Employers have long struggled to be compliant with a myriad of complex and confusing state and local paid leave laws. A newly introduced bill would allow employers to opt out of complying with those laws if they offer a guaranteed paid leave benefit and a flexible work option, such as compressed work schedules, telecommuting or job-sharing to all full- and part-time employees.
Introduced in early November by Rep. Mimi Walters (R-Calif.), the Workflex in the 21st Century Act (H.R. 4219) seeks to create the nation’s first federal comprehensive framework for workplace flexibility. Developed in conjunction with the Alexandria, Va.-based Society for Human Resource Management, the bill would amend the Employee Retirement Income Security Act, which currently does not guarantee a workplace flexibility option.
“My Workflex legislation is a win-win for employees and employers,” says Walters. “Under this bill, employers get paid leave and flexible work options, and employers can better recruit and retain talent, while improving workplace productivity and morale.”
For the past five years, SHRM has engaged its members around the issue of paid leave and workplace flexibility through two task forces charged with developing a set of principals with the goal of guiding public policy. What emerged was a clear recognition of the importance and value of offering paid leave and flexible work arrangements, but a rejection of a rigid government-prescribed solution, according to Lisa Horn, director of congressional affairs and workplace flexibility at SHRM.
“Our members wanted the flexibility to be able to design paid leave and work flex offerings that are unique to their workforce, their workplace, and their business needs,” says Horn. “The idea was to come up with a solution that was reflective of what was going on in the 21st century workplace where many employers already have robust paid leave and flexibility offerings.”
Once they formed a solid proposal, SHRM began shopping it around to lawmakers’ offices on the Hill. More than a year ago, Rep. Walters expressed interest in the concept. Horn has been working with her office to fine tune the legislative proposal ever since. Unlike similar proposed legislation, like the Healthy Families Act introduced by Sen. Kirsten Gillibrand (D-N.Y.), the Workflex Act does not create a mandate, as participation in the program would be completely voluntary. If an employer chooses not to comply with its requirements, they would simply remain under state and local paid leave laws.
“Until now, almost all of the legislative proposals in this space have envisioned a government mandate to require employers to provide paid sick leave or require FMLAs to be paid through a payroll tax on employers and employees,” says Horn. “It’s those kind of rigid government mandates that we have challenges with because of their one-size-fits-all approach.”
While the proposal has overwhelming support of the HR community, there will undoubtedly be a number of HR challenges if it becomes law, according to Alexander Passantino, a partner in the Washington office of Seyfarth Shaw. Because it changes the way overtime is computed, HR will be tasked to track overtime in a different way. And because participation is voluntary, employers will need to convince employees to sign on as well. Overall, however, Passantino is enthusiastic about the legislation.
“It’s an exciting bill in that it approaches this issue in a different way,” he says. “It allows employers to choose options based on what works best for their business, while still ensuring that employees have the protections that those state and local provisions seek to put in place.”
So far, just two Republican Congresswomen – Rep. Elise Stefanik (R-N.Y.) and Rep. Cathy McMorris Rodgers (R-Wash.) – have joined Walters in supporting the Workflex Act, but the HR community is hopeful it will gain the kind of bipartisan support it needs to become law. Horn is encouraged by a joint statement issued by the Republican Main Street Partnership and the Progressive Policy Institute, enthusiastically supporting the legislation. She says it’s the first time a democratic group has joined with a Republican group to “call for a path forward on this issue that did not involve a mandate.”
Employers for Flexibility, a broad coalition led by SHRM and including key employer groups such as the U.S. Chamber of Commerce, National Association of Manufacturers, National Association of Women Business Owners, and College and University Professional Association for Human Resources, is urging other members of Congress to support the bill. In November, 400 SHRM members took to the Hill to stir up support for the bill.
While he is encouraged by the support of the HR community and the Republican sponsorship of the bill, Rick Grimaldi, partner in the Washington office of Fisher Phillips LLP, is “not incredibly optimistic” the Workflex Act will ultimately become law. Still, there are a number of factors that may work in its favor.
“The fact that it’s not mandated certainly increases the odds it will land on the President’s desk, and Ivanka Trump has made no bones about the fact that she is pushing for better family leave policies from employers,” says Grimaldi. “That said, I have not seen any evidence this administration is that evolved thus far, but I hope I am surprised pleasantly.”