke it. Once it’s created and once you place assets in that box that is the irrevocable trust, they’re gone. They can still be used for your healthcare benefit, maintenance, support, things like that; but the reality is, under almost all circumstances with the irrevocable trust, you can no longer reach into that box, grab out those assets and use them however you like. In a sense, you’ve disclaimed ownership or some control over assets in an irrevocable trust.

Because of this, a lot of people opt for the revocable trust. There’s a lot more flexibility. Why would you ever want an irrevocable trust? The irrevocable trust has a really big advantage over the revocable trust because it is also much more creditor protected. If you properly place assets away into an irrevocable trust and you do it correctly and the right amount of time passes, and you go through all the formalities, those assets can actually be kept out of the hands of your creditors to where they can no longer collect against them. In a sense, you think about it, you don’t have access to those assets and neither do they. That’s the give and take of irrevocable trusts.

Revocable trusts, you have access to the assets, so do your creditors, but it comes with the advantage that it’s amendable, changeable, and you can reach in grab those assets. That’s the difference between revocable trust and an irrevocable trust. We’d love to talk to you about both those options.

homestead exemption, bankruptcy , nevada, castle

The Homestead Exemption in Nevada

As the old saying goes, a “man’s house is his castle.” This well-known legal maxim is one of the most deeply rooted principles in the American legal system1)See Weeks  v.  United  States,  232  U.S.  383,  390  (1914)  discussing  the  influence of  the  common-law  maxim  on  the  Supreme  Court., and embodies the idea that an individual’s home is a place of refuge from the cares of everyday life. However, just like a castle relies upon a moat, draw bridge, towering stone walls and the like to help keep the castle safe from outside threats, a person’s home must have certain protections in place that allow the resident to retain possession of the home, or the refuge provided by the home would be seriously undermined by the risk of losing the property to others.

One of the most serious threats to a person’s ability to keep their home is creditors, who can be likened to modern day marauders who would love nothing more than to storm the castle and kick the occupant(s) out on the streets. Creditors are in the business of collecting money. Period. If a creditor is not getting paid they often seek to forcibly take the money that they are owed through the legal system by any means possible. If there is equity in a person’s home that is not protected by law, and that person has not paid a creditor money that is owed under the law, then the creditor can potentially put a lien on the home and forcibly sell it in order to get paid from the equity available. The scary thing is that although a person may not currently owe any creditors on outstanding debts, it does not mean that an unexpected debt could not arise from any number of scenarios such as: liability in a car accident, a failed business venture, unexpected health or medical expenses, etc. Fortunately, as mentioned above, the law has long recognized the importance of an individual’s home, and, in most cases, provides for a way of protecting a person’s primary residence.

 

How the Homestead Exemption Protects You

The protection available in Nevada for an individual’s primary residence is referred to as the Homestead Exemption. The homestead exemption protects up to $550,0002)Although the homestead exemption allowed under Nevada law allows for $550,000 of protected equity, in bankruptcy cases, federal bankruptcy law limits the amount of protected equity in the home if the home was purchased less than 1215 days prior to the claimed exemption. If the home was purchased more than 1215 day prior, then the full extent of Nevada’s homestead exemption is available. of equity in a person’s home. This protection only applies to a person’s primary residence. Investment properties, rental properties, vacant land, etc. do not receive protection from Nevada’s homestead laws. Also, to invoke the homestead protections offered by Nevada law, it is necessary to record a Declaration of Homestead3)The form for Nevada’s Declaration of Homestead can be obtained here  with the county recorder in the county where the property is located. Once the declaration is recorded with the county recorder’s office, the home will be protected as that individual’s homestead as long as the individual remains living in that home.

Of course, the homestead exemption does not allow an individual to keep his or her home if s/he fails to pay a mortgage that was obtained by using the home as collateral. The exemption does protect against “outside” creditors like credit card companies, payday loans, judgment creditors, etc.  It is recommended that you speak with an attorney to discuss the full impact of declaring your personal residence to be a homestead so that you can erect legal protective barriers between your home and a host of potentially devastating results.

