SHRM'S 2018 GUIDE TO PUBLIC POLICY ISSUES - advocacy.shrm.org
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SHRM’S 2018 GUIDE TO PUBLIC POLICY ISSUES advocacy.shrm.org
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of leading multinational corporations,
universities and research institutions
committed to advancing the employment-
based immigration of high-skilled
professionals. CFGI bridges the public
and private sectors to promote sensible,
forward-thinking policies that foster
innovation and global talent mobility.
2 2018 SHRM Guide to Public Policy Issues
Advancing the Workplace Through Public Policy
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2018 SHRM Guide to Public Policy Issues 3
HR POLICY ACTION CENTER
ADVOCACY.SHRM.ORG
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TABLE OF CONTENTS
6 BACKGROUND INVESTIGATIONS
8 CIVIL RIGHTS
10 COMPENSATION EQUITY
12 EMPLOYMENT-BASED
IMMIGRATION
14 EMPLOYMENT VERIFICATION
16 HEALTH CARE
18 LABOR AND EMPLOYMENT
20 LABOR-MANAGEMENT
RELATIONS
22 RETIREMENT SECURITY AND
EMPLOYER-SPONSORED
BENEFITS
24 WORK-BASED LEARNING
26 WORKPLACE FLEXIBILITY
28 SHRM GOVERNMENT AFFAIRS
STAFF
29 COUNCIL FOR GLOBAL
IMMIGRATION STAFF
BACKGROUND
INVESTIGATIONS
BACKGROUND: HR professionals Recent action on background checks
ensure that new hires possess the talent, has occurred primarily on the state level.
work ethic and character needed for Eleven states and the District of Columbia
the organization’s success. Background currently limit employers’ use of credit
investigations, including reference information in employment: California,
checks, credential or educational Colorado, Connecticut, Delaware, Hawaii,
certification checks, criminal history Illinois, Maryland, Nevada, Oregon,
checks, credit checks, and drug tests, can Vermont and Washington. Thirty states
play a pivotal role in the hiring process. plus D.C. have adopted “ban-the-box”
restrictions, which require employers to
The Fair Credit Reporting Act of 1970 remove from employment applications
(FCRA) governs the use of consumer the check box that asks about the job
reports and has explicit protections for applicant’s criminal convictions. These
consumers. Further, Title VII of the Civil states are Arizona, California, Colorado,
Rights Act of 1964 bars employment Connecticut, Delaware, Georgia, Hawaii,
decisions based on policies or tests, Illinois, Indiana, Kentucky, Louisiana,
such as credit or criminal background Maryland, Massachusetts, Minnesota,
checks, that have a disparate impact on Missouri, Nebraska, Nevada, New Jersey,
protected groups. New Mexico, New York, Ohio, Oklahoma,
Oregon, Pennsylvania, Rhode Island,
ISSUE: In his 2018 State of the Union Tennessee, Utah, Vermont, Virginia,
address, President Donald Trump and Wisconsin. Ten of these jurisdictions
expressed support for “reforming our expand the requirement beyond
prisons to help former inmates who have public employers to include private-
served their time get a second chance.” sector employers.
An integral part of this second chance
is a renewed focus on the appropriate OUTLOOK: Given the bipartisan interest
use of background checks to evaluate in criminal justice reform, Congressional
prospective employees. action on this issue could advance,
including possible restrictions on the use
of criminal reports. We also anticipate
that Department of Labor’s interest in
revitalizing apprenticeships will include
those individuals who were formerly
incarcerated.
6 2018 SHRM Guide to Public Policy Issues
SHRM POSITION: SHRM and its TALKING POINTS
members have a long tradition of
promoting equal employment opportunity
practices for all individuals. Employment SHRM supports preserving
««
decisions should be made on the basis employers’ ability to conduct
of qualifications—education, training, background checks for
professional experience, demonstrated employment purposes. These
competence—not based on non-job- checks serve as an important
related characteristics. means to promote a safe and
secure work environment for
There is, however, a compelling
employees and the general
public interest in enabling our nation’s
public.
employers to make the best hiring
decisions possible. An employer’s ability
SHRM believes proposals to
««
to conduct background checks helps
“ban the box” on employment
ensure a workplace free of physical,
applications should not
financial, economic and personal
identity threats to employees and
unintentionally restrict an
the general public. For this reason, employer’s ability to conduct a
employment decisions should include background check during the
a careful analysis of whether a job employment process.
candidate’s convictions are relevant to
the job in question based on the Equal SHRM supports public
««
Employment Opportunity Commission policies that facilitate the
(EEOC) guidelines. In addition, proposals flow of accurate, truthful and
that “ban the box” on an employment relevant information about job
application should not unintentionally candidates.
restrict an employer’s ability to conduct
a background check. The FCRA already SHRM supports protections for
««
protects consumers by requiring employees and job applicants
companies to get written permission that are found in the Fair Credit
from job candidates before conducting Reporting Act of 1970, Title
a background check. In addition, VII of the Civil Rights Act of
employers are barred by Title VII from 1964 and EEOC enforcement
using background checks to screen
guidance on the consideration of
out job applicants based on protected
arrest and conviction records in
characteristics such as race, ethnicity or
employment decisions.
gender.
