Republican Lawmakers Try New Approach to Paid Leave, Workplace Flexibility

In an effort to promote workplace flexibility and streamline employer paid leave obligations, three members of the House of Representatives on November 2, 2017 introduced a bill that takes a novel approach to promote work-life balance. The Workflex in the 21st Century Act (H.R. 4219), introduced by Reps. Mimi Walters (R-CA), Elise Stefanik (R-NY), and Cathy McMorris Rodgers (R-WA), would create a voluntary program whereby employers that choose to offer their employees a minimum number of compensable leave days per year and institute a flexible work arrangement would be exempt from the current patchwork of local and state paid leave laws.  Eight states and more than 30 localities nationwide have enacted varying paid leave requirements, creating a compliance challenge for multi-state employers.

The bill would offer employers a safe harbor from local law requirements by amending the Employee Retirement Income Security Act (ERISA), which establishes uniform federal standards for employee benefit plans. The legislation would amend section 3(1) of ERISA to create a voluntary qualified flexible workplace arrangement plan ("QFWA plan") that employers would be free to administer. To qualify as a QFWA plan, the benefit package must include compensable time off plus at least one flexible work arrangement or "workflex" option, such as teleworking, compressed schedules, biweekly work programs, job-sharing, and predictable scheduling. Employees would be able to participate in a workflex option once they have worked for the employer for 12 months and at least 1,000 hours.

The minimum amount of paid leave an employer would have to offer varies by employer size and employee tenure:

Number of Employees:

Employees who have worked for the employer for fewer than five years at the start of the plan year:

Employees who have worked for the employer for five years or longer at the start of the plan year:

Less than 50

12 days

14 days

50 to 249

13 days

15 days

250 to 999

14 days

18 days

1,000 or more

16 days

20 days

An employer would be entitled to apply up to six federal or state holidays towards the paid leave requirement. An employer may allow employees to carry over accrued but unused leave from one year to the next, and could allow employees to cash out their unused leave upon termination.

Part-time employees must also be entitled to paid time off, calculated on a prorated basis.

With respect to the workflex option, employees would not have to avail themselves of those programs to take advantage of the paid days off.

A biweekly work program as a workflex option would be available only for employees who are subject to the Fair Labor Standards Act's minimum wage and overtime requirements. Under a biweekly work schedule, an employee could not work more than 80 hours over a two-week period, and not more than 60 hours in a one-week period. Overtime payments would apply for work performed in excess of 80 hours over the two-week period. This option would allow employees to work longer than 40 hours in a week, and therefore work less than 40 hours the other week, without triggering overtime obligations. Similarly, a compressed work schedule would allow employees to work 40 hours in a week in a shorter timeframe, such as working 10 hours over a four-day period. These types of flexible arrangements are currently offered to many federal employees.

An employer would not be required to offer any particular flexible work arrangement to qualify for the program.

QFWA plans would not affect state paid family leave insurance programs, nor would they impact an employee's FMLA leave rights. Workplaces covered by collective bargaining agreements would have to negotiate with the union if offering a QFWA plan.

ERISA's anti-retaliation protections would apply to these plans.

In a statement, bill co-sponsor Elise Stefanik (R-NY) said:

This important legislation would allow businesses to offer flexibility in their employment leave plans to suit the business and the employee. As a millennial, one of the most common workforce demands from my generation is more flexibility in their work place, and this legislation would amend federal law to allow businesses to voluntarily provide paid leave and workflex options to their employees.  This is a win-win for employers and for our workforce.

Proponents of the bill say this voluntary, incentivized approach to providing paid leave and workplace flexibility—by offering employers a reprieve from conflicting local law leave mandates—is a better option than the one-size-fits-all mandate of other federal proposals.

The Republican Main Street and Progressive Policy Institute have voiced their support of this legislation. In a press release, Sarah Chamberlain, President and CEO of Republican Main Street Partnership, said, “As modern life demands more of our time and attention, workplace flexibility is an innovative and common sense solution for families nationwide. Workflex is a responsible approach and a welcome step for employees and employers alike.”

More information on the bill can be found here

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.