HR Connection: A 21st-century idea out of Washington, D.C.?

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When I sat down to write this article, I had intended to write about the exciting New York State Paid Family Leave Act (PFL). I’ve spent so much time reading, talking and answering questions about it that it has taken over my brain. In fact, my wife said I recently woke her up in the middle of the night because I was sleep-presenting on the PFL! I asked how I did, and she mumbled something about a pillow over my head next time.

Then something shiny caught my ADHD-riddled attention: The introduction of the Workflex in the 21st Century Act (H.R. 4219) — or, in 21^st-century speak, #WorkflexBill. (Is anyone else reminded of the 1952 Warner Bros. cartoon “Duck Dodgers in the 24½th Century?”)

#WorkflexBill was introduced in the House of Representatives Nov. 2 by Representatives Mimi Walters (R-CA), Elise Stefanik (R-NY) and Cathy McMorris Rodgers (R-WA) with the intention to “help employees strike a better work-life balance.” This legislation is based on concepts and principles initially developed more than five years ago by the Society for Human Resource Management (SHRM) to help guide public policy on workplace flexibility. In addition, several of my colleagues on the SHRM Government Affairs team have had the opportunity to provide their collective expertise to members of Congress in the development of this legislation.

#WorkflexBill is unique legislation for several reasons. First, it combines guaranteed paid leave with workplace flexibility, or “workflex.” Secondly, it’s not a mandate. Yes, you read that right: The #WorkflexBill is not a mandate. Members of Congress who support this legislation recognize that a one-size-fits-all mandate would do little more than restrict employers’ flexibility in controlling their leave and attendance policies, and it could even result in reduced paid leave and workplace flexibility options for employees.

Here are some of the highlights of the Workflex in the 21st Century Act:

• The Employee Retirement Income Security Act (ERISA) would be amended to provide participating employers flexibility and predictability in designing workflex options for qualified employees;
• Participating employers would provide paid leave to all full-time and part-time employees, either through accrual of leave over the course of a plan year, or as a lump sum at the start of the plan year, with restrictions on the use of leave by new employees during their first 90 days of employment;
• The employer would cover the cost of the paid leave, with the amount of required leave scaled to the size of the employer’s workforce and the tenure of the employee;
• Part-time employees would receive a pro-rated amount of paid leave based on the number of hours worked;
• Employers would have the option to apply up to six paid federal or state holidays toward satisfying paid leave requirements;
• Eligibility requirements for a workflex arrangement would include working for the employer for 12 months, and at least 1,000 hours; and
• Participating employers would be required to offer one or more of the following workflex options to eligible employees: a compressed work schedule, biweekly work program, telecommuting, job-sharing, flexible scheduling or a predictable schedule.

Another unique feature is that the #WorkflexBill is intended to simplify an increasingly complex web of leave mandates faced by employers.

The minimum amount of paid leave a participating employer would be required to offer varies by employer size and employee tenure, with the number of employees based on the average employee count from the previous plan year:

Employees would have the ability to use available paid leave at their discretion, unless the employer determines that the use of leave at that time would unduly disrupt operations. Employers would have the ability to: reasonably define full-time and part-time employment for the purposes of the plan, decide if paid leave may be taken in less than full-day increments, allow employees to carry unused paid leave to the next plan year, and allow a cash-out of unused paid leave at the termination of employment.

Eight states and more than 30 jurisdictions nationwide, including New York City and the District of Columbia, have adopted their own paid leave laws and created potentially significant compliance issues for employers. However, the #WorkflexBill would create an ERISA-covered plan that would pre-empt state and local paid sick leave and workflex laws.

The #WorkflexBill would not affect the coverage or protections provided under the federal Family and Medical Leave Act (FMLA), or any state or local family and/or medical leave laws, such as New York’s Paid Family Leave. However, employers would have the ability to require employees to use paid leave available under a qualified workflex plan concurrently with leave taken under the FMLA.

Could this proposed legislation be the impetus for Congressional solidarity? Doubtful, but I don’t know of any bill up to that herculean task. For now, the Workflex in the 21st Century Act is a bill like so many other worthy, well-intentioned bills — working its way through the system and dreaming of a chance to stand proudly on the steps of the Capitol to audition for the 21st century remake of that famous Schoolhouse Rock video. Sing it with me: “I’m just a bill, yes I’m only a bill, and I’m sitting here on Capitol Hill…”

Frank A. Cania, M.S.Emp.L., AWI-CH, SPHR, SHRM-SCP, is president of driven HR – A USA Payroll Company. Located in Pittsford, NY, driven HR provides human resource consulting services including HR audits, outsourced HR management, employee handbooks, and a variety of other services. Frank concentrates on wage-and-hour, FMLA, ADA, Title VII, and Form I-9 compliance, as well as workplace investigations. This article is brought to you by the Rochester affiliate of the National HR Association, a local professional HR organization focused on advancing the career development, planning, and leadership skills of HR professionals.