 

Footnotes   [ + ]

1. See Weeks  v.  United  States,  232  U.S.  383,  390  (1914)  discussing  the  influence of  the  common-law  maxim  on  the  Supreme  Court.
2. Although the homestead exemption allowed under Nevada law allows for $550,000 of protected equity, in bankruptcy cases, federal bankruptcy law limits the amount of protected equity in the home if the home was purchased less than 1215 days prior to the claimed exemption. If the home was purchased more than 1215 day prior, then the full extent of Nevada’s homestead exemption is available.
3. The form for Nevada’s Declaration of Homestead can be obtained here 
EMV, credit card, small business, nevada, liability

Taking the Shock out of the Shock-and-Awe of EMV Liability

Nevada retailers and other merchants who accept credit card payments are rightfully confused and concerned about new EMV liability rules that will take effect on October 1, 2015. Though it is certainly disconcerting to hear that the retailer or merchant might be liable for fraudulent credit card transactions (as opposed to the credit card companies), the reality is that Nevada retailers and merchants are not facing impending doom and business ruin by not updating to EMV-compliant technology immediately. Of course, Nevada retailers and merchants should be aware of how these new rules affect their business and should make their own cost-benefit analysis before investing in new technology.

 

What is EMV and the “liability shift”

In the best layman’s terms I can think of, an EMV credit card includes a small chip rather than the standard magnetic stripe that we have all been used to seeing on the back of our credit cards. It is claimed that EMV-enabled cards incorporate safety features that will avoid almost all possibility of fraudulent credit card transactions. When literally billions of dollars of credit card fraud occurs every year with the standard magnetic stripe cards, this is a great development in the fight against financial fraud.

However, there has been a great amount of concern about the new EMV rules that take effect on October 1, 2015. The biggest question is about the “liability shift” that occurs on October 1, 2015. In uncomplicated terms, on October 1, 2015, retailers and merchants that accept credit card transactions that turn out to be fraudulent may be left on the hook for those losses, instead of the credit card companies who have always previously covered all instances of fraud1)It is important to note that there are many businesses that will not have any liability whatsoever for various reasons. The nuances of these differences is not examined here.. In short, the new EMV rules push some of the financial loss from fraudulent credit card transactions to the retailer, rather than the credit card companies.

Nevada retailers, particularly small businesses, should rightfully be concerned about this liability shift. One large fraudulent transaction could ruin a small business. To protect against this liability shift, the credit card companies are pressuring retailers to purchase expensive new credit card processing equipment that is EMV-compliant. Should Nevada retailers invest hundreds or thousands of dollars in new credit card processing equipment that is EMV-compliant? Should they take the risk of not having the equipment? What exactly is the risk of not paying for upgraded EMV-compliant equipment? Let’s try to take a bit of the shock out of these questions.

 

When a Nevada retailer might be liable for fraudulent transactions

Most importantly, Nevada retailers will be responsible for the financial losses from a fraudulent credit card transaction only in one circumstance: when a customer presents an EMV-enabled credit card, but the retailer is not using EMV-compliant credit card processing equipment to run the transaction. In this situation, if the transaction turns out to be fraudulent, the retailer will bear the liability (i.e., the financial loss) from the fraudulent transaction. It is also important to consider that if a customer presents a traditional magnetic stripe credit card, which is processed on either the old non-EMV-compliant equipment or the new EMV-compliant equipment, and the transaction turns out to be fraudulent, the retailer is not financially liable for this loss.

 

Should Nevada retailers take the risk?

Nevada retailers should justifiably be concerned about the financial harm to their business if the retailer is liable for a fraudulent transaction. However, as with most business matters, the retailer simply has to calculate a risk analysis and determine as a business matter whether it makes sense right now to protect against this risk by purchasing the expensive new equipment. The first consideration for Nevada retailers is the general fact that the vast majority of credit card transactions in Nevada will likely continue to be processed with the traditional magnetic stripe cards for quite some time. Only a relatively small number of credit card holders have and use an EMV-enabled card2)Las Vegas’ retailers do more business [particularly per capita] than most American cities. When calculating your risk, know that other countries, European ones in particular, have used EMV-enabled cards for a few years now. Remember, any time that a fraudulent transaction occurs with the traditional magnetic stripe card, the retailer is not liable. Nevada retailers would do well to study their transactions in their business over the next month or two to determine how many credit card transactions are processed with EMV-enabled cards. If the number of these transactions is relatively few, the retailer may choose to take the business risk of possible liability on those few transactions.

Of course, in the next few years, we will see more and more credit cards issued with the EMV chip included, rather than the magnetic stripe. But over time, retailers will naturally purchase new credit card processing equipment as part of their normal course of business as equipment becomes outdated or broken. The retailer may choose to wait until the natural cycle of their business to change to the new EMV-compliant processing equipment. In any event, whether retailers choose to make the switch now or in the future, it is unlikely that a retailer will want to hold onto non-EMV compliant equipment forever.

