Senate Bill 312 paid leave: implementation Q&A, plus an employer-exemption follow-up letter

STATE OF NEVADA

                                                                                   OFFICE OF THE LABOR COMMISSIONER

STEVE SISOLAK 1818 COLLEGE PKWY., SUITE 102
GOVERNOR CARSON CITY, NV 89706
PHONE: (775) 684-1890
MICHAEL J. BROWN
DIRECTOR OFFICE OF THE LABOR COMMISSIONER
3300 WEST SAHARA AVE., SUITE 225
SHANNON CHAMBERS Department of Business & Industry LAS VEGAS, NV 89102
LABOR COMMISSIONER OFFICE OF THE LABOR COMMISSIONER PHONE: (702) 486-2650
www.labor.nv.gov

                                       OCTOBER 4, 2019

   ADVISORY OPINION - NEVADA ADMINISTRATIVE CODE § 607.650

SENATE BILL 312 PAID LEAVE – 2019 NEVADA LEGISLATIVE SESSION

Pursuant to Nevada Administrative Code (NAC) Section 607.650, the Labor Commissioner is issuing the
following Advisory Opinion regarding Senate Bill (SB) 312. The Labor Commissioner has received multiple
inquiries, comments, suggestions, and proposals on how SB 312 should be interpreted, implemented, and
enforced. The Labor Commissioner also met with various stakeholders on SB 312.

This Advisory Opinion is intended to provide as much guidance as possible on SB 312. However, it must be
recognized that not every employment situation and/or employer/employee relationship or working
environment may be encompassed by the answers and guidance set forth in this Advisory Opinion. The
Labor Commissioner will continue to work with stakeholders, employers, and employees on SB 312 in
advance of its January 1, 2020 effective date. SB 312 and its paid leave provisions are new. However, the
Labor Commissioner will interpret, implement, and enforce SB 312 based on the plain and unambiguous
language of the bill and the intent of the Legislative Sponsors of the bill to ensure that the provisions of SB
312 are followed and paid leave is provided to Nevada employees.

KEY HIGHLIGHTS OF SENATE BILL (SB 312) – EFFECTIVE JANUARY 1, 2020: "Every
employer in private employment in the State of Nevada with 50 or more employees in the State of Nevada
shall provide paid leave that accrues at a minimum of 0.01923 hours of paid leave for each hour of work
performed. An employee is eligible to use leave on the 90th day of employment."

Section 1 – Subdivision 7 – Does not apply to an employer during the first two years of operation.

Subdivision 8. This section does not apply to: (a) 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; and (b) Temporary, seasonal or on-call employees.

Subdivision 9. As used in this section: (a) "Benefit year" means a 365-day period used by an employer
when calculating the accrual of paid leave. (b) "Employer" means a private employer who has 50 or
more employees in private employment in this State.

SB 312 - https://www.leg.state.nv.us/App/NELIS/REL/80th2019/Bill/6553/Text

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50 EMPLOYEE-THRESHOLD
Question #1: How should the 50-employee threshold be counted?

Answer: Similar 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.

Question #2: Do Part-Time employees count towards the 50-employee threshold?

Answer: Yes. The Labor Commissioner may also impose an Administrative Penalty of up to
$5,000.00 against employers who intentionally do not count Part-Time employees as part of the 50-
employee threshold or who misclassify employees for the purpose of circumventing the 50-
employee threshold.

Question #3: Do temporary employees, seasonal employees, or seasonal employees count towards
the 50-employee threshold:

Answer: No.

Question #4: What if I have multiple companies, franchises, or entities that may have different
locations, LLC's), Tax Identification Numbers, or other business structures, do they all count
together towards the 50-employee threshold?

Answer: It depends on the exact structure, legal formation, tax formation, and any other relevant
information that may be available to determine if all of them, or some should count together
towards the 50-employee threshold. It is recommended that the Labor Commissioner be
contacted with questions regarding various companies, franchises, or entities that need to be
considered to determine if the 50-employee threshold applies.

EXEMPTIONS FROM SB 312

*Pursuant to Section 1 – Subdivision 7, the requirements of SB 312 do not apply to an employer
during the first two years of operation.

