What is the Deadline for Receipt of Final Pay on Termination or Resignation?

            Whether by involuntary termination, or by voluntary resignation, Nevada law establishes strict rules for payment of final wages to employees upon separation from employment. Employers are required to make payment of all wages owed to an employee within certain deadlines, depending on whether the separation was voluntary or involuntary, and failure to do so may entitle the employee to recover substantial “waiting time” wages, in addition to the unpaid final wages.[1]

            If you resigned or were terminated and did not immediately receive your final pay in full, we encourage you to Contact Us to meet with an attorney and discuss your situation.

Involuntary Termination

            Whenever an employer discharges an employee, the wages and compensation earned and unpaid at the time of such discharge shall become due and payable immediately.[2] If an employer fails to make immediate payment of all compensation owed to an employee at the time of termination, the employee is entitled to additional waiting time wages in the amount of the employee’s regular daily rate of pay for each day from the date of termination until receipt in full of the unpaid compensation, or for 30 days, whichever is less.[3]

            Although the unpaid wages are due immediately, Nevada law provides a safe harbor period for the employer to tender payment in full. So long as the employer makes payment within three days after the date of termination, the employer is not subject to payment of any additional waiting time wages to the employee.[4] However, if payment in full is not made within the safe harbor period, waiting time wages will be owed for each day final wages remain unpaid, beginning with the date of the termination.

            The final pay requirements and waiting time provisions of Nevada law apply only to private employers, and are inapplicable in the case of separation from employment with a state or Federal employer.[5]

Voluntary Resignation

            When an employee voluntarily resigns from employment, the wages and compensation earned and unpaid at the time of the employee’s resignation must be paid no later than the next regularly occurring pay day, or seven days after the employee resigns, whichever is earlier.[6] If an employer fails to make payment of all wages owed to an employee who has resigned on the date such wages are due, the employee is entitled to additional waiting time wages in the amount of the employee’s regular daily rate of pay for each day from the date the wages were due until receipt in full of the unpaid compensation, or for 30 days, whichever is less.[7]

            The final pay requirements and waiting time provisions of Nevada law apply only to private employers, and are inapplicable in the case of separation from employment with a state or Federal employer.[8]

Interaction with Other Wage and Hour Laws

            Nevada law requires that an employer pay all wages and compensation owed to an employee who is terminated or resigns within certain deadlines, or be liable for payment of additional waiting time wages to the separated employee.[9] As such, employees who are owed unpaid wages for off-the-clock work, failure to pay at least the minimum wage for all hours worked, or failure to pay wages at the applicable overtime rate where required, or who are owed any other wages or compensation not included in the final paycheck, are entitled to recover waiting time wages even in cases where the final paycheck is received within the deadlines set forth by statute.


            If you resigned or were terminated and did not immediately receive your final pay in full, we encourage you to Contact Us to meet with an attorney and discuss your situation.


[1] Neville v. Eighth Judicial Dist. Court of Nev., 406 P.3d 499, 504 (Nev. 2017)(holding that NRS 608.140 implies the existence of a private right of action to enforce, inter alia, NRS 608.020-608.050).
[2] NRS 608.020.
[3] NRS 608.040(1).
[4] NRS 608.040(1)(a).
[5] AGO 154 (7-8-1920); AGO 81-9 (9-24-1981).
[6] NRS 608.030.
[7] Fn. 3, supra.
[8] Fn. 5, supra.
[9] See NRS 608.020, et seq.

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When is a Sales Employee Exempt from Overtime?

            The Fair Labor Standards Act (“FLSA”) is a Federal law that requires employees be paid overtime for all hours worked in excess of 40 in a workweek. Certain sales employees may be exempt from the overtime provisions of the FLSA if they are subject to the “outside sales exemption”[1] or the “retail service establishment exemption.”[2] If you believe you may be misclassified as an overtime exempt, salaried employee, we encourage you to Contact Us to meet with an attorney and discuss your situation.

