SENATE COMMITTEE ON COMMERCE AND LABOR

MINUTES OF THE

SENATE Committee on Commerce and Labor

Seventy-First Session

February 13, 2001

The Senate Committee on Commerce and Laborwas called to order by Chairman Randolph J. Townsend, at 8:03 a.m., on Tuesday, February 13, 2001, in Room 2135 of the Legislative Building, Carson City, Nevada. The meeting was videoconferenced to the Grant Sawyer Office Building, Room 4401, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Senator Randolph J. Townsend, Chairman

Senator Ann O’Connell, Vice Chairman

Senator Dean A. Rhoads

Senator Mark Amodei

Senator Raymond C. Shaffer

Senator Michael A. (Mike) Schneider

Senator Maggie Carlton

STAFF MEMBERS PRESENT:

Scott Young, Committee Policy Analyst

Gayle Nadeau, Committee Secretary

OTHERS PRESENT:

Danny L. Thompson, Lobbyist, Nevada State AFL-CIO

Gary H. Wolff, Lobbyist, Teamsters Local 14

Terry Johnson, Labor Commissioner, Office of Labor Commissioner, Department of Business and Industry

Joseph H. Edson, Lobbyist, Field Organizer, Progressive Leadership Alliance of Nevada

Robin Keith, Lobbyist, President, Nevada Rural Hospital Project Foundation

Robert A. Ostrovsky, Lobbyist, Nevada Resort Association

Robert Gastonguay, Lobbyist, Nevada State Cable Telecommunications Association

James T. Endres, Lobbyist, AT&T

Helen A. Foley, Lobbyist

Margaret A. McMillan, Lobbyist, Sprint

James V. Nelson, Lobbyist, Nevada Association of Employers

Susan Burger, Concerned Citizen

Tom Stoneburner, Director, Northern Nevada Chapter, Alliance for Workers’ Rights

Charlotte Arrowsmith, Concerned Citizen

Linda Grable, Concerned Citizen

Marcia Belkin, Concerned Citizen

Mary Cunningham, Concerned Citizen

Bobbie Gang, Lobbyist, Nevada Women’s Lobby

Kricket Martinez, Coordinator, Kiss My Foot Campaign

Mary F. Valencia Wilson, Political Action Chair Person, Reno/Sparks NAACP, and representing the Reno Council of LULAC (League of United Latin American Citizens) and LAPE (Latinos for Political Education)

Samuel P. McMullen, Lobbyist, Retail Association of Nevada

Marilyn Yezek, Chief of Human Resources, Nevada Department of Transportation

Senator Townsend opened the hearing on Senate Bill (S.B.) 24.

Senate Bill 24: Prohibits employer from taking disciplinary action against employee who refuses to work before or after his scheduled time. (BDR 53-941)

Senator Townsend mentioned Senator Carlton had introduced S.B. 23 and S.B. 24, and at the request of Senator Carlton, S.B. 24 would be heard first, because someone wishing to testify on S.B. 23 could not be at the hearing until later.

Senate Bill 23: Revises provisions governing discrimination against employees who have certain medical conditions. (BDR 53-897)

Senator Carlton stated S.B. 24 addresses the issue of mandatory overtime. The senator mentioned a constituent brought this matter to her attention after learning there is no protection under the law regarding employees being required to work mandatory overtime. Senator Carlton pointed out S.B. 24 has a single purpose to her, and that is when a working person in Nevada chooses to go
home to his or her family rather than work mandatory overtime there will be no threat of termination, harassment, or discipline.

Senator Carlton gave a couple of examples where working mandatory overtime would cause a hardship for the employee. The first was of a single parent working swing shift who needs to pick their child up from a day care center that closes at midnight. The employee is told to stay or possibly be released from the job. If the parent does not get to the day care center by midnight, there are extra charges up until 12:15 p.m. or 12:30 p.m. After that time, the child might be taken into protective custody. Another example Senator Carlton gave was of the “tag-team marriage,” where one parent goes home at 5:00 p.m., and the other parent must leave at 5:15 p.m. in order to be at work by 6:00 p.m. If the one parent does not get home before the other parent must leave, it could jeopardize the other parent’s job.

Senator Carlton pointed out S.B. 24 does have some exemptions for areas involving public safety (e.g., police, fire, roads, Nevada Department of Transportation). The senator emphasized she is more than willing to work with lobbyists representing different employers in the state regarding concerns with S.B. 24. Senator Carlton said she considers this bill a family-type issue.

Senator Townsend asked Senator Carlton if she had any individuals at the hearing to testify in favor of S.B. 24.

Senator Carlton told Senator Townsend she was not able to convince any of the workers who were involved to come forward and testify on the bill.

Senator Townsend mentioned to Senator Carlton, prior to her election to the Nevada Senate, there was a situation where a state employee was subpoenaed to testify because of not being well-received by the employee’s supervisor after previously testifying before the Legislature.

Senator Carlton thanked Senator Townsend for this insight and said she would keep it in mind as the session progresses.

