NEVILLE, JR. VS. DIST. CT. (TERRIBLE HERBST, INC.)
Nev.
Opinion
133 Nev., Advance Opinion q5
IN THE SUPREME COURT OF THE STATE OF NEVADA
JOHN W. NEVILLE, JR., ON BEHALF No. 70696
OF HIMSELF AND ALL OTHERS
SIMILARLY SITUATED,
Petitioner,
FILED
vs. DEC 0 7 2017
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
ADRIANA ESCOBAR, DISTRICT
JUDGE,
Respondents,
and
TERRIBLE HERBST, INC.,
Real Party in Interest.
Original petition for a writ of mandamus challenging a district
court order granting a motion to dismiss claims for unpaid wages.
Petition granted.
Thierman Buck, LLP, and Joshua D. Buck, Leah L. Jones, and Mark R.
Thierman, Reno,
for Petitioner.
Littler Mendelson, P.C., and Rick D. Roskelley, Kathryn B. Blakey, Roger
L. Grandgenett II, and Montgomery Y. Pack, Las Vegas,
for Real Party in Interest.
Sutton Hague Law Corporation, P.C., and S. Brett Sutton and Jared Hague,
Reno,
for Amicus Curiae Nevada Restaurant Association.
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BEFORE THE COURT EN BANC.
OPINION
By the Court, DOUGLAS, J.:
NRS 608.140 allows for assessment of attorney fees in a private
cause of action for recovery of unpaid wages. In this opinion, we clarify that
NRS 608.140 explicitly recognizes a private cause of action for unpaid
wages. Accordingly, we conclude that NRS Chapter 608 provides a private
right of action for unpaid wages. Because petitioner's claims were for
unpaid wages under NRS 608.016 (payment for each hour worked), NRS
608.018 (payment for overtime), and NRS 608.020 through NRS 608.050
(payment upon termination), we grant the petition for extraordinary relief.
FACTS AND PROCEDURAL HISTORY
Petitioner John Neville, Jr., was employed as a cashier at a Las
Vegas convenience store owned by real party in interest Terrible Herbst,
Inc. Terrible Herbst enforces a time-rounding policy whereby it rounds the
time recorded and worked by all hourly employees to the nearest 15 minutes
for purposes of calculating payment of wages owed to employees. Because
of the time-rounding policy, Neville allegedly did not receive wages for work
actually performed during the time clocked in before and after his regularly
scheduled shift.
In November 2015, Neville filed a class-action complaint
against Terrible Herbst alleging (1) failure to pay wages in violation of the
Nevada Constitution's Minimum Wage Amendment, Nev. Const. art. 15,
§ 16; (2) failure to compensate for all hours worked in violation of NRS
608.016; (3) failure to pay overtime in violation of NRS 608.018; (4) failure
to timely pay all wages due and owing in violation of NRS 608.020 through
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NRS 608.050; and (5) breach of contract. All of Neville's NRS Chapter 608
claims also referred to NRS 608.140.
Terrible Herbst moved to dismiss Neville's complaint in its
entirety for failure to state a claim, pursuant to NRCP 12(b)(5). According
to Terrible Herbst, Neville had not asserted a viable claim under the
Nevada Constitution's Minimum Wage Amendment. Further, Terrible
Herbst asserted that there is no private right of action to enforce NRS
Chapter 608 because the Legislature gave exclusive enforcement authority
to the Nevada Labor Commissioner.
Ultimately, the district court granted the motion to dismiss in
part, dismissing Neville's NRS Chapter 608 claims on the basis that no
private right of action exists. The district court also dismissed Neville's
claim pursuant to the Nevada Constitution's Minimum Wage Amendment,
concluding that there is no private right of action under the Nevada
Constitution for minimum wage claims. The only cause of action that the
district court did not dismiss was Neville's breach of contract claim. This
writ petition followed.
