Everything California HR Professionals Need to Know About SHRM’s Workflex Bill

WRITTEN BY BulletJuly 31, 2018

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California HR professionals are constantly greeted with new laws to educate their company on and implement. Sometimes they are good laws and other times they seem to make life harder either for the company or its employees. As your company’s workforce advocate, it’s good practice to know what laws could be coming your way and have a stance on them. You might even decide to take action on a bill still in the House.

If things go the way the Society for Human Resource Management (SHRM) wants, the Workflex Bill may be one of the next laws that impacts your company. At their annual press conference last month SHRM updated its members and the press on their Workflex Bill, reigniting concerns from HR professionals to other employee welfare stakeholders.

This article will give you the run down on what the Bill is and what has everyone so up in arms about it. We’ll also share both sides of the story so you can make your own informed decision on whether it would benefit your company.

What is the Workflex Bill?

The Workflex Bill is a SHRM-developed legislation sponsored by U.S. Rep. Mimi Walters, R-California and introduced in Congress in November 2017. It has resurfaced in the news lately because of a recent press conference held by SHRM updating members on the bill.

The premise of the bill is that it simplifies leave laws by creating a preemptive federal protocol employers can use across all states rather than having to keep up with changing local and state laws. The bill could be especially beneficial to companies with locations in multiple states.

Also, the bill offers a flexible work arrangement plan that employers can opt into and which also preempts state and local laws.

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SHRM leaders say that Federal intervention has been long overdue when it comes to outdated leave laws. They point to instances where private companies have tried to champion their own corporate social responsibility which they have pressured others to implement.

Although most admit that the Bill seems like a way to help workers at first glance, there has been a good amount of criticism of the bill saying it favors corporations and shortchanges employees.

Criticisms of the Workflex Bill

Criticisms of the Workflex Bill point out that it allows companies to evade leave regulations laid out by the state, doesn’t provide family leave, and opens employees up to retaliation for taking their leave. These criticisms have been listed below in better detail and with SHRM’s rebuttal for each.

Evading Leave

Some see the Workflex Bill as a way for companies to evade more generous leave regulations laid out by their state, opting for something that favors the company.

SHRM has issued a statement rebutting claims they say are false including concern that the bill is taking away employees’ leave. SHRM writes: “Either the employee gets state-required leave or the more generous paid leave required under the bill. This bill’s paid leave requirements are more generous than all state paid leave laws and most local laws.”

Family Leave

Family leave policies are primary among concern about the bill as many point out that the bill doesn’t provide family or parental leave.

Among those against the Workflex Bill is Alice Vichaita of Pinterest, located in California, who signed a letter asking for SHRM to pull their support for the bill. Janet Van Huysse, current head of people at tech company Cloudfare Inc., also headquartered in California and former vice president of HR at Twitter also signed the letter.

The letter, written by the paid family leave advocacy organization Paid Leave for the United States urges SHRM to instead back the FAMILY Act, which provides a federal mandate of up to 12 weeks of partial income paid family leave.

SHRM rebuts: “This bill does not take away – or even address the subject of – paid parental or family leave in any way. These issues are covered by the Family and Medical Leave Act (FMLA). What the bill does do is allow the employee to take leave beyond standard FMLA qualifying reasons or use the guaranteed leave for family or parental leave purposes.”

Ignore State and Local Laws

Another concern many have for the bill is that would allow companies to ignore state and local laws. Liz Morris Deputy Director of Center for WorkLife Law and Adjunct Law Professor, University of California and Hastings College of the Law argues in the Huffington Post: “The Workflex Act allows employers to ignore existing state laws that currently help working parents take care of their families.”

SHRM claims: “Employers who opt in to the requirements of the bill will be providing all their employees with the same level of paid leave and workflex options no matter where they work. Any employer that does not participate will remain subject to individual state and local mandates.”

Retaliation

Another criticism of the Bill is that it opens employees up to retaliation for taking time off. Pennsylvania Governor Tom Wolf writes in a letter to PA Congressional Members of the U.S. House of Representatives Education and Workforce Committee that the bill would “eliminate retaliation protection for workers who use their time...”

SHRM rebuts: “The bill contains strong anti-retaliation protection for employees, a component that was critical to gaining the support of the Progressive Policy Institute.”

That is all the criticism we’re including here to keep good on our promise that this would be a quick article, but a simple Google search will turn up more criticisms of the bill if you’re interested in learning more.

Where does it differ from California law?

As a California HR professional knowing the background of the bill is good, but how does it specifically translate to California law?

 

Issue

Workflex

California

Minimum amount of paid leave days per year

Scaled to the size of the company and tenure of employee. These include any reason for taking off including sick days, vacation days, and any other. See table a.

Employers are not required to give any vacation time.

California law does not require private employers to provide employees with either paid or unpaid holiday leave. 

Under California’s sick leave law, employees are to accrue one (1) hour of sick leave for every thirty (30) hours worked.

Anti-retaliation language 

Specific language not found.

An employer shall not deny an employee the right to use accrued sick days, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using accrued sick days, attempting to exercise the right to use accrued sick days, filing a complaint with the department or alleging a violation of this article, cooperating in an investigation or prosecution of an alleged violation of this article, or opposing any policy or practice or act that is prohibited by this article. 

Flexible working arrangements

Under the bill, the employer would offer at least one of the following flexible work arrangements to each eligible employee:

Compressed work schedule.

-Biweekly work program.

-Telecommuting.

-Job sharing.

-Flexible scheduling.

-Predictable scheduling.

There are no flexible working arrangements required.

 

Table A

 

Conclusion

The Workflex bill is legislation backed by SHRM that sets out to create a national standard for time off and flexible working options. Opponents of the bill point out that rather than being beneficial to the employee, it allows companies to dodge more generous leave laws and abuse employees. Compared to California state laws, Workflex does diminish sick leave but also creates a space for other types of leave which isn’t currently mandated.

We’ll leave it to you as to whether it would benefit your company and its workforce or put it at a disadvantage. We assume the passing or failing of the law will be our answer enough as to what everyone thinks.