House Holds Paid Leave Hearing

On July 24, the House Education and the Workforce Committee held a hearing on H.R. 4219, the Workflex in the 21st Century Act. The bill, introduced by Rep. Mimi Walters (R-CA), would amend the Employee Retirement Income Security Act (ERISA) to create Qualified Flexible Work Arrangement (QFWA) plans under which employers could offer paid time off and flexible work arrangements.

Employers need not offer their leave through a QFWA, as the program is entirely voluntary. The intent of the law is to incentivize employers to offer generous paid leave plans by exempting those employers that do so from the cumbersome and often conflicting state and local leave requirements.

But not every leave plan would qualify as a QFWA; to be considered a QFWA the plan must offer two major components to all full-time and part-time employees:

• Paid leave: The number of hours of paid leave would be scaled to the size of the employer and an eligible employee’s tenure with the employer.
• Flexible work arrangement: The employer would offer at least one flexible work arrangement to each employee. The plan would specify which positions are offered participation in any one of six workflex options: telework, job sharing, compressed work schedules, predictable scheduling, flexible scheduling or a biweekly work week.

As previously mentioned, employers that offer leave through a QFWA would be exempt from state and local leave requirements, thus making it easier for companies to have consistent plans and policies across state lines. While many employers are already offering some form of paid leave and flexible work arrangements, policymakers at the state and local level are pursuing mandated approaches to these benefits, requiring employers to navigate an increasingly fragmented system of state and local paid-leave mandates. Employers and employees that participate in QFWAs would be covered by ERISA protections and remedies.

Republicans on the committee supported H.R. 4219, claiming the bill would provide a voluntary approach to increasing the availability of paid leave for American workers without imposing rigid mandates that might not fit certain workplaces or could lead to job loss. Chairman Tim Walberg (R-MI) explained that the current patchwork of state and local paid leave laws, while probably well-intentioned, is actually creating confusion and increasing administrative burdens on employers.

While employers are trying to keep up with the constantly changing policy landscape, smaller employers and employers that operate across state lines might not have the knowledge or resources to keep up with the changes. Republicans also explained that under the bill, employers could only reject an employee’s request for paid leave if it would “unduly disrupt” business operations — the same requirement as is currently found in the Family and Medical Leave Act (FMLA) and one of the Democrats’ paid leave proposals, the Healthy Families Act.

Committee Democrats opposed H.R. 4219, claiming the bill doesn’t guarantee any workers paid leave, since providing plans would still be voluntary, and would leave workers at the mercy of their employer and could leave workers less well off than under the current patchwork of state and local paid leave legislation. Additionally, they argued the bill’s preemption is overly broad, leaving workers without the paid leave, overtime and scheduling protections offered by more stringent state and local leave laws. Specifically, Rep. Joe Courtney (D-CT) called the preemption language “a blunt instrument.” Courtney also expressed concern with the preemption language potentially allowing for employers to replace National Guard members who are called for duty. Instead Democrats advocated for three separate proposals on the topic of paid leave: Healthy Families Act, FAMILY Act and the Schedules That Work Act.

There were three Republican witnesses: Johnny Taylor, CEO of the Society for Human Resource Management; Loreen Gilbert, president of WealthWise Financial Services; and Jon Breyfogle, principal at Groom Law Group. The Democratic witness was Gayle Goldin, senator in the Rhode Island General Assembly.

CUPA-HR is an advisory council member of the Employers for Flexibility (E4F), a coalition which supports the Workflex in the 21st Century Act. See CUPA-HR’s letter of support for the bill along with that of the Coalition’s.

Related Resources:
E4F Workflex Fact Sheet
E4F Rebutting False Claims About the Workflex Act
E4F Workflex Legislative Q&A
E4F Workflex Talking Points