Attendance-point discipline for using paid leave, and the collective-bargaining-agreement exemption

STATE OF NEVADA
JOE LOMBARDO DR. KRISTOPHER SANCHEZ
Governor Director

                                                                                                                BRETT HARRIS, ESQ.
                                                                                                                 Labor Commissioner




                           DEPARTMENT OF BUSINESS AND INDUSTRY
                     OFFICE OF THE LABOR COMMISSIONER
                                                    August 19, 2024

Molly Gabel
Seyfarth Shaw LLP
999 Third Avenue, Suite 4700
Seattle, WA 98104
[email protected]
Sent via electronic and U.S. Mail

   Re: Request for Advisory Opinion—Nevada Revised Statute 608.0197

Dear Ms. Gabel,

    Pursuant to Nevada Administrative Code ("NAC") Section 607.650, an Advisory Opinion

("the Request") has been requested by you regarding the application of Nevada Revised Statute
608.0197 to an employer with a collective bargaining agreement that requires the employer to
provide its employees with paid sick leave at a rate of at least 0.01923 hours per hour of work
performed. Specifically, you ask if the employer is exempt from the requirements of NRS
608.0197 because of NRS § 608.0197(8) when the employer and employees are parties to a
collective bargaining agreement that provides for more than 0.01923 hours of paid leave for every
hour worked.

     As set forth in NAC 607.650, this Advisory Opinion is limited to the facts and

circumstances set forth in the request. This Advisory Opinion shall not apply to any pending
administrative, civil, or criminal proceeding and shall not be relied upon by any party, whether a
party at issue in the facts or not, in any future proceeding unrelated to the specific and unique facts
and circumstances set forth in the request.

                                                RELEVANT FACTS

    Pursuant to the facts proposed under the Request, the employer's employees work under a

collective bargaining agreement ("CBA") that contains a paid leave term that provides for more
than 0.01923 hours of paid leave per hour worked. The Request does not explicitly state whether
all scheduled employees of the employer accrue leave under a CBA.

   The Request further indicates it is the employer's policy to assess attendance points against

employees for using accumulated paid leave. It is unclear whether this point system is part of the
paid leave term of the CBA. Under the points system, if an employee accumulates "a certain
number of attendance points," disciplinary action begins against the employee beginning with
counseling, and progressing to an oral warning, written warning, and up to termination if an
employee continues to accumulate points within a particular period. The Request does not provide
specifics as to how many points and in what time the points must accrue for an employee to be
subject to disciplinary action.

    The Request provides a non-exhaustive list of examples of when the employer assesses

points against an employee for a variety of attendance-related reasons. For example, the Request
indicates the point system does not distinguish between an employee using accrued paid leave and
an employee being late. Every absence, of any length, planned or unplanned results in an
attendance point assessed against the employee. The Request does not indicate whether an
employee's use of paid leave assesses points per day or per use regardless of number of days.

                                                APPLICABLE LAW

NRS 608.0197 Employer required to provide paid leave; use of paid leave; Labor
Commissioner to prepare and post bulletin; maintenance and inspection of records; other
rights, remedies, procedures and benefits; exceptions.

1. Except as otherwise provided in this section, every employer in private employment shall
   provide paid leave to each employee of the employer as follows:

   (a) An employee is entitled to at least 0.01923 hours of paid leave for each hour of work
   performed.

(b) An employee may, as determined by the employer, obtain paid leave by:

     (1) 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 pursuant to paragraph (a); or

   (2) 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 pursuant to paragraph (a).

(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.

(d) Except as otherwise provided in paragraph (i), an employer shall:

     (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-subparagraph (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 employee.

   (2) Hourly wage must be calculated by the hourly rate the employee is paid by the

employer.

(f) An employer may limit the amount of paid leave an employee uses to 40 hours per benefit
year.

(g) An employer may set a minimum increment of paid leave, not to exceed 4 hours, that an
employee may use at any one time.

(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.

