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Choice, fairness in workplace flexibility
By Rep. Martha Roby (R-AL)
While there are many hot topics currently in the forefront of American politics, one priority from last year’s campaign continues to warrant Congress’ attention: improving flexibility in the workplace. It may not get the same fanfare as other issues that dominate the news cycle, but work-life balance is a real issue affecting millions of hardworking moms and dads.
Today’s workforce is more diverse than ever, especially as it concerns working parents. More than 70 percent of mothers today work outside the home. Fifty years ago, that number was less than 30 percent. As a working mom myself, I understand all too well how challenging it can be to balance career and family. Ask any working parent and they’ll tell you how valuable time flexibility in the workplace can be.
The workforce has changed tremendously, but our laws and policies that govern the workplace haven’t. Congress cannot legislate another hour into the day, but we can update our laws to allow more choice and fairness in how employees use their time.
That’s why I’ve introduced H.R. 1180, the Working Families Flexibility Act, which would provide greater choice and flexibility in the workplace by removing an outdated and unnecessary federal restriction on the use of compensatory time, or “comp time,” in the private sector. Here’s how it works: an hourly-wage employee would be able to voluntarily enter into an agreement with their employer to put all or some of their accrued overtime toward paid time off instead of cash wages. A working dad could use the “time and a half” overtime he has earned to take a paid hour and a half off work.
No employee could ever be forced to take paid time off, just like no business would be forced to offer this benefit. The same worker protections that have been part of labor law for decades would remain, but for some workers and some businesses this can be a valuable option to include in a benefits package.
Think about the parents of young children, those caring for elderly parents, or military families with one of the parents deployed. They need more time to be able to take care of personal responsibilities, and a comp time agreement could provide it.
If you work in the public sector, you’re probably familiar with this comp time system because it is a legal and widely used benefit for government employees.
Some background: Since 1938, the Fair Labor Standards Act (FLSA) has dictated how the workplace operates, including how wages are paid. That law mandates that all overtime be paid in cash wages.
In 1985, Congress enacted a revision to the FLSA that allows public sector employers to offer comp time for overtime, meaning if you work for the government you are free to enter into a comp time arrangement and use your overtime how you want. Offering this flexible benefit still remains illegal in the private sector.
Why should the rules be different? Why shouldn’t private sector employees have access to the same comp time benefits that government employees enjoy? The Working Families Flexibility Act fixes this disparity by allowing for greater choice and fairness over how workers use their time.
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This bill is about empowering workers and families. It’s about giving moms and dads more flexibility to meet the demands of work and raising a family. And it’s about taking power out of Washington and putting it into the hands of individuals.
For decades, Congress has tried to provide private-sector workers with the same flexible benefits enjoyed by public-sector workers. And as Chairwoman Foxx mentioned, even former President Bill Clinton supported an effort to allow private-sector workers to choose between paid time off and cash wages as compensation for overtime.
The first proposal was introduced in the 1990s, but it has gone through significant changes since then. Democrats and labor unions raised concerns that private-sector workers needed stronger protections than public-sector workers. Republicans listened, and ample changes have been made over the years to enhance safeguards for workers.
The bill would ensure the decision to receive comp time is completely voluntary. For example, the bill requires a written agreement between each worker and their employer — a provision backed by then-President Clinton. If the employee changes his or her mind, they can switch to receiving cash wages whenever they choose.
Workers have control over when to use their comp time. Employees can use their paid time off as long as reasonable notice is given and the request doesn’t unduly disrupt the workplace. This is the same commonsense standard used in the public sector. It’s the same standard used under the Family and Medical Leave Act. And I imagine it’s the same standard used in each of our congressional offices.
In the past, Democrats expressed concerns that workers would accrue too much comp time. Once again, Republicans listened and set the maximum accrual at 160 hours, which is less than what’s allowed in the public sector. Additionally, employees have the right to cash out their comp time at any time for any reason. If they have any unused hours at the end of the year, they would receive a cash payment.
Democrats have also voiced the need to protect collective-bargaining agreements, which is why this bill requires both the employer and the union to agree on comp time.
Some feared workers would be forced to accept comp time instead of cash wages. But this bill explicitly prohibits intimidation, threats, or coercion in any form. Employers who take advantage of their employees would face the same penalties as they would for other wage violations.
Employers found in violation of the law would be liable for double damages and any attorney fees incurred by the employee. As is the case with any overtime violations, employees also have the right to file a charge through the Department of Labor at no cost. As a labor attorney who has worked with employers on these issues for years, I can say that no sensible employer would take advantage of an employee and risk double damages, exorbitant attorney fees, and a legal battle with the federal government.