Making the decision to transfer to EMV-compliant equipment is simply a business decision of weighing risks3)When analyzing the risk, remember to account for potential losses as a result of a being held liable for fraud and costs. Will a retailer be liable for the financial loss of a fraudulent transaction if the retailer processes an EMV-enabled card on non-EMV compliant equipment? Yes. Is that risk likely to arise? Maybe, maybe not. If the number of customers using EMV-enabled cards is low in the first place, and if the risk of the customers engaging in fraudulent transactions is even lower, a retailer may just conclude that the “liability shift” of the new EMV rules is much ado about nothing and may just choose to continue business as normal. But, as I like to say, “It doesn’t matter until it matters.” When that one ruinous fraudulent transaction does come through, do not say that you were not warned of the risk.

And, we wish you all a Happy EMV Day on October 1st!

Footnotes   [ + ]

1. It is important to note that there are many businesses that will not have any liability whatsoever for various reasons. The nuances of these differences is not examined here.
2. Las Vegas’ retailers do more business [particularly per capita] than most American cities. When calculating your risk, know that other countries, European ones in particular, have used EMV-enabled cards for a few years now
3. When analyzing the risk, remember to account for potential losses as a result of a being held liable for fraud
UBER,, las vegas, clark county, employment law, employee, independent contractor

Are Uber Drivers Employees of the Company?

There are so many reasons to live in fabulous Las Vegas; we have great weather, low taxes, a healthy job market, and plenty of entertainment for all walks of life. But one downside of life in the desert is that it is rather difficult to get around without a car. The public bus system in Las Vegas is difficult to navigate and entirely inconvenient for many1)Not to say that our bus drivers work extremely hard, and we appreciate it very much. Taxis tend to cater to tourists and do not seem to want to do long drives to and from homes far from the strip2)Multiple people in my office have stories of cabs refusing to drive to the suburbs from downtown. Enter Uber, the immensely popular, ride sharing service.

 

What is Uber?

The concept of Uber is simple: download the app on your phone, and request a ride. The app will instantly show you the drivers in your area and send the closest one to come get you. Often times, the wait is only a matter of minutes. Each driver is assigned a rating by reviews of customers and if a driver has a low rating, a rider can reject that driver and wait for the next closest one. It is convenient, fast, and relatively3)Compared to a cab cheap. It is even safe for the drivers who never have to carry money because all payment is done through a credit card on the app.  Uber takes 20% of the fare and the rest belongs to the driver4)Additionally, the app will estimate the entire fare up front so you will not be surprised upon your arrival.

Many locals/non-locals in Nevada like to go out at night and have a drink or two, so Uber will likely reduce DUIs and related accidents because it is so simple/easy; it is silly not to use it if you need a ride. But, a unique service like Uber does come with quite a few legal and practical issues that relate to classifying drivers and paying taxes.

 

Employees vs. independent contractors

As a general matter, workers either fall into two categories: employees or independent contractors. Employees are the default worker status, when someone:

  1. works closely for an employer,
  2. is under an employer’s control, and
  3. is an integral part of the employer’s operation.

Hiring employees can be expensive for an employer who has to pay minimum wage, pay payroll and other taxes, provide breaks, purchase health insurance, and comply with various regulations regarding work environment and benefits. Hiring an independent contractor is cheaper by far. An independent contractor:

  1. works outside of the control of the employer,
  2. often on a more temporary or piecemeal basis, and
  3. must pay all taxes on their own without employer withholding.

Independent contractors are cheaper because employers do not have to pay payroll taxes, provide insurance, provide a place to work, and they do not have to comply with wage and hour laws because the contractor works on his or her own time. Each employment relationship is unique and must be examined on a case by case basis to determine whether someone is an employee or independent contractor.

 

Are Uber drivers  employees or independent contractors?

Uber claims that their drivers are independent contractors, but I am not so sure. Why does it matter, you ask? Well, if Uber drivers were classified as employees, the company would have to spend quite a bit more money paying taxes, benefits, insurances, and possibly providing cars for the drivers to use while working. But, all of these costs would likely be passed onto the consumer and likely hurt Uber’s bottom line. On the other hand, employees would benefit by receiving protections of wage and hours laws, receiving benefits, and being eligible for unemployment benefits if laid off.

Interestingly, despite the benefits, being classified as employees might be the exact opposite of what Uber drivers want. As it stands now, once hired by Uber, each driver must take his or her own personal vehicle to a designated mechanic for inspection. It is this personal vehicle that drivers will use for work. Each driver decides when to work, for how long, and where to drive. They have no one to answer to other than the reviewers who will ensure repeated business and an ongoing job with their positive feedback. A job like this can mean extra money for someone with another job or an income for someone who has limited childcare. There are many benefits to being an independent contractor in this business, and Uber likely appeals to many people who shy away from a 9-5 traditional setting job5)Paging Las Vegas buskers.

