Martel v. HG Staffing, LLC

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438 Nev., Advance Opinion Sb
IN THE SUPREME COURT OF THE STATE OF NEVADA
EDDY MARTEL, A/K/A MARTEL-
RODRIGUEZ; MARY ANNE CAPILLA;
JANICE JACKSON-WILLIAMS;: AND
WHITNEY VAUGHAN, ON BEHALF OF
THEMSELVES AND ALL OTHERS
SIMILARLY SITUATED,
Appellants,
VS.
HG STAFFING, LLC; AND MEI-GSR
HOLDINGS, LLC, D/B/A GRAND
SIERRA RESORT,
Respondents.
No. 82161
SEP 08 2022
ELIZABETH A. BROWN
CLERK OF SUPREME COURT
DEPUTY CLERK
Appeal from a final judgment in an employment matter
concerning unpaid wages. Second Judicial District Court, Washoe County;
Lynne K. Simons, Judge.
Affirmed.
Thierman Buck LLP and Joshua D. Buck, Mark R. Thierman, Joshua R.
Hendrickson, and Leah L. Jones, Reno,
for Appellants.
Littler Mendelson, P.C., and Diana G. Dickinson and Montgomery Y. Pack,
Las Vegas,
for Respondents.
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BEFORE THE SUPREME COURT, EN BANC.
AMENDED OPINION
By the Court, STIGLICH, J.:
Appelants filed a class action complaint against their former
employer to obtain unpaid minimum and overtime wages. For various
reasons, their claims were dismissed and denied. In this appeal from the
district court’s orders, we clarify four matters of employment law. First, a
two-year limitations period applies to appellants’ wage claims. Second, a
collective bargaining agreement (CBA) is valid so long as the employer and
the union objectively manifest their assent to the agreement. Third, claims
under NRS 608.040, which penalizes employers for failing to timely pay
earned wages to former employees, cannot be utilized to recover wages that
are time-barred under other statutes. And fourth, an employer that is a
party to a CBA is exempt from Nevada’s overtime statute, NRS 608.018,
when the CBA provides overtime in a manner different from the statute.
Because the district court adhered to this law in its orders and appellants
failed to show a genuine issue of material fact, we affirm.
FACTS AND PROCEDURAL HISTORY
Between 2011 and 2015, appellants Eddy Martel, Mary Anne
Capilla, Janice Jackson-Williams, and Whitney Vaughan (collectively, the
Martel employees) worked at the Grand Sierra Resort (GSR) in Reno. Their
employers, respondents HG Staffing, LLC, and MEI-GSR Holdings, LLC
(collectively, HG Staffing), own and operate the GSR. All four Martel
employees allege that during their employment they were required to
complete tasks—such as attending meetings or classes, getting into
uniform, or reconciling cash amounts---without pay. The Martel employees
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further allege that similarly situated employees were not paid for
completing the same tasks. Employees at the GSR are generally members
of the Culinary Workers Union Local 226 (the Culinary Union), which
maintains a CBA with HG Staffing.
In 2016, the Martel employees filed a putative class action
asserting four claims. They alleged that HG Staffing failed to pay them for
the work they completed in violation of (1) NRS 608.016 (requiring an
employer to pay wages for each hour worked); (2) the Minimum Wage
Amendment (MWA) of Nevada’s Constitution, Nev. Const. art. 15, § 16
(requiring employers to pay employees a minimum hourly wage); (3) NRS
608.018 (requiring an employer to pay overtime wages); and (4) NRS
608.020 through NRS 608.050 (requiring an employer to timely pay a
former employee their earned wages).
In the aggregate, the district court issued three orders in HG
Staffing’s favor that the Martel employees now challenge: (1) an order
granting in part HG Staffing’s motion to dismiss, (2) an order granting HG
Staffing’s motion for summary judgment, and (8) a clarification order
explaining that the previous order for summary judgment extended to
Jackson-Williams’s individual claims. The procedural history underlying
each of these orders is discussed below. In sum, all claims asserted by the
Martel employees were resolved in favor of HG Staffing and did not proceed
to trial. This appeal followed.
