News & Commentary

February 6, 2018

Yesterday was the 25th Anniversary of the passage of the Family and Medical Leave Act.  The FMLA requires employers to provide eligible employees with 12 weeks of unpaid leave per year, with no threat of job loss.  The Act also requires employers to provide covered employees with the same health benefits they would have had while working.  Approximately 200 million Americans have benefitted from the FMLA since its passage in 1993.  The FLMA is certainly a significant step towards better employee leave policies, but much work still needs to be done.  The FMLA does not apply to employers with fewer than 50 employees or employees that have worked less than 1,250 hours in the last year; as such, approximately two-fifths of workers are not covered by the FMLA.  Furthermore, because the leave is unpaid, many eligible employees do not take advantage of the FMLA.  Some states are filling the gap by providing paid family and medical leave to eligible employees.

Ivanka Trump and Senator Marco Rubio are working together to create a paid family and medical leave program with broad appeal to Republicans in Congress.  Senator Rubio envisions a plan that does not impose mandates on employers and avoids raising taxes to fund paid leave.  Rather, Senator Rubio is developing a plan that would allow employers to draw from their Social Security benefits when they take time off for family-related reasons and delay receipt of their Social Security benefits once they retire.  According to Rubio, the proposal is one Republicans who are skeptical of having companies foot the bill for paid leave would be receptive to.  Meanwhile, Ivanka Trump has considered raising payroll taxes or creating a new personal paid leave fund within Social Security.  Trump’s plan is similar to a proposal Senator Kirsten Gillibrand has championed.  Trump has indicated that she is prepared compromise in order to gain Republican support.

Yesterday, the public comment period on the Department of Labor’s proposed tip rule ended.  The rule has attracted a great deal of attention, garnering over 180,000 comments.  The proposed rule, announced in December, would undo parts of a 2011 regulation that prohibited employers from collecting employee’s tips and giving them to employees who do not ordinarily receive tips.  The new proposal would allow employers to distribute tips to workers who were paid the federal minimum wage.  The New York Times assessed some of the pros and cons of the proposed rule.  The restaurant industry supports to the new regulation, arguing that employers could tip employees who work behind the scenes.  However, labor advocacy groups claim that the new rule would allow income transfers from workers to employers, allowing employers to pocket tips.  The new regulation could lead to significant financial loss for tipped workers.  Some suggest that even if employers did redistribute tips, previously untipped workers may see their base pay reduced and end up taking home the same in wages as they would have without the regulation.  Former restaurant workers have also voiced concerns about the rule’s effect on wages and potential wage theft.  The Department of Labor did not provide an analysis of the expected costs and benefits of the rule when it released the proposal, but there is some indication that the agency shelved an internal report showing that workers could lose billions in gratuities.  For more consideration of the proposed rule, read here.

The New York Times explored how Medicaid work requirements could prove particularly burdensome for transgender workers.  The unemployment rate among trans people is three times higher than the national average; the number is in part due to anti-trans discrimination.  Even when trans workers are able to overcome barriers to employment, many lose their jobs due to explicit and implicit bias in the work place.  Work requirements put trans people who benefit from Medicaid in the difficult position of finding a job in a market rife with discrimination or losing health benefits.  Trans people are likely to be left vulnerable to continued discrimination, as most of the states considering work requirements are among the states that do not consider gender a protected category under anti-discrimination laws.

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