Archive for: August, 2017

By Robert Rosenthal, Esq. and Jay Young, Esq.

Employers, do your zero drug tolerance policies allow you to discipline an employee for using marijuana if the employee is legally using medical marijuana in Nevada?  The answer may surprise you.

A recent federal court held that just because marijuana is illegal under federal law does not bar a discrimination claim by an employee based on conduct protected by state medical marijuana laws.  In other words, discipline your employees with caution.

Nevada’s law goes even farther.  Here, even though an employer does not have to permit an employee to use marijuana in the workplace, it is required to accommodate an employee’s need for medical (not recreational) marijuana.

NRS 453A.800  Costs associated with medical use of marijuana not required to be paid or reimbursed; medical use of marijuana not required to be allowed in workplace; medical needs of employee who engages in medical use of marijuana to be accommodated by employer, other than law enforcement agency, in certain circumstances.  The provisions of this chapter do not:

  1. Require an insurer, organization for managed care or any person or entity who provides coverage for a medical or health care service to pay for or reimburse a person for costs associated with the medical use of marijuana.
  2. Require any employer to allow the medical use of marijuana in the workplace.
  3. Except as otherwise provided in subsection 4, require an employer to modify the job or working conditions of a person who engages in the medical use of marijuana that are based upon the reasonable business purposes of the employer but the employer must attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of marijuana if the employee holds a valid registry identification card, provided that such reasonable accommodation would not:

(a) Pose a threat of harm or danger to persons or property or impose an undue hardship on the employer; or

(b)  Prohibit the employee from fulfilling any and all of his or her job responsibilities.

The statute has quite a few inherent problems, including:

  1. It does not define “employee.” Therefore, employers cannot be sure whether it applies to only current employees or whether it also applies to applicants;
  2. Second, there is no enforcement mechanism for the statute, leaving an employer unable to predict liability and an employee without a way to challenge an employer’s failure to meet the statute’s requirements;
  3. In requiring an employer to accommodate the need for medical marijuana, the statute ventured well beyond any mandate imposed by Article 4, Section 38 of the Nevada Constitution; and
  4. The statute provides two different accommodation standards by first stating that an employer does not need to modify those “job or working conditions” that are “based upon the reasonable business purposes  of the employer,” and then stating that an accommodation is not reasonable if it would prohibit an employee from fulfilling any and all job responsibilities.

To our knowledge, this statute has not been tested by the courts.  That leaves this area a minefield for the unwary.  If you have an employee who is eligible for medical marijuana, contact an employment attorney to discuss your options before disciplining for marijuana use.

Partnership by Estoppel in Nevada

Partnership by estoppel is a statutory recognition that someone “represents himself or herself, or consents to another representing him or her to any one, as a partner” and should therefore be held responsible as a partnership under the law.  NRS 87.160(1).  A partner is an association of two or more persons doing business together for a profit.  NRS 87.060(1).

In other words, if I tell someone that you are my partner and you agree or do not correct me, that person has the right to presume we are acting as a partnership.  In a partnership, the partners have unlimited personal liability for the acts of the partnership and the acts of  their partners, so holding oneself out as a partner can have huge legal implications.  NRS 87.433.   Nevada’s Supreme Court has held that the consent to be treated as a partnership may be reasonably implied from the conduct of the parties.

The Moral: unless you want to have unlimited liability for the acts of that person, don’t say they are your partner.

Nevada Partnership Formation and Law

Nevada Partnership Formation and Law

I hear people refer to those with whom they do business as their “partners” frequently.  I even hear this from people who are really shareholders in a corporation or members in a limited liability company.  I am fairly certain that if most of them understood the potential liability of forming a true partnership, they would never call themselves someone’s partner ever again.  Partnerships are relatively easy to form (beware: some court decisions and Nevada’s statutes have held that a partnership can be formed just by telling those with whom you are doing business that you and another person are “partners”), requiring simply an association of two or more persons doing business together for a profit.  NRS 87.060(1).  Every partner is a fiduciary to the other partner(s).  That means the partner has a legal duty to act in the best interests of his or her partners and of the partnership rather than acting in his or her own interest.  NRS 87.210. (more…)

Doing Business in Nevada

Howard & Howard published its comprehensive guide to doing business in Nevada recently.  This impressive volume should be on the shelf of every business owner as a handy resource to answer your questions about starting and operating a Nevada business from soup to nuts.  The Table of Contents below shows the breadth of the coverage.  The book is well worth the $25.00 list price, but if you come to the Howard & Howard Las Vegas office and mention this blog, Jay Young will give you a free copy.  Get yours today!