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DISCUSSION
The district court did not err by granting in part HG Staffing’s motion to
dismiss
“A dismissal for failure to state a claim pursuant to NRCP
12(b)(5) is reviewed de novo.” Eggleston v. Stuart, 137 Nev., Adv. Op. 51,
495 P.3d 482, 487 (2021). “A decision to dismiss a complaint under NRCP
12(b)(5) is rigorously reviewed on appeal with all alleged facts in the
complaint presumed true and all inferences drawn in favor of the
complainant.” Jd. Further, “[w]hen the facts are uncontroverted, ...the
application of a statute of limitations to bar a claim is a question of law that
this court reviews de novo.” JPMorgan Chase Bank, Natl Ass’n v. SFR Inus.
Pool 1, LLC, 136 Nev. 596, 598, 475 P.3d 52, 55 (2020).
A two-year limitations period applies to the Martel employees’ claims
arising under NRS Chapter 608
Collectively, the Martel employees worked at the GSR from
2011 to 2015. Relevant to our statute-of-limitations analysis, it is
undisputed that the Martel employees ceased working at the GSR after the
following dates: June 2013 (Vaughan), September 2013 (Capilla), June 2014
(Martel), and December 2015 (Jackson-Williams). The Martel employees
filed their complaint on June 14, 2016. As noted, they asserted causes of
action under NRS 608.016, NRS 608.018, and NRS 608.020 through NRS
608.050. HG Staffing moved to dismiss all claims that accrued before
June 14, 2014, on the ground that they were subject to a two-year
hmitations period. The district court agreed and dismissed all claims
asserted by Vaughan and Capilla, all but one day of Martel’s claims, and all
but 18 months of Jackson-Williams’s claims.
The Martel employees argue that the district court erred by
dismissing the foregoing statutory claims because they are subject to a
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three-year limitations period. They argue that NRS 608.260, which governs
claims for statutory minimum wages, expressly provides that an action
must be brought within two years, whereas the other wage statutes are
silent in this regard. Thus, they argue that NRS 11.190(3)(a)’s three-year
limitations period for statutorily created causes of action applies. HG
Staffing, also pointing to NRS 608.260, asserts that a two-year limitations
period apples to the Martel employees’ claims under the doctrine of
analogous limitations. We agree with HG Staffing.
While we previously held that claims under NRS 608.016, NRS
608.018, and NRS 608.020 through 608.050 can be asserted as private
causes of action, see Neville v. Eighth Judicial Dist. Court, 133 Nev. 777,
782-83, 406 P.38d 499, 504 (2017), we have yet to address which limitations
period applies to claims brought under these statutes. We now clarify that
the Martel employees’ claims under these statutes are governed by a two-
year limitations period under the doctrine of analogous limitations, which
provides that “when a statute lacks an express limitations period, courts
look to analogous causes of action for which an express limitations period is
available either by statute or by case law.” Perry v. Terrible Herbst, Inc.,
182 Nev. 767, 770-71, 383 P.3d 257, 260 (2016) (alteration omitted) (internal
quotation marks omitted), superseded by statute as stated in U.S. Bank,
N.A. v. Thunder Props., Inc., 188 Nev., Adv. Op. 3, 503 P.3d 299 (2022).
In Perry, we applied the doctrine of analogous limitations and
held that minimum-wage claims brought under the MWA are subject to a
two-year limitations period. Id. at 773-74, 383 P.3d at 262. We recognized
that although the MWA includes no express limitations period, such a claim
“remains most closely analogous to one statute, NRS 608.260, which
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[expressly] carries a two-year limitations period.”! Perry, 132 Nev. at 773,
383 P.3d at 262 (emphasis added); see also Nev. Const. art. 15, § 16(B)
(omitting a hmitations period). This is because a minimum-wage claim
under the MWA “closely resembles, if it is not in fact, an action for back pay
under NRS 608.260.” Perry, 132 Nev. at 771, 383 P.3d at 260.