Danny L. Thompson, Lobbyist, Nevada State AFL-CIO, said the Nevada State AFL-CIO supports the concept of S.B. 24 but with a caveat. In businesses utilizing highly-trained personnel for very dangerous jobs they ask that this law not preempt contracts requiring employees to work overtime until arrangements can be made to bring in another qualified person. Mr. Thompson acknowledged there are situations where parents, unable to get off work in time to pick up their children, end up in court. He said that if there are extenuating circumstances and provisions dealing with them are written into contracts, which the law would not preempt, then the Nevada State AFL-CIO would wholeheartedly support S.B. 24.

Senator Carlton noted she totally agrees with Mr. Thompson about contracts. She said, “I would never want to infringe upon a contract between an employer and a group of employees . . . .”

Senator Townsend asked Mr. Thompson, to the best of his knowledge, if most dangerous jobs in Nevada have contracts associated with them.

Mr. Thompson responded there are dangerous jobs in the state under contract and dangerous jobs that are not under contract.

Gary H. Wolff, Lobbyist, Teamsters Local 14, and also representing Teamsters Local 533, said he echoed Mr. Thompson’s comments and expressed support for S.B. 24 with regard to the child-care problems. Mr. Wolff also acknowledged public safety is exempt and that the Teamsters members would never infringe on a contract.

Senator Carlton remarked there are some concerns about nurses not under contract and dealing with public safety issues, which will need to be addressed.

Terry Johnson, Labor Commissioner, Office of Labor Commissioner, Department of Business and Industry, stated he had not prepared to offer any testimony for or against S.B. 24, but rather witness the proceedings and gather more information. He expressed interest in learning how the matter would be enforced, as he stated he believes S.B. 24 proposes to amend chapter 613 of the Nevada Revised Statutes (NRS) in relationship to enforcement responsibilities (e.g., the Office of the Attorney General, the Nevada Equal Rights Commission, and the Office of Labor Commissioner).

Joseph H. Edson, Lobbyist, Field Organizer, Progressive Leadership Alliance of Nevada (PLAN), testified in support to the concept of S.B. 24, taking into consideration the concerns already addressed about public safety and contracts. He stated, after speaking with Tom Stoneburner of the Alliance for Worker’s Rights and a member of PLAN, most of the complaints and problems they have encountered involve people in the service industry, and not employees in critical or public safety kinds of jobs.

Robin Keith, Lobbyist, President, Nevada Rural Hospital Project Foundation, stated she had expressed concerns to Senator Carlton about the shortages of clinical workers in hospitals. Ms. Keith then mentioned she had proposed some language for the bill she thinks would address her concerns (Exhibit C).

Senator Townsend asked Senator Carlton to get the language from Ms. Keith; Senator Carlton acknowledged she has received the language.

Robert A. Ostrovsky, Lobbyist, Nevada Resort Association, came forward to represent, per his words, “. . .the largest employer in the state as an industry [gaming].” Mr. Ostrovsky stated S.B. 24 does not mention overtime, but it does talk about working outside scheduled hours. He acknowledged the concerns expressed by proponents of the bill regarding public safety and child-care issues, but went on to express concerns about scheduling needs in the industry.

Mr. Ostrovsky mentioned in order for the industry to be profitable and create jobs, it must rely on overtime from employees, some that can be planned for and some that cannot. He pointed out employers do not like to pay overtime, but gave a couple examples of when employers have no other alternative in order to meet the needs of customers. Housekeeping was one example Mr. Ostrovsky used, citing there are times when departing guests check out later than expected and, therefore, the employer must hold a sufficient workforce over in order to accommodate incoming guests. Mr. Ostrovsky added not only are there the additional wages that must be paid by the employers for overtime, but another “cost” is lower productivity from the employees.

Mr. Ostrovsky referred to the variations in federal and state law addressing the hours required to be worked before overtime must be paid, but also stated union contracts, which cover the vast majority of employees represented by the Nevada Resort Association, have very specific language about overtime in terms of time and a half and double time depending upon the number of hours previously worked and the number of continuous hours worked.

Mr. Ostrovsky acknowledged Senator Carlton’s concern for employees being put in a “risk situation” as a result of an overtime assignment, but said good employers try to find qualified employees who are willing to work the overtime and also try to make arrangements for coverage at the first knowledge of a situation requiring overtime. Mr. Ostrovsky said he believes under this bill scheduled overtime is permitted. He stated the specific language in S.B. 24 talks about a schedule of work, but does not address when to post that schedule or notify employees. He also pointed out rules for necessary schedule changes, a frequent situation in the industry, are also not addressed in this bill.

Mr. Ostrovsky addressed another issue he said this bill has no exemption for, the “Mom and Pop” small-business owners who have just a couple employees. He said if they cannot hold their employees over, they might have to close.

Mr. Ostrovsky asserted some of these issues have been addressed in collective bargaining agreements. He read the following paragraph from the labor agreement between Park Place Entertainment Corporation, d.b.a. the Las Vegas Hilton, and Teamsters Local 995 (Exhibit D); he noted this language is consistent with how the industry feels:

The Employer will give employees who are expected to work overtime as much advance notice as is possible under the circumstances then prevailing. The Employer further agrees to distribute overtime as equitably as possible among employees on the same shift who are available and qualified to perform satisfactorily the work involved; provided, however, that the Employer shall have no obligation to assign overtime to employees which would result in their working in excess of twelve (12) consecutive hours or at any time when the premium applicable for such work exceeds double (2X) the regular straight time rate.

