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Two Employment Related Measures Under Consideration By Congress

At least two employment-related bills have been introduced in Congress in recent days.  The first, H.R. 4219, dubbed the Workflex in the 21st Century Act, would amend the Employee Retirement Income Security Act of 1974 to include an option for qualified flexible workplace arrangements.  Under the legislation in its current form, employers would voluntarily offer employees at least a guaranteed minimum level of paid leave.  The amount of leave would vary depending upon an employee’s length of service and the size of the employer.

In addition to paid leave, employers would offer employees a workflex option.  The workflex component would be available to employees who have worked for the employer for at least 12 months and who have worked at least 1,000 hours during the previous 12 months.  Workflex includes job-share programs, flexible scheduling, teleworking, and compressed work schedule, among other options.

Under the legislation, the amount of paid leave required varies depending on the size of the employer and an employee’s length of service with the employer.  Employers with 1,000 or more employees would have to provide at least 20 days of paid leave to employees with five or more years of service with the employer and 16 days of paid leave to employees with fewer than five years of service.  Employers with 250 to 999 employees would have to provide at least 18 days of paid leave to employees with five or more years of service with the employer and 14 days of paid leave to employees with fewer than five years of service.  Employers with 50 to 249 employees would have to provide at least 15 days of paid leave to employees with five or more years of service with the employer and 13 days of paid leave to employees with fewer than five years of service.  The paid leave requirements are 14 and 12 days, respectively, for employers with fewer than 50 employees.

The legislation amends ERISA such that an ERISA-covered plan would preempt state and local paid leave laws, including the paid sick and safe leave legislation that passed the Maryland General Assembly in 2016.  While that legislation was vetoed, an override is expected to be one of the state legislature’s first acts in January.

The other legislation, H.R. 3441 (Save Local Business Act), has passed the House of Representatives and is now under consideration in the Senate.  The Save Local Business Act would amend the National Labor Relations Act by adding the following to definition of “employer”:

A person may be considered a joint employer in relation to an employee only if such person directly, actually, and immediately, and not in a limited and routine   manner, exercises significant control over essential terms and conditions of employment,    such as hiring employees, discharging employees, determining individual employee  rates of pay and benefits, day-to-day supervision of employees, assigning individual work schedules, positions, and tasks, or administering employee discipline.

The legislation also would amend the Fair Labor Standards Act by adding reference to the joint employer language in the NLRA as quoted above.  The legislation would limit joint-employer liability for affiliated businesses under federal labor and wage and hour laws.  In 2015, the National Labor Relations Board decided, in Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015), that a business could be liable even where it indirectly controlled an employee.

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