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Neville v. Eighth Judicial District Court of State

Supreme Court of Nevada, En Banc

December 7, 2017

JOHN W. NEVILLE, JR., ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Petitioner,
v.
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.

          OPINION

          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 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." Int'l 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.

          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 ...


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