Although Uber claims their drivers are independent contractors, recent decisions by California courts have found otherwise for drivers in similar circumstances to those of Uber drivers here in Nevada. It remains to be seen whether Uber is eventually forced to classify their drivers as employees, but there are so many pros and cons to being an employee and an independent contractor, that Uber is really left between a rock and a hard place. Their business model depends on the flexibility and independence of each driver but at the same time, wage, hour laws and benefits regulations are designed to protect the work force.

 

Now what for Uber Drivers?

But what if Uber employees just will not fit into either category? Nevada could recognize a new class of employees to better protect workers and meet the needs and budget of a modern company like Uber.  Other countries, like neighboring Canada, have various categories of workers. Maybe therein lies the answer. If Nevada creates a new class of workers, Uber drivers could maintain independence and still receive important protections and benefits. Many independent contractors could potentially benefit from a new category of worker: freelance writers, web designers, and online marketing specialists, just to name a few.

I do not expect Uber to reclassify their employees since it cuts into their bottom line. But, it is a fairly close call as to whether the drivers are employees or independent contractors. Uber controls prices and monitors employee performance like a traditional employer, but Uber does not tell drivers when to work or how to drive, allowing them to make the decisions like an independent contractor would do. Yet, if Uber is sued for wage and hour violations, it is fairly likely that a judge would find a driver to be an employee under the control of Uber, which is what happened in California. So, if lawsuits like that cut into Uber’s bottom line, I suppose there would be a point where it would just be cheaper to have drivers be employees. I would guess though, that it would take a substantial number of lawsuits to make it financially beneficial for Uber to amend its policies. Perhaps if it looks like Uber may be in trouble for misclassifying employees down the road, then they might spend the money to lobby for new classifications. We shall see.

But, that is a long time away since Uber’s just getting started. It appears right now that the state of Nevada has given Uber to “go ahead” but Clark County has not and is trying to stop Uber from operating. But that’s a story for another day…..

Footnotes   [ + ]

1. Not to say that our bus drivers work extremely hard, and we appreciate it very much
2. Multiple people in my office have stories of cabs refusing to drive to the suburbs from downtown
3. Compared to a cab
4. Additionally, the app will estimate the entire fare up front so you will not be surprised upon your arrival
5. Paging Las Vegas buskers
fantasy football, gaming, gambling, legal, las vegas

Is It Legal to Gamble on Fantasy Football?

Football season is back! I would just like to congratulate my fellow football fanatics for making through another tough, football-less offseason1)when will the silly Europeans learn how much better tackle football is and starting training their athletes to play so we have gridiron action all year round?. More importantly for some of us, it is fantasy football season!

How did your draft go? How do you draft Adrian Peterson without any idea how he will play2)gotta be better than my Montee Ball play from last year…here is a free tip from someone who has watched Broncos’ football since the Elway [We love you John!] days: Do not take a Broncos’ running back. Just trust me. There is just no way to predict who will get the carries this year.?

Regardless, I suspect that some of you may be playing fantasy football for cash prizes this year…

 

 

 

Since the sports gaming entities have yet to be finalized3)Stay tuned to the blog for more information. My contact says they should be here in a couple weeks, the only means for non-Nevadan folks to wager on sports, supposedly, is through fantasy leagues.

All of our loyal, intelligent readers are asking themselves now: How is it illegal to bet on football, but legal to wager on fantasy football? The answer is what you would expect: a combination of governmental favoritism, arbitrary demarcations, and a lack of political mettle to do the right thing4)And perhaps a good faith mistake.

Let’s get a little more in depth.

 

Fantasy Football and the Internet Gambling Prohibition and Enforcement Act

In 2006, our friends in the Congress decided that this unregulated internet poker nonsense needed to end5)And rightful so. In turn, the Congress passed the Internet Gambling Prohibition and Enforcement Act. Below is the pertinent part for our discussion:

`(6) The term `bets or wagers’–

`(D) does not include–

`(ix) participation in any fantasy or simulation sports game or educational game or contest in which (if the game or contest involves a team or teams) no fantasy or simulation sports team is based on the current membership of an actual team that is a member of an amateur or professional sports organization (as those terms are defined in section 3701 of title 28) and that meets the following conditions:

`(I) All prizes and awards offered to winning participants are established and made known to the participants in advance of the game or contest and their value is not determined by the number of participants or the amount of any fees paid by those participants.

`(II) All winning outcomes reflect the relative knowledge and skill of the participants and are determined predominantly by accumulated statistical results of the performance of individuals (athletes in the case of sports events) in multiple real-world sporting or other events.

