Whether you are an HR professional, business owner or manager are you not impacted on a daily basis by federal, state and/or local legislation, regulation or litigation? Think about it. Every minute that an employee works liability is incurred for one or more potential wage and hour violations: are you recording the time properly? Retaining all records required? Paying completely and timely? Every word, email, comment, duty and responsibility can seem fraught with peril. Don’t ask the wrong question or risk violating HIPAA, GINA, ADA, Title VII or myriad state or local laws. In 2012, Senator Harkin asked near the close of a hearing on Stay at Work and Return to Work Strategies, “Why don’t employers do more?” My answer? It is not for a lack of desire but from the result of walking on eggshells; sometimes it is easier to do nothing than to risk doing the wrong thing, even with the best of intentions.
So we have no doubt that it is incumbent upon us to shape public policy through advocacy. But how? I’ve been blessed and had the fortune of learning from so many over the years who know so much more than I, including many of you who may be reading this. In just the last month I’ve had the honor and privilege of speaking four times between Capitol Hill and my state’s little hill on employment issues (thanks @SHRMATeam @MDSHRM). My first advocacy encounter was in 1994 – a state workers’ comp bill. Each and every time since then I have learned something new. I also find some basics steps support and guide me.
Bill sponsors are generally no less passionate about their issue than we are about ours, whether advocating in support of, against or trying to negotiate technical corrections. Finding the shared interests can help lay a foundation from which to work. One key is in understanding and engaging in a dialogue of: (1) What versus How; (2) Whom; (3) Why; and (4) Alternatives. Understanding why a legislator holds a particular position on a bill can go great length in generating new options for meeting shared goals. A great book on this is Fisher & Ury’s “Getting to Yes” – one chapter addresses how to bargain over interests (why you want something) rather than positions (what you want). We can apply these talking points to any issue: immigration, health care reform, paid leave mandates, etc. Here’s my recent example.
My home state of Maryland currently has a leave bill under consideration. It mandates paid leave be provided by employers employing more than 9 employees and unpaid leave by employers with nine or fewer employees. It proposes to require how much leave must be provided; for what reasons it must be provided; for whom it must be provided including temporary and part time employees working at least eight hours per week; when it must begin to accrue; how much must roll over from year to year; reinstatement of any unused balance upon rehire within one year; and more.
What versus how: All key stakeholders shares at least one thing in common we believe – providing paid leave is good for employers and employees. It is a question of how we do that. Our position is that when we try to regulate who, what, how much, when, and for whom leave is to be provided we are likely to fall short of our goal. Today Maryland employers must already comply with at least 11 leave mandates under federal and state law – 11! – not to mention the patchwork of other state and local laws for multi-state employers. If those mandates have not yet provided what our employees need, we suspect one more mandate will not get us there.
Whom are we trying to serve and support? Paid leave is not just a women’s issue; it is not just a parents’ issue. It’s an employee issue. What do we say to our employee who needs time off to bid farewell to his or her spouse who is leaving for active duty tin the Uniformed Services? Or returning home from service with an injury? Or who just lost a loved one? Is that employee’s need for paid time off any less compelling or deserving that the needs listed in a sick leave bill? When we try to provide for one or some we exclude others. Employers are the best barometer for assessing how it can support the needs of its employees – all of them, not our legislators.
Why do we want this; what’s our goal? With regard to paid leave we heard much testimony touting research that shows that paid leave programs improve workplace wellness. Ironically, at one of the hearings a proponent of the bill testified that she was sick and had come to the hearing despite her employer’s recommendation that she stay home. I have clients who tell me they currently carry balances in their A/P column of several $100,000 to over $1M in accrued, unused paid leave. Employees with access to paid leave do and will continue to come to work instead of using such leave. So we need to consider that this bill might not meet its intended goal of advancing workplace wellness.
Alternative Proposal: Instead of a (paid) leave mandate we encouraged a dialogue with key stakeholders to develop a public policy model for employers that might serve as a national model. The tenets of the proposed bill (with some technical corrections) would be the framework for the public policy. Then an incentive could be offered to any employer that provides a paid leave program that meets all the elements of the bill. That incentive might be a tax credit, safe harbor or something else.