The doctrine of analogous limitations, however, was recently
superseded by statute. See Thunder Props., 138 Nev., Adv. Op. 3, 503 P.3d
at 304 n.3 (citing 2021 Nev. Stat., ch. 161, § 2, at 723-24 (amending NRS
11.220)). Yet, as we explained, this statutory amendment applies only
prospectively. Id.; see 2021 Nev. Stat., ch. 161, § 3, at 724 (“The amendatory
provisions of this act apply to an action commenced on or after the effective
date of this act.”). Thus, claims that were commenced before the 2021
amendatory provisions of NRS 11.220 became effective—such as the Martel
employees’ claims-—-are still subject to the doctrine of analogous limitations.
Having considered the parties’ arguments, we conclude that the
district court properly applied the doctrine of analogous limitations and that
a two-year limitations period applies to the Martel employees’ statutory
claims. A two-year limitations period creates consistent application of the
law, chiefly because “NRS 608.115 requires employers to maintain an
employee’s record of wages for [only] two years.” Perry, 132 Nev. at 773,
383 P.3d at 262. Like the analysis in Perry, if we accepted the Martel
employees’ invitation to apply a three-year limitations period to this
dispute, “an employee could bring a claim after the employer is no longer
'NRS 608.260(1) provides that, “[i]f any employer pays any employee
a lésser amount than the minimum wage set forth in NRS 608.250[,] . . . the
employee may, at any time within 2 years, bring a civil action against the
employer.”
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legally obligated to keep the record of wages for the employee.”? Id. Thus,
uniformity of law requires the application of a two-year limitations period
to the Martel employees’ claims under NRS 608.016, NRS 608.018, and NRS
608.020 through 608.050.
The Martel employees’ claims under NRS 608.016 are similar
to back-pay claims under NRS 608.260 because they both seek to recover
unpaid wages. Further, their claims are analogous to claims under the
MWA because, if an employee is not paid wages, they have not received the
minimum wage. See Nev. Const. art. 15, § 16(A) (“Each employer shall pay
a wage to each employee of not less than the hourly rates set forth in this
section.” (emphasis added)). Because the Martel employees are seeking
wages that were allegedly not paid, ie., they received less than the
minimum wage, they are functionally asserting claims under NRS 608.260
and the MWA, both of which are governed by a two-year limitations period.
Thus, we discern no reason to depart from Perry.
2At oral argument before this court, the Martel employees argued that
federal law allows employees to assert claims for unpaid wages after the
employer’s record-keeping obligation has expired. Thus, they contend that
the record-keeping benefit described by Perry is not dispositive to our
analysis. This argument was not included in the Martel employees’ briefs,
so we decline to consider it. See Rives v. Farris, 138 Nev., Adv. Op. 17, 506
P.3d 1064, 1071 n.6 (2022) (explaining that we need not address arguments
“raised for the first time at oral argument”).
3The Martel employees commenced this lawsuit in 2016, so we need
not decide which limitations period applies to claims under NRS Chapter
608 that were commenced after the 2021 amendatory provisions of NRS
11.220 became effective. See 2021 Nev. Stat., ch. 161, §§ 3-4, at 724.
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In sum, we conclude that the district court correctly applied a
two-year limitations period to the Martel employees’ claims.4 We therefore
affirm the district court’s decision to dismiss, in relevant part, their claims
as time-barred.
Summary judgment was appropriate
“A district court's decision to grant summary judgment is
reviewed de novo.” A Cab, LLC v. Murray, 137 Nev., Adv. Op. 84, 501 P.3d
961, 971 (2021). “Summary judgment is proper if the pleadings and all
other evidence on file demonstrate that no genuine issue of material fact
exists and that the moving party is entitled to a judgment as a matter of
law.” Id. Gnternal quotation marks omitted). “All evidence [is] viewed in
[the] lhght most favorable to the nonmoving party.” Jd. (internal quotation
marks omitted).
The Martel employees raise four arguments regarding the
district court’s summary judgment order. They assert that the district court
erred by concluding that (1) the CBA between the Culinary Union and HG
Staffing was valid, (2) the individual Martel employees lacked standing to
represent Culinary Union members in a putative class-action lawsuit,
(3) Martel was not entitled to relief under NRS 608.020 through NRS
608.050, and (4) the CBA provided otherwise for overtime such that it was
exempt from NRS 608.018. We address the Martel employees’ arguments
as follows.