`(III) No winning outcome is based–

`(aa) on the score, point-spread, or any performance or performances of any single real-world team or any combination of such teams; or

`(bb) solely on any single performance of an individual athlete in any single real-world sporting or other event.6)Source

 

Is your head spinning like mine is after reading that? I actually pulled that part of the law from the entry in the Logic Dictionary for “Distinction without a difference7)This is an inaccurate statement.  We have hit that far-too-common crossroads8)That we seem to be crossing more and more these days where we are trying to determine if the law was just poorly written, or drafted  entirely in bad faith. Per usual, I cannot tell. Maybe our lovely congress-folk have not the slightest idea what sports gambling is9)If this is true, why are they writing laws about it?. We will just assume that is that case, because the alternative is much more cynical10)As in, legislators drawing arbitrary demarcations in the law at the behest of special interests. Am in the wrong? Read this NY Post article about the law.

In reference to `(II) above, how do they think sports betters operate? The old, throw a dart at a couple of team names on the board and bet on the punctured organization routine11)Granted this routine needs a catchier name? Every (as in, likely without much exception) serious handicapper considers the “accumulated statistical results of the performance of individuals” before making a sizable wager. Do the congress-folk think the serious betters just guess? They have to know better than that, right?

What about `(III)? This section, if I am to analyze this silliness in good faith, makes a bit more sense, if this law is supposed to be about preserving the integrity of the game and not regulating socially acceptable gambling. The thinking could be (all I can do is make my best guess at what they are going for, assuming good faith) that if the athletes are spread amongst multiple teams, impropriety is less likely to occur. Yet most fantasy teams have less players on them than the actual, real world teams the players work for. The larger the team, the less effect one individual has on the results. So this language is not all that logical either.

Also, most importantly, let us not get lost in the forest. This law is supposed to protect the public from internet gambling. How is the character of gambling any different if you bet on one team as opposed to a collection of players on multiple teams? This is the logical equivalent of legalizing heroin in pill form, but disallowing any derivation of the product that can be injected. Is the issue how the gambling/substance is consumed, or the consumption itself?12)Stay tuned for my post next week that will be done entirely in question form. Your move Ron Darling!

In reference to my point regarding the integrity of sport, former attorney13)Sorry Mike, if you are still in practice; though maybe he is like Paul Finebaum in that he pretends to have never practiced law. Mike Florio evaluates the bill correctly, in my eyes:

The hair-splitting and nonsensical distinction from Congress has made gambling on fantasy football as legal as gambling on stocks, which has spawned an industry that includes some very high-stakes fantasy leagues, some of which undoubtedly include NFL players.  But while it’s only a matter of time before word emerges of the involvement of NFL players in six-figure fantasy leagues, another potential complication could emerge when it comes to the non-gambling gambling of large amounts of money on fantasy football.

Peter King of TheMMQB.com explains that, during his training-camp tour, he has caught wind of “undue pressure some players and coaches feel from big-money fantasy-football players.”  Writes King, “I had one coach tell me there’s so much money in some of these fantasy-football playoff pools that people who used to gamble with bookies illegally are now gambling in high-stakes fantasy-football leagues, which is not illegal.” King adds that the “NFL has its antennae up over this, and it’ll be interesting to see if the pressure escalates to more serious threats on players or coaches.” 14)Source

 

Should this have been thought out more thoroughly? Likely yes. How can the NFL know if one of its players/coaches are playing in a high end fantasy league. Given the concerns above15)valid in my eyes, it is possible that legalizing only fantasy sports betting is much worse than leaving the general gambling prohibition in place.

It is also worth reminding folks that our sports books actually assist federal regulators in catching athlete’s point shaving, recall the Arizona St. scandal from the 1990s.

 

Will fantasy football gambling be legalized as part of a broader movement to legalize internet gambling?

We have trends going in both directions in regards to the question above; it is hard to speculate what will happen. Usually the rich and powerful are on one side of an issue, so it will be easy to see what will happen. There are movers and shakers on both sides of this debate, neither looking like they will give in.

Each side of the internet gambling debate are16)shockingly…don’t make me post that Casablanca clip again disingenuous in regards to the opposing views. On the one hand, the pro fantasy football  folks are making peculiar claims like fantasy football helps kids learn17)maybe more like fantasy football is a cheap/easy cop-out for teachers that are struggling to motivate their students. If your students are not engaged in world affairs, don’t you have some responsibility to show them why they should care? I cringe even writing that. Teaching is so,so difficult. Even still, ignoring the civics component of a public education is an error.

On the other side, Mr. Adelson’s friends against internet gaming18)no truth to the rumor that this was the initial name for the group are equally, if not more disingenuous19)and I say this as someone sympathetic to their views with such specious claims as “Internet gaming hurts union jobs”20)as we all know, union labor is a real passion of Mr. Adelson and “Internet gaming hurts farmers”21)Huh? I cannot even make a bad joke because the connection is so attenuated.