Mr. Ostrovsky said the industry does not want to get into situations where they have to select the employee who always volunteers and then, because of contractual requirements, have to pay that employee at the higher rates. He also stated none of the Las Vegas Strip contracts restrict the industry from requesting employees to work overtime. But, he said, they all require some kind of reasonable notice overtime has to be worked.

Mr. Ostrovsky reiterated good management is going to try to take care of good employees. He added he did not have any suggestions on how to address in state law for those employers who show no concern for their employees’ needs. Mr. Ostrovsky concluded by urging the committee to give strong consideration to the needs of the industry by allowing them to monitor their overtime requirements. He said he recognizes problems exist, but believes they do not rise to the level that requires a change in public policy.

Senator Carlton acknowledged Mr. Ostrovsky made some good points and she would not want to change someone’s contract. She said she values the contract, understands peak demands, and the different public policy issues. Senator Carlton added Mr. Ostrovsky represents the employers, and she is speaking for the employees.

Senator Carlton said she does not believe “we” are talking about a delay of service or about not having enough people to handle peak demand. Acknowledging the language in S.B. 24 is not as clear as she would have liked (recognizing the time limitations of the bill drafting staff) she referred to section 1, stating it addresses termination, harassment, and discipline if a person chooses not to work the overtime. Senator Carlton reiterated those are the things “we” are working towards rather than trying to limit the employer in handling or performing the services they have guaranteed their customers. Senator Carlton said the Legislature is merely trying to set guidelines on what the employer can do if the employee makes another choice.

Robert Gastonguay, Lobbyist, State Cable Telecommunications Association, testified cable television today is more than just “Oprah” (Oprah Winfrey Show) and “HBO” (Home Box Office). He stated the cable industry is an emergency service provider that sends out messages to keep the community informed. He cited a couple emergency situations from the past requiring mandatory overtime. Mr. Gastonguay pointed out S.B. 24 would impact the cable industry in Nevada if they were not able to impose mandatory overtime under emergency situations.

Mr. Gastonguay added cable television employees are not represented, “for the most part in our state,” by a union, and they prefer not to be. In conclusion, Mr. Gastonguay noted he would be willing to work with Senator Carlton to amend S.B. 24 in order to address his concerns.

James T. Endres, Lobbyist, AT&T, noted AT&T is also a cable company, but more importantly, he said, they are also a communications company offering many different lines of communication services, not the least of which is long distance service, which provides connectivity for the federal government, state government, and for national security purposes. Additionally, AT&T provides connectivity for high-tech businesses and businesses needing large volumes of data transferred, such as the financial community.

Mr. Endres said when network disruptions occur, the company must call out employees to restore service as quickly as possible so commerce or national security or public safety continues to be protected. Mr. Endres concluded his comments by stating, for the reasons he and others expressed, AT&T could not support the bill in its present form. He offered to work with Senator Carlton to amend the bill.

Senator Shaffer asked Mr. Endres if he thought it would help if the employer knew in advance an employee is not able to work overtime by having a question on the employment application asking, for example, “Would you agree to work overtime?”

Mr. Endres responded he had not seen an AT&T employment application for years, but thought there was a question on their application asking the applicant about working overtime.

Helen A. Foley, Lobbyist, said she represents approximately 10 private and public sector employers; however, for this meeting she was representing herself. Ms. Foley stated she is a partner with the public relations and government affairs firm of Faiss Foley Merica. Ms. Foley stated her company has approximately 12 employees. About 9 are full-time employees, and most do not have contracts. She said her employees are informed of their regular work schedule and of special events they are expected to work. Ms. Foley added, all of her employees are salaried, and nowhere in this legislation does it differentiate between salaried and hourly workers.

Ms. Foley explained, although her company does not deal with public safety issues, it does deal with late-afternoon, crisis-management situations for clients. When this occurs, she and her partners expect their employees to work after 5:00 p.m. Ms. Foley added, one of the major problems her company has with
S.B. 24 is it seems to only exempt certain types of state employees working in certain types of crises situations, and it does not work for her type of business.

Senator Carlton said she was sorry she and Ms. Foley did not have a chance to visit before the meeting. If she had, she might have been able to clear up a few of Ms. Foley’s concerns. Senator Carlton stated she would be willing to work with Ms. Foley on these particular issues.

Margaret A. McMillan, Lobbyist, Sprint, said she echoed many of the things already stated. She mentioned Sprint is a service industry and some of their businesses are covered under contract, which she understands will be looked at for a possible exemption in the bill. Ms. McMillan pointed out it would be extremely expensive for the company if, for example, an employee had to come back to the office when the employee was only 30 minutes from finishing a job. She said Sprint has already addressed most of these issues with its employees. Ms. McMillan ended her testimony by saying she has already talked to Senator Carlton and thinks the language can be worked out.

