Republicans are jumping on the paid sick leave train, but in a deeply flawed way.
This week a House subcommittee held a hearing on the Workflex in the 21st Century Act, a bill proposed at the end of last year by Rep. Mimi Walters (R-Calif.).
The bill’s premise, at first, sounds alluring ― give workers more flexibility to take the time off they need. Yet critics say employers are the ones who would ultimately gain flexibility and power.
Under the bill, companies wouldn’t have to comply with state and local paid sick leave and overtime laws if they voluntarily give workers a certain number of days off and some kind of “flex” time.
“The proponents claim this is a paid leave bill,” said Rhode Island state Sen. Gayle Goldin (D), who testified at the hearing Tuesday. “It’s not that.”
The bill does not cover long-term leave ― the GOP has another troubling pitch in that arena ― but rather paid sick time and personal time. It has a small chance of coming up for a vote in the House this fall, according to those following the bill.
The proposal comes at a time when a record percentage of Americans actually have access to paid sick time, thanks to a raft of new state and local laws. Seventy-one percent of workers in the private sector had this benefit in 2018, up 3 percentage points from the previous year, according to Labor Department data released this month.
Ten states, Washington, D.C., and 33 localities now have paid sick day laws, with most of the legislation passing in the past seven years. Typically, these laws let workers earn one hour of paid time off for every 30 they work, up to a certain cap.
The Flex bill would essentially allow employers to flout ― or, in the more technical parlance, pre-empt ― these local laws if they offer workers anywhere from 12 to 20 days off, depending on seniority, as well as one of a few “flexible” working schedules ― compressed work weeks or telework, for example.
Theoretically, supporters say, the days off could be used for any reason ― from sick leave to time off for a family emergency to a personal or vacation day.
The bill’s backers from the Society for Human Resource Management, a lobbying and advocacy group for HR managers and companies, say this is more generous than any state’s paid sick day legislation.
However, the higher number of days off in the Flex bill includes paid holidays. Employers can include six federal holidays in their tally ― fairly useless in terms of giving workers flexibility to deal with health issues and family emergencies.
More worryingly, the bill puts more power in the boss’ hands. If a day off “unduly disrupts” the business of an employer, a time off request can be denied, according to the bill. Someone who works at a florist may not be able to take sick time on Valentine’s Day. That is one example actually written into the bill.
But if your child is rushed to the hospital on Feb. 14, you’re going to need the day off no matter how many roses are on order at the store.
Most sick day legislation doesn’t work that way.
“The local laws say if you’re sick and you have a need and it’s not foreseeable, you have the right to take the time,” said Vicki Shabo, vice president for workplace policies at the National Partnership for Women & Families, which opposes the Flex legislation.
Finally, under the pretense of offering greater flexibility, the law would allow employers to stop paying overtime. Per the bill, workers could choose an 80-hour biweekly schedule or a compressed work week if they forego overtime pay. That means someone could work a 30-hour week followed by a 50-hour week ― but not get overtime for the second week.
“This perpetuates income inequality,” Goldin said, speculating that few workers could afford to give up the extra pay that overtime provides. Some hourly workers specifically look to holiday work or Sunday hours just to get time-and-a-half and make ends meet, she said.
Mike Aitken, senior vice president for government at SHRM, says no one would be forced to give up overtime. He emphasized that workers would have to contract with their employers to agree to any such situation.
Aitken disputed the idea that the bill puts more power in the employer’s hands when it comes to deciding who can take a day off. Most employers would do the right thing and give you time off if you really need it, he said. Employers can’t deny a sick day for a “mere inconvenience,” he said.
Aitken argued that the Flex bill is a necessary remedy for the current patchwork situation, where employers must figure out how to comply with various laws in different states.
Paid leave proponents say the real solution to the patchwork would be a strong federal paid sick leave bill ― such as the Healthy Families Act, proposed by Democrats, which looks a lot like the laws in the states.
But backers of the Flex bill say it’s a better plan than the “mandated” approach taken by states. It gives employers more flexibility, Aitken said.
He emphasized that if a company regularly denied time off to workers, it would be penalized.
But the odds are slim that a struggling hourly worker would have the time to lodge a complaint about feeling pressure to forego overtime, Goldin said.
A law that leaves sick time entirely at the discretion of the employer would put workers in a vulnerable position, she said, and would undermine all the work states have done on the issue.
The Flex law would turn the U.S. into a place where you have to “win the boss lottery to get benefits,” Goldin said. “This would set a new low.”