What can we conclude from all the name-calling? It will probably be a few years before internet gambling regulation is resolved at a federal level. Your best chance will be if the federal government becomes even more desperate for revenue than it currently is.

 

So is it safe to play fantasy football for money online?

This is not legal advice22)Note that this is a legal blog, not legal counsel. If you would like legal counsel on the issue, we have great attorneys here who will assist you. Just give us a call, more basic risk analysis. If it was me, and I was going to play fantasy football online, I would think very hard about what happened to the internet poker sites. If you recall, one day people of all ages23)Purposeful cliche were playing with the Caribbean-based sites, the next, they all got shut down. As you can read in the NPR article, all the folks with money in the accounts abroad had no access to get the money back, as all the property was seized. As you can deduce from the ambiguous text of the law above regarding fantasy football, is it conceivable that the DOJ could decide this fall that instead of going after online escort services24)They had quite the summer, they will direct their attention to fantasy football sites.

If you live in Nevada, this seems like an unnecessary risk as there are many companies that will allow you to wager, in-state, on football over the internet25)and unlike Wall Street, you will know the odds of your wager at the moment you make it. If you are out-of-state, it might be worth being patient for a few more weeks until the sports betting entities’ regulations are finalized by the Gaming Control Board. Coming this fall, you can wager with publicly traded companies (Las Vegas casinos) from throughout the country on football through a sports gaming entity. Pretty exciting stuff.

It is difficult enough to win at gambling, why gamble through a medium where there is also a risk that you will not get paid if you win? Think of it as an unnecessary parlay. One wonders if fantasy football gambling was legal in Nevada, why wouldn’t the casinos want some of the action?

Either way, best of luck this year. And Go Broncos!

 

These are two really great academic journal pieces on the history of fantasy football26)Yes, academia seems to be going in a strange direction

Harvard’s Journal of Sports and Entertainment Law

John Marshall Law School

 

Even more reading:

Forbes

RGJ

Politico

Washington Post

The Hill

 

Footnotes   [ + ]

1. when will the silly Europeans learn how much better tackle football is and starting training their athletes to play so we have gridiron action all year round?
2. gotta be better than my Montee Ball play from last year…here is a free tip from someone who has watched Broncos’ football since the Elway [We love you John!] days: Do not take a Broncos’ running back. Just trust me. There is just no way to predict who will get the carries this year.
3. Stay tuned to the blog for more information. My contact says they should be here in a couple weeks
4. And perhaps a good faith mistake
5. And rightful so
6. Source
7. This is an inaccurate statement
8. That we seem to be crossing more and more these days
9. If this is true, why are they writing laws about it?
10. As in, legislators drawing arbitrary demarcations in the law at the behest of special interests. Am in the wrong? Read this NY Post article about the law
11. Granted this routine needs a catchier name
12. Stay tuned for my post next week that will be done entirely in question form. Your move Ron Darling!
13. Sorry Mike, if you are still in practice; though maybe he is like Paul Finebaum in that he pretends to have never practiced law.
14. Source
15. valid in my eyes
16. shockingly…don’t make me post that Casablanca clip again
17. maybe more like fantasy football is a cheap/easy cop-out for teachers that are struggling to motivate their students. If your students are not engaged in world affairs, don’t you have some responsibility to show them why they should care? I cringe even writing that. Teaching is so,so difficult. Even still, ignoring the civics component of a public education is an error.
18. no truth to the rumor that this was the initial name for the group
19. and I say this as someone sympathetic to their views
20. as we all know, union labor is a real passion of Mr. Adelson
21. Huh? I cannot even make a bad joke because the connection is so attenuated
22. Note that this is a legal blog, not legal counsel. If you would like legal counsel on the issue, we have great attorneys here who will assist you. Just give us a call
23. Purposeful cliche
24. They had quite the summer
25. and unlike Wall Street, you will know the odds of your wager at the moment you make it
26. Yes, academia seems to be going in a strange direction
personal information, nevada, Internet Theft

How Nevada Safeguards Your Personal Information on the Internet

These days, you cannot watch the news without hearing about a security breach where personal information is stolen and private data has been exposed. We put all of our important information onto the public domain and rely on businesses and other entities to protect it for us. It is highly likely that you or someone you know has had their personal information compromised whether from the large scale breaches at Target, Home Depot, Sally Beauty Supply, Trump Hotels, Ashley Madison, Blue Cross Blue Shield, and CVS; or on a smaller scale at a local business. Anyone who uses a credit cards or shops online is at risk. If personal information is stolen, bank accounts can be hacked, credit cards charged, home addresses could be revealed, social security numbers can be stolen, and so on. People may not even know that the information has been stolen until years later when they try to get a loan or a new credit card and realize their credit is destroyed.