4Given that MWA claims also have a two-year limitations period, the
district court correctly dismissed the Martel employees’ time-barred MWA
claims consistent with the foregoing analysis.
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The CBA is valid because it was ratified by the Culinary Union
As noted, HG Staffing and the Culinary Union were parties to
a CBA that governed employees at the GSR. Several issues turn on whether
this CBA was valid, which the parties dispute.
The CBA, which the Martel employees refer to as the “redline
draft,” is unsigned and omits HG Staffing as a party. Instead, the CBA lists
as parties to the agreement the Culinary Union and Worklife Financial,
Inc., the former owner of the GSR. The CBA also contains redlines showing
edits.5 And although it states that it is effective between “2010-20,” it does
not contain any date showing when the Culinary Union accepted it. The
district court concluded that the CBA was valid because all evidence in the
record showed that the Culinary Union ratified the CBA.
The Martel employees contend that the district court erred
because the CBA is unsigned, undated, and does not list HG Staffing as a
party to the agreement. They further argue that the edits on the CBA show
that it was not a final agreement. Thus, they contend that a genuine issue
of material fact remains regarding whether the CBA was a binding
agreement. HG Staffing argues that the CBA is valid because the Culinary
Union ratified it. We disagree with the Martel employees.
Unlike a typical written agreement, the “technical rules of
contract [formation] do not control whether a [CBA] has been reached.”
Pepsi-Cola Bottling Co. v. NLRB, 659 F.2d 87, 89 (8th Cir. 1981). Further,
a CBA need not be signed or unexpired to be valid. Line Constr. Benefit
‘Although the Martel employees point to other versions of the CBA,
we do not analyze them because all evidence in the record shows that HG
Staffing and the Culinary Union were operating under the redlined CBA at
the time the Martel employees worked at the GSR.
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Fund v. Allied Elec. Contractors, Inc., 591 F.3d 576, 581 (7th Cir. 2010).
Instead, the validity of a CBA “rest|s] ultimately on the principle of mutual
assent,’ Operating Eng’rs Pension Tr. v. Gilliam, 737 F.2d 1501, 1503 (9th
Cir. 1984), and “[u]nion acceptance of an employer’s final offer [for a CBA]
is all that is necessary to create a contract,” Warehousemen’s Union Local
No. 206 v. Contl Can Co., 821 F.2d 1348, 1350 (9th Cir. 1987) (explaining
that courts look no further if parties objectively manifest assent to a CBA).®
Thus, even if the CBA does not strictly adhere to contractual formalities, it
is valid if evidence shows that the employer and the union objectively
manifested assent to the agreement.7
Here, as the district court concluded, the Culinary Union
objectively manifested assent to the CBA because (1) a Culinary Union
representative testified at an arbitration hearing that the parties ratified it
in November 2011, (2) the Culinary Union filed grievances and conducted
arbitration under the CBA, and (3) the Culinary Union wrote in an
arbitration brief that the CBA governed and was ratified in November 2011.
*The Martel employees further argue that the CBA is invalid because,
when the case was removed to federal court, the court found it to be
“extremely problematic.” Martel v. MEI-GSR Holdings, LLC, No. 3:16-cv-
00440-RJC-WGC, 2016 WL 71160138, at *4 (D. Nev. Dec. 6, 2016). While
recognizing that a CBA need not be signed to be enforceable and that the
Culinary Union conducted grievances under the redlined CBA, the federal
court ultimately declined to address whether the CBA was valid and
remanded the case on other grounds. /d. at *4, *7.
‘The Martel employees also argue that the sale of the GSR caused the
CBA to expire. As noted, however, a CBA need not be unexpired to be valid.
Line Constr., 591 F.3d at 581. Because the Culinary Union ratified the
CBA, we disagree that the CBA’s purported expiration necessarily rendered
it invalid. Nothing in the record shows that the Culinary Union or HG
Staffing acted as if the CBA had expired. Thus, this argument is meritless.