Question #1: Does the intent, language, and exemption set forth in Section 1 - Subdivision 8(a)
apply to employers who already provide paid leave at a rate of at least 0.01923 hours of paid leave
per hour of work performed pursuant to a contract, policy, collective bargaining agreement or
other agreement?

Answer: Yes. The 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.

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 Things to Consider with the Section 1 - Subdivision 8(a) Exemption:
 An employee handbook would qualify as a policy or agreement so long as there is
   language in the handbook about the paid leave policy and paid leave is provided that
   meets or exceeds the requirements of SB 312.
 Existing Notice Requirements, Call-Out-Policies, and/or Request for Leave
   policies/provisions, etc., that are set forth in the contract, policy, handbook, collective
   bargaining agreement, or agreement are still valid and can be enforced by the employer.
   However, it is recommended that employers not adopt new policies, handbooks,
   contracts, agreements, or collective bargaining agreements prior to January 1, 2020, that
   would discourage and/or prevent the use of paid leave based on the intent of SB 312.
 The employee should sign and acknowledge the policy, handbook, agreement, contract,
   or other document specifying and outlining the paid leave policy, including those
   provisions set forth in a collective bargaining agreement.
 Existing contracts, policies, handbooks, collective bargaining agreements, or other
   agreements that match or exceed the paid leave requirements of SB 312 but have a
   waiting period to utilize the leave would still be exempt under Section 1 - Subdivision
   8(a). However, it is recommended that employers recognize the intent of SB 312 to
   have paid leave available after 90 days of employment.
 Many employers already offer sick leave or other types of paid leave before 90 days of
   employment or after 90 days of employment that match or exceed the requirements of
   SB 312, and this would satisfy the intent of the exemption in Section 1 - Subdivision
   8(a).
 A "Benefit Year" means a 365-day period used by an employer when calculating the
   accrual of paid leave," and should be considered to start the day the employee starts
   employment.
 Leave can be "front-loaded" at the beginning of the Benefit Year or accrue over a Benefit
   Year pursuant to a policy, handbook, agreement, contract, or collective bargaining
   agreement, and does not have to be paid out unless that is part of the policy, handbook,
   agreement, contract, or collective bargaining agreement.
 Leave may be rolled over but can be limited to 40 hours per Benefit Year.
 If leave is "paid out" pursuant to a policy, handbook, agreement, contract, or collective
   bargaining agreement, it does not have to be reinstated.
 Higher amounts of leave can always be offered to hourly employees, exempt, or salary
   employees pursuant to a contract, handbook, policy, agreement, or collective bargaining
   agreement.
 The notice requirements for leave under the Family Medical and Leave Act (FMLA) and
   the other requirements of FMLA would still be applicable to FMLA leave.
 Collective Bargaining Agreements (CBA's), mainly those involving trade, construction,
   and labor organizations, that have been negotiated or are being negotiated that have
   current and/or existing language that offer, or previously offered leave that matches or
   exceeds the requirements of SB 312, but have been modified to provide for a vacation
   bank/fund, savings plan, vacation plan/vacation savings plan, or other leave plan, or that
   instead offer the leave to be paid as part of the collective bargaining agreement are
   exempt from the new requirements of SB 312 based on the exemption in Section 1 –
   Subdivision 8(a).

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        Because of the exemption for existing contracts, policies, handbooks, collective
          bargaining agreements, or other agreements, the new record-keeping requirements of SB
          312 would not apply. However, it is recommended that employers maintain basic
          compliance with Nevada Revised Statutes (NRS) Section 608.115. In addition, tracking
          the accrual of leave, leave taken by employees, hours worked, rates of pay, and other
          basic employee information is an essential and necessary part of the employee/employer
          relationship.
        While not strictly required and/or enforced by the Labor Commissioner, it is
          recommended that there be some basic record keeping for Salary/Exempt or Executive
          employees showing that they are entitled to or are receiving leave that matches or
          exceeds the requirements of SB 312.

