Rite of Passage, atcs/silver State Acad. v. State, Dept. of Bus. and Indus.

 Kayla Moore worked as a Coach Counselor for Rite of Passage
(ROP) and signed a Coach Counselor Payroll Declaration. It provided for
an unpaid 8-hour "sleep[] period" in accordance with 29 C.F.R. § 785.22
(2012). 1 After Moore filed a wage complaint alleging ROP failed to pay her
for time worked, the Labor Commissioner held an administrative hearing
and ruled that Moore "worked" within the meaning of NRS 608.016 during
her sleep period, for which she should have been paid.
NRS 608.016 provides that "[am n employer shall pay to the
employee wages for each hour the employee works." NAC 608.115
'Section 785.22 provides:
(a) General. Where an employee is required to be
on duty for 24 hours or more, the employer and
the employee may agree to exclude bona fide meal
periods and a bona fide regularly scheduled
sleeping period of not more than 8 hours from
hours worked, provided adequate sleeping
facilities are furnished by the employer and the
employee can usually enjoy an uninterrupted
night's sleep. If sleeping period is of more than 8
hours, only 8 hours will be credited. Where no
expressed or implied agreement to the contrary is
present, the 8 hours of sleeping time and lunch
periods constitute hours worked.
(b) Interruptions of sleep. If the sleeping period is
interrupted by a call to duty, the interruption
must be counted as hours worked. If the period is
interrupted to such an extent that the employee
cannot get a reasonable night's sleep, the entire
period must be counted. For enforcement
purposes, the Divisions have adopted the rule that
if the employee cannot get at least 5 hours' sleep
during the scheduled period the entire time is
working time.
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implements NRS 608.016 and states, "[a]n employer shall pay an
employee for all time worked by the employee at the direction of the
employer, including time worked by the employee that is outside the
scheduled hours of work of the employee." Before 2015, 2 the Nevada
Legislature did not define what constitutes "work[ ]" or address how to
determine whether time an employee spends sleeping on the employer's
premises at the employer's behest counts as hours worked. The Labor
Commissioner maintains that the statutory scheme entrusts the
determination of whether an employee "works" within the meaning of NRS
608.016 to his office to decide on a case-by-case basis. As Nevada law
provides little guidance on this issue, we turn to the federal courts'
interpretation of hours worked under the federal Fair Labor Standards
Act, 29 U.S.C. §§ 201-19 (2012). See Terry v. Sapphire Gentleman's Club,
130 Nev., Adv. Op. 87, 336 P.3d 951 (2014) (adopting the federal courts'
2 During this past legislative session, the Nevada Legislature passed
S.B. 146, 78th Leg. (Nev. 2015), amending NRS 608.016, effective July 1,
2015, to permit agreement respecting unpaid sleep time along much the
same lines as § 785.22. See id. After ordering and considering
supplemental briefs on the 2015 amendment to NRS 608.016, we conclude
that it is amendatory, not merely clarifying, and does not apply
retroactively. See Pike Cty. Fiscal Court v. Util. Mgmt. Grp., LLC,
S.W.3d , 2015 WL 3638198, at *5 (Ky. Ct. App. 2015) (stating that
statutory amendments that seek to clarify existing law may be applied
retroactively). Moore has a vested right to her wages and the Legislature
did not provide for the statute to apply retroactively. See Sandpointe
Apartments, LLC v. Eighth Judicial Dist. Court, 129 Nev., Adv. Op. 87,
313 P.3d 849, 859 (2013) ("If a statute affects vested rights, it may not
apply retroactively unless such intent is clearly manifested by the
Legislature."). This order therefore addresses the pre-amendment version
of NRS 608.016.
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"economic realities" test utilized under the FLSA to determine
employment under Nevada's minimum wage laws).
The words "work" or "employment" in the FLSA are defined by
their common usage and mean "physical or mental exertion (whether
burdensome or not) controlled or required by the employer and pursued
necessarily and primarily for the benefit of the employer and his
business." Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S.
590, 598 (1944), superseded by statute, Portal to Portal Act, 29 U.S.C. §
251, as recognized in Integrity Staffing Sols., Inc. v. Busk, 574 U.S. ,
135 S. Ct. 513 (2014). Whether a certain employee "worked" as defined in
the FLSA is a factual determination made by the appropriate
administrator. See Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944)
(noting that whether time spent in idleness constitutes work "is a question
dependent upon all the circumstances of the case"); see also Skidmore v.