The Outside Sales Exemption

            The overtime requirements of the FLSA do not apply to, “. . . any employee employed . . . in the capacity of outside salesman. . . .”[3] In order to be considered employed “in the capacity of outside salesman” an employee must satisfy ALL of the following conditions:

  1. The employee’s primary duty must be making sales or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer;[4] and
  2. the employee must be customarily and regularly engaged away from the employer’s place or places of business in performing such primary duty.[5]

What Does “Primary Duty” Mean?

            A task performed by an employee is considered that employee’s “primary duty” for the purposes of exemption from FLSA overtime requirements when it is the, “. . . principal, main, major or most important duty that the employee performs.”[6] As a general rule, if more than 50% of the hours worked by an employee in any given workweek are spent performing exempt, outside salesperson tasks, then that employee will be considered overtime exempt.[7]

Where is the Employer’s “Place of Business?”

            Outside sales means the process of soliciting at the customer’s place of business or, if selling door-to-door, at the customer’s home. Outside sales excludes sales made by mail, telephone, or the internet. Any fixed site, whether home or office, used by a salesperson as a headquarters or for telephonic solicitation of sales is considered one of the employer’s places of business, regardless of whether the employer actually owns or rents the property.[8] So even a salesperson that has never been to the employer’s brick and mortar location, but makes telephonic sales entirely from their home, would not be considered an outside salesperson under the FLSA.

Is There a Minimum Salary Requirement for Exempt Outside Salespersons?

            Of note, the minimum salary requirements that apply to professional, executive, and administrative employees who are exempt from overtime under the FLSA, discussed at When is a Non-Sales Employee Exempt from Overtime?, do not apply to outside salespersons.[9] There is no minimum salary required to be classified as an exempt outside salesperson, so long as all of the other requirements are met.

The Retail Service Establishment Exemption

            The FLSA provides for an exemption from its overtime requirements for inside salespersons who meet certain requirements. In order for an inside salesperson to be considered overtime exempt under the FLSA, the employee must be employed by a retail or service establishment; AND must be paid (when computed on an hourly basis) more than one and one-half times the applicable minimum wage; AND more than 50% of the employee’s total compensation in a given month must consist of commission payments.[10] Tips are not considered commission payments for the purposes of this exemption, only bona fide commission payments will qualify.

            For the purposes of the FLSA, a retail or service establishment is defined as, “. . . an establishment 75 per centum of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry.”[11]


            The protections of the FLSA are designed to ensure that you receive the full value of the work you perform on behalf of your employer. Determining whether you are subject to one of the exemptions to FLSA overtime requirements requires careful, individualized inquiry. If you believe you may be misclassified as an overtime exempt, salaried employee, we encourage you to Contact Us to meet with an attorney and discuss your situation.


[1] 29 U.S.C. § 213(a)(1).
[2] 29 U.S.C. § 207(i).
[3] Fn. 1, supra.
[4] 29 C.F.R. § 541.500(a)(1).
[5] 29 C.F.R. § 541.500(a)(2).
[6] 29 C.F.R. § 541.700(a).
[7] 29 C.F.R. § 541.700(b).
[8] 29 C.F.R. § 541.502.
[9] 29 C.F.R. § 541.500(c).
[10] Fn. 2, supra.
[11] 29 C.F.R. § 779.411; 29 C.F.R. § 779.24 .

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When is a Non-Sales Employee Exempt from Overtime?

            The Fair Labor Standards Act (“FLSA”) is a Federal law that requires employees be paid overtime for all hours worked in excess of 40 in a workweek. The FLSA also establishes three narrow “exemptions” from the overtime rule. Certain employees paid on a salary basis may be exempt from overtime, if the majority of tasks they perform in each workweek are properly classified as: “professional,” “executive,” or “administrative.”[1]  Each of these exemptions requires that an employee be compensated at a weekly rate of not less than $455.00 per week for work performed prior to January 1, 2020, and not less than $684.00 per week for work performed thereafter.[2]

            In addition, certain sales employees may be exempt from the overtime provisions of the FLSA if they are subject to the “retail service establishment exemption”[3] or the “outside sales exemption.”[4] These exemptions are discussed at: When is a Sales Employee Exempt from Overtime?