        Recommendations Regarding the Section 1 - Subdivision 8(a) Exemption:
        Employers should review their policies, handbooks, contracts, agreements, and
          collective bargaining agreements to ensure that they offer paid leave that matches or
          exceeds the 0.01923 hours of paid leave per hour of work performed and consider the
          intent of SB 312 to offer leave after 90 days of employment. For Employers who do not
          currently offer paid leave that matches or exceeds the 0.01923 hours of paid leave per
          hour of work performed pursuant to a policy, handbook, contract, agreement, or
          collective bargaining agreement . . . . . . . . . . . . . .
         IT IS RECOMMENDED THAT THEY DEVELOP A POLICY, HANDBOOK,
         COLLECTIVE BARGAINING AGREEMENT(S) TO OFFER A PAID LEAVE
         POLICY THAT MATCHES OR EXCEEDS THE REQUIREMENTS OF SB 312
         PRIOR TO JANUARY 1, 2020.

Question #2: Does the intent, language, and exemptions set forth in Section 1 - Subdivision 8(b)
apply to temporary, seasonal, or on-call employees, and what are the definitions of temporary,
seasonal, or on-call employees?

Answer: Yes. The intent and plain and unambiguous language of Section 1- Subdivision 8(b)
clearly provides that temporary, seasonal, or on-call employees are exempt from the requirements
of SB 312.

        Things to Consider with the Section 1 - Subdivision 8(b) Exemption:
        A "Temporary Employee" would be 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" would be an employee who typically works less than 90 days
          and/or who is hired for a specific season. For example, 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" would be an employee who is called out to work on an hourly
          or daily basis based on employer need. This would also apply to Per-Diem employees.
        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 a Full-Time
          employee.

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        Recommendations Regarding the Section 1 - Subdivision 8(b) Exemption:
        Employers should track and monitor the hours and days worked for employees that are
          temporary, seasonal, and on-call/per-diem employees.
        Employers could front load or allow the accrual of paid leave at a rate of 0.01923 hours
          of paid leave per hour of work performed for temporary, seasonal, and on-call/per-diem
          employees if they anticipate that the assignment will exceed 90 days.
        There is no requirement to pay out or allow the carry-over of accrued leave beyond 40
          hours per Benefit Year even if the assignment exceeds 90 days.
        The Labor Commissioner would discourage employers from intentionally misclassifying
          employees as temporary, seasonal, or as on-call/per-diem employees for purposes of
          avoiding the requirement to provide and pay for paid leave. Such actions could result in
          an Administrative Penalty of up to $5,000.00 per violation.

PART-TIME EMPLOYEES

Question #1: What is a Part-Time employee?

Answer: Typically, a Part-Time employee is an employee who works 20 hours or less than 34
hours per week based on a typical 40-hour work week. The Federal Department of Labor Bureau
of Labor Statistics categorizes a Part-Time employee as a person that works between 1-34 hours
per week based on a 40-hour work week.

The Labor Commissioner would also consider an employee who works less than Full-
Time hours for a period longer than 90 days to be a Part-Time employee.

Question #2: Can I designate an employee as a Part-Time employee if they work less than 20
hours or between 20-34 hours based on a 40-hour work week or less than that based on our
designated work week?

Answer: Yes. While not required, an employer can expand and offer the paid leave benefit to
employees who may not be fully Part-Time. Because the paid leave accrues at a rate of 0.01923
hours of paid leave per hour of work performed, the leave would accrue based on the hours of
work performed. An employer could also offer it to temporary, seasonal, and on-call employees if
they chose to.

Question #3: If I work an employee 19 hours per work week (based on a typical 40-hour work
week) or less than half of the designated work week for longer than 90 days, do I still have to
provide paid leave?

Answer: Probably, based on the answer to Question #1. If the employee is there longer than 90
days and does not qualify as a temporary, seasonal, or as an on-call employee under the exemption
in Section 1 - Subdivision 8(b), then paid leave may need to be paid. The Labor Commissioner
would encourage the employer to offer/provide paid leave in situations like this given the intent of
SB 312.