 

 

Contents

  1. An Overview of Nevada . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
  2. Corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
  3. Limited Liability Companies . . . . . . . . . . . . . . . . . . . . . . 31
  4. Other Business Entities . . . . . . . . . . . . . . . . . . . . . . . . . . 43
  5. Foreign Qualification to do Business in Nevada . . . . . . . . 87
  6. Business Name Registration Requirements . . . . . . . . . . . . 90
  7. Purchase and Sale of Businesses and Entities. . . . . . . . . . . 92
  8. Mergers, Conversions, Exchanges, and Domestication . . . 93
  9. Business Regulation and Licensing . . . . . . . . . . . . . . . . . . 98
  10. Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
  11. Purchase and Sale of Property. . . . . . . . . . . . . . . . . . . . 103
  12. Deeds of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
  13. Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
  14. Construction Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
  15. Easements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
  16. Zoning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
  17. Mineral Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
  18. Condemnation / Eminent Domain. . . . . . . . . . . . . . . . 143
  19. Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
  20. Labor and Employment Law . . . . . . . . . . . . . . . . . . . . 153
  21. Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
  22. Gaming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
  23. Franchise Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
  24. Taxation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
  25. Securities Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . 225
  26. Trusts and Estate Planning. . . . . . . . . . . . . . . . . . . . . . 231
  27. Family Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
  28. Tribal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
  29. Anti-Trust Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
  30. Consumer Protection Laws. . . . . . . . . . . . . . . . . . . . . . 263
  31. Reporting Requirements for Foreign Direct Investment 269
  32. Electronic Transactions . . . . . . . . . . . . . . . . . . . . . . . . 272
  33. Financing Investments . . . . . . . . . . . . . . . . . . . . . . . . . 275
  34. Financial Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . 283
  35. Usury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
  36. Environmental Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
  37. Marijuana Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
  38. Wine Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
  39. Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314

Doing Business in Nevada: A Practical Guide (co-author) 2017.  This guide is a must for any company doing business in Nevada.  It covers everything from how to properly form a business to leases, corporations, limited liability companies, foreign qualifications to do business in Nevada, business name registration requirement, purchase and sale of businesses and entities, mergers, conversions, exchanges, and domestication of business, business regulation and licensing, real estate, deeds of trust, leases, construction law, easements, zoning, minerals, family law, dispute resolution, taxation, franchising, securities regulation, estate planning, banking, and marijuana law.  Contact Jay for your copy.

Federal Court Litigation Checklist (Your Legal Guides 2016). This invaluable checklist guides attorneys through all the steps they need to take as a litigator from client intake to verdict. Even attorneys who have practiced for many years find this guide streamlines their practice and allows them to mentor younger attorneys, saving countless hours while teaching their attorneys the valuable lessons that normally take decades to learn.  Buy here.  Also available on Amazon!

A Litigator’s Guide to Federal Evidentiary Objections (Your Legal Guides 2016).  This guide allows attorneys to instantly find the right objection to make in the heat of battle during trial. Buy here. Also available on Amazon!

 

 

A Litigator’s Guide to the Federal Rules of Evidence (Your Legal Guides 2016). A Pocket book for every busy trial attorney practicing in Federal Court. With this pocket book, litigators will be able to instantly translate their knowledge of Federal Rules to courtroom use or look up the rule/statute based on the concept. Buy here. Also available on Amazon!

 

Nevada State Court Litigation Checklist (2nd Edition) (Your Legal Guides 2016).  This invaluable checklist guides attorneys through all the steps they need to take as a litigator from client intake to verdict. Even attorneys who have practiced for many years find this guide streamlines their practice and allows them to mentor younger attorneys, saving countless hours while teaching their attorneys the valuable lessons that normally take decades to learn.  Buy here.

A Litigator’s Guide to Nevada Evidentiary Objections (2nd Edition) (Your Legal Guides 2016).  This guide allows attorneys to instantly find the right objection to make in the heat of battle during trial. Organized logically, it is cross-referenced to the Federal Rules of Evidence as well as Nevada’s evidence statutes.  Buy here.

 

A Litigator’s Guide to Nevada Rules of Evidence (2nd Edition) (Your Legal Guides 2016).  A Pocket book for every busy trial attorney whether practicing in Federal Court or in State Court. Tracks both Nevada and the Federal Rules of evidence in one source! With this pocket book, litigators will be able to instantly translate their knowledge of Federal Rules to Nevada’s statutes, or look up the rule/statute based on the concept.  Buy here.

 

Nevada Civil Practice Manual, Chapter 26: Pre-Judgment Remedies, Jay Young (co-author), State Bar of Nevada Publication (LexisNexis Matthew Bender), 5th Ed. (2005-2016).  “The Nevada Civil Practice Manual is written and edited entirely by a team of volunteer attorneys and judges, all of whom actively practice law in Nevada. Their hands-on knowledge of Nevada law and its courts was invaluable in the development of this publication, and their expertise greatly enhances its contents. The publication is managed by the State Bar of Nevada.”