2018 SHRM Guide to Public Policy Issues 7
2017CIVIL RIGHTS BACKGROUND: Title VII of the Civil an organizational culture change, fails Rights of 1964, the Americans with to prevent harassment because it is Disabilities Act, the Genetic Information “too focused on simply avoiding legal Nondiscrimination Act and other federal liability.” In cases that involved sexual laws prohibit employment discrimination harassment, three out of four individuals on the basis of race, color, national never raised the issue of harassment origin, sex, religion, disability, age with their supervisor, manager or union and genetics. Despite these legal representative out of fear of retaliation or protections, the Equal Employment disbelief of their claim. Opportunity Commission (EEOC) receives thousands of discrimination ISSUE: The issue of sexual harassment complaints each year. In addition, in the workplace has been front and according to the Report of the Co- center in our national conversation in Chairs of the EEOC Select Task Force 2017. Media attention and the #MeToo on the Study of Harassment in the campaign, along with the work of the Workplace (June 2016), one-third of the EEOC, have led to an increased focus total charges received in 2015 included on the role of workplace culture in a claim of workplace harassment. To preventing harassment. In addition, the more fully examine these statistics, the U.S. Congress, several state legislatures EEOC in 2016 established its Select Task and other high-profile workplaces are Force on the Study of Harassment in the re-examining their harassment policies to Workplace. The Task Force concluded ensure fairness for employees at all levels that sexual harassment training, without of the organization. 8 2018 SHRM Guide to Public Policy Issues
OUTLOOK: Legislation has been TALKING POINTS
introduced in the 115th Congress
that would prohibit employers from
enforcing mandatory arbitration SHRM is committed to
««
agreements for sexual harassment and encouraging fair and consistent
sex discrimination claims. In addition, employment practices and
the House of Representatives recently believes that employment
passed legislation to require annual decisions should be made
sexual harassment training for Members based on job qualifications such
of Congress and their staff and to make
as education, experience and
Members of Congress personally liable
demonstrated competencies,
for payments of settlement or injury.
not on non-job-related
SHRM is working with the National
Conference of State Legislatures to
characteristics.
provide training to lawmakers and staff
SHRM supports employers’
««
on workplace harassment and resolution.
efforts to create workplace
SHRM’s CEO Johnny C. Taylor, Jr., also
testified before the California Legislature
cultures that do not tolerate
on reforming harassment policies and the discrimination or harassment.
importance of healthy workplace culture.
SHRM believes employers
««
SHRM POSITION: SHRM has a proud
should have effective anti-
record of working to end discrimination harassment policies that
in the workplace and believes that any enable quick and thorough
misconduct against an employee should investigations of harassment
be resolved promptly. SHRM supports complaints and hold perpetrators
a discrimination- and harassment-free accountable.
workplace. SHRM believes employers
should have effective anti-harassment SHRM advocates for public-
««
policies that enable thorough policy proposals to ban
investigations of harassment complaints workplace discrimination based
and hold perpetrators accountable. In on sexual orientation and gender
addition, employers should work toward identity.
creating a workplace culture that does
not tolerate discrimination or harassment. SHRM supports public-policy
««
proposals that promote an
accessible, prompt and fair
resolution of harassment
claims in the workplace while
protecting confidentiality and
due process.
2018 SHRM Guide to Public Policy Issues 9
2017COMPENSATION
EQUITY
BACKGROUND: Title VII of the Civil OUTLOOK: Although the White House
Rights Act of 1964, the Americans has not offered any policy proposals,
with Disabilities Act of 1990, the Age President Donald Trump has said that he
Discrimination in Employment Act of 1967 supports equal pay for equal work, and
and the Equal Pay Act of 1963 are among Ivanka Trump has been a vocal proponent
the laws that prohibit wage discrimination of pay equality. In Congress, House
in the workplace. Generally speaking, and Senate Democrats reintroduced
jobs that have the same functions and the Paycheck Fairness Act (PFA) that
similar working conditions and that would amend the Equal Pay Act and
require substantially the same skills must allow employers to base employee pay
be compensated equally with allowable differentials only on seniority, merit and
pay differences based on factors such production and shift the burden of proof
as experience, qualifications, seniority, making it easier for plaintiffs to challenge
geographic location and performance. employer pay practices. Given Republican
majorities in both houses, it is unlikely
ISSUE: Despite these protections, the the PFA will move forward in the current
EEOC compensation discrimination Congress.
compliance manual notes that “pay
disparities persist between workers Multiple states, including California,
in various demographic groups.” Delaware, Oregon and Massachusetts,
For example, 2017 Bureau of Labor a growing number of cities and the
Statistics data show women who were Commonwealth of Puerto Rico have
full-time wage and salary workers had passed some form of pay equity
median weekly earnings of $767, which legislation. Many include a prohibition
is approximately 81.9 percent of the on asking about a job candidate’s
median weekly earnings of male full- salary history. Some include a concept
time wage and salary workers ($937). that appears close to or approaching
For policymakers, the challenge is “comparable worth,” which requires
understanding how much of the pay that jobs with comparable skills and
disparity between groups is attributable to responsibilities or that are of comparable
discrimination, legitimate pay practices or worth to the employer be paid the same.
other workplace dynamics, as well as what Another emerging trend is the inclusion
policy changes might help address it. of a safe harbor for employers that
conduct voluntary self-evaluations of pay
and are actively working to address any
discrepancies.
10 2018 SHRM Guide to Public Policy IssuesSHRM POSITION: SHRM believes that TALKING POINTS
employees should be compensated
equitably and without discrimination.
