The 2015 legislative session is well underway. With all of the buzz around AB 2 (concerning guns on campus), SB 117 (immunizations for school children), and Initiative Petition 2 (background checks for gun purchases), one bill that may get overlooked in the public discourse is AB 89, a bill submitted on behalf of Governor Sandoval. This bill would revise NRS Chapter 613, a statute prohibiting employment discrimination, to allow private employers to create employment policies that give hiring preferences to veterans or the spouse of a veteran.
By clarifying Nevada’s statutory law to ensure that veteran hiring preferences do not create liability under anti-discrimination statutes, businesses will have increased freedom to assist this country’s veterans without fear of the high costs of employment discrimination litigation. Moreover, since the hiring preference authorized by AB 89 applies only to veterans who are residents of Nevada (and their spouses), this bill is drafted in such a way as to help existing Nevada residents secure jobs over those who may move to this state seeking work.
That being said, the language of AB 89, as originally introduced, raises several questions that could cause businesses to fear unintended liability if they elect to implement a veteran hiring preference program. Questions that will need to be addressed, either during the legislative session or in the courts thereafter, include the following.
1. Are veteran hiring preferences truly optional? AB 89 clearly leaves it to the discretion of each employer as to whether a veteran hiring preference will be implemented. The bill leaves unanswered the question of whether this statutory language can be used against businesses electing not to implement a veteran hiring preference. For example, if an employer decides not to implement such a preference and then, a year later, rejects the application of a veteran, can the rejected applicant use the lack of a veteran hiring preference as evidence that the employer harbors discriminatory animus against veterans? One solution might be to add language to AB 89 prohibiting this evidentiary theory. Without such language, the courts may be left to decide the issue for themselves.
2. If employers are fearful of asking about military status during the employment process, will any businesses actually implement veteran hiring preferences? Since this preferential hiring program applies only to certain veterans (e.g., those who have not been dishonorably discharged), how does a business go about determining whether an employee is a candidate for preferential hiring? If an employer asks questions during the hiring process concerning a candidate’s past or present military service and that candidate is ultimately not hired, he or she could allege that the company’s military-related questions were designed to weed out, rather than give preferential treatment to, candidates with past or present military service. One solution would be to add language to AB 89 stating that, for those businesses enacting and maintaining written policies providing for preferential hiring of veterans, (1) such businesses shall be presumed to lack any motive to discriminate on the basis of past or present military service, and (2) any efforts by such businesses to elicit information during the hiring process about military or veteran status cannot, without more, suffice to establish a claim of discrimination.
3. Does the requirement of “uniform application” of veteran hiring preferences actually restrict, rather than enable, businesses in the hiring process? AB 89 specifies that if businesses elect to implement a veteran hiring preference, “[s]uch a policy must be applied uniformly to employment decisions regarding the hiring or promotion of a veteran or the spouse of a veteran or the retention of a veteran or the spouse of a veteran during a reduction in the workforce.” While the proposed bill is arguably designed to give businesses more freedom in the hiring process, this language could in fact restrict the ability of businesses to manage their workforce. As a general rule in Nevada, employers are free to hire, fire or otherwise take adverse employment action against employees for any lawful reason (or no reason). If AB 89 becomes law, businesses enacting veteran hiring preferences could be restricted in their ability to alter the terms and conditions of such veterans’ (or veteran’s spouse’s) employment.
As an example, if a company hires a veteran and later is forced to conduct one or more rounds of layoffs, must that company retain the veteran throughout each round of layoffs notwithstanding the veteran’s on-the-job performance? Similarly, if a company elects to giving preferential hiring only during the initial hiring process, but determines that decisions concerning promotions and future employment should be based on merit alone without regard to a veteran preference, is this a per se violation of AB 89, and if so, what penalties will ensue? To reduce uncertainty, one solution might be to clarify the bill to (a) confirm that it is not intended to restrict the ability of businesses to make employment decisions based on merit and (b) specify which remedies the legislature intends to provide to those who ultimately prove that a business violated the language of AB 89.
Shannon S. Pierce is an attorney practicing in employment and commercial litigation with Fennemore Craig. She can be reached spierce@fclaw.com. Matthew P. Digesti is a senior litigation associate at the law firm. His practice areas include commercial litigation, business torts, and appeals. Mr. Digesti can be reached at mdigesti@fclaw.com.