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Moreover, GSR’s Human Resources Director stated in a declaration that the
CBA covered the named employees. This fact objectively shows that, after
HG Staffing purchased the GSR, it offered to be bound by the redline CBA
that was already in existence. In sum, this evidence shows that HG Staffing
and the Culinary Union objectively manifested assent to be bound by the
CBA. The Martel employees point to no evidence in the record to show that
the Culinary Union repudiated or did not ratify the CBA.
Therefore, because the Martel employees have not cited to any
evidence in the record—below or on appeal—to show that the CBA was not
ratified, there is no genuine issue of material fact.8 We therefore affirm the
district court’s conclusion that the CBA was valid.
HG Staffing is entitled to summary judgment on Martel’s claims
arising under NRS 608.020 through NRS 608.050
As relevant here, NRS 608.020 through NRS_ 608.050
collectively require employers to pay former employees their earned wages
and penalize them for failing to timely do so. Martel resigned after his last
shift on June 138, 2014, his final paycheck was due on June 19, 2014, and he
filed his complaint on June 14, 2016. The complaint alleged that he was not
paid wages pursuant to NRS 608.016 and NRS 608.018, and therefore HG
Staffing was subject to the penalties set forth in NRS 608.020 through NRS
608.050 for failure to timely pay wages owed. As previously discussed, the
district court correctly determined that Martel’s claims under NRS 608.016
and NRS 608.018 were subject to a two-year limitations period. Given that
Martel’s complaint was filed two years and one day after his last shift, his
®The district court denied the Martel employees’ request to extend
discovery under NRCP 56(d). On appeal, they do not challenge the denial
of that motion.
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claims under NRS 608.016 and NRS 608.018 were time-barred. The district
court therefore granted summary judgment on Martel’s claims under NRS
608.020 through NRS 608.050 after concluding they were derivative of his
time-barred claims under NRS 608.016 and NRS 608.018.
On appeal, Martel argues that his claims under NRS 608.020
through NRS 608.050 are timely.” Relying on NRS 608.040(1)(b), which
provides for a penalty for each day up to 30 days that an employer fails to
pay wages after an employee resigns, Martel alleges that claims under NRS
608.020 through NRS 608.050 accrue 30 days after the employment
relationship ends. He points to evidence in the record showing that
payment of his final wages was due on June 19, 2014. He argues that his
claim accrued 30 days later. Martel therefore contends that he can recover
wages earned under NRS 608.016 and NRS 608.018 for the entirety of his
employment under NRS 608.040. We disagree with Martel.
If an employee resigns, like Martel, he or she “must be paid no
later than... [t]he day on which the employee would have regularly been
paid,” or “[s]even days after the employee resigns or quits,” whichever is
earher. NRS 608.030(1)-(2). The statute authorizing the imposition of
penalties if an employer fails to pay a former employee earned wages is as
follows:
1. If an employer fails to pay:
(a) Within 3 days after the wages or
compensation of a discharged employee becomes
due; or
°NRS 608.020 and NRS 608.050 apply to discharged employees.
Accordingly, because Martel resigned from his job, we limit our analysis to
NRS 608.030 and NRS 608.040.
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(b) On the day the wages or compensation is
due to an employee who resigns or quits,
the wages or compensation of the employee
continues at the same rate from the day the
employee resigned, quit or was discharged until
paid or for 30 days, whichever is less.
NRS 608.040(1).
The parties agree that Martel’s last paycheck was due on
June 19, 2014.19 Although Martel’s last wages were due on June 19, 2014,
he never alleged below—or on appeal—that he failed to receive those
wages.!! Instead, he argues that he earned wages under NRS 608.016 and
NRS 608.018 throughout his employment that were never paid and
therefore those wages were due under NRS 608.040. In doing so, he
attempts to use NRS 608.040 to avoid the statute of limitations under NRS
608.016 and NRS 608.018. As noted, however, Martel’s claims under NRS
608.016 and NRS 608.018 are time-barred because he filed his complaint
Martel argues that a claim under NRS 608.040 accrues 30 days after
the employment relationship ends. “A cause of action accrues when a suit
may be maintained thereon.” Clark v. Robison, 113 Nev. 949, 951, 944 P.2d
788, 789 (1997) Gnternal quotation marks omitted). A claim under NRS
608.040(1)(b) accrues the day the employer fails to pay the wages or
compensation due the employee under NRS 608.030 because that is the date
the employee can claim the penalty. See Accrue, Black’s Law Dictionary
(llth ed. 2019) (“To come into existence as an enforceable claim or
right ....”). The 30-day period in the statute speaks to the quantum of the
penalty. Martel’s accrual-date argument, however, misses the mark
because NRS 608.040 cannot be utilized as a mechanism to recover time-
barred wages under NRS 608.016 and NRS 608.018.