DISCUSSION
"A writ of mandamus is available to compel the performance of
an act that the law requires . . . or to control an arbitrary or capricious
exercise of discretion." Ina Game Tech., Inc. v. Second Judicial Dist. Court,
124 Nev. 193, 197,179 P.3d 556, 558
(2008). Where there is no plain,
speedy, and adequate remedy in the ordinary course of law, extraordinary
relief may be available. Smith v. Eighth Judicial Dist. Court, 107 Nev. 674,
677,818 P.2d 849, 851
(1991). Whether a writ of mandamus will be
considered is within this court's sole discretion. Id.
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In this case, the district court's dismissal of Neville's claim
under the Nevada Constitution's Minimum Wage Amendment indisputedly
was an arbitrary and capricious exercise of discretion. The constitution
expressly provides for a private cause of action to enforce the provisions of
the Minimum Wage Amendment. Nev. Const. art. 15, § 16 ("An employee
claiming violation of this section may bring an action against his or her
employer in the courts of this State to enforce the provisions of this
section. ."). Moreover, Neville raises a matter of first impression with
statewide importance—whether a plaintiff has a private right of action to
recoup unpaid wages under NRS Chapter 608. Finally, given that the
majority of Neville's class-action claims were dismissed early in the
proceedings, we conclude that Neville lacks a plain, speedy, and adequate
legal remedy in pursuing his dismissed claims. Accordingly, we elect to
exercise our discretion to entertain the merits of this writ petition.
In considering this petition, this court reviews determinations
of law de novo. Helfstein v. Eighth Judicial Dist. Court, 131 Nev., Adv. Op.
91, 362 P.3d 91, 94 (2015). When a court considers a motion to dismiss
under NRCP 12(b)(5), all alleged facts in the complaint are presumed true
and all inferences are drawn in favor of the complaint. Buzz Stew, LLC v.
City of N. Las Vegas, 124 Nev. 224, 227-28,181 P.3d 670, 672
(2008). Thus,
dismissing a complaint is appropriate "only if it appears beyond a doubt
that [the plaintiff] could prove no set of facts, which, if' true, would entitle
[the plaintiff] to relief." Id. at 228,181 P.3d at 672
.
Neville argues that the district court erred in dismissing his
NRS Chapter 608 claims (payment for hours worked, overtime, and
payment upon termination) on the basis that there is no private right of
action to enforce those claims under that chapter. In particular, Neville
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contends that the relevant statutes, as well as• precedent from this court,
expressly allow employees to seek unpaid wages in court. Terrible Herbst
maintains that there is no private right of action under NRS Chapter 608
to support Neville's claims. 1
NRS 608.016 states, "Except as otherwise provided in NRS
608.0195, an employer shall pay to the employee wages for each hour the
employee works. An employer shall not require an employee to work
without wages during a trial or break-in period." Further, NRS 608.018
addresses wages for overtime, providing in pertinent part as follows:
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 prescribed pursuant to NRS 608.250
works:
(a) MoreS 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
employee's regular wage rate whenever an
employee who receives compensation for
employment at a rate not less than 1 1/2 times the
minimum rate prescribed pursuant to NRS 608.250
1 The Nevada Restaurant Association was allowed to file an amicus
brief, and it concurred with Terrible Herbst.
Terrible Herbst also argues that because Neville failed to meet NRS
608.140's requirement for making a written demand prior to filing suit, he
has no cause of action. We reject Terrible Herbst's argument according to
the plain language of NRS 608.140, which requires a written demand to
obtain attorney fees but not to file suit for unpaid wages.
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works more than 40 hours in any scheduled week
of work.
Pursuant to NRS 608.020, "[w]henever an employer discharges an
employee, the wages and compensation earned and unpaid at the time of
such discharge shall become due and payable immediately." According to
NRS 608.030, "[w]henever an employee resigns or quits his or her
employment, the wages and compensation earned and unpaid at the time of
the employee's resignation or quitting must be paid no later than" one of
two dates, whichever is earlier: "[t]he day on which the employee would
have regularly been paid the wages or compensation" or "Es]even days after
the employee resigns or quits." If the employer fails to pay, certain penalties
apply. See NRS 608.040(1); NRS 608.050.