James V. Nelson, Lobbyist, Nevada Association of Employers, said his association represents approximately 370 employers, primarily in Northern Nevada. Mr. Nelson said he echoes the sentiments of those not in support of the language in S.B. 24. He said, however, paragraph (b) under section 2 has not been looked at regarding the workday. He said it conflicts with existing language under chapter 608 of Nevada Revised Statutes (NRS) regarding the definition of a workday. He stated the current definition of a workday is a 24-hour period of time beginning when the employee begins work, and suggested Mr. Johnson (Terry Johnson, Labor Commissioner, Office of Labor Commissioner, Department of Business and Industry) could add to it. Mr. Nelson reiterated the association would entertain some language changes to the existing bill, but in the bill’s current format they do not support it.

Senator Carlton said she was also sorry she and Mr. Nelson did not have a chance to talk before the hearing. She repeated her commitment to work with the various parties to develop new language in the bill to accommodate everyone’s concerns.

Senator Townsend closed the hearing on S.B. 24 and referred the bill to the subcommittee of the Senate Committee on Commerce and Labor consisting of Senator Carlton, Senator Rhoads, and Senator O'Connell. He then informed the audience the subcommittees are predetermined before the session, based on the desire of the individuals to sit on certain subcommittees and titles.

Senator Townsend opened the hearing on S.B. 23.

Senate Bill 23: Revises provisions governing discrimination against employees who have certain medical conditions. (BDR 53-897)

Senator Carlton informed the committee S.B. 23 deals with an issue brought to her attention through the Legislative Committee on Workers’ Compensation by the Nevada Alliance for Workers’ Rights. She added, Mr. Stoneburner (Tom Stoneburner, Director, Northern Nevada Chapter, Alliance for Workers’ Rights) and Ms. Kricket Martinez (Kricket Martinez, Coordinator, Kiss My Foot Campaign) have been working on this particular issue, which is known in northern Nevada as the “Kiss My Foot Campaign.”

Senator Carlton stated she has heard numerous concerns on this issue, one in particular, it may conflict with the Americans with Disabilities Act of 1990 (ADA). Senator Carlton mentioned she asked the Legal Division of the Legislative Counsel Bureau for an opinion on this and was told it does not conflict with the ADA. At this time, she read from a prepared statement (Exhibit E) relating to the ADA issue.

Senator Carlton pointed out this legislation would address the issue of disabilities: temporary, total, and permanent. She recognized a couple of people in attendance both in the committee room in Carson City and via the videoconference from Las Vegas who would be speaking in favor of S.B. 23.

Senator Carlton said:

I would also like to inform you . . . I have discussed this issue with cocktail waitresses at Treasure Island [of the Mirage], the Mirage [Hotel and Casino], and Bellagio; and, we are the good guys. We do this the right way. Our employees are valuable and their feet are valuable. When your feet do not hurt, you smile. And a smile is the most important part of customer contact. So, I just wanted to let you know . . . I have discussed this with different cocktail waitresses in the area within my own corporation.

Susan Burger, Concerned Citizen, said she has been a food server for about 20 years, and is currently employed as a food server with the MGM Grand Hotel and Casino and the Mirage Resort. She stated she also works with Senator Carlton. Ms. Burger informed the committee she has had foot problems for about 4.5 years, and on November 17, 2000, she had surgery for bone spurs. Ms. Burger told the committee because she was able to wear a flat-soled shoe and ankle support at work (for safety and not for looks), she was able to return to her job just 3 weeks after surgery.

Tom Stoneburner, Director, Northern Nevada Chapter, Alliance for Workers’ Rights (AWR), testified he is in favor of S.B. 23. He shared a conversation he said he had with another member of AWR whose wife is a cocktail server. This gentleman’s wife, on numerous occasions, has had to work while in extreme foot pain. Mr. Stoneburner said she worked in silence, without ever reporting to her employer she was in this pain, because she knew if she could not continue doing her job in the required footwear, her post would be changed and the economic impact on her family would be terrific. Mr. Stoneburner declared, “And, all of this because of a shoe style.”

Senator Townsend interjected, “Using your example, have you had a chance to look at the way this [bill] is drafted and would this have helped this lady?”

Mr. Stoneburner replied, “Of course it would.”

Mr. Stoneburner continued by stating under this bill, had his friend’s wife gotten a doctor’s excuse saying she could work, just not in high heels, her employer would not have been able to change her work assignment.

Senator Townsend asked if this type of language is in any of the contracts currently in force on The Strip.

Senator Carlton responded she did not believe this is a contractual issue, but rather a house-policy issue. She emphasized her earlier comment,“. . . this is where the good guys step forward, and the bad guys do not.”

Senator Townsend pointed out all employees are at issue here, not just waitresses. He used the example of a construction worker not wearing appropriate footwear and, as a result, serious damage can occur to the worker’s

feet. Senator Townsend then raised the question, “Have we applied this to that situation to make sure we don’t put them [the workers] in danger?”

