Monday, Oct. 21, 2019 | 2 a.m.
RENO — Nevada could be on the hook for up to $100 million in damages and unpaid wages after prison guards scored a major victory in a long-running legal fight with the state Department of Corrections, a lawyer for the guards says.
The 9th U.S. Circuit Court of Appeals ruled this week the state is not shielded from liability in a federal lawsuit filed by guards who claim they should have been paid for tasks performed immediately before and after the official start of their shift — including debriefings, equipment pick-ups and uniform inspections.
Reno-based labor attorney Mark Thierman, who represents more than 540 guards now signed onto the litigation, told the Reno Gazette Journal his clients need an average of 45 minutes to complete pre- and post-work activities. He said the state rebuffed guards' efforts to be paid for that time.
Former Nevada Attorney General Adam Laxalt had argued the state was immune from such claims, citing a constitutional provision barring people from suing a state if they don't live there.
But the San Francisco-based appellate court found Nevada forfeited that right when it moved the case out of state court.
"The issue of state sovereign immunity was not raised early enough in the proceedings to provide fair notice to plaintiffs," the judicial panel wrote. "Therefore, to allow Nevada to assert 11th Amendment immunity now would give Nevada a significant tactical advantage in this litigation and would 'generate seriously unfair results.'"
The state suffered a similar setback in March 2018, when U.S. District Court Judge Miranda Du found guards' off-hours activities were "integral and indispensable" to the job. She said guards could continue to seek federally protected overtime payments for that work but would have to abandon allegations that the state had breached its employment contract.
Du also temporarily dismissed a complaint the guards filed under Nevada's overtime law, which requires workers to file an appeal grievance with the state's employee management committee.
Thierman figures as many as 1,000 guards may be eligible for damages and unpaid overtime accrued over the past six years. The $100 million that he says they're owed amounts to about five times the total Nevada lawmakers recently budgeted to pay damages out of its tort claims fund.
Attorney General's office spokeswoman Monica Moazez said the state's lawyers are still reviewing Wednesday's ruling and consulting with prison officials to determine their next steps.