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FRONT LOADING OR ACCRUAL OF LEAVE; CARRY OVER LEAVE;
SEPARATION; AND REINSTATEMENT
Question #1: Does SB 312 allow for the front loading of leave?

Answer: Yes. Pursuant to Section 1 - Subdivision 1(b) (1) "An employee may, as determined by the
employer, obtain paid leave by: Receiving on the first day of each benefit year the total number of hours of
paid leave that the employee is entitled to accrue in a benefit year."

Question #2: Does SB 312 allow for the accrual of leave?

Answer: Yes. Pursuant to Section 1 - Subdivision (1)(b)(2) "An employee may, as determined by the
employer, obtain paid leave by: "Accruing over the course of a benefit year the total number of hours of
paid leave that the employee is entitled to accrue in a benefit year."

Question #3: How much accrued leave can be carried over?

Answer: Pursuant to Section 1 - Subdivision (1)(c) "Paid leave accrued pursuant to subparagraph (2) of
paragraph (b) may carry over for each employee between his or her benefit years of employment, except an
employer may limit the amount of paid leave for each employee carried over to a maximum of 40 hours per
benefit year."

Question #4: We (the employer) front loaded the leave and now the employee just notified us that they
were quitting and taking the two weeks-notice period off as paid leave. Do we have to pay the employee
and does this apply to accrued leave as well?

Answer: For paid leave, it depends. If the employer has a policy, contract, agreement, handbook, or
collective bargaining agreement for paying out front loaded leave or accrued leave, then it is
recommended that the leave be paid out. If there is no policy, contract, agreement, handbook, or
collective bargaining agreement, then the employer does not have to pay out the paid leave. However,
if the employer decides to terminate the employee prior to the termination date, the employer cannot
deduct paid leave from an employee's final paycheck that was not actually taken.

Question #5: An employee terminated employment and then came back and was reinstated. What
paid leave needs to be reinstated?

Answer: Pursuant to Section 1 – Subdivision 1(i) "If an employee is rehired by the employer within 90
days after separation from that employer and the separation from employment was not due to the employee
voluntarily leaving his or her employment, any previously unused leave hours available for use by that
employee must be reinstated."

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TRACKING THE ACCRUAL AND TAKING OF PAID LEAVE;
RECORDKEEPING OF PAID LEAVE; AND EXEMPTIONS
Question #1: How should an employer track the accrual and taking of paid leave?

Answer: Pursuant to Section 1 - Subdivision 1(h) "An employer shall provide to each employee on each
payday an accounting of the hours of paid leave available for use by that employee. An employer may use
the system that the employer uses to pay its employees to provide the accounting of the hours of paid leave
available for use by the employee."

Question #2: As an employer, do we need to maintain a record of the receipt or accrual and use of
paid leave?

Answer: Pursuant to Section 1 - Subdivision (5) "An employer shall maintain a record of the receipt or
accrual and use of paid leave pursuant to this section for each employee for a 1-year period following the
entry of such information in the record and, upon request, shall make those records available for
inspection by the Labor Commissioner."

Question #3: If an employer satisfies the requirements for the exemptions set forth in Section 1 –
Subdivision 8(a)(b) do they still need to track the accrual and taking of Paid Leave?

Answer: The intent and the explicit, plain, and unambiguous language of Section 1 - Subdivision (8)
exempts employers who already have a policy, handbook, contract, agreement, or collective bargaining
agreement that matches or exceeds the requirements of SB 312 from the other provisions of SB 312.

However, as stated above, it is recommended that employers comply with NRS Section 608.115.

Question #4: Does an employer need to track the accrual and paid leave taken of Salary or Exempt
Employees, such as Executives?

Answer: The Labor Commissioner is not requiring this. However, it is recommended that employers
have some basic recordkeeping for these types of employees.

USE OF LEAVE; NOTICE REQUIREMENTS; AND INCRIMENTS OF LEAVE
Question #1: When can an employee start using paid leave? Does an employee have to give a reason?
What are the minimum increments of paid leave that can be taken?

