138 Nev., Advance Opinion 5(0
IN THE SUPREME COURT OF THE STATE OF NEVADA
EDDY MARTEL, A/K/A MARTEL- No. 82161
RODRIGUEZ; MARY ANNE CAPILLA;
JANICE JACKSON-WILLIAMS; AND
WHITNEY VAUGHAN, ON BEHALF OF .••••
THEMSELVES AND ALL OTHERS
SIMILARLY SITUATED,
Appellants, AUG 1 1 2022
vs. EL BROWN
HG STAFFING, LLC; AND MEI-GSR
HOLDINGS, LLC, D/B/A GRAND EF DEPUTY CLERK
SIERRA RESORT,
Respondents.
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. Paek,
Las Vegas,
for Respondents.
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BEFORE THE SUPREME COURT, EN BANC.
OPINION
By the Court, STIGLICH, J.:
Appellants filed a class action complaint against their former
employer to obtain unpaid minirnum and overtime wages. For various
reasons, their claims were dismissed and denied. In this appeal from the
district court's orders, we clarify five 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, when
a valid CBA exists, individual employees lack standing to represent union
members in a class-action lawsuit unless they allege that the union failed
to fairly represent its members. Fourth, 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 fifth, 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
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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
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 (3) 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." Id. 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, Nat'l 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
limitations 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 applies 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.3d 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.,
132 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., 138 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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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
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 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 id.,
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 overtirne 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.12 See Otherwise, Black's Law
Dictionary (11th ed. 2019) ("In a different way; in another manner . .. .");
see also Otherwise, Webster's Third New Int'l Dictionary (2002) ("Mil 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.13
Specifically, it states in relevant part,
12The Martel employees urge us to consult legislative history to
interpret NRS 608.018(3)(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, 301 P.3d 364, 367 (2013) (observing that a finding of ambiguity in a term
is not necessary before consulting a dictionary definition of that term).
13 Notably,
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
16
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. For 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 judginent on Jackson-Williams's
remaining claims
After the district court's summary judgment order, Jackson-
Williams 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-
Williams 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.3d 1280, 1288 n.38 (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.14
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
14 Although 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 to a 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.
J.
Stiglich
We concur:
CLAA.
Parraguirre Hardesty
J.
Silver
,
J.
Herndon
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