The GOP respects states’ rights—unless your state offers you these workplace benefits.

Lucky Enough to Live in a State With Paid Leave Protections? This Bill Could Take Them Away.

Lucky Enough to Live in a State With Paid Leave Protections? This Bill Could Take Them Away.

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Better Life Lab
The Future of Work, Gender, and Social Policy
Dec. 8 2017 12:54 PM

The GOP Respects States’ Rights, Unless Your State Gives You These Workplace Benefits

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Photo illustration by Lisa Larson-Walker. Photos by Thinkstock.

The GOP has already stripped you of workplace protections at the federal level, and now they’re coming after benefits your state has given you, too. The new Workflex in the 21st Century Act introduced before Congress by California Rep. Mimi Walters would create a voluntary paid leave scheme employers could participate in instead of complying with state and local laws and ordinances on paid leave. There’s precedence for this: Several states have recently (and quietly) moved to pass obscure “pre-emption laws,” which shield employers from complying with city laws such as paid sick days, paid leave, minimum wage laws, and fair work scheduling, that have only been passed to supplement the paltry unpaid offerings guaranteed by the federal government. Yes, the same party who used states rights arguments to pass gay marriage bans, oppose the Affordable Care Act and Environmental Protection Agency regulations, and refuse refugee resettlement are considering using the federal government to block state and local work-family legislation.

The 2017 Workflex Act would amend the Employee Retirement Income Security Act to create what are cynically called “flexible work arrangements,” which would allow employers to ignore their state and local requirements in exchange for voluntarily providing a small amount of paid leave (sick time, vacation time, time off—it’s not specified) to full-time workers. This paid-leave minimum would be anywhere from 12 days for smaller employers with new employees up to 20 days for workers with over five years of experience at the largest firms. However, employers are allowed to subtract six federal holidays from that compensable leave, and none of the benefits apply to employees who’ve worked at an organization for less than a year. Six days of paid time off for a new mom, father of a sick child, or cancer patient, is hardly a solution to the United States’ current last-place status among industrialized countries when it comes to paid leave.

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So despite efforts by states like Washington to pass 12 weeks of paid family and medical leave, the Walters bill could pre-empt it or allow Washington state employers to provide those 12–20 days (to some, not all) instead. States are already well underway in pre-empting local efforts, from minimum wage and firearm laws to paid sick days. The state of Missouri now prevents localities from passing paid-sick-days legislation, for example. Dillon’s rule, which allows states to set health and safety standards that supercede local control (to learn more about your state’s pre-emption efforts, explore here), provides them grounds to do this. An August Economic Policy Institute report highlights 15 states that have passed 28 laws pre-empting local labor standards, specifically as they relate to paid leave, paid sick days, and the minimum wage.

The GOP says it’s bad for business, and therefore bad for workers, to have to comply with patchwork laws. This is the argument of the Society for Human Resource Managers. But there’s a better solution than letting employers opt out of better state and local laws: Pass sweeping federal legislation that improves upon each of these state and local laws so these governments don’t have to invent their own stop-gap programs and policies in the meantime.

At a hearing on Tuesday with the House Subcommittee on Health, Employment, Labor and Pensions, Carrie Lukas, president of the Independent Women’s Forum, an organization aiming to increase “the number of women who value free markets and personal liberty,” spoke in favor of the Workflex Act: “Policymakers’ goal should be to help make it easier for workers to prepare for time away from work and for businesses to provide leave benefits but without discouraging hiring and innovative work relationships,” Lukas concluded. “However, the best way to ensure that workers have the benefits they need is for there to be a growing economy, which offers plentiful job opportunities and rising compensation.”

This means little in real terms other than a hope and prayer for trickle-down economics. Results from the National Study of Employers (ironically, released by the Society for Human Resource Managers, one of the supporters of the Workflex Act) show that most employers don’t currently offer paid family or medical leave. One of Lukas’ alternative suggestions to state and local attempts to remedy this is “personal care accounts”—or bank accounts where people can save their own money to take leave. But this is really only a way the more affluent could pay for leave (some of whom probably already get paid leave through their jobs). With stagnant wages and families unable to afford an emergency expense over $400, personal care accounts seem like a nonanswer to our workplace woes.

It’s unclear whether the GOP will jump on the Workflex bandwagon wholesale. Subcommittee chair Rep. Tim Walberg of Michigan said, “We have questions in this area and we have needs. Questions such as: Can employers be trusted to make good paid time off decisions for both themselves and their employees? Or can we develop productive paid time off legislation that fosters good relations between employees and employers while not violating our constitutional federalism in regards to the state and local primacy, and that is an important question to consider.”

The Walters bill before the House does neither.

Better Life Lab is a partnership of Slate and New America.

Alieza Durana is a senior policy analyst at New America, where she focuses on barriers to equity in housing, education, and family policy.