HR Asks Congress for Relief from Growing Number of Paid Leave Laws

House of Representatives considers SHRM’s workflex proposal

Allen Smith, J.D. By Allen Smith, J.D. December 7, 2017
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​The maze of conflicting paid leave laws has become too burdensome for employers, HR professionals testified before the House Committee on Education and the Workforce on Dec. 6. The Society for Human Resource Management (SHRM)-backed workflex bill would encourage employers to offer paid leave and workflex options to employees and pre-empt the growing number of state and local laws requiring paid leave, they said.

Patchwork of Laws

The fragmented set of laws that require paid leave continues to grow, testified Angela Schaefer, SHRM-SCP, vice president of human resources with Safety National in St. Louis. She spoke on behalf of SHRM. "The patchwork of rigid mandates, now a total of 40, is difficult to navigate, both for large multistate employers but also for small to mid-sized companies like mine," she said.

[SHRM members-only toolkit: Coordinating Leaves of Absence]

Schaefer noted that in San Francisco, which has a sick leave requirement as does the state of California, the company must ensure compliance with both laws even though they have different requirements. Safety National had to switch to an entirely new payroll system to meet the California requirement that paid time off be listed on employees' paychecks—at a cost of $76,000.

"Additionally, we had to set up multiple rules in our payroll system to account for the accrual and roll-over rules under the various state and local laws," she said. Two of her team members spent nearly 80 hours implementing the requirements of the laws—"a significant undertaking, given we only have 14 employees in the state," she noted. Plus, conflicting legal requirements have meant increased legal fees to try and stay in compliance as new state and local laws are enacted and amended.

Possible Solution

Congress could make things simpler for employers by passing the Workflex in the 21st Century Act, which would provide just one set of requirements and pre-empt other laws, she noted. The bill would amend the Employee Retirement Income Security Act to create a qualified flexible work arrangement plan as an employee welfare benefit plan under the statute.

"Under this legislation, employers could voluntarily offer a plan that provides their employees a federal standard of paid leave and options for flexible work arrangements, such as telecommuting or compressed work schedules," she said in her written testimony. "This plan, in turn, would pre-empt all state and local paid leave requirements, providing employers much-needed relief from the compliance conundrum employers currently encounter."

Barbara Brickmeier, vice president for human resources and business development with IBM, said IBM strongly supports a federal pre-emptive legislative solution It would "enable employers to opt in to a single, national paid leave policy that would satisfy compliance requirements in multiple jurisdictions of the country at the same time. Such a simplified approach would greatly reduce costs and mitigate the staggering and growing administrative complexity, while allowing us to continue offering and designing generous leave benefits for our employees that would not vary based on where they work," she said.

Opposition to Bill

However, Hans Riemer, president of the Montgomery County, Md., county council, noted that the county has passed a paid time off law, and said the council strongly opposes the bill. He said it would "undermine our paid sick days law and turn back the clock for more than 13 million working people who have gained access to paid sick days through laws passed in eight states and 32 local jurisdictions across the country."

He added that the bill "does not provide paid sick days. It takes them away." The bill would "create an off-ramp for employers to evade state and local laws presently covering millions of people" and "goes against the basic tenet that if a decision can be made closer to the people without violating important principles, then that is where the decision-making power should fall."

But Rep. Tim Wahlberg, R-Mich., and chair of the Subcommittee on Health, Employment, Labor and Pensions, said that employers work more closely with employees than local officials. Employers are better able to listen and respond to the paid leave needs of employees than local governments, he said.

Schaefer agreed, saying that Safety National regularly conducts employee surveys to find out what it can improve and acts to make changes in response to worker feedback.

Rep. Gregorio Sablan, D-Mariana Islands, said he supports the Healthy Families Act instead, noting that it would provide one hour of sick leave for every 30 hours worked up to 56 hours per year, as well as paid Family and Medical Leave Act time off.

He said that the Workflex in the 21st Century Act would result in employers avoiding compliance with state and local leave. Congress should not "put downward pressure on the laws that already exist," he stated.

Bill's Benefits for Employees

Schaeffer noted in her written testimony, however, that under the bill full-and part-time employees of employers that offer an ERISA workflex plan would receive guaranteed paid leave that exceeds all state and nearly all local mandates, while employees of nonparticipating employers would continue to be covered by state and local paid leave requirements.

Employees of participating employers also would receive guaranteed access to flexible workplace options—not currently required under these state laws—which would give many employees access to workflex for the first time. 

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