SHRM vigorously supports equal pay SHRM believes that pay
««
for equal work and believes that any decisions should be made
improper pay disparities should be based on bona fide business
promptly addressed. SHRM believes factors and not based on non-
that in determining pay employers job-related characteristics. Any
should have the flexibility to reward improper pay disparities should
employees by taking into consideration
be promptly addressed.
legitimate pay factors, such as education,
qualifications, relevant experience, SHRM supports public-policy
««
skills, seniority, geographic location, efforts that foster a single
performance and any collective
standard for establishing pay
bargaining agreements.
equity, rather than navigating
different standards at the
In addition, SHRM believes that although
it does not entirely explain differences
federal, state and local levels.
in pay, an overreliance on salary history
SHRM advocates for federal
««
has contributed to perpetuating the wage
standard of equal pay for
gap. For this reason, SHRM believes that
HR professionals should use alternative
equal work and opposes
ways to engage job candidates to efforts to equate different jobs
reach an agreement on pay by asking, using “similarly situated” or
for example, for a candidate’s salary “comparable worth” standards.
expectation rather than salary history.
SHRM also believes providing employers SHRM encourages employers to
««
with a safe harbor serves as an effective educate applicants or employees
incentive to conduct proactive pay on their compensation practices
analyses and identify and address any by sharing compensation for
improper pay disparities. Moreover, SHRM the position, total compensation
believes flexible workplace policies, the philosophy, pay structure
ability for employees to discuss pay, and and the factors taken into
policies that support transparency in how consideration in pay decisions.
pay decisions are made are important
aspects of pay equity.
2018 SHRM Guide to Public Policy Issues 11EMPLOYMENT-BASED
IMMIGRATION
BACKGROUND: In an increasingly and Hire American” (BAHA) executive
interconnected world, access to talent order, instructing federal agencies to
is vital for employers to address the issue new immigration rules and guidance
skills gap. To remain competitive, many to protect the interests of U.S. employees,
employers use employment-based including prevention of fraud or abuse.
visas to recruit, hire, transfer and retain BAHA also instructed agencies to
employees. However, today’s immigration recommend reforms to the H-1B program
system is plagued with backlogs, arbitrary to ensure visas are awarded to the “most-
caps, inconsistencies and delays. As skilled or highest-paid” beneficiaries.
the world of work rapidly evolves,
policymakers must create fair, innovative OUTLOOK: This year, any immigration
and competitive employment-based changes are most likely to come from the
immigration policies that benefit U.S. federal agencies, including elimination of
employers and their workforces. work authorization for all H-1B dependent
spouses, tightening of H-1B eligibility crite-
ISSUE: Organizations of every shape, ria and reforming the lottery, limitations on
size and industry confront challenges optional practical training for graduates
in finding the right employees with of U.S. universities, and restrictions to J-1
the right skills to fill specific positions. exchange visitor programs.
According to SHRM’s 2016 report The
New Talent Landscape, 68 percent of Congress is pursuing a Deferred Action
HR professionals have difficulty recruiting for Childhood Arrivals (DACA) solution,
for full-time regular positions, particularly as the Trump administration announced
jobs that require medical, scientific, plans to phase out the program as of
math, IT and leadership skills. There is no March 5, 2018. However, legal challenges
single solution for addressing the skills have allowed individuals to continue filing
gap, but employment-based immigration for DACA extensions, and the litigation
is a central piece of our country’s is unlikely to be resolved before next
larger workforce policy. A modern year. Any final DACA deal may include
immigration system is critical to ensuring elements of the President’s proposal,
competitiveness. such as border security funding, limits
to family-sponsored immigration and
President Donald Trump is adjusting elimination of the diversity visa lottery,
immigration policy, focusing on national thereby reallocating green cards to clear
security, interior enforcement and backlogs. However, any such legislation
employment-based immigration. On April would be a challenge to get enacted
18, 2017, Trump signed the “Buy American given the makeup of Congress and the
12 2018 SHRM Guide to Public Policy Issuesslim Republican majority in the Senate. TALKING POINTS
The president has called on Congress
to find a solution to DACA before it turns
to other immigration reforms that could SHRM and CFGI support policies
««
include mandatory, nationwide E-Verify that invest in and develop the
and employment-based immigration. U.S. workforce, prioritizing visas
for employers that are growing
SHRM POSITION: SHRM and its affiliate the U.S. workforce and investing
the Council for Global Immigration (CFGI) in the education and training of
support policies that ensure the U.S.
U.S. employees.
workforce can compete in an increasingly
complex and interconnected world. SHRM and CFGI support
««
We call on policymakers to create fair, enforcement of existing
innovative and competitive employment-
immigration laws that allow
based immigration policies that benefit
employers to hire a legal
employers and the workforce. Ultimately,
workforce.
our immigration system must support
U.S. employers in their efforts to fill skills
SHRM and CFGI believe that
««
gaps and access the best talent, along
policies must support U.S.
with enhanced protections, education and
employers in their efforts to
training for U.S. workers.
recruit, hire, transfer and retain
SHRM and CFGI specifically support the employees they need from
enacting a Trusted Employer program around the world to innovate
that creates efficiencies for low-risk and grow the U.S. economy.
and immigration-compliant employers.
In addition, we support enforcement of SHRM and CFGI support solu-
««
existing immigration laws against bad tions that increase our em-
actors, not employers acting in good faith. ployment-based immigration
Finally, policymakers must recognize system’s effectiveness and
that employers are best-positioned to predictability, such as a Trusted
determine their skills and workforce Employer program.
needs and must ensure that employers
have enough visas to recruit, hire, transfer
and retain high-skilled foreign national
professionals, especially those educated
and trained in the United States, to
innovate and grow the U.S. economy. This
requires changes for employees seeking
green cards and for temporary workers in
the United States. SHRM and CFGI work
with the Compete America coalition as
part of our efforts to achieve increased
access to top foreign-born talent.