 (i) An employer may, but is not required to, compensate an employee for any unused paid

leave available for use by that employee upon separation from employment, except if the 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 paid leave hours available for use by that employee must be reinstated.

2. An employee in private employment may use paid leave available for use by that employee

as follows:

(a) An employer shall allow an employee to use paid leave beginning on the 90th calendar day

of his or her employment.

(b) An employer shall allow an employee to use paid leave for any use, including, without

limitation:

    (1) Treatment of a mental or physical illness, injury or health condition;

    (2) Receiving a medical diagnosis or medical care;

    (3) Receiving or participating in preventative care;

    (4) Participating in caregiving; or

    (5) Addressing other personal needs related to the health of the employee.

(c) An employee may use paid leave available for use by that employee without providing a

reason to his or her employer for such use.

(d) 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.

3. 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 that employee; or

(c) Retaliate against an employee for using paid leave available for use by that employee.

4. The Labor Commissioner shall prepare a bulletin which clearly sets forth the benefits

created by this section. The Labor Commissioner shall post the bulletin on the Internet website
maintained by the Office of Labor Commissioner, if any, and shall require all employers to post
the bulletin in a conspicuous location in each workplace maintained by the employer. The bulletin
may be included in any printed abstract posted by the employer pursuant to NRS 608.013.

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.

6. The provisions of this section do not:

(a) Limit or abridge any other rights, remedies or procedures available under the law.

(b) Negate any other rights, remedies or procedures available to an aggrieved party.

(c) Prohibit, preempt or discourage any contract or other agreement that provides a more
generous paid leave benefit or paid time off benefit.

7. For the first 2 years of operation, an employer is not required to comply with the provisions

of this section.

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.

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.

                                              ADVISORY OPINION

    This Advisory Opinion assumes the employer in the Request employs more than 50

employees in private employment in Nevada because the statute only applies to private employers
under those circumstances. NRS 608.0197 generally prohibits employers from retaliating against
employees for using paid leave. Specifically, NRS 608.0197(3) explicitly states an employer shall
not retaliate against an employee for using paid leave available for use by that employee. Here, the
points system described in the Request is retaliation against employees for use of paid leave. If the
proper use of accrued paid leave can contribute to disciplinary action being taken against the
employee, that is retaliation.

    However, as you correctly point out in the Request, NRS 608.0197(8)(a) explicitly states

"[t]his section does not apply to…[a]n employer who, pursuant to a…collective bargaining
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."
Subsection 8 refers to the law in its entirety as it is not qualifying any other subsection of NRS
608.0197. As such, the plain language of the statute exempts an employer who meets the specific
description found in NRS 608.0197(8)(a)

    The Request does not indicate whether "all scheduled employees" accrue paid leave under

the CBA. Therefore, whether NRS 608.0197 applies to the employer described in the Request
turns on whether this element of NRS 608.0197(8)(a) is met. If "all scheduled employees" are
parties to the CBA that provides employees with paid leave accrual of more than 0.01923 hours of
paid leave per hour of work performed, the plain language of NRS 608.0197(8) exempts the
employer from the Request from NRS 608.0197. However, if not "all scheduled employees" of
the employer are under the CBA that provides "at least 0.01923 hours of paid leave per hour of
work performed," the employer's policy regarding an assessment of attendance points against the
employee would be in violation of NRS 608.0197(3)(c).

    Please be advised that this Advisory Opinion is limited to the specific facts and

circumstances described herein. The Office of the Labor Commissioner may revisit this issue
through the Administrative Rulemaking Process. Please be further advised that subsequent
statutory or administrative rule changes or judicial interpretation of the statutes or rules upon which
any opinion is based may require modification or abandonment of this Advisory Opinion.

    Thank you for reaching out to the Office of the Labor Commissioner with your questions.

We appreciate the opportunity to provide information and education regarding Nevada labor laws
and their application. Should you need any additional clarification, please do not hesitate to contact
our office at (702) 486-4650.

Sincerely,

Brett K. Harris, Esq.
Labor Commissioner