Employees seeking unpaid wages, overtime pay or other compensation under certain Nevada labor statutes cannot sue their employer, says the U.S. District Court for the District of Nevada. Gamble v. Boyd Gaming Corp., No. 2:13cv01009 (D. Nev. June 6, 2014). The Court indicated that the Nevada wage statutes at issue in the case did not provide a private right of action for enforcement, calling the issue “settled law”. Instead, enforcement of these statutes is left to the Nevada Labor Commissioner or the Commissioner’s representatives, such as the Attorney General or district attorneys.

Casino Workers Allege Rounding and Off-the-Clock Work Resulted in Unpaid Overtime

Multiple workers at the Orleans and Gold Coast casinos, operated by Boyd Gaming Corporation, filed lawsuits claiming that their employer unlawfully failed to pay overtime compensation because of the company’s alleged policies of rounding down employees’ time and requiring employees to work off-the-clock. The “rounding down” claim alleged that the company’s use of a time-keeping management system provided by Kronos resulted in significantly more time being rounded down than was being rounded up, benefitting the company and depriving workers of proper payment for hours worked. The “off-the-clock” claim asserted that employees with bank and cash handling duties were not paid for the time at the end of their shifts when they needed to cash-out their bank with the cage cashiers. The plaintiffs also alleged that the company failed to properly pay all wages due to employees upon separation. The plaintiffs sought to recover the supposedly unpaid overtime compensation, unpaid wages, and any applicable penalties under the Nevada labor statutes and to certify a collective action for violations of the Fair Labor Standards Act (FLSA), the federal wage and hour law. The lawsuits were consolidated into one case before United States District Judge James Mahan.

Nevada Wage Claims Dismissed

Boyd Gaming asked the Court to dismiss the plaintiffs’ claims for violations of the Nevada labor statutes, pointing to earlier decisions written by Judge Mahan and Judge Robert C. Jones that held that various sections of the applicable statutes did not provide a private remedy to enforce the state’s wage and hour standards. The Court agreed, dismissing the Nevada wage claims in their entirety.

Notably, other cases both support and contradict Judge Mahan’s holding (thought it does appear that more judges are siding with him). Until the Nevada Supreme Court rules on whether employees may only pursue state law overtime claims before the Labor Commissioner, the issue will remain uncertain.

Employees May Proceed with Collective FLSA Action

Despite the dismissal of their Nevada statutory wage claims, the plaintiff-employees successfully alleged that certain groups of employees at two casino locations had sufficiently similar claims to warrant a conditional class certification under the FLSA and could proceed with providing notice of the collective action to potential class members. Although the Court will revisit whether to certify the class later in the case, Boyd Gaming was ordered to disclose the names, last known addresses and known email addresses of all persons under the conditional class who had performed work in the past three years. The Court also ordered the parties to agree on a mutually acceptable notice to be circulated to the potential class members. Notable, the Court limited the conditional class to employees of two Las Vegas casinos rather than the national class Plaintiffs sought to certify.

Employees Restricted to Federal Wage Claims

This ruling is favorable for Nevada employers as it gives them more ammunition to defeat certain state overtime and other compensation claims, but it does nothing to affect federal FLSA claims. It will be interesting to see if the Nevada Supreme Court eventually addresses this issue. While the Supreme Court has ruled that there is no private right of action under certain sections of the Nevada labor statutes, it seems to have avoided addressing the issue as to overtime.