"The parties dispute whether NRS 608.040 applies to wages an
employee incurs before the final-paycheck period. We need not address this
argument because Martel’s claims under NRS 608.016 and NRS 608.018
were time-barred. Thus, as a matter of law, Martel could not recover any
of these alleged damages utilizing NRS 608.040.
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two years and one day after his last shift. Accordingly, Martel cannot
recover time-barred wages under NRS 608.016 and NRS 608.018 by
proceeding under NRS 608.040.
Because Martel did not allege that he failed to timely receive
his final paycheck wages under NRS 608.040, he has not shown that a
genuine issue of material fact exists. Thus, HG Staffing is entitled to
judgment as a matter of law, and we affirm the district court’s order
granting summary judgment on Martel’s claims under NRS 608.040.
The CBA “provides otherwise” for overtime under NRS 608.018
As relevant to this issue, NRS 608.018 sets forth certain
overtime rates that employers must pay, but it provides an exemption for
“{e]mployees covered by collective bargaining agreements which provide
otherwise for overtime.” NRS 608.018(3)({e) (emphasis added).
Here, Jackson-Williams had 18 months of claims that were not
time-barred. The district court determined that Jackson-Williams could not
assert claims under NRS 608.018 because Jackson-Williams was subject to
the CBA, which “provides otherwise” for overtime such that it is exempt
from Nevada's overtime statute. Jackson-Williams now argues that the
CBA does not provide otherwise for overtime and is, therefore, not exempt
from NRS 608.018. She argues that a CBA must provide a premium
overtime rate to qualify for the exemption. HG Staffing argues that a CBA
qualifies for the exemption if it offers overtime in a different manner than
the statute. HG Staffing contends that the CBA provides overtime in a
different manner than the statute and therefore qualifies for the exemption.
We agree with HG Staffing and the district court.
We interpret a statute by its plain meaning. Young v. Nev.
Gaming Control Bd., 136 Nev. 584, 586, 473 P.3d 1034, 1036 (2020). We
also have “jurisdiction to determine questions of statutory law that may or
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may not fall outside of collective bargaining agreements.” Clark Cty. Sch.
Dist. v. Riley, 116 Nev. 1143, 1148, 14 P.3d 22, 25 (2000). Turning to the
statutory text,
1. An employer shall pay 1 1/2 times an
employee’s regular wage rate whenever an
employee who receives compensation for
employment at a rate less than 1 1/2 times the
minimum rate set forth in NRS 608.250 works:
(a) More than 40 hours in any scheduled
week of work; or
(b) More than 8 hours in any workday unless
by mutual agreement the employee works a
scheduled 10 hours per day for 4 calendar days
within any scheduled week of work.
2. An employer shall pay 1 1/2 times an
employees regular wage rate whenever an
employee who receives compensation for
employment at a rate not less than 1 1/2 times the
minimum rate set forth in NRS 608.250 works more
than 40 hours in any scheduled week of work.
NRS 608.018(1)-(2). As indicated, however, subsections 1 and 2 do not apply
to “[e]mployees covered by collective bargaining agreements which provide
otherwise for overtime.” NRS 608.018(3)(e) (emphasis added). The
Legislature did not define the term “provide otherwise for overtime,” see td.,
and we have not yet interpreted this text.
