Since 2012, my mentor, Marc C. Gordon, Esq., and I have been litigating and defending what has become known as the largest employment law class action case in the history of Nevada involving over 5,000 current and former drivers of Yellow Checker Star Transportation (YCS). The case went to the Nevada Supreme Court (NSC) and in 2014 in an intensely divided 4-3 decision, we did not prevail. However, the issues in this case shed light on the legal uncharted world of “implied repeal.” Thomas v. Nevada Yellow Cab Corporation, 130 Nev. Adv. Op. 52 (2014).

In all of American Jurisprudence, there never existed a case similar to its facts and the multiple novel issues of law. From an outsider’s perspective, it is immensely fascinating. But, from my vantage point, it has caused numerous sleepless nights defending a case with so many novel legal issues that to date, have not been completely resolved.  It all stems from the 2006, Nevada Constitutional Minimum Wage Amendment (MWA) that was passed by voters and signed into law on July 1, 2007, guaranteeing a base wage for Nevada workers.

In 2006, under NRS 608.250(2)(e), taxicab and limousine drivers were declared exempt from minimum wage because they are paid based on commission. However, the NSC ruled that NRS 608.250(2)(e) was “impliedly repealed” in 2006, when Nevada voters voted in favor of the MWA.

“The Amendment’s broad definition of employee and very specific exemptions necessarily and directly conflict with the legislative exception for taxicab drivers established by NRS 608.250(2)(e). Therefore, the two are “irreconcilably repugnant,”… such that “both cannot stand,”… and the statute is impliedly repealed by the constitutional amendment.” (Page 6 of Thomas decision).

The NSC ruled that MWA supersedes NRS 608.250(2). “The text of the Minimum Wage Amendment, by enumerating specific exceptions that do not include taxicab drivers, supersedes and supplants the taxicab driver exception set out in NRS 608.250(2).”  (Page 9 of Thomas decision).

In 2009, United States District Court of Nevada Judge Clive Jones was the first jurist to weigh in on the question of “implied repeal,” interpreting Nevada law in Lucas vs. Bell 2009 WL 2424557 (D. Nev. June 24, 2009). His decision against “implied repeal,” although not binding on the NSC, was nonetheless the only statement of competent judicial authority on the Nevada law question, and remained so until Thomas. From 2006, until June 26, 2014, employers followed the law as interpreted by Judge Jones, and were reasonable in doing so, since the NSC had not spoken otherwise. In addition, the Nevada Labor Commissioner comported with that state of affairs, and continued to recognize the validity of NRS 608.250(2) exemptions until Thomas. The Labor Commissioner never initiated action against any of the taxicab or limousine companies consistent with NRS 607.160(2) which states:

“If the Labor Commissioner has reason to believe that a person is violating or has violated a labor law or regulation, the Labor Commissioner may take any appropriate action against the person to enforce the labor law or regulation whether or not a claim or complaint has been made to the Labor Commissioner concerning the violation.”

The entire taxicab and limousine industry was following the law as it existed and was understood at the time, which was being enforced by the Office of Labor Commissioner. However, the Thomas, decision made it clear that the exemptions under NRS 608.250(2) no longer applied.

NRS 608.250(2) contained exemptions in effect since 1965, which employers reasonably and legitimately relied upon. In fact, these exemptions still remain on the books as of today, which is more perplexing since the Thomas decision was clear that those exemptions were “impliedly repealed.” The exemptions include the following: casual babysitters; domestic service employees who reside in the household where they work; outside salesperson whose earnings are based on commissions; employees engaged in an agricultural pursuit for an employer; taxicab and limousine drivers; and persons with severe disabilities whose disabilities have diminished their productive capacity in a specific job and who are specified in certificates issued by the Rehabilitation Division of the Department of Employment, Training and Rehabilitation.

Based on the Thomas ruling of “implied repeal,” any worker in Nevada outlined in those exemptions can now bring a class action lawsuit against their respective employer for conduct that occurred prior to 2014, although there is a 2-year statute of limitations.  To date, the only previously exempted industries to be civilly sued are taxicab and limousine companies. Unfortunately, the Thomas decision does not spell out what that process would entail and how it would coincide with the legal enforcement mechanism of the Office of Labor Commissioner, which never initiated any enforcement action prior to Thomas. The intent of the Thomas decision was not to punish employers who reasonably and legitimately relied upon NRS 608.250(2) exemptions. Rather, the intent of Thomas was to make one conclusive opinion on minimum wage law and to clarify the law going forward. Uncertainty in the law always breeds expensive litigation and inequities. Unfortunately, there still remain issues of law surrounding the MWA that have yet to be resolved.

The Department of Business and Industry shed light on the confusion and uncertainty as to the state of minimum wage law in Nevada and the interactions between the MWA and NRS 608.250(2) in its winter 2014 newsletter on page 7 titled, A Minimum Wage Guide For Nevada Employers. “While the constitutional amendment did not directly conflict with the exemptions outlined in NRS 608.250, its passage created some uncertainty. It was this uncertainty that the Nevada Supreme Court addressed in Thomas v. Nevada Yellow Cab, 130 Nev. Adv. Op. 52 (2014).” The legal battle and sleepless nights will continue, but for now employers are advised to take note of the decision in Thomas.

Tamer B. Botros, Esq., is the Senior Litigation Counsel at Yellow Checker Star Transportation and is currently defending the largest class action employment law case in the history of the State of Nevada.  His practice consists of litigating complex civil cases. He can be reached at tbotros@ycstrans.com and (702) 873-6531. He is also the founder of www.702TICKETLAWYER.COM

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