On their face, NRS 608.016, MRS 608.018, and MRS 608.020
through MRS 608.050 are silent as to whether a private right of action exists
to enforce their terms. Further, NRS 608.180 expressly states that "[Ole
Labor Commissioner or [his representative] shall cause the provisions of
NRS 608.005 to 608.195, inclusive, to be enforced." Thus, there is no direct
statutory provision for a private right of action under MRS 608.016, NRS
608.018, and NRS 608.020 through NRS 608.050; instead, such enforcement
appears to rest with the Labor Commissioner rather than the courts. See
Baldonado v. Wynn Las Vegas, LLC, 124 Nev. 951, 954,194 P.3d 96, 98
("[T]he Nevada Labor Commissioner, who is entrusted with the
responsibility of enforcing Nevada's labor laws, generally must
administratively hear and decide complaints that arise under those laws.").
However, when no clear statutory language authorizes a
private right of action, one may be implied if the Legislature so intended.
Id. at 958,194 P.3d at 100-01
. In ascertaining the Legislature's intent, this
court is guided by the following three factors: "(1) whether the plaintiffs are
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of the class for whose I 'special benefit the statute was enacted; (2) whether
the legislative history indicates any intention to create or deny a private
remedy; and (3) whether implying such a remedy is consistent with the
underlying purposes of the legislative scheme." Id. at 958-59,194 P.3d at 101
(internal quotation marks omitted) This court has stated, "Mlle three
factors are not necessarily entitled to equal weight; the determinative factor
is always whether the Legislature intended to create a private judicial
remedy." Id. at 959,194 P.3d at 101
. Without legislative intent to create a
private judicial remedy, "a cause of action does not exist and courts may
not create one, no matter how desirable that might be as a policy matter, or
how compatible with the statute." Id.(quoting Alexander v. Sandoval,532 U.S. 275, 286-87
(2001)).
Here, NRS 608.140 demonstrates the Legislature's intent to
create a private cause of action for unpaid wages. In particular, NRS
608.140 allows for assessment of attorney fees in a private cause of action
for recovery of unpaid wages:
Whenever a mechanic, artisan, miner, laborer,
servant or employee shall have cause to bring suit
for wages earned and due according to the terms of
his or her employment, and shall establish by
decision of the court or verdict of the jury that the
amount for which he or she has brought suit is
justly due, and that a demand has been made, in
writing, at least 5 days before suit was brought, for
a sum not to exceed the amount so found due, the
court before which the case shall be tried shall
allow to the plaintiff a reasonable attorney fee, in
addition to the amount found due for wages and
penalties, to be taxed as costs of suit.
(Emphasis added.)
Indeed, as part of resolving a different issue, this court has
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previously recognized that the language of NRS 608.140 can be read to
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provide for a civil enforcement action to recoup unpaid wages. See
Baldonado, 124 Nev. at 964n.33,194 P.3d at 104
n.33. In Baldonado, this
court analyzed whether a private cause of action existed under NRS
608.160, which makes it unlawful for an employer to take employee tips or
gratuities. Id. at 958-61,194 P.3d at 100-03
. In resolving that issue, and
although it was not our central holding in that case, this court also
addressed NRS 608.140. In a footnote, we contrasted NRS 608.160 with
NRS 608.140 and stated that NRS 608.140 "expressly recognize[s] a civil
enforcement action to recoup unpaid wages." Id.at 964 n.33,194 P.3d at 104
n.33. In that footnote, this court went on to note that "a private cause
of action to recover unpaid wages is entirely consistent with the express
authority under NRS 608.140 to bring private actions for wages unpaid and
due." id. 2 Additionally, this court stated, "[t]he Labor Commissioner's NRS
2 While there is a conflict in federal caselaw regarding the proper way
to interpret footnote 33 in Baldonado, these cases are only illustrative and
