Nevada employers will soon have a very important New Year’s resolution to complete: complying with the state’s first-ever paid leave law. Effective Jan. 1, all private employers with 50 or more employees in Nevada will have to provide employees with up to 40 hours of paid leave per benefit year.
If you aren’t up to speed on the basics of this impending change, the time is now to understand the necessary compliance steps.
Beginning with the New Year, you will have to provide 0.01923 hours of paid leave for each hour of work performed. According to the language of the statute, the law does not apply to an 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.”
However, it remains to be seen whether you can avoid all of the other requirements simply by having a policy that provides paid leave to all scheduled employees at this rate or better. There will no doubt be litigation over this new law, and state and federal judges called to interpret the statute may have different opinions.
Therefore, our recommendation is that private employers with 50 or more Nevada employees relying on this exemption still design policies that mirror the language of the statute to the maximum extent possible.
KEY COMPLIANCE STEPS
Key points of the law are summarized below:
• In determining whether you have 50 or more employees, part-time employees are counted, but temporary, seasonal and on-call employees do not. If the 50-or more-employee threshold is met, you do not have to give paid leave to temporary, seasonal or on-call employees. (A “temporary” employee is considered to be an employee whose employment will not exceed 90 days). Part-time employees are entitled to paid leave in accordance with the formula.
• The law does not apply to a business during its first two years of operation.
• An employee can start using paid leave on the 90th day of their employment.
• Paid leave may be limited to 40 hours per benefit year.
• Leave may be provided in a lump sum at the beginning of the benefit year or on an accrual basis over the course of a benefit year.
• The law provides for the carryover of accrued paid leave from one benefit year to the next, but you can limit the amount of carryover to 40 hours per benefit year.
• Upon termination of employment, you may, but are not required, to pay out unused paid leave. However, if an employee who did not voluntarily leave their employment, is rehired within 90 days of the separation, you must reinstate previously unused paid leave hours.
• You can require that paid leave be taken in increments up to a maximum of four hours.
• An employee may use the leave without telling you the reason for its use, and the employee is not required to find a replacement worker as a condition of using the paid leave. However, in situations where the employee is on Family and Medical Leave Act, you can still ask if an absence is being used as FMLA leave, and the provisions of the FMLA will continue to apply.
• The employee is to give you notice of an intention to use paid leave “as soon as practicable.” In a non-emergency situation, we believe you can establish reasonable advance notice periods for the taking of leave and have blackout periods for times of heavy business demand. FMLA notice provisions can still be followed in FMLA situations.
• Each employee is entitled on each payday to an accounting of the hours of paid leave available for their use, and the law imposes record-keeping requirements relating to the accrual and use of paid leave.
• As with other wage and hour laws, the statute does not prevent you from having paid leave policies that are more generous than the statutory requirements, and you may have different policies for different classes of employees, e.g., management versus line employees.
• The law prohibits retaliation against an employee for using available paid leave, although it does not specify a particular remedy for the violation. The courts will ultimately decide if an employee can bring suit for a violation of the law, or whether the sole remedy is to file a complaint with the Labor Commissioner. The Nevada Labor Commissioner has put out an Advisory Opinion on this subject which you may find useful.
Scott M. Mahoney is a partner in the Las Vegas office of Fisher Phillips, a national labor and employment firm representing management. As an experienced trial lawyer, he regularly defends management against claims of harassment, discrimination, retaliation, wrongful termination and other workplace-related cases. He may be reached at email@example.com.