The Self Help Federal Court Litigation Checklist (Your Legal Guides 2016). This invaluable checklist guides lay litigants through all the steps they need to take from initial filing to verdict. Even attorneys who have practiced for many years find this guide streamlines their practice and allows them to mentor younger attorneys, saving countless hours while teaching their attorneys the valuable lessons that normally take decades to learn.  A must for anyone representing themselves in federal court (pro per, pro se, self-represented, etc).  Buy here.

The Self Help Guide to Federal Evidentiary Objections (Your Legal Guides 2016).  This guide allows lay litigants to instantly find the right objection to make in the heat of battle during trial.  A must for anyone representing themselves in federal court (pro per, pro se, self-represented, etc).  Buy here.

 

The Self Help Guide to the Federal Rules of Evidence (Your Legal Guides 2016). A Pocket book for every every lay litigant in Federal Court. With this pocket book, litigants can find the correct Federal Rules based on the concept.  A must for anyone representing themselves in federal court (pro per, pro se, self-represented, etc).  Buy here.

The plaintiff in a lawsuit is allowed to seek as many remedies as are available to her and may choose the one which is most beneficial to her.  The doctrine of election of remedies requires:

  1. The existence of two or more remedies;
  2. Inconsistency between the remedies; and
  3. Choice of one or more of the remedies.[1]

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How Does a Party Prosecute an Action for Misappropriation of Trade Secrets?

NRS 600A.030(2) defines “misappropriation” as:

(a) Acquisition of the trade secret of another by a person by improper means;

(b) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or

(c) Disclosure or use of a trade secret of another without express or implied consent by a person who:

(1)  Used improper means to acquire knowledge of the trade secret;

(2)  At the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was:

(I) Derived from or through a person who had used improper means to acquire it;

(II)  Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or

(III)  Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or

(3)  Before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

NRS 600A.040 provides injunctive relief for the actual or threatened misappropriation of trade secrets, stating;

  1. Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction must be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time to eliminate commercial or other advantage that otherwise would be derived from the misappropriation.

* * *

  1. In appropriate circumstances, the court may order affirmative acts to protect a trade secret. As used in this subsection, “affirmative acts” includes, without limitation, issuing an injunction or order requiring that a trade secret which has been misappropriated and posted, displayed or otherwise disseminated on the Internet be removed from the Internet immediately.

In Frantz, the Nevada Supreme Court found misappropriation of trade secrets based on the fact that: (l) lists containing information were missing after the former employee left the job; (2) the former employee contacted the plaintiff’s customers to offer “more competitive pricing;” and (3) the former employee’s phone records and other evidence indicated calls to plaintiff’s customers.  As a result, the former employee was liable for misappropriation of trade secrets.   The Court further found that the competitor had misappropriated trade secrets when the competitor hired the former employee, announced that competitor intended to compete against plaintiff by taking all of plaintiff’s customers, and the competitor hired employees from other competitive companies and asked them to use their knowledge about their former employers’ pricing structure and customer base.  Id.

To prove misappropriation under NUTSA, a plaintiff must plead and prove: (1) the existence of a valuable trade secret as defined by the statute; (2) misappropriation through use, disclosure, or nondisclosure of use of the trade secret; and (3) the misappropriation was wrongful because it was made in breach of an express or implied contract or by a party with a duty not to disclose.  Frantz, 116 Nev. at 466, 999 P.2d at 358.  The Court has wide discretion in calculating damages, subject only to a review for abuse of discretion.  Id. (citing Diamond Enters., Inc. v. Lau, 113 Nev. 1376, 1379, 951 P.2d 73, 74 (1997) (citations omitted)).

Abraham Lincoln said: “Discourage Litigation.  Persuade your neighbors to compromise whenever you can.  Point out to them how the nominal winner is often the real loser—in fees, and expenses, and waste of time.”  

So, your attorney has asked if you will agree to mediate your legal dispute.  Do you understand what that means?  This articles below explain mediation and what you can expect from the process and from your mediator.

What Is Mediation?
What is the Role of the Mediator?
What is Your Role at Mediation?
How Does Mediation Compare to Litigation?
Why Mediate?
Who May Attend The Mediation?
Is Mediation Confidential?
What Will Happen At The Mediation?
What Is A Separate Session?
Can You Speak With Your Attorney Privately Any Time You Want?
How Long With Mediation Last?
What Helps To Get The Case Settled?

Jay Young is a Mediator in Las Vegas, Nevada.  He can be reached at www.nevadalaw.info or at www.armadr.com.