As we previously reported, Nevada has enacted a personal leave law, which, effective January 1, 2020, will require private employers with 50 or more employees in Nevada to provide certain employees working in the state with up to 40 hours of paid leave per year, to be used for any purpose, including non-medical personal reasons. To that end, the Nevada Labor Commissioner issued two advisory opinions regarding the new law.

While the law applies to employers with 50 or more employees in Nevada, it is silent on how the 50 employee-threshold should be calculated. In its guidance, the Labor Commissioner addressed this by applying standards from the FMLA; specifically, a covered employer is one that employs 50 or more employees in 20 or more consecutive or nonconsecutive workweeks in the current preceding calendar year. Part-time employees and employees of a joint employer or successor in interest count as part of the 50-employee threshold. However, temporary, seasonal, and on-call employees do not count and are exempt from coverage.

The law does not further define temporary, seasonal, or on-call employees but in its guidance, the Labor Commissioner has clarified that a temporary employee is defined as one who works less than 90 days on a temporary or occasional basis; a seasonal employee is defined as one who works less than 90 days for a specific season; and an on-call or per-diem employee is one who is called to work on an hourly or daily basis based on the employer’s need. Importantly, the Labor Commissioner concluded that any work assignment exceeding 90 days may trigger a presumption of coverage, and recommends employers track hours worked by short-term and on-call employees.

Under the law, employees must give notice of their intent to use leave “as soon as practicable.” Looking to the FMLA rules as a model, the Labor Commissioner explained that while employers should not require advance notice for unforeseeable absences (e.g., emergencies, unexpected illnesses and injuries), 30 days “would be optimal notice for events where the employee knows they need to take paid leave.” Employers should establish a notice requirement in writing that is provided to and signed for by the employee.

Notably, an employer is exempt from coverage if it already provides an equivalent amount of paid leave (whether pursuant to a collective bargaining agreement or other contract, agreement, or policy) to all employees who would otherwise be covered by the law. In other words, such employees would have to accrue at least 0.01923 hours (or approximately 1.15 minutes) of paid leave for every hour worked, up to 40 hours per year. The Labor Commissioner determined that based on the plain and unambiguous language of the so-called existing policies exemption, “employers already providing leave that matches or exceeds” the minimally required leave amount are “explicitly exempt from the other requirements” of the law. However, the Labor Commissioner recommends that employers adopt qualifying policies before the law’s effective date. In a separate opinion, the Labor Commissioner opined that this exemption applies to a collective bargaining agreement under which paid leave benefits are a non-delineated component of a covered employee’s base wage, the value of which equals or exceeds the minimally required leave amount.

With less than two months until the law’s effective date, employers in Nevada should review and, where necessary, revise their existing policies to ensure compliance with these new requirements.

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Photo of Allan Bloom Allan Bloom

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended…

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended many of the world’s leading companies against claims for unpaid wages, employment discrimination, breach of contract and wrongful discharge, both at the trial and appellate court levels as well as in arbitration, before government agencies, and in private negotiations. He has secured complete defense verdicts for clients in front of juries, as well as injunctions to protect clients’ confidential information and assets.

As the leader of Proskauer’s Wage and Hour Practice Group, Allan has been a strategic partner to a number of Fortune 500 companies to help them avoid, minimize and manage exposure to wage and hour-related risk. Allan’s views on wage and hour issues have been featured in The New York Times, Reuters, Bloomberg and Fortune, among other leading publications. His class-action defense work for clients has saved billions of dollars in potential damages.

Allan is regularly called on to advise operating companies, management companies, fund sponsors, boards of directors and senior leadership on highly sensitive matters including executive and key person transitions, internal investigations and strategic workforce planning. He has particular expertise in the financial services industry, where he has litigated, arbitrated, and mediated disputes for more than 20 years.

A prolific author and speaker, Allan was the Editor of the New York State Bar Association’s Labor and Employment Law Journal from 2012 to 2017. He has served as an author, editor and contributor to a number of leading treatises in the field of employment law, including ADR in Employment Law (ABA/Bloomberg BNA), Employment Discrimination Law (ABA/Bloomberg BNA), Cutting Edge Advances in Resolving Workplace Disputes (Cornell University/CPR), The Employment Law Review (Law Business Research, U.S. Chapter Author), and The Complete Compliance and Ethics Manual (SCCE).

Allan has served as longtime pro bono counsel to Lincoln Center for the Performing Arts and The Public Theater, among other nonprofit organizations.  He is a past Vice Chair of Repair the World, a nonprofit organization that mobilizes volunteers and their communities to take action to pursue a just world, and a past recipient of the Lawyers Alliance Cornerstone Award for extraordinary contributions through pro bono legal services.

Allan is a Fellow of the College of Labor and Employment Lawyers and has been recognized as a leading practitioner by Chambers since 2011.

Photo of Arielle E. Kobetz Arielle E. Kobetz

Arielle E. Kobetz is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Her practice focuses on providing clients with strategies and counseling related to a variety of workplace-related disputes, including employee terminations…

Arielle E. Kobetz is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Her practice focuses on providing clients with strategies and counseling related to a variety of workplace-related disputes, including employee terminations and discipline, leave and accommodation requests, and general employee relations matters. She also counsels clients on developing, implementing and enforcing personnel policies and procedures and reviewing and revising employee handbooks under federal, state and local law.

Prior to joining Proskauer, Arielle served as a law clerk at the New York City Human Resources Administration, Employment Law Unit, where she worked on a variety of employment discrimination and internal employee disciplinary issues.