2018 SHRM Guide to Public Policy Issues 13
2017EMPLOYMENT
VERIFICATION
BACKGROUND: The Immigration and secure U.S. borders. Although U.S.
Nationality Act makes it unlawful for an employers are committed to hiring only
employer to knowingly hire or continue to work-authorized individuals, today they
employ someone who is not authorized are confronted with a patchwork of
to work in the United States. Federal law federal and state employment verification
requires employers to examine numerous requirements that are confusing and that
documents presented by new hires to can be defeated by workers presenting
verify identity and work eligibility and to stolen identities. U.S. employers need
attest to that examination on Form I-9. one reliable, national, entirely electronic
As of 2009, certain federal contractors and integrated employment verification
must use the employment eligibility system that uses state-of-the-art
verification system known as E-Verify technology to accurately authenticate a
for employees hired during a federal new hire’s identity.
contract and employees assigned to that
contract. In addition, 21 states and various OUTLOOK: The Trump administration
localities require the use of either E-Verify announced that the Deferred Action
or a specified alternative by some or all for Childhood Arrivals (DACA) program
employers. Even if using an electronic will be phased out as of March 5, 2018,
verification system, the employer must although court rulings have temporarily
still complete Form I-9 for every newly allowed renewals to continue. President
hired employee. The E-Verify program Donald Trump and Congress are pursuing
has been reauthorized through March 23, a bipartisan legislative solution; however,
2018. nothing is guaranteed. A final deal could
include a solution to provide legal status
ISSUE: E-Verify, which relies on the for DACA recipients and/or those who
Social Security Administration and the are DACA-eligible, resources for border
Department of Homeland Security security, limits to family-based migration
databases to confirm work authorization, and elimination of the diversity visa green
lacks sufficient security features to card program, reallocating eliminated
protect employers from persons using green cards for backlog use. Proposals
fraudulent identities to work. E-Verify to address these issues could also
continues to rely on paper documentation include proposals to mandate E-Verify
that is susceptible to theft, forgery and for all employers. Alternatively, Trump
alteration and that cannot be verified may pursue executive action aimed at
for authenticity. Effective worksite expanding and incentivizing employers’
enforcement is central to efforts to use of E-Verify. Absent congressional
14 2018 SHRM Guide to Public Policy Issuesaction, additional states and localities TALKING POINTS
could enact measures to require E-Verify
as part of the employment verification
process. SHRM and CFGI share the goal
««
of a legal workforce, which must
SHRM POSITION: SHRM and its affiliate be a key element of any effective
the Council for Global Immigration (CFGI) immigration policy.
support policies that provide employers
with modern tools that eliminate SHRM and CFGI support a
««
redundancies and build upon E-Verify’s reliable, entirely electronic and
success. Although the U.S. Citizenship integrated employment eligibility
and Immigration Services (USCIS) should verification system operated
be commended for the improvements by the federal government
it has made to E-Verify, the program
that provides employers with
requires additional changes to be truly
certainty that new employees
effective as a deterrent to prevent
are authorized to work.
unauthorized employment. SHRM and
CFGI believe that congressional reforms
SHRM and CFGI urge Congress
««
should pre-empt the patchwork of
to improve E-Verify to include
state laws with one reliable, national
an electronic verification system
and entirely electronic and integrated
employment verification system; use that will eliminate virtually all
state-of-the-art technology to accurately unauthorized employment,
authenticate a new hire’s identity; ensure provide security for employers,
a safe harbor from liability for good-faith protect the identity and personal
program users; and require employment information of legal workers
verification only for new hires. SHRM and through identity authentication
CFGI lead an employer coalition aimed tools, and prevent employment
at achieving our employment verification discrimination based on national
goals. origin.
2018 SHRM Guide to Public Policy Issues 15
2017HEALTH
CARE
BACKGROUND: Employer-sponsored care costs through voluntary wellness
health insurance is the foundation of programs have been hampered by
health care coverage in the United an uncertain regulatory environment,
States, providing quality, affordable particularly with regard to the allowable
health benefits to more than 178 million size of financial incentives.
Americans. However, since the enactment
of the Affordable Care Act (ACA), OUTLOOK: Although “repeal and
implementation of its requirements has replace” of the ACA was a priority
remained challenging for employers due for President Donald Trump and the
to the complexity of the law, delays in Republican-controlled Congress in 2017,
effective dates of certain provisions, and it proved to be both procedurally and
coverage and reporting requirements. structurally problematic, halting efforts to
While the employer coverage mandates fully repeal the ACA. Congress instead
and state public exchange plans remain will focus on more targeted modifications
in effect, the individual mandate penalty to the law to address affordability,
has been reduced to zero and the 40 coverage and quality of care. For
percent excise tax on employers that example, on Dec. 22, 2017, Trump signed
provide high-value health plans, known as into law the Tax Cuts and Jobs Act,
the “Cadillac tax,” is delayed. In addition, reducing the individual mandate penalty
health care costs continue to rise for under the ACA to zero, effective in 2019.
employers and employees alike. In addition, on Jan. 22, 2018, Trump
signed into law a stopgap government
ISSUE: As a result of the rising costs of funding bill, which included the delay of
coverage and the excise tax threat, many several ACA taxes, including the “Cadillac
organizations are changing their health tax,” now set to become effective in 2022.
care offerings to include health savings
accounts, private exchanges, wellness Health care reform proposals likely to
programs and disease management move forward in the second session
programs. In addition, some employers of the 115th Congress include the
eliminated health care coverage for delay of employer mandate penalty
part-time employees, while others and changes to ease the compliance
have re-engineered staffing models to reporting requirements for employers
reduce employee hours below the 30- offering health insurance. Furthermore,
hour threshold for coverage under the as lawmakers seek to reduce health
ACA. Furthermore, employers’ efforts care costs and encourage consumerism,
to improve employee health, enhance proposals to repeal restrictions on the
productivity and help control health use of and limitations on contributions
16 2018 SHRM Guide to Public Policy Issuesto health savings accounts are likely to TALKING POINTS
receive consideration.
