Nevada Rejects Portal-to-Portal Act Exceptions: PPA’s Preliminary/Postliminary Carveouts Are Not Incorporated into Nevada Wage-Hour Law

Introduction

In an en banc opinion answering a certified question from the United States District Court for the District of Nevada, the Nevada Supreme Court held that Nevada’s wage-hour statutes do not incorporate the federal Portal-to-Portal Act (PPA) exceptions to compensable “work.” The case, Amazon.com Services, LLC v. Malloy, arises from a putative class action alleging that Amazon failed to pay employees for time spent undergoing employer-required COVID-19 testing before shifts during the height of the pandemic. After the federal district court denied Amazon’s motion to dismiss and certified the question, the Nevada Supreme Court reframed and answered it, establishing a significant statewide precedent that Nevada’s statutory scheme deliberately omits the PPA’s broad preliminary/postliminary exclusions.

Parties and posture:

Appellant: Amazon.com Services, LLC
Respondent: Dwight Malloy (on behalf of a putative class)
Amicus Curiae: Nevada Justice Association
Certifying Court: U.S. District Court for the District of Nevada (Judge Anne R. Traum)
Certified Question (reframed by Nevada Supreme Court): Do Nevada’s wage-hour laws incorporate the PPA’s exceptions to compensable work?

Summary of the Opinion

The Nevada Supreme Court answered “No.” The Court:

Exercised its NRAP 5 discretion to rephrase the certified question to focus on the PPA’s exceptions to compensable work, avoiding an advisory opinion on the entirety of the PPA (citing Echeverria v. State).
Applied a plain-language analysis of Nevada’s wage-hour statutes (NRS Chapter 608) and regulations (NAC 608.115), emphasizing that Nevada law contains only narrow, specific exceptions (NRS 608.0195, 608.215) rather than the PPA’s broad catchall exclusions for preliminary and postliminary activities.
Reaffirmed Nevada’s willingness to depart from federal FLSA precedent when Nevada’s statutory language is materially different or reflects contrary legislative intent (citing Terry v. Sapphire Gentlemen’s Club, Granite Construction).
Noted that Nevada’s Legislature has amended its wage laws to align with the FLSA in various respects, yet deliberately omitted the PPA’s exceptions—legislative silence that supports non-incorporation.
Concluded that Nevada’s wage-hour scheme is intended to be at least as protective as federal law and, where different, may be more protective (again drawing on Terry).

Result: Nevada’s wage-hour laws do not incorporate the PPA’s preliminary/postliminary exceptions. Whether a given pre-shift activity is “work” under Nevada law must be determined without importing the PPA’s categorical exclusions.

Detailed Analysis

I. Precedents and Authorities Cited

NRAP 5; Mach v. Williams, 138 Nev. 854, 522 P.3d 434 (2022): Confirms the Court’s discretion to answer certified questions of Nevada law that are determinative and where no controlling authority exists.
Echeverria v. State, 137 Nev. 486, 495 P.3d 471 (2021): Allows the Court to rephrase certified questions to avoid issuing advisory opinions; the Court used this to narrow the inquiry to the PPA’s exceptions.
Salas v. Allstate Rent-A-Car, Inc., 116 Nev. 1165, 14 P.3d 511 (2000); Webb v. Shull, 128 Nev. 85, 270 P.3d 1266 (2012); MGM Mirage v. Nevada Insurance Guaranty Ass’n, 125 Nev. 223, 209 P.3d 766 (2009): Establish the interpretive framework: start with the statute’s text; if clear, apply it.
Protective Ins. v. Commissioner of Insurance, 141 Nev., Adv. Op. 3, 562 P.3d 215 (2025) (quoting Coleman v. State, 134 Nev. 218, 416 P.3d 238 (2018)): A statute is ambiguous if susceptible to multiple reasonable interpretations; the Court found no ambiguity justifying importation of PPA exceptions.
State, Dep’t of Business & Industry v. Granite Construction Co., 118 Nev. 83, 40 P.3d 423 (2002): When Nevada adopts a federal statute, courts presume adoption of federal interpretations—but only if the texts are substantially similar and there is no contrary legislative intent.
Terry v. Sapphire Gentlemen’s Club, 130 Nev. 879, 336 P.3d 951 (2014): Nevada wage laws often track the FLSA, but Nevada courts will depart where Nevada’s text is materially different or reflects distinct policy choices; also observes Nevada’s wage laws must be equal or more protective than the FLSA baseline.
FLSA, 29 U.S.C. §§ 201–207: Sets minimum wage (§ 206) and maximum hours/overtime (§ 207) but does not define “work.”
Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944): Broad federal definition of “work” as physical or mental exertion controlled or required by the employer for the employer’s benefit.
Portal-to-Portal Act (PPA), 29 U.S.C. § 254(a): Excludes, categorically, time spent in certain preliminary/postliminary activities and travel to/from the principal place of work from compensation under the FLSA.
IBP, Inc. v. Alvarez, 546 U.S. 21 (2005): Clarifies that the PPA did not change the meaning of “work” but added exceptions to otherwise compensable activity; informs the scope of the PPA exclusions.
DOL Regulation, 29 C.F.R. § 785.7: Echoes IBP—the PPA adds exceptions for preliminary and postliminary activities.
Nevada Statutes/Regs: NRS 608.016 (pay for each hour worked), NRS 608.018 (overtime), NRS 608.0195 (sleep-period agreements during 24-hour shifts), NRS 608.215 (resident domestic worker sleep/meal period agreements), NAC 608.115 (pay for “all time worked” at the employer’s direction), and Nev. Const. art. 15, § 16(1) ($12 per hour minimum wage “per hour worked”).
Unpublished but Persuasive Nevada Authorities: Rite of Passage v. State, Dep’t of Bus. & Indus., No. 66388, 2015 WL 9484735 (Nev. Dec. 23, 2015); Csomos v. Venetian Casino Resort, LLC, No. 55913, 2012 WL 642460 (Nev. Feb. 24, 2012): Prior reliance on FLSA constructs where Nevada law offered limited guidance—yet not controlling where Nevada text differs.

