United States: Paid Leave Soon To Be The Law In Nevada

Last Updated: June 18 2019
Article by Rick D. Roskelley and Neil C. Baker

Nevada Governor Steve Sisolak has announced his intent to sign Senate Bill No. 312, which will require, for the first time, that Nevada private-sector employers provide employees with up to 40 hours of paid leave per benefit year. Although originally styled as "sick leave" legislation, the final bill as enrolled requires that paid leave be made available to employees to be used for any reason. With limited exceptions, employers with 50 or more employees must provide paid leave to their employees in proportion to the number of hours worked. The bill makes no exception for part-time employees. The legislation becomes effective on January 1, 2020.

Senate Bill No. 312: the Basics

Although Nevada employers have previously been under no legal obligation to provide leave, paid or unpaid, many have long held policies providing vacation, sick leave, or paid time off to full-time employees. Under Senate Bill No. 312, private employers with 50 or more employees in Nevada must now provide each employee with "at least 0.01923 hours of paid leave for each hour of work performed" in a "benefit year," which the bill defines simply as "a 365-day period." The bill does not distinguish between full- and part-time employees in this regard. Under the statutory formula, an employee who works 40 hours a week for a full year is entitled to approximately 40 hours of paid leave, which the employee may take without providing a reason for the leave to his or her employer. The legislation also prohibits an employer from requiring employees using leave to find a replacement worker. Employees must provide their employer notice of their use of paid leave "as soon as practicable." The law also allows employers to require that employees use paid leave in a minimum time increment, not to exceed 4 hours. Finally, the bill prohibits employers from retaliating against employees for using paid leave.

Leave Accrual

Under the bill, employers have the option of granting paid leave hours on an accrual basis or by frontloading the hours on the first day of the benefit year. Using the accrual method, employees will accrue paid leave over the course of the benefit year in accordance with the statutory formula. Alternatively, under the frontloading method, employers may provide employees with all the paid leave they are expected to accrue throughout the year on the first day of the benefit year. Employers electing to frontload should be cautious, however, as Senate Bill No. 312 does not address what happens in the event an employer using this method underestimates an employee's leave accrual for the benefit year. Senate Bill No. 312 permits employers to impose a waiting period before new employees may use leave by requiring employers to allow new employees to use paid leave beginning on the 90th calendar day of employment.

While Senate Bill No. 312 does not expressly allow employers to cap the amount of paid leave an employee may accrue, it does allow them to cap an employee's use of paid leave at 40 hours in a benefit year. The bill further provides that employers that elect an accrual system may limit the amount of accrued leave that may be carried over from year to year to a maximum of 40 hours per benefit year. Additionally, Senate Bill No. 312 arguably permits employers frontloading leave on the first day of the benefit year to have a "use or it loose it" policy, as it makes no mention of year-to-year carryover under such a system.

Separation from Employment

Notably, Senate Bill No. 312 makes clear that employers may, but are not required to, pay an employee for any unused paid leave upon separation from employment. That said, if the employee is rehired within 90 days after separation, any previously unused paid leave must be reinstated, provided the separation was not the result of a voluntary resignation.

Rate of Compensation

Senate Bill No. 312 requires employers to compensate employees for paid leave "on the same payday as the hours taken are normally paid" and "at the rate of pay at which the employee is compensated at the time such leave is taken." In the case of employees paid by the hour, the rate of pay is calculated by the employee's hourly rate. The rate of pay for employees paid on a non-hourly basis, such as by salary, commission, or piece rate, must be calculated by dividing the employee's total wages earned during the immediately preceding 90 days by the number of hours worked during that period. The calculation of total wages includes nondiscretionary bonuses earned by the employee. However, an employer need not include bonuses earned at the sole discretion of the employer, overtime pay, hazardous duty pay, holiday pay, or tips.

Reporting Requirements and Records

Senate Bill No. 312 imposes certain reporting requirements on employers. First, it provides that employers must "maintain a record of the receipt or accrual and use of paid leave" for a period of at least one year, which must be made available to the Labor Commissioner upon request. Second, employers must "provide to each employee on each payday an accounting of the hours of paid leave available for use by that employee." Employers may provide the accounting through the "system" used to pay their employees.

Enforcement

Senate Bill No. 312 empowers the Labor Commissioner to enforce its provisions. Employers that violate the paid leave law are subject to administrative penalty and any other remedy available to the Labor Commissioner. In addition, the Labor Commissioner may refer violations to a district attorney or the Attorney General for prosecution. Under the bill, any employer that violates the legislation may be guilty of a misdemeanor. The bill does not expressly create a private right of action for employees to enforce its provisions.

Exemptions

The new paid leave requirements stated in Senate Bill No. 312 do not apply to certain employers. To begin with, employers with fewer than 50 employees in Nevada need not comply with the new legislation. Further, the bill also exempts employers from its requirements during the first two years of operation of their business. Finally, Senate Bill No. 312 expressly states that its provisions do not apply to an employer if, "pursuant to a contract, policy, collective bargaining agreement or other agreement," the employer provides paid leave in an amount equivalent to at least 0.01923 hours of leave per hour of work performed. Unfortunately, the meaning of this last exemption is not altogether clear. Comments contained in the Minutes of the Senate Committee on Commerce and Labor indicate the exemption was intended to apply to employers that provide at least 40 hours of paid leave under a collective bargaining agreement. Whether or not this exemption also applies to other employers that offer employees more than the minimum paid leave under the statutory formula is somewhat less clear. Employers contemplating using this exemption should consult legal counsel.

Unanswered Questions

The language of Senate Bill No. 312 raises a number of questions. To begin with, Senate Bill No. 312 specifically exempts "temporary," "seasonal," and "on-call employees" from paid leave benefits, but the bill offers no definitions for those terms. In addition, while Senate Bill No. 312 requires employees to give notice of their use of paid leave "as soon as practicable," the bill does not provide any guidelines to assist employers in determining what "practicable" notice means. In addition, by its terms, Senate Bill No. 312 applies only to private employers with 50 or more employees. The legislation, however, provides no guidance on determining what constitutes 50 employees. Are only employees who are eligible for leave under the bill counted? In other words, does it exclude "temporary," "seasonal," and "on-call employees"? Must an employer have 50 or more employees for a minimum period during the year for the law to apply? Or is one day sufficient? Finally, what constitutes notice as soon as practicable and is an employee's failure to give notice "as soon as practicable" acceptable grounds for denying paid leave?

Next Steps

Senate Bill No. 312 will take effect on January 1, 2020. All Nevada employers with 50 or more employees should review their current paid leave policies for compliance. Those without leave policies should begin planning to implement a compliant policy. Given the myriad uncertainties in the legislation, employers would be well advised to consult employment counsel in reviewing and implementing such policies.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions