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The Bill

Here is an outline of how the Workflex in the 21st Century Act, introduced by Representative Mimi Walters, R-Calif., would enact a 21st Century Workflex policy that responds to the demands of the 21st Century Workplace

  1. The bill would amend the Employee Retirement Income Security Act (ERISA) by adding to the definition of an ERISA plan a “Qualified Flexible Work Arrangement Plan” (QFWA).
  2. An employer could voluntarily choose to offer a QFWA Plan to their employees; the law would not mandate such plans.
  3. To qualify as a QFWA Plan, the Plan would have to offer two major components:
    1. 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.
      1. Paid leave would be extended to full- and part-time employees, with employees accruing leave over the course of a plan year. New employees would be subject to reasonable restrictions on the use of the leave for the first 90 days of employment.
      2. Employers would determine if the use of the paid leave unduly disrupts the business operations of the employer and places other business-based restrictions on the use of the leave.
      3. An eligible part-time employee (“part-time” is defined by the employer’s Plan) would receive a proportional share of paid leave. For example, if the employer’s Plan defined a full-time employee as one who is regularly scheduled to work at least 40 hours/week, then an eligible employee who is regularly scheduled to work 20 hours/week would be entitled to one-half the amount of paid leave that a full-time employee would receive.
    2. Flexible work arrangement: The employer would offer at least one of the flexible work arrangements listed below to each eligible employee. To be considered eligible, an employee must have been employed for at least 12 months by the employer and for at least 1,000 hours of service with such employer during the previous 12-month period (incorporates the Family and Medical Leave Act’s (FMLA) definition of a “12-month period”; employer would be free to have a more generous standard for eligibility). As with FMLA, eligibility would be determined on a continual basis
    3. QFWA Plan may specify which positions are offered participation in a particular program:
      1. Compressed work schedule;
      2. Biweekly work program;
      3. Telecommuting program;
      4. Job-sharing program;
      5. Results-oriented work environment;
      6. Flexible scheduling;
      7. Predictable scheduling; or
      8. Another flexible work arrangement that complies with requirements established by the Secretary of Labor.

      An employee’s participation in any flexible work arrangement would be voluntary. Participation by union employees would be governed through the collective bargaining process.

  4. Interplay with FMLA
    1. If an employer maintains a QFWA Plan, all paid leave used by an eligible employee in accordance with the Plan would qualify as leave for purposes of the provisions of the FMLA and could be used towards satisfaction of an eligible employee’s entitlement to 12 weeks of FMLA leave.
    2. An employer could require an eligible employee to use paid leave instead of unpaid leave, but any remaining leave otherwise available under the FMLA would remain available to the employee for use in accordance with FMLA requirements.
  5. Biweekly Work Programs
    1. Under a QFWA Plan, an employer could establish a biweekly work schedule, consisting of no more than 80 hours over a two-week period, and would be required to pay overtime (1½ times regular rate) for all hours worked in excess of 80 hours in the two-week period.
    2. Employer/employee agreement required.
  6. Satisfies the requirements of State and Local Leave Laws
    1. The legislation would pre-empt all state and local paid leave laws.
    2. It would not pre-empt state and local laws mandating unpaid leave.
    3. It would not pre-empt state temporary disability insurance requirements.
    4. Employers could allow paid leave amounts to be carried over or cashed-out by employees, but would not be required to do so.

Click here to learn why the Workflex in the 21st Century Act creates the kind of Workflex policy that employees and employers need.

Click here for a copy of the Workflex in the 21st Century Act.