In addition, regulatory guidance from SHRM supports full repeal of the
««
the Department of Labor, Department ACA excise tax on high-value
of Health and Human Services and the
employer-sponsored health
Treasury Department, as well as from the
plans.
Internal Revenue Service—the agencies
responsible for the ACA oversight—is SHRM supports preservation
««
likely to be increased. On Jan. 20,
of the current tax treatment of
2017, Trump issued an executive order
employer-sponsored health
directing federal agencies to minimize
regulatory burdens of the ACA where
plans.
possible. Regulatory guidance may
SHRM supports defining “full-
««
include employer reporting requirements
time” employment for purposes
and final regulations on the expansion
of “association health plans” (AHPs).
of health care coverage to be 40
Furthermore, the Treasury Department hours per week, consistent with
is likely to issue draft regulations to the Fair Labor Standards Act’s
modify the rules on health reimbursement overtime requirement.
arrangements to cover more out-of-
pocket health care expenses. Lastly, SHRM supports wellness
««
the Equal Employment Opportunity initiatives and public policy that
Commission’s rules regarding the facilitates their adoption.
financial incentives employers can offer
employees in wellness programs were SHRM supports efforts to reform
««
vacated, and the agency is expected to medical malpractice.
release new regulations in the fall.
SHRM POSITION: SHRM supports
reforms that lower health care costs
and improve access to high-quality and
affordable coverage. The Society believes
that congressional reforms should
strengthen and improve the employer-
based health care system.
««
««
««
2018 SHRM Guide to Public Policy Issues 17
2017LABOR AND
EMPLOYMENT
BACKGROUND: Under the Fair Labor ISSUE: The 2016 overtime rule would
Standards Act of 1938 (FLSA), employees have dramatically increased the salary
are to be paid at a rate of at least one threshold to qualify for overtime pay
and a half times their regular rate for and would have established a new
any hours worked over 40 in a week, mechanism to automatically update the
unless they have been classified as threshold every three years. Just days
exempt under certain specific statutory before the final rule’s implementation
categories or meet other requirements date, a federal district court judge
in the regulations. Under Section 541 issued a preliminary injunction. This
of the FLSA regulations, an employee injunction provided the incoming
may qualify as exempt from overtime Trump administration an opportunity to
requirements if he or she satisfies a reconsider how to best update the FLSA
“primary duties test” (performs specific exemptions. In July 2017, the DOL issued
job responsibilities under the executive, a Request for Information (RFI) soliciting
administrative, professional, computer input from the public on many of the
and outside sales regulations); is paid provisions of the rule, including setting
on a salary basis (that is, salary does not the salary level, analyzing the duties
fluctuate based on the hours that the test, varying the test based on the cost
individual works); and is paid above a of living in different parts of the country,
salary threshold set by regulation. automatically updating the salary level,
and including nondiscretionary bonuses
The Trump administration has placed and incentive payments to satisfy a
an emphasis on easing regulatory portion of the salary level.
burdens, especially those that impact the
workplace. In June 2017, the Department OUTLOOK: In its most recent regulatory
of Labor (DOL) rescinded Administrator’s agenda, the DOL indicated it will review
Interpretations on joint employment and comments it received in response to
independent contractors, two pieces of the RFI, including those submitted by
informal agency guidance that were part SHRM, and issue a notice of proposed
of a shift in the interpretation of wage and rulemaking by October 2018.
hour law in the previous administration.
18 2018 SHRM Guide to Public Policy IssuesSHRM POSITION: SHRM supports an TALKING POINTS
update of the salary level, but one that
follows previous methodology to achieve
a more equitable increase. The 2016 SHRM agrees that the salary
««
rule’s salary increase of over 100 percent threshold to qualify for overtime
was too far and too fast and would should be raised but believes
have presented particular challenges that a more reasonable increase
for employers whose salaries tend to is appropriate to avoid long-
be lower, such as small employers, term, negative impacts on
nonprofits, employers in certain industries
the workplace, especially for
and employers in certain geographic
the nonprofit sector, small
regions of the country that tend to have
businesses and employers in
lower costs of living.
geographic areas with lower
Of equal concern, SHRM opposes any costs of living.
automatic increases. Such increases
SHRM opposes automatic
««
ignore economic variations of industry
and location and make it hard for HR to
increases, which have been
manage merit increases for employees considered and rejected by
near the salary level. the DOL in the past. Automatic
increases ignore economic
variations of industry and
location.
SHRM supports revising the
««
rule through new rulemaking
to eliminate the automatic
escalator and propose a more
reasonable update to the
salary level.
2018 SHRM Guide to Public Policy Issues 19
2017LABOR-MANAGEMENT
RELATIONS
BACKGROUND: Private-sector employment status under the NLRA
unionization rates continue to decline. that had been established under the
According to the Bureau of Labor Browning-Ferris decision. The Hy-
Statistics, only 6.5 percent of people Brand standard re-established that joint
working in the private sector in 2017 were employment can only be found where
members of a union. Furthermore, the two or more entities actually “share or
overall U.S. workforce union membership codetermine those matters governing
rate was 10.7 percent in 2017, down the essential terms and conditions of
from 20.1 percent in 1983. The National employment.” In February, however, the
Labor Relations Act of 1935 (NLRA) NLRB vacated the decision following an
states that a union can be certified as Inspector General determination that
the exclusive collective bargaining agent the NLRB’s member, William Emanuel,
for an organization’s employees in one should have recused himself due to
of two ways: a secret-ballot election or, his former law firm’s involvement in
under limited circumstances, a “card the original case. In PCC Structurals,
check” process, in which a majority of Inc., the NLRB reinstated the traditional
employees in a specific work unit sign a community of interest standard to be
card authorizing a union to represent their used when determining whether unions
collective interests. Although the National have included all necessary employees
Labor Relations Board (NLRB) 2015 data on a petition for union representation,
reveal that unions won 69 percent of reversing the Specialty Healthcare
all representation elections, union win “micro-bargaining units” decision that
percentage was virtually unchanged required an “overwhelming community
from the previous year, even though the of interest” standard. In another crucial
“ambush” election rule had taken effect, decision, The Boeing Company decision,
which drastically shortened the timeframe the NLRB adopted expanded standards
and changed the process and procedures for determining whether facially neutral
for union elections. workplace rules, policies and employee
handbook standards unlawfully interfere
ISSUE: In December 2017, with a 3-2 with the exercise of NLRA-protected
Republican majority, the NLRB reversed employee rights, overturning the Lutheran
key workplace rules and decisions that Heritage decision, which solely focused
were promulgated under the Obama on whether employees could “reasonably
administration. In Hy-Brand Industrial construe” a rule to restrict their rights. On
Contractors, Ltd., the NLRB overturned the eve of Chairman Philip Miscimarra’s
its standard for determining joint term as Board Chair expiring, the NLRB
20 2018 SHRM Guide to Public Policy Issuesissued a Request for Information (RFI) TALKING POINTS
soliciting input from the public on the
amendments to representation case
procedures, commonly known as the SHRM believes a secret ballot
««
“ambush” election rule. is the best means of protecting
employees from coercion or
OUTLOOK: Once all President Donald other pressures in deciding
Trump’s NLRB nominees are confirmed, whether to join a labor union.
we anticipate the Board will review the
comments from the “ambush” election RFI SHRM supports public policy that
««
and issue a new proposed rule on union protects an employer’s ability
elections. In addition, the U.S. House to create reasonable workplace
of Representatives passed the Save policies for labor-management
the Local Business Act by a bipartisan
relations.
vote that would codify the direct control
standard established under the joint
employer definition. As a member of the
Coalition for a Democratic Workplace,
SHRM supports Senate passage of this
legislation.
SHRM POSITION: SHRM believes in
the fundamental right—guaranteed by
the NLRA—of every employee to make
a private choice about whether to join a
union.
2018 SHRM Guide to Public Policy Issues 21
2017RETIREMENT SECURITY AND
EMPLOYER-SPONSORED BENEFITS
BACKGROUND: A comprehensive fringe benefits, including retirement plans,
employer-sponsored benefits package is health care benefits and educational
a key component that employers use to assistance programs, were largely
attract and retain top talent. Employers preserved, the new law does alter the
carefully construct a benefits package tax treatment of other benefits, including
that reflects the needs and demands of moving, parking/transit or biking, meals
their specific workforce. Fringe benefits, and on-site gym benefits, which are no
such as subsidies for parking and transit, longer a deductible business expense for
tuition assistance for undergraduate for-profit organizations. Employees now
and graduate degrees, and wellness must include moving benefits and biking
incentives, are an important part of a subsidies provided by their employer in
thoughtful, comprehensive benefits their taxable income.
package.
OUTLOOK: Now that comprehensive
Two of the most widely used benefits tax reform has been enacted, federal
are employer-provided health care and agencies must implement the law through
retirement savings plans. According to the rulemaking in 2018. Congress will need
SHRM 2017 Employee Benefits research to act on a “technical corrections”
report, 85 percent of employers offered bill to amend specific provisions of
a preferred provider organization (PPO) the massive new law early in 2018. In
health care plan, and 55 percent offered a addition, a tax “extenders” package will
health savings account—up 5 percentage likely see action to address other tax
points from 2016. In terms of retirement changes that were not included in tax
options, 90 percent of employers reform. This “extenders” package could
surveyed provided a defined contribution include two SHRM-supported bipartisan
retirement plan, and 24 percent provided proposals to expand employer-provided
a defined benefit pension plan. Employer- educational assistance under Section 127
sponsored retirement plans are the main of the Internal Revenue Code. H.R. 795,
conduit for employees to save for a Employer Participation in Student Loan
financially sustainable retirement. Assistance Act, would expand Section 127
to include student loan repayment, and
ISSUE: The Tax Cuts and Jobs Act S.2007 & H.R. 4135, the Upward Mobility
(Public Law 115-97) enacted in 2017 Enhancement Act, would expand Section
maintained the tax-free status of many 127 to $11,500 per calendar year.
employee benefits while modifying
others. Although employer-sponsored
22 2018 SHRM Guide to Public Policy IssuesSHRM POSITION: SHRM believes that TALKING POINTS
a comprehensive and flexible benefits
package is an essential tool in recruiting
and retaining talented employees. In SHRM believes a comprehensive
««
addition, SHRM believes that a bedrock employer-sponsored benefits
of sound fiscal and savings policy is package is a key component
ensuring that every U.S. employee has that employers use to attract and
the opportunity to save and plan for retain top talent.
retirement and protect his or her family’s
health. SHRM supports tax incentives
««
to expand access to and
Public-policy efforts at both the federal participation in these plans.
and state levels should focus on
expansion of and access to benefits, SHRM supports expansion of
««
including retirement accounts, health Section 127 because this benefit
care and employer-provided education facilitates investment in the
assistance. SHRM strongly supports workforce and ensures a talent
bipartisan legislation to expand Section
pipeline as employers look to
127.
innovate and compete globally.