II. The Court’s Legal Reasoning

The Court employed a disciplined statutory-interpretation approach to determine whether Nevada embraced the PPA’s categorical carveouts from compensable “work.”

Reframed question to avoid an advisory opinion. Invoking NRAP 5 and Echeverria, the Court narrowed the inquiry to the PPA’s exceptions (preliminary/postliminary and certain travel time) because that was the live controversy.
Plain-text reading of Nevada wage statutes. NRS 608.016 requires employers to pay wages “for each hour [an] employee works” and prohibits unpaid “trial or break-in” periods; NAC 608.115 requires pay for “all time worked … at the direction of the employer,” including time outside scheduled hours. The statutory scheme then enumerates only two targeted exceptions (NRS 608.0195; NRS 608.215), both of which are narrow, consensual exceptions in specific contexts (sleep and meal periods in 24-hour or resident-domestic arrangements).
Material differences from the PPA. The PPA’s exclusions are broad catchalls that categorically remove preliminary and postliminary activities and certain travel time from compensability. Nevada’s laws, by contrast, conspicuously lack any comparable catchall and instead outline narrow, situation-specific exceptions. This is a “material difference” that supports departure from federal importation rules (citing Terry, Granite Construction).
Legislative-structure and history checks. Even though the Court found the textual analysis dispositive, it noted that the Legislature has repeatedly amended Nevada wage laws to align with FLSA concepts when desired—yet it has never adopted PPA language or referenced the PPA. That selective borrowing supports the inference of intentional omission.
Policy orientation: equality or greater protection. The Court observed (relying on Terry) that Nevada’s wage laws are to be equal or more protective than the FLSA baseline. Incorporating the PPA’s broad exclusions would veer toward less protection than Nevada’s chosen text, which emphasizes paying for time worked “at the direction of the employer.”

Put simply, the Nevada Legislature knew how to mirror federal law when it wanted to, and it chose not to mirror the PPA’s exclusions. That deliberate choice controls.

III. What the Court Did—and Did Not—Decide

Decided: Nevada’s wage-hour statutes do not incorporate the PPA’s exceptions to compensable work. Employers may not rely on the PPA’s preliminary/postliminary or travel exclusions as a defense under Nevada law.
Not decided: Whether any specific activity (e.g., COVID-19 pre-shift testing, security screenings, intra-facility walking) is “work” under Nevada law on the facts of the case. The federal court will apply Nevada’s standards—centered on whether time is “worked” and “at the direction of the employer”—to the alleged activities.
Not imported: The federal “integral and indispensable” gloss used to navigate the PPA exceptions (e.g., under IBP) is not determinative under Nevada law because the PPA exceptions themselves are not incorporated.

IV. Likely Impact on Nevada Wage-and-Hour Litigation and Compliance

This opinion substantially reshapes off-the-clock and pre/post-shift litigation under Nevada law.

