JOHN W. NEVILLE, JR., ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Petitioner,
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.
petition for a writ of mandamus challenging a district court
order granting a motion to dismiss claims for unpaid wages.
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.
Hague Law Corporation, P.C., and S. Brett Sutton and Jared
Hague, Reno, for Amicus Curiae Nevada Restaurant Association.
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.
AND PROCEDURAL HISTORY
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.
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
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.
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
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.
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