Nevada Supreme Court Weighs Metaphysical Question: What is “Work”?

January 8, 2024 Advisory

On Jan. 4, 2023, the Nevada Supreme Court held oral arguments in a unique wage and hour case, Castillo v. Western Range Association, that could have significant implications for Nevada employers. The case addresses the meaning of “work” under Nevada law in the wage and hour context.

Western Range hired Abel Castillo, originally from Peru, to work in the United States as an H-2A agricultural worker starting around 2007.[1] He worked as a sheepherder at El Tejon Sheep Company until 2014[2] and divided his time each year between California and Nevada. Castillo claims he was required to be “on call” 24/7 to ensure the sheep received adequate care and attention, even though during those 24 hours, he slept, ate and performed other personal tasks. Castillo was only paid for the time he spent tending to the sheep. He later sued Western Range claiming he should have been paid for the full 24 hours of each day he was on call as a sheepherder.

Nevada Revised Statutes Section 608.016 requires that workers be paid the state’s minimum wage for all hours worked, but neither Nevada law nor the implementing regulations directly answer the question of whether all Castillo’s time spent on the range constituted “work” for purposes of receiving minimum wage. While Nevada law draws some distinctions between time spent working and time spent sleeping or resting, it is unclear how these provisions apply when an employee may technically be resting but still required to work in some manner.

Castillo contends he was entitled to be compensated for all hours spent on the ranch because, according to him, he was still required to tend to the sheep even when he was resting or eating. Castillo contends he was required to answer calls and respond to emergencies pertaining to the sheep any time, day or night, and was therefore “engaged to wait.” The Fair Labor Standards Act (FLSA) considers such time to be compensable. Castillo has urged the Court to adopt a similar interpretation of the Nevada Minimum Wage Act which would entitle him to minimum wage for any hours spent on call, during which time he claims he could not realistically have left or engaged in personal activities.

Western Range argues the Nevada Minimum Wage Act and the H-2A visa program were only intended to compensate workers for time spent actually working (based on its ordinary meaning), not engaging in personal matters. Western Range emphasizes that, according to testimony from other sheepherders, they were able to engage in personal activities during their down time, such as playing soccer or surfing the web.

This case was originally brought by Castillo in the U.S. District Court for the District of Nevada, but because the case involves an unanswered question under Nevada law, the U.S. District Court certified the question to the Nevada Supreme Court and stayed the case pending resolution of that question. Specifically, the Nevada Supreme Court has been asked to determine whether the state’s Constitution and wage and hour statutes require Western Range Association to pay Castillo 24 hours of wages for each day he spent on the range as a sheepherder when he could not leave, and was always performing some job duties, even though some of the time spent on the range was for his own personal benefit.

The U.S. District Court recognized that this is a “significant question of public policy,” as wage disputes “hang on the question of what ‘work’ is to determine whether an employee was underpaid.”

Now that oral arguments have been held, the case has been submitted for decision. While questions about compensable time under Nevada’s wage and hour laws are generally fact-specific and decided on an individualized basis, the outcome of this case could have implications not only for Nevada employers with H-2A worker arrangements, but potentially also for those employers with similar “on-call” arrangements.

Our lawyers will continue to follow this case and stay abreast of the law. Nevada employers should ensure their wage and hour policies comply with federal and state law, pending the outcome. If you have questions, please reach out to your regular Armstrong Teasdale lawyer or one of the listed authors.


[1] The H-2A Non-Immigrant Foreign Worker Visa Program allows certain U.S. employers to bring foreign nationals to the U.S. to perform certain agricultural jobs temporarily when there is demand. Under the H-2A regulations, these workers must be paid the greater of either the state’s minimum wage or the “adverse effect wage rate” established under the visa program.

[2] Western Range Association was found to be a joint employer.

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