As part of our advocacy efforts, SHRM
chairs the Coalition to Protect Retirement,
which encourages and supports
retirement savings for U.S. workers
through preservation of tax incentives
critical to retirement security. For
information, visit www.howamericasaves.
com. SHRM also chairs the Coalition to
Preserve Employer Provided Education
Assistance, which brings together a
broad cross-section of more than 80
organizations representing employers,
labor and higher education, and which
is committed to preserving employer-
provided education assistance. For more
information, visit www.cpepea.com.
2018 SHRM Guide to Public Policy Issues 23
2017WORK-BASED
LEARNING
BACKGROUND: Employers and HR preferences and consider the greater
professionals continue to confront use and acceptance of skill certifications,
persistent gaps between the skills of occupational licenses and competency-
the existing labor pool and the skills based hiring in the employment process.
employers seek to fill specific positions.
According to a 2016 SHRM report In addition, employers that offer
Recruiting Difficulty and Skills Shortages, education assistance under Section
two out of every three organizations 127 of the Internal Revenue Code (IRC)
reported difficulty recruiting for full-time not only provide a valuable benefit to
regular positions over the past year. their employees but also invest in their
One-half of those organizations cited workforce, ensuring that their employees
lack of work experience, lack of the are prepared for the challenges of a
right technical skills or competition from global labor market.
other employers as a primary reason for
difficulty in hiring. Certain positions have OUTLOOK: In 2017, President Donald
been identified as more difficult to fill Trump signed an executive order to
than others, including high-skill jobs and substantially increase the number of U.S.
middle-skill jobs that require education apprenticeships from the current 500,000
and training beyond high school but to approximately 5 million in the next five
less than a four-year degree. Barriers to years. The executive order instructs the
entry may include required occupational Department of Labor (DOL) and other
licenses or workplace certifications. agencies to make efforts to expand
At the same time, untapped pools of apprenticeships and reform ineffective
workers might serve as a source of skilled education and workforce development
employees: military veterans, individuals programs. Congress introduced
with disabilities and individuals who were legislation that incentivizes employers
formerly incarcerated. to contribute to education and skills
development. Specifically, the proposal
ISSUE: High- and middle-skilled workers would increase the amount allowed for
are in demand in many industries, but tax-free education assistance and expand
supply in some geographic and industry- the benefit to include student loan
specific areas is low. One opportunity to repayment. This proposal would enable
tackle the skills gap is through expanded employers to not only attract and retain
or industry-specific apprenticeship valuable talent but also empower their
programs. Another may be efforts to employees to expand their skill sets.
encourage employers to review and
evaluate their qualification and hiring
24 2018 SHRM Guide to Public Policy IssuesSHRM POSITION: SHRM believes that TALKING POINTS
both government and employers play a
role in providing training to employees
to help them become more productive SHRM supports partnerships
««
and better qualified for high- and between employers and
middle-skill jobs. SHRM believes that education and training providers
such training should be encouraged as that are demand-driven and
a sound investment through incentives, focused on the workforce needs
rather than through mandates. SHRM of employers.
also encourages a revitalized national
discussion about hiring from untapped SHRM encourages employers
««
talent groups such as veterans, to review and evaluate their
individuals with disabilities and individuals qualification and hiring
who were formerly incarcerated—
preferences and consider the
removing barriers to hiring to ensure
greater use and acceptance of
that all individuals have opportunities for
skill certifications, occupational
employment. SHRM supports public-
policy efforts to expand Section 127 to
licenses and competency-based
include student loan repayment as well hiring in the employment process.
as allow employers to provide up to
SHRM highly encourages the
««
$11,500 per year and adjusted for inflation
thereafter.
availability of tax incentives,
like Section 127 of the IRC,
which promote further training,
education and skills development.
SHRM supports public-
««
policy efforts to foster and
expand greater availability of
apprenticeships programs,
including industry-specific
programs.
SHRM supports efforts focused on
««
facilitating employment pipelines
for individuals from within
the communities of veterans,
individuals with disabilities and
individuals who were formerly
incarcerated.
