In early November 2017, Rep. Mimi Walters (R-CA) introduced H.R. 4219, the “Workflex in the 21st Century Act.” Let’s take a closer look at the Workflex bill and see whether or not it provides some of the arrangements, rights, or modern protections that its title promises.
Where’s the flexibility?
The most important thing to note is that this bill does not actually give employees any new rights to flexibility in their work schedules that are not already available under existing law. The Fair Labor Standards Act (FLSA) already allow for all of the flexible working arrangements that the so-called “Workflex” bill says employers can give their employees. For example, employers can already provide workers with flexible scheduling, defined in the bill as “an arrangement under which an employee’s regular work schedule is altered,” and with predictable scheduling, when an employer gives employees their schedules with “reasonable advanced notice,” or with teleworking arrangements. Nothing in current law is stopping employers from offering those flexible work scheduling options to employees today.
The only new working arrangement the “Workflex” bill adds is not an employee right, but an employer right—to avoid paying overtime as required for hours over 40 hours per week. The law currently requires employers to pay non-exempt employees overtime pay (time-and-a-half) for any hours worked over 40 per week. The “Workflex” bill’s “biweekly work program” would instead allow employers to avoid paying overtime pay unless an employee worked more than 80 hours in a two week period, and would permit employers to schedule workers for up to 60 hours per week with no overtime pay, as long as the workers only work 20 hours the next week in the 2-week period. But how does a 60 hour/20 hour bi-weekly schedule—without any overtime pay—promote “flexibility” for working people? What working parent wants to work 12 hour days one week, and 4 hour days the next? And, if any worker did want to, employers could already give them that schedule under the FLSA, provided that they pay overtime for the hours an employee works over 40 during the first week. In sum, the only new work scheduling option the “Workflex” bill provides is allowing employers the option of no longer paying overtime pay for overtime work.
Undermining existing local labor standards
In fact, the “Workflex” is all about giving employers new rights. In addition to the right not to pay overtime, the bill gives employers a new right to avoid their obligations under state and local paid sick days and paid family leave laws.
EPI’s Marni von Wilpert has documented how state legislatures widely use preemption—passing laws at the state level to nullify local ordinances—to undermine the stronger labor standards passed at the local level. This bill simply spreads that tactic to the federal level, under the guise of promoting flexibility. As of September 2017, 8 states and 32 localities have already won hard-fought victories establishing requirements for workers to have access to paid sick days. This bill would reverse those gains in one fell swoop, by giving employers a free pass to ignore any state and local laws that attempt to raise the bar on paid leave protections, so long as they can claim to offer some minimal standard of paid time off (while maintaining full control over when and how employees could even use that time)
While a federal law requiring employers to allow workers to earn much-needed paid sick days and paid family leave would be a big step forward, it should not be at the expense of protections like overtime pay or avoidance of local and state labor protections that may go above the federal floor.
Rep. Walters’s fact sheet on the Workflex bill claims (without substantiation) that state and local paid leave mandates cause such burdens on employers that they contribute to wage stagnation and decreased investment in the workforce. Wage stagnation, of course, has been a well-documented issue facing American workers since long before any recently enacted state/local paid leave laws. Further, inequality in access to paid leave exacerbates inequality in total compensation (wages and benefits), and paid leave mandates are a crucial remedy. Moreover, the consequences for working people of the lack of a federal standard for paid sick days are also well-researched. But the fact sheet also points out that the workflex options outlined in the bill are voluntary—employers would not be required to adopt any of these provisions if it were to pass. So why is the legislation needed? If it would not provide any new rights or protections to workers, why are the bill’s proponents not just encouraging employers to adopt some of the good models therein on their own, as high-road practices for retaining a happy workforce?
A healthy alternative
H.R. 4219 follows a trend of bills introduced in this Congress that claim to offer flexibility, innovation, and improvements in work-life balance, but behind the curtain are just handing even more control over employees’ time to employers. Just as the “comp time” bill (H.R. 1180) that passed the House earlier this year would threaten employees’ rights to overtime pay, this so-called “workflex” bill would threaten the rights that so many workers have gained at the state and local level to no longer have to choose between putting food on the table and taking care of their health. It is worth questioning why this bill, if it represents the gains in work-life balance that employees demand for themselves and their families, does not appear to have a single worker-interest or family-interest group speaking out in support.
Members of Congress and organizations alike who sincerely want to expand access to paid sick time should ignore the Workflex in the 21st Century Act, and lend their support to the Healthy Families Act, which would both raise the floor on the federal standard, and respect the rights of states and localities to go above and beyond in protecting their workers.