            There are other, limited circumstances in which an employee may be exempt from the overtime requirements of the FLSA. If you believe you may be misclassified as an overtime exempt, salaried employee, we encourage you to Contact Us to meet with an attorney and discuss your situation.


The Professional Exemption

            The professional exemption applies only to employees such as licensed accountants, engineers, attorneys, doctors, or others who perform work that is traditionally regarded as part of a recognized professional occupation, and which customarily requires the employee to complete a “prolonged course of specialized intellectual instruction” or which requires “invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.”[5] Additionally, the employee must be compensated at a weekly rate of not less than $455.00 per week for work performed prior to January 1, 2020, and not less than $684.00 per week for work performed thereafter.[6]

The Executive Exemption

            The executive exemption is limited to workers who are engaged in the management of an enterprise or subdivision thereof, supervise two or more other full-time employees, and have the authority to hire or fire other employees.[7] Additionally, the employee must be compensated at a weekly rate of not less than $455.00 per week for work performed prior to January 1, 2020, and not less than $684.00 per week for work performed thereafter.[8]

The Administrative Exemption

            The administrative exemption by its plain terms cannot apply to workers who are involved in the “production side” of a business enterprise, such as workers whose primary role is to assist the company in carrying out the activities for which it is hired by customers (as opposed to ancillary administrative roles such as accounting, human resources, database management, etc.).  Where a worker is involved in production work, they are, per se, a production worker, and not subject to the administrative exemption.

            Even if the nature of an employee’s job duties generally meet the requirements of the administrative exemption, the employee must “regularly and customarily” be engaged in work that requires the exercise of discretion and independent judgment.[9]  Federal regulations explain that “discretion and independent judgment involves the comparison and evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered,” and requires “more than the use of skill in applying well-established techniques, procedures or specific standards in manuals or other sources.”[10]  The term “‘matters of significance’ refers to the level of importance or consequence of the work performed.”[11]  Additionally, the employee must be compensated at a weekly rate of not less than $455.00 per week for work performed prior to January 1, 2020, and not less than $684.00 per week for work performed thereafter.[12]

The Burden of Proof

            It is important to note that any claim of exemption from the overtime requirements of the FLSA is an affirmative defense, and the burden of proof rests with the employer.  Furthermore, it is an enhanced burden of proof, requiring the employer to demonstrate that a particular employee falls “clearly and unmistakably” within the confines of one or more exemptions. [13] Close calls are thus resolved in favor of the employee.


            The protections of the FLSA are designed to ensure that you receive the full value of the work you perform on behalf of your employer. Determining whether you are subject to one of the exemptions to FLSA overtime requirements requires careful, individualized inquiry. If you believe you may be misclassified as an overtime exempt, salaried employee, we encourage you to Contact Us to meet with an attorney and discuss your situation.


[1] 29 U.S.C. § 213(a)(1).
[2] Although the Department of Labor issued a final rule in 2016 increasing the minimum salary basis to a weekly rate of not less than the 40th percentile of weekly earnings of full-time non hourly workers in the lowest-wage Census Region, or $913.00 per week, 29 C.F.R. § 541.600(a), that regulation was struck down in the matter of Nevada v. U.S. Dep’t of Labor, 218 F. Supp. 3d 520 (E.D. Tex. 2016), and cannot be enforced.
[3] 29 U.S.C. § 207(i).
[4] 29 U.S.C. § 213(a)(1).
[5] 29 C.F.R. § 541.300.
[6] See fn. 2, supra.
[7] 29 C.F.R. § 541.100.
[8] See fn. 2, supra.
[9] 29 C.F.R. § 541.200(a)(3).
[10] 29 C.F.R. § 541.202(a) and (e).
[11] 29 C.F.R. § 541.202(a).
[12] See fn. 2, supra.
[13] See, e.g., Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S. Ct. 453, 456 (1960); see also, Alvarez v. IBP, Inc., 339 F.3d 894, 905 (9th Cir. 2003).

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