This is a very thoughtful proposal that is carefully drafted to protect the rights of workers. It strikes an important balance between putting workers in control and ensuring employers can successfully offer more flexibility to their employees.
To members who are still skeptical, please know this legislation reflects President Clinton’s recommendation to include a sunset provision. Five years from now, Congress would have to pass this legislation again. Before the sunset, Members would receive a report from the Government Accountability Office on the impact of comp time. We will have the opportunity to review the real-world effect of this legislation and make any changes if needed.
All we are trying to do here is give workers a choice. Policies written in the 1930s that are out of step with the needs of the 21st century workforce shouldn’t stand in the way of flexibility for workers and their families. Neither should so-called progressives who have had their concerns answered and addressed.
The substitute amendment I am offering makes technical changes to the underlying bill. I urge all of my colleagues to support the Working Families Flexibility Act of 2017, and I yield back the balance of my time.
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Preserving Employee Wellness Programs
By Rep. Virginia Foxx (R-NC), chairwoman of the House Committee on Education and the Workforce
From the start of the new Congress and new administration, reining in the regulatory state has been a leading priority — and for good reason.
In recent years, the American people have endured an unprecedented regulatory onslaught. Determined to advance an extreme liberal agenda, unelected bureaucrats of the Obama administration came up with new regulatory schemes impacting virtually every aspect of American life.
They sure were busy. During President Obama’s final year in office, there were 18 new rules and regulations for every law Congress passed. The 2016 issue of the Federal Register included 97,110 pages of new regulations — the highest in the register’s 80-year history.
Unfortunately, the Obama administration often failed to do its due diligence and ensure new rules passed a basic test of common sense. At times, federal agencies even issued regulations that directly contradicted others already on the books.
Case in point: inconsistent rules surrounding voluntary employee wellness plans.
Employee wellness plans have been around for decades and have typically received bipartisan support. In fact, buried in Obamacare’s hundreds of pages of mandates and failed policies is a free-market provision giving private-sector workers more opportunities to participate in these voluntary plans.
It was one of the few things Democrats got right in an otherwise bad law. Three federal agencies then issued rules implementing the law’s wellness policies. But then, the Equal Employment Opportunity Commission got involved and issued its own set of rules that conflicted with the others.
Now, when employers are implementing wellness policies in their workplaces, they eventually reach a confusing fork in the road. It’s like coming to a stop sign while driving and finding two contradictory signs. One sign reads, “right turn only,” while the other sign reads, “left turn only.” Although both turns seem permitted, no matter which decision drivers make, they could still be punished.
That’s not fair to employers or workers. That is why I introduced the Preserving Employee Wellness Programs Act to reaffirm the wellness policies Congress enacted in 2010 and provide legal certainty.
The word “preserving” is critical. Voluntary wellness plans are currently available to tens of millions of workers and their family members. A 2011 report by the Office of the Surgeon General highlights that every dollar spent on a workplace wellness plan can result in $3.27 in lower medical costs.
Many have seized the opportunity to improve their quality of life and reduce their health insurance premiums. Many others have not. Each individual should be free to choose what is best for his or her family. Nothing under the legislation undermines this fundamental right.
Still, various organizations are spreading fear and misinformation about the bill because they oppose wellness plans altogether. They were silent while this issue was addressed under Mr. Obama’s watch, yet now they seem opposed to workers having this option.
Perhaps the most blatant falsehood is that the bill will force employees to turn over genetic information to their employers. Some have called this a “genetic testing” bill, though the words are nowhere in the legislation.
It may be surprising to learn that the federal law protecting genetic information — the Genetic Information Nondiscrimination Act (GINA) — has always allowed requests for this information as part of voluntary wellness plans. When Republicans and Democrats passed the law in 2008, we trusted workers to decide what’s best for their families.
Genetic information is extremely sensitive, and no one should be forced or coerced into disclosing this information. I supported GINA then and now because it provides strong protections against employment discrimination and imposes robust confidentiality requirements on the use of genetic information. These policies will continue to protect workers under the bill I propose.
If concerned citizens have ideas for improving these protections, please know that I am listening. Unfortunately, the loudest voices today are the so-called experts and special interests who always want to control decisions that are best left to individuals and families. They could care less about the conflicting regulations this bill seeks to address because they don’t like wellness plans and want to deny access to them.
But at the end of the day, this bill was never about the merits of employee wellness plans. That debate already passed when Democrats encouraged employers to expand the use of these plans in the so-called Affordable Care Act.With millions of Americans already enrolled in a voluntary wellness plan, it’s important that employers have clear and consistent rules to follow. Passing legislation to correct the Obama administration’s regulatory incompetency is a common-sense step.