There is limited authority to guide our analysis. California has
a similar statute that excludes employees covered by a CBA from that
state’s overtime-wage statute “if the agreement provides premium wage
rates.” Cal. Lab. Code § 514 (West 2020) (emphasis added). “[T]he purpose
of section 514 is to provide an opt-out provision which allows parties to
collective bargaining agreements to provide any premium wage over the
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regular rate for any overtime work ....” Vranish v. Exxon Mobil Corp., 166
Cal. Rptr. 3d 845, 850 (Ct. App. 2014) (internal quotation marks omitted).
Unlike the California statute, NRS 608.018(3)(e) does not state
that a CBA must pay premium overtime wage rates to qualify for the
exemption. Thus, we conclude that the California statute has minimal
persuasive value and instead limit our analysis to NRS 608.018(3)(e)’s
language, which states that a CBA must “provide otherwise for overtime”
to qualify for the exemption. The technical and ordinary meaning of
“otherwise” is a different way or manner.!? See Otherwise, Black’s Law
Dictionary (11th ed. 2019) (“In a different way; in another manner... .”);
see also Otherwise, Webster’s Third New Intl Dictionary (2002) (“[I]n a
different way or manner... .”). Therefore, under NRS 608.018(3)(e)’s plain
language, we hold that a CBA qualifies for the overtime exemption so long
as it provides overtime in a different way or manner than NRS 608.018(1)-
(2).
The CBA here provided overtime in a different way or manner
than NRS 608.018(1) because it set up an independent overtime scheme.!3
Specifically, it states in relevant part,
The Martel employees urge us to consult legislative history to
interpret NRS 608.018(8)(e). We decline to do so because the text is
unambiguous. See Wingco v. Gov't Emps. Ins. Co., 130 Nev. 177, 181, 321
P.3d 855, 857 (2014) (stating that we consult legislative history only when
the text is ambiguous); Galardi v. Naples Polaris, LLC, 129 Nev. 306, 310-
11, 801 P.8d 364, 367 (2013) (observing that a finding of ambiguity in a term
is not necessary before consulting a dictionary definition of that term).
13Notably, the CBA is silent as to the overtime wage rate. Although
Jackson-Williams contends that a CBA must provide premium overtime-
wage rates to qualify for NRS 608.018(3)(e)’s exemption, we are
unpersuaded by this argument. This is because the statute is silent on any
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For purposes of computing overtime, for an
employee scheduled to work five (5) days in one (1)
workweek, any hours in excess of eight (8) hours in
a day or forty (40) hours in a week shall constitute
overtime. lor an employee scheduled to work four
(4) days in one (1) workweek, any hours worked in
excess of ten (10) hours in a day or forty (40) hours
in a week shall constitute overtime. Overtime shall
be effective and paid only after the total number of
hours not worked due to early outs is first
subtracted from the total number of hours actually
worked per shift, per workweek. Overtime shall
not be paid under this Section for more than one (1)
reason for the same hours worked.
The overtime scheme in the CBA departs from NRS 608.018(1)-
(2) because it does not calculate an employee’s ability to obtain overtime
compensation based on the employee’s wage. The statute, however,
calculates an employee's overtime eligibility based on the employee’s wage
in relation to the minimum wage. In other words, an employee under the
CBA can earn daily overtime regardless of whether they make more than
1 1/2 times the minimum wage. Likewise, the CBA’s scheme is based on a
four- or five-day workweek, whereas NRS 608.018 does not define the term
workweek to include a specific number of days. While the two schemes are
similar, the CBA provides overtime in a sufficiently different manner to fall
within NRS 608.018(3)(e)’s exemption.
overtime-wage rate, and our role is to apply the statute as written. See
Holiday Ret. Corp. v. State, Div. of Indus. Relations, 128 Nev. 150, 154, 274
P.3d 759, 761 (2012) (“It is the prerogative of the Legislature, not this court,
to change or rewrite a statute.”). We recognize that Jackson-Williams
presents strong public policy justifications for requiring a CBA to provide
premium overtime wages, but the Legislature has not adopted that policy
in the current version of NRS 608.018(3)(e). We leave for the Legislature to
address whether this exception should require a premium overtime rate.