Keeping all these breaches in mind, it is nearly impossible to get by these days without using a credit card or shopping online, so we must all put our faith in the hands of the business we patronize to provide enough security to protect our personal information. But what happens when companies fail to protect our information? Are there any consequences? What if the businesses do not provide sufficient security? Or what if they do the best they can but the security is still breached?

 

Nevada continues to pass laws to protect personal information

Nevada Revised Statute 603A governs proper data protection for any “data collectors” who deal with nonpublic personal information whether it be driver’s licenses, social security numbers, credit cards or user names and passwords. Such data collectors are required to take “reasonable security measures” to protect records from unauthorized access, use, modification, or disclosure. Data collectors are required to maintain certain security standards, sometimes by using encryption, to protect personal data. If companies take credit cards they must comply with “Payment Card Industry Data Security Standards” which require encryption for information transferred electronically. For companies that do not accept credit cards, Nevada law still requires them to encrypt data transferred electronically.

In an effort to keep up with the ever increasing amount of personal information being transferred electronically, Nevada recently updated its statute to expand the definition of “personal information.” Prior to July 1, 2015 personal information required to be protected included social security numbers, driver’s license or identification numbers, and any account numbers in combination with passwords that permit access to a financial account. After July 1, 2015 personal information now includes medical information numbers, health insurance information numbers, driver authorization numbers, or user names/login information that in combination with a password or security question would permit access to an online account. This expansion of the meaning of personal information now seems to cover just about anything a consumer would be uniquely identified by at a business or on the internet, whether it be shopping with an online account, requesting a referral for a doctor visit, or subscribing to an online service.

Data collectors are not responsible for damages caused by a security breach as long as they are complying with the reasonable security standards outlined in the statute. If a business reasonably believes personal information has been stolen, they must provide the potential victims with notice right away.

Nevada considers itself to be the “gold standard” in consumer breach and notification laws1)See Senate Committee on Commerce, Labor and Energy, April 24, 2015 at page 4.. Nevada also prides itself on being “business-friendly” by having uncomplicated, clear and reasonable guidelines for what business need to do to comply with protection of consumer data2)Id.. The new guidelines expanding the definition of personal information was thought to incentivize businesses to protect the data or force them to go public with their breach by providing notice to the public.

 

Any press is good press? Or is it?

But are there any remedies to really protect a harmed consumer? It does not really appear so at this time in Nevada. Although businesses do have to notify individuals when the personal information is compromised, I am not convinced this is all that much of an incentive to do use all possible efforts to protect information. For example, Target was brought to the forefront of the news recently for its large scale data breach, but I do not know anyone who loves to shop there any less. I would make an educated guess that any number of my soccer mom friends are enjoying a stroll through Target as I write this. Not only that, but my home-improvement-enthusiast husband still goes to Home Depot at least once a week despite having to get an entirely new debit card when his information was breached a few months back. Point being that I just do not think it is a sufficient disincentive for companies to have to “out” themselves after a breach. Studies are showing that consumers are used to breaches and do not seem overly concerned about it. Typically consumers are not held responsible for unauthorized credit card charges and likely are not inconvenienced by more than a phone call to the bank.

Many companies that have suffered from security breaches have provided identity protection services at no charge for a certain amount of time. That is certainly helpful and likely comes at a substantial cost for the business, but it is not required. Connecticut recently passed legislation that will require identify theft protection to be provided in the event of a breach. California also requires these services.

 

What else can Nevada do to protect the personal information of her citizens?

In the future, Nevada may implement a law to require companies to provide these identity protection services. But it appears that most do anyway in an effort to show their customers that they care and that they will work hard to protect their data in the future. But is this enough? It is hard to say.

It is my perception that many of these computer hackers live abroad. Additionally, I believe that where there’s a will there’s a way, and if criminals are looking to find a way to steal personal information, they will always be one step ahead of the security game. So can we really fault a store for falling victim to an extremely sophisticated hacker when they took “reasonable measures” to protect my identity as required by law? Maybe. Say, for example, if someone does not receive notice of a breach because they changed their address since shopping at a certain store and they do not opt in to identity protection. Maybe a few years go by and this person is denied for a car loan because someone else has been taking out loans in his or her name and ruined the credit score of the victim. The consumer is innocent, so who should s/he blame? The store that permitted the data breach? Maybe.

