Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The Nevada Labor Commissioner issued two advisory opinions concerning Senate Bill (SB) 312, which, effective January 1, 2020, requires private employers with 50 or more employees in Nevada to provide paid leave that employees can use for any reason. SB 312 left several significant questions unanswered. In the advisory opinions, the Labor Commissioner addresses some of these issues, based on the state labor department's understanding of “the plain and unambiguous language of the bill and the intent of the Legislative Sponsors.” Below we summarize important clarifications the Labor Commissioner’s formal guidance provides.
Using Existing Policies Exemption
SB 312's “using existing policies exemption” says the law does not apply to an employer that provides paid leave or paid time off pursuant to a contract, policy, collective bargaining agreement or other agreement that provides an amount of leave equal to what the law requires: .01923 paid leave hours for each hour worked (roughly equivalent to 40 hours per year for a 40-hour-per-week employee). Employers frequently ask whether the exemption is broad or narrow. The Labor Commissioner's answer: broad.
The Labor Commissioner opines that the exemption's “intent and explicit, plain, and unambiguous language” indicates that employers that already offer leave that “matches or exceeds” the minimum leave amount required under SB 312 are “explicitly exempt from the other requirements.” Accordingly, if the exemption applies, none of the law's requirements apply (e.g., waiting periods, recordkeeping, etc.). However, the Labor Commissioner recommends that employers adopt qualifying policies before the law's January 1, 2020 effective date.
In a separate opinion, the agency says the exemption applies to a collective bargaining agreement under which paid leave benefits are a non-delineated component of a covered employee's base wage, and the value thereof equals or exceeds .01923 paid leave hours for each hour worked.
Covered Employers: The 50-Employee Threshold
The law applies to employers with 50 or more employees in Nevada, but does not indicate how to calculate business size. The Labor Commissioner addresses this issue by borrowing standards from the federal Family and Medical Leave Act (FMLA). Specifically, a covered employer is one that employs 50 or more employees in Nevada in 20 or more consecutive or nonconsecutive workweeks in the current or preceding calendar year, including employees employed by joint employers or successors in interest. Part-time employees count toward the threshold, but temporary, seasonal, and on-call employees do not.1 The Labor Commissioner encourages stakeholders with “multiple companies, franchises, or entities” to contact its office regarding which employees count as employees of which entities for purposes of the 50-empoyee threshold.
Excluded Temporary, Seasonal, and On-Call Employees
The law does not apply to temporary, seasonal, or on-call employees, but does not define these terms. Accordingly, the Labor Commissioner provides the following definitions:
- A “Temporary Employee” is an employee “who works less than 90 days on an occasional or temporary basis whether they are paid by the employer or a Private/Temporary Employment Agency, Training School, or Training Center.”
- A “Seasonal Employee” is an employee “who typically works less than 90 days and/or who is hired for a specific season.” As examples, the Labor Commissioner cites “pool staff and lifeguards hired for the summer season, ski workers employed at a ski resort for the ski season, or staff hired during the holiday season.”
- An “On-Call Employee” is an employee “who is called out to work on an hourly or daily basis based on employer need.” The term includes “Per-Diem employees.”
Additionally, the Labor Commissioner offers guidance on classifying short-term and on-call employees. Importantly, the guidance explains that work assignments exceeding 90 days may trigger a presumption of coverage. Further, the Labor Commissioner recommends that employers track hours worked by short-term and on-call employees, and cautions against “intentionally misclassifying” them to avoid the law's requirements.
Requests to Use Leave
Under the law, employees must give notice of their intent to use leave "as soon as practicable." The Labor Commissioner indicates that what constitutes "as soon as practicable" will vary under the circumstances. For example, the guidance indicates employers should not require advance notice for unforeseeable absences, e.g., emergencies, unexpected illnesses and injuries. However, the Labor Commissioner says written policies requiring three to five days' notice – or longer – could be reasonable for foreseeable absences, e.g., vacations. Otherwise, the Labor Commissioner confirms that employers can develop their own notice requirements, and counsel or discipline employees for noncompliance with these requirements or for abusing leave. However, the Labor Commissioner will review leave request denials on a case-by-case basis.
The Labor Commissioner says it will “continue to work with stakeholders, employers, and employees on SB 312 in advance of its January 1, 2020 effective date,” indicating further guidance might be forthcoming. However, there is no guarantee the office will release additional opinion letters or FAQ before the law takes effect. Employers have fewer than two months to review policies, practices, and procedures to ensure they comply with the new law, or to confirm whether their existing policies currently, or with revisions could, provide a wholesale exemption from the law. During this period, employers may consider consulting with counsel concerning compliance questions, and should gather necessary company personnel – e.g., legal, HR, payroll, IT – so they may implement and execute policies, and educate employees on requirements, before the New Year.
1 The Labor Commissioner’s guidance provides that the class of employees included in the calculation of the 50-employee threshold excludes “temporary employees, seasonal employees, or seasonal employees.” Although not expressed explicitly, it is assumed on-call employees are included in that list.