2018 SHRM Guide to Public Policy Issues 25
2017WORKPLACE
FLEXIBILITY
BACKGROUND: The Family and Medical ISSUE: Employers continue to
Leave Act of 1993 (FMLA) and the Fair encounter challenges in designing
Labor Standards Act of 1938 (FLSA) are workplace flexibility policies that do
the two federal statutes that generally not conflict with the FMLA, the FLSA,
shape workplace flexibility policies in and other federal and state laws.
this country. Workplace flexibility is an Existing statutes may prevent or
important business strategy that helps discourage employers from adopting
organizations respond to demographic, flexible scheduling, telecommuting or
economic and technological changes compressed workweeks. In addition,
in the workplace. HR professionals many employers believe that the FMLA
tailor flexibility practices such as and its implementing regulations are not
telecommuting, compressed workweeks, responsive to the evolving needs and
flexible scheduling and part-time work lifestyles of today’s workforce. At the
to help employees navigate their work same time, interest in and discussion
and personal responsibilities, as these around work/life issues continue to grow.
practices improve retention, enhance
employee engagement, reduce turnover OUTLOOK: Current law requires
costs and increase productivity. federal contractors to allow employees
to earn not less than one hour of paid
In 1985, Congress enacted the Federal sick leave for every 30 hours worked,
Employees Flexible and Compressed accruing up to 56 hours of paid sick
Work Schedules Act, permanently leave per year. Advocates continue to
authorizing compensatory (comp) champion the Healthy Families Act (HFA)
time for federal employees, while also to require nearly all employers to provide
amending the FLSA to expand coverage employees this same amount of paid sick
requirements to include state and local time. The Family and Medical Insurance
agencies and their employees. Leave (FAMILY) Act, which would provide
partial wage replacement funded through
More recently, nine states—Arizona, a payroll tax for eligible leaves under the
California, Connecticut, Maryland, FMLA, has been introduced in the 115th
Massachusetts, Oregon, Rhode Island, Congress. President Donald Trump called
Vermont and Washington—have adopted for paid family leave in his State of the
statewide paid sick leave laws, joining Union address in January 2018 but has
over 30 localities. Four states—California, not released any details for the proposal.
New Jersey, New York and Rhode While the HFA and the FAMILY Act are
Island—have enacted paid family leave unlikely to advance in the Republican-
insurance programs. controlled Congress, SHRM-developed
26 2018 SHRM Guide to Public Policy Issueslegislation, H.R. 4219, the Workflex in TALKING POINTS
the 21st Century Act, could see action.
H.R. 4219 allows employers to voluntarily
offer employees a qualified flexible work SHRM believes workplace
««
arrangement plan that includes a federal flexibility—or workflex—is a
standard of paid time off and options for hallmark of the 21st century
flexible work arrangements. This plan, workplace. It is about rethinking
covered by the Employee Retirement how, when and where people
Income Security Act, would pre-empt do their best work. This new
state and local paid leave and workflex
workplace can’t thrive with
laws.
the same old, one-size-fits-all
approach.
SHRM POSITION: SHRM believes
that the United States must have a 21st
SHRM believes that mandated
««
century workplace flexibility policy that
leave requirements limit an
meets the needs of both employers
employer’s flexibility in designing
and employees. SHRM supports efforts
to assist employees in meeting the generous and innovative leave
dual demands of work and personal programs for employees. As
needs and believes that employers the 21st century workforce and
should be encouraged to voluntarily workplace continue to evolve,
offer paid leave to their employees, employees now, more than
as outlined in H.R. 4219. Rather than a ever, need flexibility options
one-size-fits-all government mandate, to manage their work/life
as found in the HFA, policy proposals responsibilities.
should accommodate varying work
environments, employee representation, SHRM is calling on Congress to
««
industries and organization sizes. enact the Workflex in the 21st
Century Act to provide more
paid time off for employees,
more predictability for
employers and more options for
everyone—a responsible solution
for government, employers,
employees and taxpayers.
2018 SHRM Guide to Public Policy Issues 27
2017SHRM GOVERNMENT
AFFAIRS STAFF
Society for Human Resource Management
1800 Duke Street | Alexandria, VA 22314
advocacy.shrm.org
MARGO VICKERS JASON GABHART, J.D.
Chief External Relations Officer California State Government Relations
703.535.6220 Advisor
Margo.Vickers@shrm.org 703.535.6299
Jason.Gabhart@shrm.org
MICHAEL P. AITKEN
Vice President, Government Affairs NANCY HAMMER, J.D., SHRM-CP
703.535.6027 Senior Government Affairs Policy Counsel
Mike.Aitken@shrm.org 703.535.6030
Nancy.Hammer@shrm.org
CHATRANE BIRBAL
Senior Advisor, Government Relations LISA HORN
703.535.6214 Director, Congressional Affairs
Chatrane.Birbal@shrm.org 703.535.6352
Lisa.Horn@shrm.org
PATRICK BRADY
Senior Advisor, Government Relations MEREDITH NETHERCUTT
703.535.6246 Senior Associate, Member Advocacy
Patrick.Brady@shrm.org 703.535.6417
Meredith.Nethercutt@shrm.org
BOB CARRAGHER
Senior Advisor, State Affairs CASSIDY SOLIS, SHRM-CP
703.535.6268 Senior Advisor, Workplace Flexibility
Robert.Carragher@shrm.org 703.535.6086
Cassidy.Solis@shrm.org
28 2018 SHRM Guide to Public Policy IssuesCOUNCIL FOR GLOBAL
IMMIGRATION STAFF
Council for Global Immigration
1800 Duke Street | Alexandria, VA 22314
cfgi.org
LYNN SHOTWELL, J.D.
Executive Director
703.535.6466
Lynn.Shotwell@cfgi.org
REBECCA PETERS, J.D.
Director of Government Affairs
703.535.6467
Rebecca.Peters@cfgi.org
JUSTIN STORCH, J.D.
Manager of Agency Liaison
703.535.6463
Justin.Storch@cfgi.org
ANDREW YEWDELL
Global Immigration Specialist
703.535.6464
Andrew.Yewdell@cfgi.org
2018 SHRM Guide to Public Policy Issues 29Society for Human Resource Management 1800 Duke Street Alexandria, VA 22314 shrm.org | 703.548.3440
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