SHRM-Backed Workflex Bill Introduced in House

Legislation would modernize policies, supercede patchwork of state leave laws

By Allen Smith, J.D., and Lisa Nagele-Piazza, J.D., SHRM-SCP Nov 2, 2017
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​A bill to expand paid leave and workplace flexibility opportunities, which was developed with the support of Society for Human Resource Management (SHRM) members, was introduced in Congress, according to Lisa Horn, SHRM's director of congressional affairs.

The bill gives employees more options and flexibility when taking time off to meet their individual and family needs while providing predictability for employers who now face a hodgepodge of overlapping state and local requirements. Rep. Mimi Walters, R-Calif., introduced the legislation on Nov. 2.

The bill (H.R. 4219) would amend the Employee Retirement Income Security Act (ERISA) to create a qualified flexible work arrangement plan. To qualify as an ERISA-covered plan, the plan would have to include two components: a federal paid leave standard and flexible work arrangements for all employees. Employer participation would be voluntary.

Under the bill, employers who opt to offer the ERISA-covered plan would enjoy improved predictability by being able to follow a federal framework for paid leave and workflex, as opposed to the complex, conflicting patchwork of state and local laws.

Paid Leave

The minimum amount of compensable leave days per plan year would be scaled to the size of the employer and an employee's tenure with the employer as follows:

 

Employer size Employees with five or more years of service with the employer at the beginning of the plan year would receive: Employees with fewer than five years of service with the employer at the beginning of the plan year would receive:
1,000 or more employees20 days16 days
250 to 999 employees18 days14 days
50 to 249 employees15 days13 days
Fewer than 50 employees14 days12 days

 

Both full- and part-time employees would be eligible for paid leave, with workers accruing leave over the course of a plan year.

Employees would have the flexibility to determine how they use the leave unless the employer determined that a specific instance of paid leave would unduly disrupt the business operations of the employer.

"This bill is a new approach that incentivizes more employers to offer paid leave and flexibility to help employees navigate their work and life," Horn said. "Both employees and employers gain under this bill.

The proposal "makes clear that this paid leave can run concurrently with FMLA [Family and Medical Leave Act] leave to avoid a 'stacking' issue," she noted. Employers could let paid leave amounts be carried over or cashed out but would not be required to do so.

Flexible Work Arrangements

Under the bill, the employer would offer at least one of the following flexible work arrangements to each eligible employee:

  • Compressed work schedule.
  • Biweekly work program.
  • Telecommuting.
  • Job sharing.
  • Flexible scheduling.
  • Predictable scheduling.

To be eligible, an employee must have been employed for no less than 12 months for at least 1,000 hours with the employer during the previous 12-month period.

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

"The biweekly option gives employers another workflex option for nonexempt employees," Horn said. This option allows the employer to offer a schedule of 80 hours over two weeks and would require overtime pay for any hours in excess of each established workweek or for working more than 80 over those two weeks. "If a nonexempt employee wanted to work 30 hours the first week and 50 hours the second week, they would have the option to do so" she noted.

An employee's participation in any flexible work arrangement would be voluntary. Participation of union employees would continue to be governed through the collective bargaining process.

The legislation would pre-empt all state and local paid leave laws but not state and local laws mandating unpaid leave or state temporary disability insurance requirements.

ERISA, a law familiar to employers, does include specific remedies for plan participants and specific requirements for employers.

Employer Support for Bill

Nancy McKeague, senior vice president and chief of staff for the Michigan Health & Hospital Association in Lansing, Mich., supports the workflex bill, saying: "The positives are that employees will feel like they have more control over how they put their workday together. It doesn't necessarily have to fit in a 9-to-5 day anymore. They have the ability to telecommute. They can work after they put their children to bed. It shows them we trust them to get the work done."

The bill is "something SHRM has put tremendous effort into. It should be applauded for trying to move the ball forward and bring about positive change," said Michael Lotito, an attorney with Littler and co-chair of the firm's government relations branch, the Workplace Policy Institute.

"The desire for perfection tends to get in the way of progress," he said. "We'll have to see what kind of reception" the bill gets.

The bill's introduction late in the year does not preclude it from being discussed and advancing in 2018, as SHRM continues to make it a focus of its advocacy efforts.

 

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