Senator Carlton replied:

I have had this conversation with a gentleman who called from NDOT [Nevada Department of Transportation] and also from a couple of folks in the trades, and the last thing I would ever want to do is to put an employee at harm by not having them wear a particular piece of safety gear. If that safety gear is not recommended by the doctor, then I don’t believe they should be released to work. I think their overall health is more important than one particular piece of gear, and that substantiates the bill. . . . Most people who look at the cocktail waitresses and their outfits are not looking at their shoes . . . . And, these shoes do cause harm to these working women. And, I understand that this [bill] does address a wide variety [of issues], and those are the things we have discussed in my office over the phone with other folks who are going to be involved in this process.

Senator Townsend responded, “Ok, because I just want to make sure you’ve learned enough to know sometimes what our intent is isn’t always on the four corners of the bill, and I think we’ve all worked very hard to protect workers with regard to those injuries.”

Mr. Stoneburner commented AWR discussed this with a number of other groups such as the trade unions, and they could not find an application where it did not work. Mr. Stoneburner emphasized it is all about safety, which is the perspective from which is looking at it.

Charlotte Arrowsmith, Concerned Citizen, noted she was employed as a cocktail waitress on the Las Vegas Strip, and said she wanted to share an incident involving one of her coworkers. She drew her attention to a uniform she was holding up in view of the videoconferencing camera. Ms. Arrowsmith said due to an on-the-job back injury, the coworker could not wear pantyhose under her uniform shorts for about 6 weeks. She then conveyed management at the Mirage Hotel and Casino “forced” her coworker to wear garters and old-fashioned nylons. Every time Ms. Arrowsmith’s coworker bent to serve a drink the garters would show and, therefore, humiliate the woman. Ms. Arrowsmith said her purpose in sharing this incident was to point out the issue is not just about high heels.

Linda Grable, Concerned Citizen, said she has been a cocktail waitress for 20 years, and conveyed she recently had to quit her job because of injury to her feet. Ms. Grable said she began having foot pain about 10 years ago and had surgery on both feet. She stated her injuries were directly correlated to wearing high heels all those years.

Ms. Arrowsmith testified she has had two back surgeries, had a bone removed from her right toe (which is sewed to her other toe now to prevent it from “flopping” around) and, she, too, can no longer be a cocktail waitress. She said she spent 17 years in high heels and has been a waitress for 41 years. She expressed her strong support for this bill so others coming into this line of work will have other options.

Marcia Belkin, Concern Citizen, who works at Harrah’s Las Vegas, came forward to share she is “second generation bad feet.” She stated her mother, now retired from the Stardust Hotel and Casino, had to wear heels when she worked there. Her mother now walks with a cane, cannot move her toes, and has bunions. Ms. Belkin went on to explain the area she works in requires her to go up and down two sets of stairs on a regular basis, and she takes “Arthrotec” daily for pain. She shared she has gone to a lot of organizations to plead for help and, therefore, would appreciate it if the Legislature would pass S.B. 23.

Ms. Grabel added after her bunion surgery she was still in a lot of pain. On a referral, she saw the head of the orthopedic department at the Mayo Clinic in Scottsdale, Arizona, because she wanted a definitive diagnosis. The doctor told her they do not recommend bunion surgery unless there is excruciating pain because the surgery is not very successful.

Mary Cunningham, Concerned Citizen, identified herself as an employee of the Mirage Hotel and Casino, asserted if the doctors say wearing “those” shoes will cripple you, but your employer requires you to wear them anyway, your job is in jeopardy if you refuse. Ms. Cunningham cited an example of a man whose job it is to remove asbestos would not be asked to perform this task without wearing a protective suit, but a woman is “told” to wear high heels when “they know it will deform her.” Ms. Cunningham expressed her frustration with the aforementioned and said the only recourse for an employee of her stature is to approach the Legislature instead of bringing a lawsuit against a multi-million dollar corporation.

Ms. Arrowsmith said Mr. Steve Wynn (a Las Vegas casino/hotel resort owner) personally called her doctor about her foot condition, and he also sent her immediate supervisor to her podiatrist to get the diagnosis changed on the type of shoes she could wear. After being told she could never wear high heels again, Ms. Arrowsmith submitted her resignation from her position with the Mirage Hotel and Casino, but they would not accept it. Rather, they accepted a lifetime certification that she could no longer wear high-heel shoes.

Senator Carlton asked the committee to keep in mind a point none of the testifiers mentioned. “These” shoes are not purchased by the employer, but by the employee. The employee is told exactly what to buy, with no other options allowed. She expressed this is an insult to have to purchase and then wear something causing physical harm.

Senator Carlton called attention to her longevity as a waitress (more than 20 years) and noted she has always been blessed to work for very good employers. When she and the employer did not get along, they were very up front with each other. Senator Carlton said she would try to change things and make them better for her coworkers after coming to Las Vegas and becoming involved in the culinary union and becoming a shop steward.

Senator Carlton added she sees a lot of noncontractual things happening inside the hotels, and this is not a contractual issue. She said this is a house-policy issue. It is something where the “good guys” do step forward because they value their employees. Senator Carlton asserted, “We just need to send a message that these shoes do cause problems for these women, and we would like to do something to help them so they do not become crippled as they get older.”

Bobbie Gang, Lobbyist, Nevada Women’s Lobby, requested the Nevada Women’s Lobby be listed on the record in support of S.B. 23. Ms. Gang stated they see it not only as an issue of health, but also one of dignity and self-respect. Ms. Gang said she would also like to be on record as supporting S.B. 24, which was heard earlier.