Perhaps in the future, legislators would consider a private cause of action by a wronged consumer against a business who suffered a breach. Even if the business took reasonable protection measures, should an innocent consumer really be left holding the proverbial bag of harm when s/he now cannot buy a car? If this happens to a large number of people, maybe a class action suit would be a way to address wronged consumers. In that scenario, the benefit of a class action lawsuits come to fruition as a consumer who suffered only a small amount could seek redress without incurring substantial attorney’s fees. But, on the other hand, I can understand how a store who took all best efforts to stay up to date on the cutting edge of security protection should not be held liable for falling victim to a sophisticated scammer. If a business follows all laws and procedures, maybe it is unfair to require the entity to pay damages for a breach they could not have anticipated.

Since Nevada likes to stay on the forefront of consumer data protection, we will have to wait and see how these issues play out in the future. But for now, keep checking those credit reports and be on the lookout for any strange activity.

 

Footnotes   [ + ]

1. See Senate Committee on Commerce, Labor and Energy, April 24, 2015 at page 4.
2. Id.
Late rent Payment, nevada, landlord tenant

The Few Options That Exist for a Tenant Who Owes a Late Rent Payment

Nevada is considered by many to be a “landlord friendly” state with less protections for tenants than nearby states, such as California. Therefore, it is always best for tenants to stay on good terms with their landlords, follow all  the lease terms, and pay rent in a timely manner.

 

Sometimes you will have a late rent payment even with the best of intentions

But, it is not uncommon for a tenant to face financial difficulties at one time or another and have a late rent payment due at the beginning of any given month. If that happens, a tenant is somewhat at the mercy of their landlord, unfortunately.

If you can persude your landlord to agree to an extension, that will be the best option. That way, the landlord and the tenant can agree for the late rent to be paid at a time when the tenant will have the money available. A tenant may request that any late fees be waived, and the landlord is free to oblige as a courtesy. It is always best to get the extension and waiver in writing so both parties are bound.

Given that it is so hard, time consuming, and expensive for a landlord to find a reliable and trustworthy tenant, a landlord will likely be sympathetic to the situation and grant an extension. If you are a troublesome tenant who is often late, the landlord does not have to grant any extensions. Also, any late fees required by the lease become part of the rent owed.

A tenant should never write a check that s/he knows will bounce. Not only is that possibly a violation of the lease, but it will cause additional fees to be incurred. Importantly, a person can even be charged with a crime for writing a bad check1)This is a serious crime in Nevada, please do not do this. The law presumes a person who writes a check with non-sufficient funds in their accounts knows that the check will bounce, and this is considered a crime. Certainly not a hassle that anyone needs!

If a landlord does not grant an extension for you to pay the late rent, s/he must give you a five day notice after which an eviction proceeding may be commenced. If you receive this five day notice, you will need to pay the rent within those five days or vacate the property. If the landlord has not waived the late payment, the entire rent plus the late payment must be paid within the five day period to bring the amount owed current.

If you have a legal defense to the eviction, then you can file papers with the Justice Court to request a hearing on your eviction. You will not be asked to leave the property pending the outcome of the hearing, but if you do not have a valid legal defense you will just be delaying the inevitable eviction. Not only that, but if you file a petition for a hearing with the intent to delay knowing that you have no valid legal defense to the eviction, you might end up paying your landlord’s attorneys’ fees and costs.

Importantly, there are certain legal defenses to your possible eviction. For instance, if you can make a partial payment of the late rent, you should do so. If you do, and the landlord accepts it, this may be a defense to eviction based on the landlord’s acceptance of this payment knowing it was not the full amount. But, the landlord does not have to accept the partial payment and may choose to refuse it and proceed with an eviction.

There are various legal reasons to withhold rent, including if there are major issues with the property that have gone unfixed after notification that make the property uninhabitable2)called constructive eviction.  But, if you owe late rent and claim to the court that your property is uninhabitable, the court will not be sympathetic if you have never given the landlord a chance to fix the problem.

So, unless the landlord has failed to fix major problems that they knew about in advance, you are at his or her mercy if you are unable to make the late rent payment. It is always best to be on good terms with your landlord so in the event that you need an extension of time to pay the rent, your landlord is likely to have faith in you and give you a little extra time.

Footnotes   [ + ]

1. This is a serious crime in Nevada, please do not do this
2. called constructive eviction
Clear Counsel Law group

Contact Info

1671 W Horizon Ridge Pkwy Suite 200,
Henderson, NV 89012

+1 702 522 0696
info@clearcounsel.com

Daily: 9:00 am - 5:00 pm
Saturday & Sunday: By Appointment Only

Copyright 2019 Clear Counsel Law Group® | Nav Map

Nothing on this site is legal advice.