LABOR COMMISSIONER’S ADVISORY OPINION ON SB 312
The 2019 legislative session in Nevada resulted in several changes to existing labor and employment laws in the state. One important change for private employers was the mandatory provision of paid leave to both full-time and part-time employees. Under Senate Bill 312 (SB 312), private employers with 50 or more employees must provide at a minimum 0.01923 hours of paid leave for each hour worked in a benefit year. SB 312 is set to go into effect on January 1, 2020.
While the legislature’s intent to provide paid leave was clear, several issues remained on how the statute itself should be applied to qualifying employers. In response, Labor Commissioner Shannon Chambers issued an Advisory Opinion (AO 2019-02) on October 4, 2019 in order to provide guidance on how SB 312 will be interpreted, implemented, and enforced. In drafting the Advisory Opinion, Commissioner Chambers noted that she considered public comments, suggestions, and proposals, in addition to meeting with the various stakeholders on SB 312, in forming her opinion and guidance. Below are some takeaways from AO 2019-02:
Subdivision 1 of SB 312 states that “every employer in private employment shall provide paid leave to each employee of the employer…” The statute goes on to define an employer as a “private employer who has 50 or more employees in private employment in this State.” Absent from the statute was any instruction on how the 50-employee threshold was to be calculated.
The Advisory Opinion defers, partially, to the federal standard in computing the employee threshold for the Family Medical Leave Act: “[s]imilar to the Family Medical Leave Act, the Labor Commissioner will determine the 50-employee threshold as a Private-Sector employer with 50 or more employees working in Nevada (out of state employees will not count) in 20 or more workweeks (does not have to be consecutive) in the current preceding calendar year, including a joint employer or successor in interest.” Further, part-time employees will count against the employee threshold, while temporary, seasonal, or on-call employees will not. Accordingly, employers who meet the FMLA employee threshold will likely fall under the parameters of SB 312.
Subdivision 8 Exemptions
A key part of SB 312, and likely the most important, is the exemptions under Subdivision 8. First, under Subdivision 8(a), an employer is exempted from the provisions of SB 312 if “[a]n employer who, pursuant to a contract, policy, collective bargaining agreement or other agreement, provides employees with a policy for paid leave or a policy for paid time off to all scheduled employees at a rate of at least 0.01923 hours of paid leave per hour of work performed.” A common question concerning this exemption was to what extent is an employer, who had a paid leave policy that met the minimum hour threshold, exempted from the requirements of SB 312?
Commissioner Chambers addressed this issue and has clarified that “[t]he intent and explicit, plain, and unambiguous language of Section 1 – Subdivision 8(a) clearly provides that employers already providing leave that matches or exceeds the 0.01923 hours of paid leave per hour of work performed pursuant to a contract, policy, collective bargaining agreement or other agreement are explicitly exempt from the other requirements of Senate Bill 312.” (emphasis in the original).
From the Commissioner’s response, it appears that the exemption, as generally applied, allows an employer to enforce any “Existing Notice Requirements, Call-Out-Policies, and/or Request for Leave policies/provisions” that materially differ from the requirements set forth under SB 312. Further, employers that already provide paid leave that meets or exceeds the hour requirements need not implement the 90-day waiting period nor are they obligated to meet the new record keeping requirements. However, as a word of caution, Commissioner Chambers noted on several occasions that while an employer is exempted from certain requirements, it is still “recommended” that employers attempt to mirror the requirements of SB 312.
The second exemption, Subdivision 8(b), states that SB 312 shall not apply to temporary, seasonal, and on-call employees. Commissioner Chambers defined a temporary employee as an employee who works less than 90 days on a temporary or occasional basis and a seasonal employee as an employee who works less than 90 days for a specific season. On-call employees, which shall include per-diem employees, are employees who are called out to work on an hourly or daily basis, based on employer need. Importantly, Commissioner Chambers concluded that any temporary, seasonal, or on-call/per-diem assignments that exceed 90 days in length may trigger a presumption that the employee is now a Part-Time employee or Full-Time employee.
As part of the Subdivision 8(b) exemption, Commissioner Chambers indicated that employers should be proactive in tracking the hours and days worked by temporary, seasonal, and on-call/per-diem employees to ensure that the employees are properly classified. Further, any attempt at intentionally misclassifying employees for the purposes of avoiding paid leave requirements could result in an $5,000.00 penalty.
Notice and Record-Keeping Requirements
While many employers may be exempted from, among others, the notice and record-keeping requirements of SB 312, Commissioner Chambers set forth guidance on how to comply with such requirements.
In terms of how much notice an employee must give to take paid leave, SB 312 requires that an “employee shall, as soon as practicable, give notice to his or her employer to use the paid leave available.” However, what is “as soon as practicable?” The Advisory Opinion again looks towards the federal standard under FMLA for guidance. Generally, leave taken in accordance with FMLA requires that an employee must give notice to the employer 30 days in advance of the anticipated leave when the employee knows that they intend to take the leave.
Commissioner Chambers notes that while 30 days would be “optimal notice,” the more reasonable approach would be to “establish a notice requirement in writing that is provided to and signed for by the employee.” An example of an effective notice requirement would be a written policy that provides a 3 to 5 days-notice requirement as well as a longer notice requirement for anticipated leave for vacation or a voluntary day off.
Additionally, like FMLA, leave that is unexpected, requested at the last minute to deal with an emergency, urgent situation, or requested due to an unexpected illness, injury, sickness, etc. should not require advance notice.
As it relates to record-keeping, Subdivision 1(h) requires that an employer “provide to each employee on each payday an accounting of the hours of paid leave available for use by that employee.” This would apply to both salary, exempt employees and hourly, non-exempt employees. Further, pursuant to Subdivision 5, employers must maintain a record of the receipt or accrual and use of paid leave for a 1-year period following the entry of such information in the record, and upon request, provide it to the Labor Commissioner for inspection. Commissioner Chambers notes that while an employer may be exempt under Subdivision 8(a) or (b), it is recommended that the employer comply with these requirements, and further, suggests that NRS 608.115 would require the maintenance of these records as well.
As noted above, SB 312 goes into effect on January 1, 2020. As recommended by Commissioner Chambers, employers are encouraged to review their existing paid leave policies and/or develop and implement new policies to ensure that they are compliant with SB 312 prior to January 1, 2020. Nevada Association of Employers is here to help and will be hosting two webinars on SB 312 to cover all aspects of the new law and to answer any questions you may have.
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