Ohlinger v. Marsh USA, Inc.
2:16-cv-02588
D. Nev.Mar 29, 2017Background
- Plaintiff Bonnie Ohlinger sued Marsh USA asserting FLSA and Nevada state-law wage claims (overtime, recordkeeping, unpaid final wages, and fee-shifting) for working over 40 hours/week.
- Defendants moved to dismiss the state-law claims, arguing Nevada law (NRS Chapter 608) does not create a private right of action and enforcement lies exclusively with the Nevada Labor Commissioner.
- Ohlinger relied on NRS 608.140 (attorney’s fees in a "suit for wages earned and due") and a footnote in Baldonado v. Wynn to argue a private right to recover unpaid wages under Chapter 608.
- The court relied on its prior decision in Cardoza v. Bloomin’ Brands, where it held NRS 608.140 is a fee‑shifting provision and does not create a private enforcement vehicle for other Chapter 608 violations.
- The court read Baldonado’s footnote as acknowledging that attorney’s‑fee statutes recognize preexisting private wage claims, not that Chapter 608 itself creates a private right to enforce its provisions.
- Conclusion: the court granted Marsh’s motion and dismissed Ohlinger’s state-law claims with prejudice, leaving administrative enforcement to the Labor Commissioner.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NRS Chapter 608 creates a private right of action to enforce its wage provisions | Ohlinger: NRS 608.140 and Baldonado support a private cause of action to recover unpaid wages under Chapter 608 | Marsh: Chapter 608 confers enforcement authority on the Labor Commissioner; no private right exists | Court: No private right under Chapter 608; enforcement belongs to Labor Commissioner |
| Whether NRS 608.140 creates a private enforcement mechanism for other Chapter 608 violations | Ohlinger: 608.140’s fee language implies a private suit to enforce Chapter 608 claims | Marsh: 608.140 is a fee‑shifting provision for suits that are already available, not a grant of a new private remedy | Court: 608.140 is a fee‑shifting statute and does not create private enforcement of other provisions |
| Effect of Baldonado footnote recognizing civil actions to recoup unpaid wages | Ohlinger: Baldonado’s language shows Nevada recognizes private actions to recover unpaid wages under Chapter 608 | Marsh: Baldonado simply recognizes that wage claims historically existed independent of Chapter 608; it does not create a Chapter 608 private right | Court: Baldonado’s footnote does not establish a private right under Chapter 608; it reflects the preexisting common‑law/contract remedies to recover wages |
| Whether Ninth Circuit dicta in Busk alters the analysis | Ohlinger: Cites federal authority suggesting a private remedy exists | Marsh: The Ninth Circuit statement is dicta and rests on Baldonado; it does not bind this court | Court: Disregards Busk’s dicta as unsupported by Baldonado or the statute’s text and history |
Key Cases Cited
- Baldonado v. Wynn Las Vegas, 194 P.3d 96 (Nev. 2008) (footnote recognized that attorney‑fee provision relates to civil actions to recoup unpaid wages but did not create a Chapter 608 private enforcement right)
- Busk v. Integrity Staffing Solutions, 713 F.3d 525 (9th Cir. 2013) (panel observation that 608 may provide a private right was dicta and relied on Baldonado)