Kricket Martinez, Coordinator, Kiss My Foot Campaign, stated she is testifying in favor of S.B. 23. Ms. Martinez added she is also a cocktail waitress and has been a casino worker for 17 years. She said luckily for her, her casino changed its policy requiring the two-inch heels about 10 years ago. Ms. Martinez told the committee she visited the ladies in Las Vegas and has seen their feet. She stated the condition Charlotte Arrowsmith discussed is called “fifth digit,” it occurs when the little toe is pressed into the high-heeled shoes and it deteriorates the bone. The surgeon has to go in and remove the bone from the little toe and attach it to the next toe. It is very painful and deforming.

Ms. Martinez said ever since she came out with the “Kiss My Foot Campaign” people come up and show her the deformed condition of their feet. And, she added, they also have back damage. Ms. Martinez said she hopes this bill will prevent injuries from happening to the next generation of casino workers.

Ms. Martinez directed her comment to the male members of the committee noting she understands they do not know what it feels like to wear high heels, but asked before they make a decision on this bill, they go home and look at their family. Look at their daughters, their wives, and their grandchildren and ask themselves if they care if they get crippled. Ms. Martinez told them if they do not care, then they have to vote “no”; if they do care, then they must vote for this very important bill because women are being crippled.

Mary F. Valencia Wilson, Political Action Chair Person, Reno/Sparks NAACP, and representing Reno Council of LULAC (League of United Latin American Citizens) and LAPE (Latinos for Political Education), emphasized all these organizations and their members are in support of S.B. 23. She said they are against the systematic torture of women, or anyone.

Senator Carlton pointed out she has received input expressing concerns about the penalty in section 1, subsection 3, of S.B. 23. Senator Carlton asserted she believes a penalty should be involved and the monies need to go to the right person. She discussed the penalty issue with the Legal Division of the Legislative Counsel Bureau and with the people who have the concerns. Senator Carlton noted the penalty provision will be looked at to clarify the language so everyone will understand how the penalty will be handled.

Senator Townsend asked Mr. Johnson (Terry Johnson, Labor Commissioner, Office of Labor Commissioner, Department of Business and Industry), “You mentioned three organizations that have jurisdiction over this section. Do you know which one this would be? Would this be you?”

Mr. Johnson replied, “Probably the Equal Rights Commission [Nevada Equal Rights Commission].”

Senator Carlton stated, “I did discuss both of these bills [S.B. 23 and S.B. 24] with Mr. Johnson in a meeting that I had with him down south, before session began, to let him know that they were out there so that he could take a look at them and give me all the input that he would need . . . I wanted him to understand where I was going with these two particular pieces of legislation.”

Danny L. Thompson, Lobbyist, Nevada State AFL-CIO, said in all the years he has been involved at the Legislature, he cannot think of a single occasion when a safety concern was brought to light where an attempt was not made to solve it. He compared this problem to that of an ironworker not hooked up to a harness when working up high or to that of a worker subjected to silicosis or asbestosis and not doing something about these dangerous situations.

Mr. Thompson mentioned he received calls from a number of people about the problem S.B. 23 addresses, and this problem is not going to go away. Mr. Thompson said women are suffering from compensable injuries, as pointed out by testifiers at this hearing. Something needs to be done to solve this problem.

Mr. Thompson concurred there are good employers who do not like to have those kinds of conditions and those kinds of costs to them when their employees are not able to work as a result of their injuries. But, he acknowledged, there are other employers who do not really care. Mr. Thompson reiterated something must be done, and said this bill is a good first start. He concluded by saying, “We support this bill.”

Senator Schneider expressed concern, saying he thinks this issue of the high-heeled shoes should not be put into state law, rather it should probably be dealt with in the union contracts. He cited a comparison of tile setters ruining their knees after many years on the job and their only padding was a pair of jeans. Senator Schneider said the resorts in Las Vegas are themed and, even though he agrees “one” should not have to wear “those stiletto heels” and incur injuries, he acknowledged they might be part of the “theme” and should be handled within the framework of the union contract.

Senator Carlton responded this is not a contractual issue; it is a dress code and safety issue. She said the “theme” has nothing to do with the height or design of the shoe. As a safety issue, there are many different types of shoes on the market offering safer alternatives to the employees. Senator Carlton pointed out her employer does not dictate “which” pants to work in; they just have to be “black” pants. They do not dictate the type of shoes; the shoes just have to be black.

Mr. Thompson cited an example of a Las Vegas company who supplied polyester uniforms for about two hundred of their welders and soon switched the company uniforms to all cotton because of the extreme fire danger of the polyester material. This was very costly to the company, but the cost did not compare to the potential cost to the employer and risk to their employees if the polyester uniforms were used. Mr. Thompson said, “I don’t think that this is any different, except that apparently everybody is looking the other way.” Mr. Thompson reiterated his earlier comment, he could not think of a single incident where there was a problem and once it became known, there was not an attempt to find a solution.

