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Oliver v. Barrick Goldstrike Mines11/1/1995
ng business" and, therefore, Barrick and Oliver were in the "same trade."
Upon close examination of NRS 616.120 and the legislative history of NRS 616.262, we believe the legislature did not intend that the broad definition referring to
[111 Nev. 1338, Page 1346]
"trade" contained in NRS 616.120 was to be applied in determining whether a principal contractor is a statutory employer under the "same trade" language of NRS 616.262. First, NRS 616.120 specifically states that " rade, business, profession or occupation of his employer includes all services tending toward the preservation, maintenance or operation of the business, business premises, or business property of the employer" (emphasis added). As the plain language of the statute indicates, NRS 616.120 presumes the existence of an employer/employee relationship. However, the whole point of looking to the provisions of NRS 616.262 in the present case, is to determine whether an employer/employee relationship exists between Barrick and Mountain States and, by extension, Oliver. Thus, the statutory definition urged by Barrick has no application in determining whether Barrick and Oliver's employer, Mountain States, are in the "same trade." Clearly, under the referenced statute, Barrick could not be viewed as "his" (i.e., Mountain States') employer; nor would it make sense to apply a statutory definition that already presumes the existence of an employer/employee relationship"the very issue we have yet to decide. Second, legislative history does not support the proposition that the broad definition of "trade" in NRS 616.120 was intended to embrace the "same trade" language in NRS 616.262. For example, an early draft of NRS 616.262 stated that persons were not employers under chapter 616 if they: "(a) entered into a contract with an independent enterprise; (b) were not in the same trade, business, profession or occupation; and (c) the independent enterprise did not further the business interests of the person." Hearing on Proposed Amendment to S.B. 7 Before the Senate Committee on Commerce and Labor, April 9, 1991, exhibit D, at 8, S 12(c) (emphasis added). The final version of NRS 616.262 excluded the language that a person was not an employer if the independent enterprise did not further the business interests of the person (i.e., a person was an employer if the independent enterprise furthered the business interests of the person). Thus, Barrick's contention that it was in the "same trade" as Mountain States because Oliver's work furthered the operation of its gold mines was flatly rejected by the legislature. See Hearing on Proposed Amendment to S.B. 7 Before the Senate Committee on Commerce and Labor, April 9, 1991, at 20-21 (Scott Young, General Counsel, State Industrial Insurance System, expressing his concern that the former version of NRS 616.262 was too broad and stating "you can almost always say that whatever was done
[111 Nev. 1338, Page 1347]
for you furthered the interests of the person it was done for"). 6 Barrick cites County of Clark v. Nevada Indus. Comm'n, 99 Nev. 729, 669 P.2d 730 (1983), for the proposition that two businesses are in the "same trade" when an activity or service is performed that furthers the business of the employer. The cited case is not supportive of Barrick's position. To the contrary, in County of Clark v. Nevada Indus. Comm'n, the temporary persons who were hired by the county were actually employees of the county engaged to provide necessary personnel to handle the county's responsibilities to facilitate elections. These temporary employees were both hired and terminated by the county, and the employees were clearly engaged in providing services "tending toward th
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