Answer: Pursuant to Section 1 – Subdivision 2 (a)(b): "An employer shall allow an employee to use Paid
leave beginning on the 90th calendar day of his or her employment. An employee may use paid leave
available for use by that employee without providing a reason to his or her employer for such use."

A "Benefit Year" means a 365-day period used by an employer when calculating the accrual of paid
leave," and should be considered to start the day the employee starts employment.

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Section 1 – Section 1 - Subdivision 1(g) also states: "An employer may set a minimum increment of paid
leave not to exceed 4 hours, that an employee may use at any one time."

Question: #2: How much notice does an employee have to give to take paid leave?

Answer: Pursuant to Section 1 – Subdivision 2(c): "An employee shall, as soon as practicable, give notice
to his or her employer to use the paid leave available for use by that employee."

Question #3: What is as soon as practicable and what is a reasonable method for the employee to give
notice to take paid leave?

Answer: It depends. In general, and under FMLA rules, an employee must give the employer at least
30 days advance notice of the need to take FMLA leave when the employee knows about the need to
take leave in advance.

While 30 days would be optimal notice for events where the employee knows they need to take paid
leave, the Labor Commissioner recommends that the employer establish a notice requirement in
writing that is provided to and signed for by the employee. For example, a written policy could provide
for 3 to 5 days-notice or longer notice period if the employee knows they need to take leave, is going on
vacation, or taking a voluntary day off, etc. 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.

The notice requirements for leave under the Family Medical and Leave Act (FMLA) and the other
requirements of FMLA would still be applicable to FMLA leave.

Nothing in SB 312 prevents an employer from developing their own notice requirements or applying
those already found in a policy, handbook, contract, agreement, or collective bargaining agreement
(Section 1 – Subdivision 8) or from engaging in the manager/supervisor role or employee
counseling/discipline process if an employee has demonstrated a pattern or failure to give practicable
or reasonable notice or has abused the use of leave.

Question #4: Can an employer deny the use of paid leave?

Answer: Yes. However, and pursuant to Section 1 – Subdivision 3(a)(b) and (c): "An employer shall
not: (a) Deny an employee the right to use paid leave available for use by that employee in accordance with
the conditions of this section; (b) Require an employee to find a replacement worker as a condition of using
paid leave available for use by the employee; and (c) Retaliate against an employee for using paid leave
available for use by that employee."

If the Labor Commissioner received a claim/complaint an investigation would be initiated and a case
by case analysis and fact specific analysis would be done that would provide both the employer and the
employee the opportunity to present facts and evidence supporting their positions. The Labor
Commissioner could then decide to decline jurisdiction, resolve the matter informally, or issue a
determination in the matter, which could be objected/appealed and due process provided.

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HOW TO CALCULATE THE RATE OF PAY FOR PAID LEAVE?
Question #1: How should paid leave be calculated?

Answer: Pursuant to Section 1 – Subdivision 1(d)(1) and (2): (1) "Compensate an employee for the paid
leave available for use by that employee at the rate of pay at which the employee is compensated at the time
such leave is taken, as calculated pursuant to paragraph (e); and (2) Pay such compensation on the same
payday as the hours taken are normally paid."

(e) "For the purposes of determining the rate of pay at which an employee is compensated pursuant to
paragraph (d), the compensation rate for an employee who is paid by:
(1) Salary, commission, piece rate or a method other than hourly wage must:
(I) Be calculated by dividing the total wages of the employee paid for the immediately
preceding 90 days by the number of hours worked during that period;
(II) Except as otherwise provided in sub-paragraph III, include any bonuses agreed upon
and earned by the employee; and
(III) Not include any bonuses awarded at the sole discretion of the employer, overtime pay,
additional pay for performing hazardous duties, holiday pay or tips earned by the
employer."

Question #2: How should an employer calculate the hourly wage for paid leave?

Answer: Section 1- Subdivision 1(e)(2) "Hourly wage must be calculated by the hourly rate the employee
is paid by the employer."

Question #3: When should an employer pay agreed upon bonuses?

Answer: It depends. However, an employer should be consistent and should pay agreed upon bonuses
at the same time across similarly situated employees and/or employees performing the same job duties
depending upon their date of hire and bonus structure.