Mr. Thompson agreed with Senator Schneider, there is no difference between the tile setter and the ironworker, but they try to mitigate those kinds of problems with kneepads and other safety devices to prevent those kinds of injuries. Mr. Thompson stated, “We are talking about a dress code.”

Senator Schneider responded he does not think it is any different either. He remarked he could not believe some employers would not take precautionary measures to protect their employees, as their workers’ compensation rates must be skyrocketing.

Tom Stoneburner, Director, Northern Nevada Chapter, Alliance for Workers’ Rights, said one of the things getting lost in pursuit of a certain look or ambiance in the casinos is this issue of safety and comfort for the employees. In the employer’s zeal to create a certain look, they do not think about the consequences until they are pointed out to them. At that point, it is a matter of trying to change things, and there is a resistance to change.

Mr. Stoneburner stressed, at some point the human cost needs to be looked at and balanced against the employer’s right to create a certain look in his business. He said the look of a certain shoe should not take precedence over the safety of the employee. Mr. Stoneburner insisted this is just the tip of an iceberg, and there are a lot of workers in Nevada looking to this bill for some hope. He said we should not be talking about helping the employees after they have been injured; we should not be injuring them to begin with.

Mr. Stoneburner noted Senator Townsend is fitness-minded and then asked the senator if he would, over the style of a shoe, injure himself on his morning run. Mr. Stoneburner concluded his testimony with the following statement:

We are asking these women to go out and run a 5- or a 10-k [kilometer] run carrying a 35-pound tray of drinks through a broken field of guests every day for years on end, and that’s causing injury. . . . Please listen to the workers.

Ms. Arrowsmith, addressing her comments to Senator Schneider, said her first back injury, during the late 1970s/early 1980s, was a workman’s compensation claim. The claim was ongoing for 2½ years, and during that time (while supporting two children) she did not work and could not walk. She said she almost lost her home and suffered a hardship in trying to feed her family. Ms. Arrowsmith claimed this experience, dealing with the workman’s compensation authorities was so bad she has never turned in a workman’s compensation claim for her feet, and for the past 17 years has not missed a day of work from her back problem. She stated she was never a malingerer, either.

Ms. Arrowsmith said she has always been able to overcome any physical injury, except now, and went on to list a variety of medical conditions with which she says she is currently dealing. Ms. Arrowsmith concluded, speaking to Senator Schneider, “Please listen to these people. This is an issue that really needs to be addressed because the system turns people into poverty-stricken people who commit suicide [when they] are caught up in the workman’s compensation trap.”

Senator Carlton thanked the committee for all its hard work over the years before she was privileged enough to be assigned to this committee on workers’ compensation. She wanted to reiterate some of the things Ms. Arrowsmith mentioned and added, a lot of these things have been addressed. Senator Carlton pointed out she has not agreed with some of the things done, but appreciates the fact the system is better today than it was in the 1970s.

Senator Townsend said:

First of all before any other testimony comes up, I think it is important that all of the people who have testified here today know a couple of things. I think, and forgive me for not remembering your name, but you did a remarkable job [Kricket Martinez] in explaining the issue. And, you are right, men are never going to understand this because we are not asked to wear those kinds of shoes. . . . I think, without question, this committee has a sense of how tough it is.

We’ll never fully understand it, but I think the general feeling, and I can speak for probably the Legislature on this, if you travel . . . we take your services for granted . . . . You don’t appreciate the Nevada worker in the service industry until you cross the border . . . . Our industry doesn’t think twice about putting on a meal for 1000 people and have it be as good a meal as you can get in any restaurant in the country . . . . And, being able to provide the kind of services you do to our tourist community is remarkable, because they are not always the most polite and respectful kind of individuals in the world. Is that a fair statement [Kricket Martinez]?

Ms. Martinez replied, “That is a very fair statement.”

Robert A. Ostrovsky, Lobbyist, Nevada Resort Association, stated it appears all the testimony regarding this bill has been targeted at the industry he represents and a particular classification of employee. Mr. Ostrovsky told Senator Carlton he thinks this bill does not interfere with the ADA; rather for employers, it goes way beyond the ADA for certain kinds of injuries and illnesses.

Mr. Ostrovsky stated:

I would like to go on the record, though, to say that certain people who have testified feel that they have some personal and individual concerns with some of the employers that are members of my association that I represent here today. I was confused because I heard some people say that that organization [MGM Mirage, Incorporated] seemed to be very responsive to the needs of employees; I heard other employees say that they weren’t. So, I will give that they were individual concerns.

Mr. Ostrovsky said he spoke with officials of the MGM Mirage, Incorporated, prior to today’s meeting and was assured it is company policy to do everything they can to accommodate employees who bring legitimate medical concerns to their attention.

Mr. Ostrovsky stressed this bill does not solve the problem. It talks about people with existing medical conditions; it does not limit the shoes or any other uniforms from being required on the job. It does, however, make some requirements if and when an individual develops a medical condition. Regarding an earlier comment about why this issue is not in the union contracts, Mr. Ostrovsky said the union is free to negotiate terms and conditions of employment. For example, the last time he negotiated a culinary contract before The Strip, 2 days were spent talking about what the appropriate name should be on a nametag of a housekeeper; therefore, he acknowledged the shoe issue could be raised in the setting of union negotiations.