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Given that the CBA provided overtime in a different manner,
Jackson-Williams’s claims for unpaid overtime cannot be asserted under
NRS 608.018. Because Jackson-Williams has not provided any calculation
of the overtime pay to which she alleges she is specifically entitled under
the CBA, no genuine issue of material fact exists, and the district court
properly granted summary judgment on her claims under NRS 608.018.
HG Staffing is entitled to summary judgment on Jackson-Williams’s
remaining claims
After the district court's summary judgment order, Jackson-
Willams had claims remaining under the MWA, NRS 608.016, and NRS
608.040, as well as a request for attorney fees under NRS 608.140. The
district court issued a clarification order concluding that HG Staffing was
entitled to summary judgment on her remaining claims because Jackson-
Willams lacked standing to assert them, specifically because she failed to
allege that the Culinary Union breached its duty of fair representation. On
appeal, Jackson-Williams contends that the district court erred in granting
summary judgment on these claims but cites no caselaw or portions of the
record to show a genuine issue of material fact. As noted, a court is not
required to wade through the record to find disputed material facts. Schuck
v. Signature Flight Support of Nev., Inc., 126 Nev. 434, 438, 245 P.3d 542,
545 (2010). Accordingly, we conclude that HG Staffing is entitled to
summary judgment on these claims consistent with the district court’s
order. See Edwards v. Emperor’s Garden Rest., 122 Nev. 317, 330 n.38, 130
P.38d 1280, 1288 n.388 (2006) (observing that it is an appellant’s
responsibility to provide cogent arguments supported by salient authority).
Further, in opposition to HG Staffing’s motion for summary
judgment below, Jackson-Williams argued that she was entitled to wages
under NRS 608.018 and NRS 608.040 but failed to argue that she was
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entitled to wages under NRS 608.016, NRS 608.020 through NRS 608.050,
or the MWA. In Jackson-Williams’s motion for clarification, she provided
no argument as to why her claims were still viable. Finally, reviewing
Jackson-Williams’s complaint, she alleged that she worked 151 hours of
unpaid time and that she was owed payment for these hours based on the
overtime rate. Yet, as we explained, the CBA here is exempt from NRS
608.018’s overtime-pay scheme. In sum, we are unable to find any evidence
to support the notion that Jackson-Williams demonstrated a genuine issue
of material fact concerning these claims. !4
CONCLUSION
In sum, the Martel employees’ claims under NRS 608.016, NRS
608.018, and NRS 608.020 through NRS 608.050 were correctly dismissed
under a two-year limitations period. The district court's summary
judgment order correctly concluded that (1) the CBA was valid; (2) claims
M4Although the district court concluded that the Martel employees
lacked standing to represent Culinary Union members in a class action
lawsuit, and the parties urge us to address the propriety of this ruling, this
issue is moot. Generally, class certification requires “that the named
representatives of the putative class possess a valid cause of action.”
Landesman v. Gen. Motors Corp., 377 N.E.2d 813, 814 (Ill. 1978). Because
the Martel employees have no surviving causes of action, it is unnecessary
for us to determine whether they have standing to represent a putative class
of GSR employees. Further, the Martel employees point to nothing in the
record to show that the class was certified. See NRCP 23(d)(1) (stating that
a class must be certified by the district court). Thus, this issue is also moot
because the class was never certified. Cf. Sargeant v. Henderson Taxi, 133
Nev. 196, 199, 394 P.3d 1215, 1218 (2017) (stating that class certification
issues are moot if the plaintiff's claims are dismissed on a motion to dismiss
or summary judgment). In light of the foregoing, we decline to address this
issue.
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under NRS 608.040 cannot be utilized to recover time-barred wages under
other statutes; and (3) an employer that is a party toa CBA is exempt from
the overtime scheme imposed under NRS 608.018, so long as the CBA
provides overtime in a different manner than the statute. Because we
discern no error from the record, we affirm.
AVGOL vd.
Stiglich “
We concur:
(ras, —=/ CJ. pAortck, J.
Parraguirre Hardesty
(ap. i WD Sion) J.
Cadish Silver
Preheat A——.,
Pickering J Herndon
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