The employer should develop a written policy on how earned and agreed upon bonuses are paid and
when. This should be given to the employee and signed and acknowledged by the employee.

The Labor Commissioner discourages employers from delaying or not paying earned and agreed upon
bonuses within a reasonable time for the purposes of not having to pay a higher paid leave rate.

Question #4: How should the rate of paid leave be calculated for Salary or Exempt employees?

Answer: The employer should use a reasonable calculation and be consistent. For example, for
salaried employees, the employer could convert the salary to a daily equivalent as follows: (1) Convert
the base salary, i.e., weekly, monthly, etc., to an annual salary; (2) Divide the annual salary by 260 (52
weeks x 40 hours per week = 2080 hours per year; (3) 2080 hours per year/8 hours per day = 260
workdays per year); (4) The result should be the daily wage rate that could then be divided into an
hourly rate (i.e. 8 hours) or another hourly calculation.

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CONCLUSION
In this Advisory Opinion, the Labor Commissioner has attempted to provide guidance on the interpretation
and implementation of SB 312. The Labor Commissioner will defer to the legislative intent, plain language,
legislative testimony, and intent of the SB 312 sponsors should additional questions arise. The main purpose
of SB 312 is to provide paid leave to Nevada employees who are eligible for paid leave under the provisions
of SB 312.

The Labor Commissioner has made every effort to address the questions, concerns, and issues raised relating
to SB 312. To the extent that a question, concern, or issue is not addressed in this Advisory Opinion, it is
recommended that you contact the Office of the Labor Commissioner and submit your question(s) in
writing to [email protected] or contact our office at the phone numbers and address locations listed on the
first page of this Advisory Opinion.

Please be advised that the Labor Commissioner may revisit the interpretation and implementation of SB 312
as needed through an additional Advisory Opinion or through the Administrative Rulemaking Process once
SB 312 becomes effective on January l, 2020.

Sincerely,

Shannon M. Chambers
Labor Commissioner
Office of the Labor Commissioner
State of Nevada
Department of Business and Industry

Page 11 — second document in the same source PDF

                                                                               OFFICE OF THE LABOR COMMISSIONER

STEVE SISOLAK 1818 COLLEGE PKWY., SUITE 102
GOVERNOR CARSON CITY, NV 89706
PHONE: (775) 684-1890
MICHAEL J. BROWN
DIRECTOR FAX (775) 687-6409
Department of Business & Industry
SHANNON CHAMBERS OFFICE OF THE LABOR COMMISSIONER
LABOR COMMISSIONER
www.labor.nv.gov

October 10, 2019

Mr. Edwin A. Keller, Jr., Esq.
Kamer Zucker and Abbott
3000 West Charleston Blvd. #3
Las Vegas, NV 89102

 RE:        Request for Advisory Opinion-Senate Bill 312 Employer Exemption
            (File No. 1379.19267)

Dear Mr. Keller:

Pursuant to Nevada Administrative Code (NAC) Section 607.650 you have requested an Advisory
Opinion relating to Senate Bill (SB) 312 on behalf of the Mechanical Contractors Association of Las
Vegas (MCA), the Sheet Metal and Air Conditioning Contractors' National Association of Southern
Nevada, Inc. (SMACNA), and the Southern Nevada Chapter of the National Electrical Contractors
Association (NECA).

In your request, the main question is: "The question for which we seek an advisory opinion is
reflective of the process and practice by which employers signatory to the one or more of the current
labor agreements negotiated by MCA, SMACNA and NECA provide paid time off to covered
employees in amounts that exceed the minimum accrual rate set forth in SB 312."

Specifically, the questions you pose/present in your Request for an Advisory Opinion are as follows:

1. Does a private employer's verifiable process or practice of providing paid leave/paid time off as a
   nondelineated component of the employee base wage rate(s) set forth in a negotiated labor agreement
   (collective bargaining agreement) in an amount equal to or exceeding 0.01923 hours of paid leave per
   hour of work constitute the type of "contract, policy, collective bargaining agreement, or other
   agreement" that renders the employer exempt under Section 1(8)(a) of SB 312?