Swift & Co., 323 U.S. 134, 136-37 (1944) (providing that whether waiting
time is work time is a factual determination made in light of the Office of
Administrator's findings). 3
3 This court recognizes that Congress stated in the Portal to Portal
Act, 29 U.S.C. § 251 (2012), that the FLSA had "been interpreted judicially
in disregard of long-established customs, practices, and contracts between
employers and employees, thereby creating wholly unexpected liabilities,
immense in amount and retroactive in operation, upon employers." Id. at
§ 251(a). However, the cases cited remain relevant because at the time
the Supreme Court was attempting to interpret provisions as indefinite in
their extreme generality as NRS 608.016. See Ibp, Inc. v. Alvarez, 546
U.S. 21, 28 (2005) ("Other than its express exceptions for travel to and
from the location of the employee's 'principal activity,' and for activities
that are preliminary or postliminary to that principal activity, the Portal-
to-Portal Act does not purport to change this Court's earlier descriptions of
the terms 'work' and 'workweek,' or to define the term 'workday.").
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Appellant argues that the Labor Commissioner should have
drawn on 29 C.F.R. § 785.22 in interpreting NRS 608.016. But the federal
regulation post-dates the cases just cited interpreting "work" and, at the
time this dispute arose, no Nevada statute or regulation existed that
paralleled 29 C.F.R. § 785.22. For the Labor Commissioner to have
applied § 785.22, would have required his office to engage in ad hoc
rulemaking, which Nevada's Administrative Procedure Act forbids.
Compare S. Nev. Operating Eng'rs Contract Compliance Tr. v. Johnson,
121 Nev. 523, 531, 119 P.3d 720, 726 (2005) (noting this court has refused
to validate an agency's action in a contested case, where it is tantamount
to ad hoc rulemaking), with NRS 233B.038(1)(a) (defining a regulation as
"Fain agency rule, standard, directive or statement of general applicability
which effectuates or interprets law or policy, or describes the organization,
procedure or practice requirements of any agency"). Importing § 785.22
into Nevada law would create, for the first time, the right to contract an
unpaid sleep period out of hours worked, for certain employees. See Gen.
Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C. Cir. 1984) ("RN by
its action the agency intends to create new law, rights or duties, the rule is
properly considered to be a legislative rule."). Also, an employer would be
required to fulfill certain duties to maintain the unpaid sleep period and
where his employee's sleep period is interrupted. See § 785.22. Thus, for
the Commissioner to have adopted § 785.22 would have amounted to ad
hoc rule-making, for it would have imposed a new contractual scheme with
specific obligations on a large group of employers. See State, Dep't of
Taxation v. Chrysler Grp, LLC, 129 Nev., Adv. Op. 29, 300 P.3d 713, 717
(2013) (defining a "statement of general applicability" as "a policy or rule
that applies to multiple parties in a similar manner").
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Though the determination of whether a certain block of time is
hours worked is highly factual, it is properly characterized as a mixed
question of law and fact. See Gen. Elec. Co. v. Porter, 208 F.2d 805, 814
(9th Cir. 1953) ("The ultimate determination of whether or not sleeping
time is work time presents a mixed question of law and fact"); Bell v.
Porter, 159 F.2d 117, 120 (7th Cir. 1946) (stating that the question of
whether sleep time constituted working time was a mixed question of law
and fact). Where mixed questions of law and fact are involved, an agency's
findings are "entitled to deference and should not be disturbed if the court
determines that they are supported by substantial evidence." See Kolnik
v. Nev. Emp't Sec. Dep't, 112 Nev. 11, 16, 908 P.2d 726, 729 (1996).
The Position Description and Ms. Moore's testimony at the
hearing established that ROP required Ms. Moore to stay on its premises
during her sleep period in case an emergency arose. Additionally, Mr.
Wright, ROP's corporate human resources director, testified that this
requirement benefited ROP as it helped keep the youth safe and promoted
bonding between the children and Coach Counselor. Substantial evidence
thus supports the Labor Commissioner's determination that Ms. Moore
worked during her sleep period based on the definition of "work" in
Tennessee Coal, Iron & Railroad Co., 321 U.S. at 598. 4 Accordingly, we
4 We reject ROP's argument that NRS 608.016 cannot apply to a non-
Indian business located on Indian (federal) land. A state may assert its
authority over non-Indians on Indian land "only if not pre-empted by the
operation of federal law." New Mexico v. Mescalero Apache Tribe, 462 U.S.
324, 333 (1983). The FLSA does not preempt the application of Nevada
law here because our holding results in higher wages for Moore than she
would otherwise have under the FLSA. See 29 U.S.C. § 218(a) (2012).
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ORDER the judgment of the district court AFFIRMED.
, C.J.
Hardesty
ar
Parraguirre
•
Saitta
Gibbons
cc: Hon. Nathan Tod Young, District Judge
Littler Mendelson/Las Vegas
Kayla Moore
Attorney General/Las Vegas
Douglas County Clerk
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