not controlling authority upon this court. See Cardoza v. Bloomin' Brands,
Inc., No. 2:13-cv-01820-JAD-NJK, 2014 WL 3748641, at *1 (D. Nev. July 30,
2014) ("I find that NRS 608.140 does not create a vehicle for privately
enforcing the legal rights conferred by NRS 608.016 and 608.018, it merely
establishes a fee-shifting mechanism in an employee's suit for wages earned
and due according to the terms of his or her employment." (internal
quotation marks omitted)); Descutner v. Newmont USA Ltd., No. 3:12-CV-
00371-RCJ-VPC, 2012 WL 5387703, at *3 (D. Nev. Nov. 1, 2012) ("Plaintiff
relies on footnote 33. . . . But the Baldanado Court did not directly address
the question of whether [NRS] 608.140 authorized a private suit or, more
importantly, what kinds of suits it implied. Rather, it made the comment
in footnote 33 to contrast those sections of the labor code under which there
was no language possibly implying any kind of private right of action at
all."); but see Buenaventura v. Champion Drywall, Inc., 803 F. Supp. 2d
1215, 1218 (D. Nev. 2011) (ruling that "employees can maintain a private
cause of action for unpaid wages pursuant to [NRS] 608.140, [therefore]
employees covered by [NRS] 608.018 can bring a private cause of action for
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Chapter 607 authority to pursue wage and commission claims on behalf of
those people who cannot afford counsel is also consistent with [the
conclusion that there is authority under NRS 608.140 to bring private
actions for wages unpaid and due]." Id.; see NRS 607.160(7) ("If, after due
inquiry, the Labor Commissioner believes that a person who is financially
unable to employ counsel has a valid and enforceable claim for wages,
commissions or other demands, the Labor Commissioner may present the
facts to the Attorney General."); NRS 607.170(1) ("The Labor Commissioner
may prosecute a claim for wages and commissions or commence any other
action to collect wages, commissions and other demands of any person who
is financially unable to employ counsel . . . .").
Because NRS 608.016, NRS 608.018, and NRS 608.020 through
NRS 608.050 do not expressly state whether an employee could privately
enforce their terms, Neville may only pursue his claims under the statutes
if a private cause of action for unpaid wages is implied. The determinative
factor is always whether the Legislature intended to create a private
judicial remedy. We conclude that the Legislature intended to create a
private cause of action for unpaid wages pursuant to NRS 608.140. It would
be absurd to think that the Legislature intended a private cause of action
to obtain attorney fees for an unpaid wages suit but no private cause of
action to bring the suit itself. See Bisch v. Las Vegas Metro. Police Dep't,
129 Nev. 328, 336,302 P.3d 1108, 1114
(2013) ("In order to give effect to the
Legislature's intent, [this court] ha[s] a duty to consider the statute[s]
within the broader statutory scheme harmoniously with one another in
accordance with the general purpose of those statutes." (internal quotation
the unpaid overtime wages owed pursuant to [NRS] 608.018," and
employees may also bring a private cause of action to enforce NRS 608.040).
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marks omitted)). The Legislature enacted NRS 608.140 to protect
employees, and the legislative scheme is consistent with private causes of
action for unpaid wages under NRS Chapter 608.
Neville's NRS Chapter 608 claims involve allegations that
wages were unpaid and due to him at the time he brought his suit before
the district court. Moreover, in his complaint, Neville tied his NRS Chapter
608 claims with NRS 608.140. Thus, we conclude that Neville has and
properly stated a private cause of action for unpaid wages. As a result,
granting Terrible Herbst's motion to dismiss pursuant to NRCP 12(b)(5)
was improper. Accordingly, we grant Neville's petition for extraordinary
writ relief and direct the clerk of this court to issue a writ of mandamus
instructing the district court to vacate its order dismissing Neville's claims.
We concur:
, C.J.
Cherry
ekbt
J.
Pickering Hardesty
Ais c-i-0 ,J.
arraguirre Stiglich
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