Senator Townsend asked, “What was the decision?”

Mr. Ostrovsky replied, “The decision was that we would continue to put first names on the nametag. There were some employees, for cultural reasons, who wanted “Mrs. So and So” or “Miss So and So,” as opposed to a first name.”

Mr. Ostrovsky said there is a lot of language in his clients’ union contracts, but relatively limited language regarding specifics about shoe heights. But, he pointed out, this bill does not talk about shoes. This bill covers all classifications of uniformed and nonuniformed employees, and that an employer requires an employee to comply with a dress code adopted by the employer.

Mr. Ostrovsky also wondered what the “definition” of a dress code is under this bill, because dress codes can be intermingled with grooming standards.

Mr. Ostrovsky noted this bill exempts no one from “Mom and Pop,” to small companies, to large industries. Mr. Ostrovsky emphasized the committee should remember there is a $5000 fine for violation of this law if it is adopted, and the Legislature does not have statutory authority to designate a fine go to
the individual harmed. He said the individual would have to seek civil penalties, where penalties collected under the law usually go to the General Fund.

Senator Carlton interjected:

I do not want to get the misunderstanding here that we were talking about that money going to the individual harmed, Mr. Ostrovsky. I am still learning this process, and I want to make sure that the money does go where it is supposed to be. I had someone bring concerns to me that it was not drafted correctly so that the money would go into the correct fund . . . . That needs to be looked at, and I have not had the chance to get an opinion on that.

Mr. Ostrovsky thanked Senator Carlton for clarifying her point about the penalty issue. He suggested if the Legislature wants the employee to recover damages the Legislature could create a statute. Mr. Ostrovsky said this would allow the individual a civil right to recover, in addition to any allowable penalties.

Mr. Ostrovsky mentioned S.B. 23 does not give a definition of a medical condition or the period in which the medical condition can exist. He said:

If you look at the Americans with Disabilities Act as a guide, you will know the law requires you to make a reasonable accommodation. This bill does not require a reasonable accommodation. If a person is permanently disabled, there is an ADA right for that employee who had a uniform or shoe problem.

Mr. Ostrovsky pointed out a new right would be created for someone who is only temporarily disabled, which is vastly different than ADA, which covers permanent disabilities.

Mr. Ostrovsky explained his clients do not permit open-toed shoes because serious workmans’ compensation injuries can result from such things as money carts, change carts, and the large numbers of customers on the casino floors. This creates another problem because, as stated in previous testimony, there are medical conditions that can result from improperly fitting shoes, which could then result in workers’ compensation claims. Mr. Ostrovsky, addressing the concern of one previous testifier on fearing to file a workmans’ compensation claim, said he would encourage employees to file such claims. They should not be afraid, because it is the appropriate thing to do. He said state law establishes punitive damages for an employer who violates the workers’ compensation laws. He said the “little people” can take on the big system because punitive damages speak loudly to the employers.

Mr. Ostrovsky reiterated he would be happy to work with Senator Carlton in trying to solve this problem by means other than this piece of legislation.

Senator Carlton responded she has always looked at this as a safety and a medical issue. She said this committee has shown a history making sure the welfare of the employee comes first. Senator Carlton reiterated she is more than willing to work with any of the interested parties on this bill, but women are being harmed. She said if other people are being harmed by a particular piece of apparel they are required to wear to work, she would like to hear from them.

Mr. Ostrovsky said his only point is that S.B. 23 is not just a shoe bill; it is much broader.

Samuel P. McMullen, Lobbyist, Retail Association of Nevada, said everyone working on this bill has the same commitment from Senator Carlton to sit and work together to make sure the bill addresses some of the issues raised. He said from the general business point of view, the most telling point is there are workers’ compensation remedies available that need to be considered.

Mr. McMullen said it seems to target injurious kinds of clothing, as opposed to a blanket response across all uniform or apparel issues. Therefore, he wants to make sure there is some ability to reasonably address the solutions. He also said he wanted to point out the language in this bill makes it so nothing can be done to an individual employee. Businesses across the board need to have some rules that apply, and need to be careful about how people are treated. He said alternatives should be in place to allow, for example, transferring an employee to a nonuniformed position where the apparel would not be injurious.

Marilyn Yezek, Chief of Human Resources, Nevada Department of Transportation (NDOT), reading from a prepared statement (Exhibit F), testified NDOT is opposed to this bill as written.

Ms. Arrowsmith came forward to comment on the issue of nametags versus safety. She said 2½ days were spent on the nametag issue as opposed to safety for workers. She said most hotels have separate contracts and, therefore, cannot possibly address this with each individual hotel.

Senator Townsend closed the hearing on S.B. 23 and referred the bill to the Subcommittee of the Senate Committee on Commerce and Labor consisting of Senator O'Connell, Senator Rhoads and Senator Carlton.

There being no further business, the meeting was adjourned at 10:10 a.m.

RESPECTFULLY SUBMITTED:

Gayle Nadeau,

Committee Secretary

APPROVED BY:

Senator Randolph J. Townsend, Chairman

DATE: