Congress is taking another run at legislating work flexibility. On Nov. 2, U.S. Rep. Mimi Walters, R-Calif., and co-sponsors Reps. Cathy McMorris Rodgers, R-Wash., and Elise Stefanik, R-N.Y., introduced H.R. 4219, the Workflex in the 21st Century Act, which would amend the Employee Retirement Income Security Act (ERISA).
According to a fact sheet from the Society for Human Resource Management, which supports the bill and helped develop the concepts on which it is based, it is a “first-of-its-kind combination of guaranteed paid leave and increased workplace flexibility (‘workflex’) options. Under the legislation, employers would voluntarily offer full- and part-time employees at least a guaranteed minimum level of paid leave. The amount would depend on an employee’s tenure and the employer’s size. Participating employers also would offer to all employees at least one type of workflex option.”
One significant flex-related change this bill touts deals with overtime. Current law requires employers to pay non-exempt workers overtime pay for hours worked over 40 during a week. The “biweekly work program” in the bill would allow employers to avoid paying overtime as long as employees didn’t work more than 80 hours in a two-week period. It would let employers schedule workers for up to 60 hours in one week with no overtime pay, as long as they worked only 20 hours the next week.
However, both the paid leave and flexibility portions of the bill have come under fire from some opponents, who say it will actually lead to fewer options for workers while shifting more power over scheduling to employers.
The issues involved are complicated, so here’s a quick look at some of the things both supporters and detractors are saying about the bill.
What proponents are saying
- SHRM touts the bill’s offering of paid leave for all full-time and part-time employees. The bill would pre-empt paid leave and work flex laws that have been approved by eight states and more than 30 local jurisdictions, and SHRM argues the change would provide “participating employers flexibility and predictability in designing workflex offerings.”
- The fact sheet from the SHRM says the bill calls for employers to offer work flex arrangements—everything from compressed work schedules and telecommuting to job sharing and flexible scheduling—to workers who have been employed for at least 12 months by their company and worked at least 1,000 hours during that year.
- “This bill’s paid leave requirements are more generous than all state paid leave laws,” said Lisa Horn, director of congressional affairs and workplace flexibility at SHRM, in a press release about the measure. “It also addresses the need for workflex for everyone—from new parents to non-parents, from millennials to boomers. It will help all individuals achieve a better work-life fit.”
- During a Dec. 6 hearing on the measure before the House Committee on Education and the Workforce, several companies came out in support of the measure. For example, Angela Schaefer, vice president of human resources with Safety National in St. Louis, said the current “patchwork” of state and local regulations is hard for small and mid-size companies to navigate, leading to additional costs and legal fees to attempt to stay in compliance. This bill would help companies to avoid those complexities.
- The “biweekly work program” in the bill may allow full-time employees to better control their schedules. For example, if a working parent has a week in which his children have many school events, he could work 35 hours that week and 45 the next without his employer having to pay overtime in week two. That could make companies more willing to offer such flex options and help businesses that are already committed to flexibility.
What opponents are saying
- Ellen Bravo, co-director of Family Values @ Work, says in a Huffington Post article that the bill would be bad for workers, as it would “create an escape clause for big corporations that allows them to ignore hard-won paid sick days laws.”
- Bravo and others take issue with the business complaint about dealing with different regulations among local and state jurisdictions. “Multi-city and multi-state employers already deal with different rules in different locations and have to keep paperwork for local authorities,” Bravo writes. “The answer is not to flout local laws but to create a federal standard—and until then, a company-wide standard that incorporates the most inclusive feature of existing local laws.”
- Liz Morris, deputy director of the Center for WorkLife Law, writes in a different Huffington Post article that provisions of the bill would be easy for companies to abuse. As she notes, “The employer alone would dictate the conditions for when an employee can use leave and how leave must be requested. Unscrupulous employers could create plans that make it difficult, if not impossible, to take days off. The law says that if your boss believes it would be too disruptive to take leave, your employer can simply deny the request.”
- The biweekly work program could also be problematic if it wasn’t something desired by both the employer and the worker involved. As the Economic Policy Institute noted in an opinion piece on this blog, “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.”
This bill has drawn significant interest in the work flex community, which will continue as it moves through Congress. As people carefully consider the different pros and cons of the proposed legislation, it will be up to them to determine whether they support it. 1 Million For Work Flexibility will continue to track this and other flex legislation, so check back frequently for updates.