WRITTEN TESTIMONY ON BEHALF OF THE ERISA INDUSTRY COMMITTEE (ERIC) REGARDING SENATE BILL 196 BEFORE THE ASSEMBLY COMMITTEE ON COMMERCE AND LABOR
The ERISA Industry Committee (ERIC) is the only national association that advocates exclusively for large employers on health, retirement, and compensation public policies at the federal, state, and local levels. ERIC speaks in one voice for our members on their benefit and compensation interests. We are pleased to provide to you today with written testimony that focuses on ensuring large employers, who largely already meet or exceed the requirements of Senate Bill 196 (“SB 196”), do not experience a drastic increase in administrative burden of operating paid sick leave policies.
ERIC members strive to provide high-quality paid sick leave policies to their employees, and we seek to enhance our members’ ability to provide flexible paid sick leave policies by advocating for public policies that ensure employers can provide a consistent experience for all employees. We recognize the growing importance of paid sick leave for and support increasing access, but believe it should be accomplished in a manner that does not hinder employers who already provide quality paid sick leave policies. ERIC members want their employees to have the care that they need—when and how they need it. As our members are multistate employers, we advocate that they be allowed to maintain uniformity and continuity across state lines.
ERIC appreciates that SB 196 takes into consideration the needs of employees in being able to take leave to care for themselves and their loved ones. Even though SB 196 has been amended since first introduced in the Nevada State Senate, some of which has been favorable to large employers, there are still provisions in the bill that infringe large employers’ ability to provide consistent paid sick leave to employees situated in Nevada and across other states.
The proposed amendments to Chapter 608 of Nevada’s Revised States (NRS) by way of SB 196 work against large employers in a few ways, including: (i) a lack of guidance on eligible employee; (ii) requiring the carryover of accrued sick leave; and (iii) providing no clear definition of who a family member is for purposes of care. SB 196 does provide an exemption from the bill’s requirements for employers who have equivalent, existing policies but it can be improved for clarity.
A. Employee Eligibility. SB 196 requires every employer who conducted business in the state for at least 12 consecutive months to provide paid sick leave to each employee of the employer. SB 196 contains no definition for who qualifies as an eligible employee. Chapter 608 of the NRS defines an employee as: “both male and female persons in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed.” Amendments to SB 196 before it passed the Senate go further in clarifying who an eligible employee is by providing that the bill does not apply to “day or temporary worker[s] who perform work on an occasional or irregular basis for a limited period of time.”
ERIC is appreciative of the amendment, but still believes that the definition of an eligible employee can be further clarified by distinguishing an employee whose principal place of employment is in Nevada from one with an irregular work schedule in the state. Further clarification will assist employers by avoiding the need to track the hours worked in the state by employees who occasionally travel to the state, but whose primary place of employment is located in another state. We suggest including the following language:
“For purposes of this Section, an employee is deemed to be in service of an employer in the state, and therefore eligible for paid sick leave, if the state is the employee’s primary place of employment. An employee’s primary place of employment shall be in the state where: (A) a substantial amount of duties are regularly performed; (B) the work flow is centered; and (C) the employee’s base of operations is located or where work is directed and controlled.”
B. Carryover of Accrued Leave. SB 196 requires that any unused accrued paid sick leave be carried over from year to year, but may be capped by employers at 48 hours a year. Mandating carryover of accrued leave could have an adverse effect on other forms of leave offered by employers. For example, ERIC’s members dovetail paid sick leave with short-term and long-term disability. By forcing large employers to allow for carryover, you may also force their hand in decreasing the quality of these programs in order to compensate accordingly.
Large employers prefer flexibility in the plans they provide. ERIC respectfully requests that SB 196 be revised to make the carryover a discretionary choice by employers; or, at the very least, allow employers to front-load all available paid sick leave without requiring a carryover of unused sick leave. Allowing employers to front-load leave, institutes a “use it or lose it” system that puts control in the employees’ hands and relieves the employer burden. Front-loading also achieves the goal of accrual over time, thereby providing greater flexibility to employees who may become sick earlier in the year before they accrue adequate leave.
This flexibility can be provided by replacing Section (1)(b) with the following language:
“At the beginning of each year, an employer may award to an employee the full amount of earned sick leave that an employee would earn over the course of the year rather than awarding the leave as the leave accrues during the year, and—at the employer’s discretion—allow for carryover of any unused sick leave.”
C. Definition of Family Member. SB 196 permits employees to use accrued paid sick leave for the care or treatment of a “member of the employee’s family or household.” However, nowhere in the bill or in Chapter 608 of the NRS is “family member” or “household member” defined. The lack of concrete definitions for these individuals leaves too much room for interpretation, and would therefore lead to a patchwork implementation. ERIC respectfully requests that the Committee provide a definition of family member that mirrors The Family and Medical Leave Act of 1993 (FMLA). The FMLA provides for leave for employees to care for a child, spouse, or parent. As with the definition for an eligible employee, by including this definition a uniform floor is established without mandating anything more than what federal law requires. We recommend that it should be the decision of employers on whether to broaden the list of family members for whom an employee may take leave to care for.
D. Paid Time Off Banks. SB 196 provides that it will not preempt or prohibit any contract or other agreement that provides a more generous paid sick leave or PTO policy. ERIC appreciates provisions such as this, as it allows large employers to maintain continuity and uniformity with their paid sick leave policies. We believe, however, that the language could be stronger and clearer, mainly for those employers that provide a bank of time that contains both paid vacation and sick leave time. ERIC suggests use of the following language:
“An employer shall not be required to provide additional paid sick leave if the employer has a paid leave policy that makes available an amount of paid leave sufficient to meet the accrual requirements of this chapter and that may be used for the same purposes and under the same conditions as paid sick leave under this chapter.”
The Legislation would be adding to the patchwork of state laws for paid sick leave, thereby increasing the administrative and compliance burdens on large employers. Most large, multistate employers already offer some of the highest-quality paid leave plans to their employees, and should therefore not be subject to this bill. ERIC urges the Committee to consider large employers’ interests as you further consider SB 196. ERIC welcomes the opportunity to serve as a resource to the Committee as it considers this legislation and the importance of paid sick leave to large employers and their employees.
If you have any questions concerning our written testimony, or if we can be of further assistance, please contact Bryan Hum at bhum@ERIC.org or 202-789-1400.
Associate, Retirement & Compensation Policy
 Nev. Rev. Stat. § 608.010 (2016).