Answer to Question #1: Yes. It is the opinion of the Labor Commissioner that based on the intent,
legislative testimony, and plain and unambiguous language of Senate Bill (SB) 312, specifically,
Section 1(8)(a) of SB 312, the verifiable process or practice of providing paid leave/paid time off as a
nondelineated component of the employee base wage rate(s) set forth in a negotiated labor agreement
(collective bargaining agreement) would constitute a "contract, policy, collective bargaining
agreement, or other agreement," that would trigger and allow for the exemption under Section 1(8)(a)
of SB 312.

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This conclusion is supported by the following information, documentation, and statement(s) in your
letter:

"It (paid leave) is nonetheless verifiable by reference to the respective parties' bargaining history and
negotiation documents. Additionally, the process and practice of providing paid leave as a component
of a negotiated base wage rate is advantageous to covered employees. The paid time off benefit is
accrued for each hour of work performed (or fraction thereof). It vests and is paid every payday,
allowing employees immediate access to such funds. Thus, when an employer subject to a MCA,
SMACNA, or NECA MLA approves a covered employee's time off request, no other action on the part
of either the employer or employee is needed for the employee to obtain and use the paid time off
benefit."

2. Does the last paragraph of page 3 of the Labor Commissioner's October 4, 2019 Advisory Opinion
   on SB 312, pertaining to the employer exemption under Section 1(8)(a) of SB 312 as applied to
   collective bargaining agreements, encompass a private employer's verifiable process or practice of
   providing paid leave/paid time off as a nondelineated component of the employee base wage rate(s) set
   forth in a negotiated labor agreement (collective bargaining agreement) in an amount equal to or
   exceeding 0.01923 hours of paid leave per hour of work?

Answer to Question #2: Yes. It is the opinion of the Labor Commissioner that the exemption under
Section 1(8)(a) of Senate Bill (SB) 312 as applied to collective bargaining agreements and/or labor
agreements for private employer's would encompass and include the verifiable process or practice of
providing paid leave/paid time off as a nondelineated component of the employee base wage rate(s).

In addition, and based on the information, documentation, and statement(s) provided in your letter, the
paid leave/paid time off that is a nondelineated component of the employee base wage rate(s) appears
to match or exceed the requirements of Senate Bill (SB) 312.

"Further, in comparing the portion of the employees' base wages provided for use as paid time off to
the minimum accrual rate under SB 312 (0.01923/1.923% per hour of work performed), the
MCA/Local 525 MLA's $3.00 per hour (6.3952% of the current $46.91 hourly wage rate for
journeymen) and the SMACNA/Local 88 MLA's $2.50 per hour (5.4921% of the current $45.52 hourly
wage rate for journeymen) are substantially higher. See Exhibit 13, MCA and SMACNA PTO
Calculations. Likewise, the NECA/Local 357 MLA's 12% of base wage rate(s) provided for paid time
off exceeds the minimum required in SB 312."

Therefore, the Labor Commissioner finds that the exemption contained in Section 1(8)(a) of Senate
Bill (SB) 312 would apply to the questions you have posed/presented. The Labor Commissioner also
acknowledges and understands the negotiations, discussions, and legislative intent behind the
exemption set forth in Section 1(8)(a), and the "contract(s), policies/policy, collective bargaining
agreement(s), or other agreement(s)," such as labor agreement(s), negotiated by MCA, SMACNA and
NECA, not only satisfy the exemption requirements of Section 1(8)(a), but the intent of Senate Bill
312.

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This Advisory Opinion is made on the information, statements, and representations made to the Labor
Commissioner as presented. Should additional information be presented to the Labor Commissioner,
statutory or regulatory changes occur and/or any legal proceedings and/or decisions occur after the
date of issuance that could change the opinions contained in this Advisory Opinion, the Labor
Commissioner may modify it accordingly.

If you have any questions or wish to discuss this matter further, please do not hesitate to contact me at
your earliest opportunity at (775) 684-1891.

Sincerely,

Shannon M. Chambers
Labor Commissioner
State of Nevada