Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
During the last legislative session, the Nevada Legislature made several efforts to increase the state minimum wage. One such effort was Assembly Joint Resolution No. 10 of the 80th Legislative Session (AJR 10). If successful, this proposed constitutional amendment would eliminate the two-tiered minimum wage system introduced by ballot initiative in 2006, and establish a single $12 minimum wage for all Nevada employees. This month, the Nevada Legislature passed the proposed amendment a second time, providing the two successive approvals necessary to place the amendment on the 2022 ballot.
The Existing Two-Tiered Minimum Wage System
In 2006, Nevada voters approved a constitutional amendment commonly known as the Minimum Wage Amendment (MWA).1 Under the MWA, employers are subject to a two-tiered minimum wage system whereby they must compensate employees at a higher rate if they do not offer “health benefits.”2 The MWA mandates that both wage tiers be adjusted “by the amount of increases in the federal minimum wage over $5.15 per hour, or, if greater, by the cumulative increase in the cost of living.”3 The MWA also provides employees with an express private right of action against their employers to remedy alleged violations. Notably, the MWA has been the subject of extensive litigation in the years since the amendment became law.
More recently, in June 2019 Nevada enacted Assembly Bill No. 456 (AB 456), a measure providing for successive increases to the state minimum wage according to a statutory schedule. The measure provides for a $0.75 increase to both wage tiers on July 1 of each year through July 1, 2024, at which point the upper and lower tiers will reach $12 and $11, respectively.4 The measure also amended section 608.260 of the Nevada Revised Statutes to include the same remedies available under the MWA, such as an award of back pay, damages, reinstatement, or injunctive relief, as well as attorneys’ fees.5 Importantly, the statutory measure adopted the two-tiered system codified in the MWA, including a reliance on the provision of “health benefits” for determining whether the upper- or lower-tier wage applies.
The 2019 Nevada Legislature also passed AJR 10. To be effective under Nevada law, AJR 10 must be approved by the legislature during two successive sessions and then approved and ratified by the electorate at the next general election.6 Unlike AB 456, this proposed constitutional amendment would abolish the existing two-tiered minimum wage system in Nevada, at least as a matter of constitutional law.
Assembly Joint Resolution 10
On May 14, 2021, the Nevada Legislature approved AJR 10 without amendment and referred it to the electorate for approval and ratification. As noted, AJR 10 would amend the MWA to establish a single $12 minimum wage for all Nevada employees, regardless of whether their employers offer health benefits.
The proposed amendment would make other important changes to the MWA in addition to eliminating its basic two-tiered system. The adjustments to the minimum wage currently required in accordance with the “cumulative increase in the cost of living”7 would be abolished, though AJR 10 clarifies that, if federal law mandates a greater wage, “each employer must pay a wage to each employee of not less than the hourly rate established for the federal minimum wage.” The proposed amendment would also eliminate the current requirement that the governor or agency designated by the governor “publish a bulletin by April 1 of each year announcing the adjusted rates,” as well as the current requirement that employers “provide written notification of the rate adjustments” to their employees.8
The proposed amendment also specifically allows the legislature to set a minimum wage greater than the $12-an-hour rate set by the amendment. Section 3 of AJR 10 states the legislature “may establish by law a minimum wage that an employer must pay to each employee that is greater than the hourly rate required” by the MWA. Notably, section 3 does not expressly state whether the legislature could constitutionally create a two-tiered statutory minimum, such as the one it passed in AB 456.
The Nevada electorate will now have an opportunity to approve and ratify AJR 10 during the 2022 general election. Littler will continue to monitor minimum wage developments in Nevada and report on any significant changes.
1 See Nev. Const., art. 15, § 16.
2 See id. §16(A). The MWA provides that offering “health benefits” consists of “making health insurance available to the employee for the employee and the employee’s dependents at a total cost to the employee for premiums of not more than 10 percent of the employee’s gross taxable income from the employer.” See id. The Nevada Supreme Court has elaborated on the meaning the term “health benefits” on multiple occasions since the MWA became law.
3 See id.
4 See Nev. Rev. Stat. § 608.250.
5 See id. § 608.260(2); cf. Nev. Const., art. 15, § 16(B).
6 See Nev. Const., art. 16, § 1; Nev. Rev. Stat. § 218D.800.
7 See Nev. Const., art. 15, § 16(A).
8 See id.