Increased exposure for pre- and post-shift tasks. Employer-required activities performed at the employer’s direction before employees clock in or after they clock out may be compensable time. Examples include:
- Mandatory health screenings or COVID-19 testing conducted on-site or at the facility entrance.
- Security bag checks, device checks, or similar exit/entry procedures imposed by the employer.
- Donning/doffing employer-required PPE or specialized equipment when performed under employer direction.
- Intra-facility walking time between screening areas and workstations if employees are already under the employer’s direction and performing assigned processes.
- Mandatory pre-shift safety briefings or handoff meetings.
Whether each scenario is compensable turns on Nevada’s “time worked at the direction of the employer” standard and case-by-case facts—not PPA exclusions.
Minimum wage and overtime calculations. Time that is compensable under Nevada law must be counted for both minimum wage (Nev. Const. art. 15, § 16(1), $12/hour) and overtime (NRS 608.018) where thresholds are met.
Pay upon termination exposure. If such time should have been paid but was not, claims under NRS 608.020–.050 for failure to timely pay all wages at termination may be implicated.
Class and collective dynamics. The decision removes a key federal defense (PPA exclusion) from Nevada state-law claims, likely fueling putative class actions targeting standardized pre- and post-shift practices.
Policy and timekeeping changes. Employers operating in Nevada should:
- Audit all pre- and post-shift requirements and determine whether they involve time that employees spend “at the direction of the employer.”
- Align timekeeping systems to capture such time accurately (e.g., adjust clock locations, allow early clock-in for screenings, record mandatory briefings).
- Review rounding and grace-period practices to ensure they do not erase compensable minutes worked.
- Revise written policies, training, and supervisory practices to reflect Nevada’s standard and remove references that assume PPA-style exclusions.
What is not automatically covered. The decision does not convert ordinary home-to-work commuting into compensable time, and it does not declare every preliminary activity compensable. The touchstone remains Nevada’s concept of “work” and the regulatory directive to pay for all time worked at the employer’s direction (NAC 608.115).

V. How This Fits Within Broader Jurisprudence

Nevada’s approach now aligns with states that treat employer control as the linchpin for compensability rather than importing the PPA’s categorical exclusions. By contrast, federal FLSA claims often turn on whether preliminary/postliminary activities are “integral and indispensable” to principal activities because the PPA exceptions otherwise exclude them. After Amazon v. Malloy, Nevada claims proceed without that threshold PPA filter.

Complex Concepts Simplified

FLSA (Fair Labor Standards Act): Federal law setting minimum wage and overtime baselines. It does not define “work.”
PPA (Portal-to-Portal Act): A federal amendment to the FLSA that excludes compensation for certain pre- and post-shift activities and travel to/from the principal place of work unless they qualify as “principal activities” or are otherwise compensable under contract or custom.
Preliminary/postliminary activities: Tasks done before the first principal activity or after the last principal activity of the workday (e.g., certain screenings, walking from a facility entrance to a workstation). Under the PPA, these are usually non-compensable; under Nevada law post-Malloy, there is no categorical exclusion.
Principal activities: The main tasks an employee is employed to perform. Under federal law, activities “integral and indispensable” to these may also be compensable despite the PPA exclusions. Nevada, however, is not bound to the PPA framework.
Certified question (NRAP 5): A procedure where a federal court asks a state’s highest court to resolve an unsettled question of state law. Nevada’s high court can rephrase questions to avoid issuing advisory opinions and ensure it addresses only determinative issues.
Nevada’s “time worked” standard: NAC 608.115 requires pay for “all time worked … at the direction of the employer,” including time outside scheduled hours. This control/direction focus is central to assessing compensability in Nevada.

Conclusion

In Amazon.com Services, LLC v. Malloy, the Nevada Supreme Court decisively held that Nevada’s wage-hour statutes do not incorporate the federal PPA’s exceptions to compensable work. The Court’s textual analysis emphasized Nevada’s deliberate legislative choice to enumerate only narrow, context-specific exceptions to paying for time worked—choices incompatible with importing the PPA’s broad preliminary/postliminary carveouts. Legislative history reinforces this intent: Nevada’s Legislature has borrowed from the FLSA when it wished, and it chose not to borrow the PPA exclusions.

The practical upshot is significant: Nevada employers cannot rely on PPA-based defenses to avoid paying for employer-directed pre- and post-shift activities. While the Court did not resolve whether particular COVID-19 testing time is compensable “work,” it removed the categorical federal exclusions from Nevada law. Going forward, Nevada courts will assess compensability under Nevada’s own framework—especially the regulatory directive to pay for “all time worked … at the direction of the employer”—with the likelihood of broader compensability for off-the-clock, employer-required tasks. This decision thus sets a clear, protective baseline for Nevada employees and provides much-needed clarity in wage-and-hour litigation and compliance across the state.