How the 2020 National Defense Authorization Act Impacts Employers

By Christopher M. Lewis

While the space force transcends to other worldly heights, paid parental leave and ban-the-box legislation are the innovations that have tangible effects on employers and employees back on earth.

On Friday December 20, 2019, President Donald J. Trump signed into law a comprehensive spending bill, which passed through Congress with overwhelming bipartisan support. The $738 billion bill—known as the 2020 National Defense Authorization Act (“NDAA”)—creates the much-touted United States Space Force, which will complement the United States Air Force in protecting the country’s national interest in the celestial realm.

The NDAA does not stop there in its groundbreaking legislation, however. It also places 2.1 million federal employees in a comparable position to their international counterparts by allowing twelve administrative workweeks of paid parental leave to qualifying workers. Additionally, the NDAA doubles down on a national trend by preventing federal employers from requiring job applicants to disclose their criminal histories on job applications.

These developments—while less flashy than the highly anticipated Space Force—are sure to have a more mundane, yet still impactful, effect on the lives of millions of Americans in the near future and beyond.

The Federal Employee Paid Leave Act

The Federal Employee Paid Leave Act, as enacted by the NDAA, allows qualified federal employees to take up to twelve administrative workweeks of paid parental leave in connection with the birth, adoption, or fostering of a child.

Prior to the Act’s enactment, only eight states and the District of Columbia had established governmental paid leave programs, while merely sixteen percent of private sector employees had access to similar paid leave policies. These programs varied greatly in the absence of a comprehensive federal blueprint.

For these reasons, supporters of the Act anticipate that the federal government will become a pioneer for local jurisdictions and private companies across the country. Senator Chuck Schumer (D-NY) told the Associated Press that the legislation is “a real breakthrough for families,” which he hoped would encourage private employees to follow the federal government’s lead:

Not only does it mean that federal employees will get what they’re entitled to, the federal government is a pacesetter . . . If you work for a private company, this means the pressure on your employer will be much greater to give you parental leave as well when the blessed event of a child comes around, or god forbid your child is really sick and needs serious care.

Similarly, Ivanka Trump, one of the President’s top aides, also praised the Act as revolutionary in an interview with NPR:

“It’s very hard for people to say, ‘Well, employers should provide [paid parental leave],’ if we are unwilling to provide it ourselves. So you have to lead by example.”

The federal government is, indeed, leading by example with the enactment of this legislation. However, federal employees do not have carte blanche to take paid parental leave on a whim. The Act provides leave for those employees covered by the well-established Family and Medical Leave Act (“FMLA”), and provides the federal government certain levels of protection by requiring employees to agree, in writing, to “work for the applicable employing agency for not less than a period of 12 weeks beginning on the date such leave concludes.”

The Act goes even further by mandating that “[i]f an employee fails to return from paid leave provided under this paragraph after the date such leave concludes, the employing agency may recover, from such employee, an amount equal to the total amount of Government contributions paid by the agency . . . on behalf of the employee for maintaining such employee’s health coverage under chapter 89 during the period of such leave.”

These provisions are a function of Congressional debates as to the scope of the newly enacted legislation. While Congressional Democrats sought to expand the provisions of the Act to make leave available for federal employees caring for chronically ill spouses, children, or other close relatives, such provisions were abandoned as too progressive for purposes of the trailblazing legislation. 

Regardless, paid parental leave, as promulgated by the Act, allows employees to avoid the decision of having to choose between caring for their families and keeping their jobs. It also supports economic growth, boosts business productivity by increasing employee morale, and makes it easier for employers to retain skilled workers. If private companies and states follow the federal government’s lead, both employers and employees should see long-term benefits.

The Fair Chance to Compete for Jobs Act of 2019

Prospective federal employees are also provided for under the NDAA, pursuant to the Fair Chance to Compete for Jobs Act of 2019 (“FCA”). Prior to the FCA’s enactment by President Trump, applicants for federal employment and contracts were required to disclose their criminal histories in their applications for employment. The FCA eliminates that requirement.

The new legislation—co-sponsored by the late United States Representative Elijah Cummings (D-Md.) and colloquially known as a “ban the box” law—prevents federal agencies from requiring prospective employees to disclose their criminal history upon applying for federal employment and/or contracts. The legislation thereby opens up tens of thousands of federal government jobs to approximately 70 million Americans with a criminal background—almost one in three Americans of working age.

The trend of banning the box has been gaining momentum for several years. In 2015, in an address to Rutgers University, President Barack Obama endorsed the legislation eventually enacted by President Trump:

Now, a lot of time, [a] record disqualifies you from being a full participant in our society—even if you’ve already paid your debt to society. It means millions of Americans have difficulty even getting their foot in the door to try to get a job much less actually hang on to that job. That’s bad for not only those individuals, it’s bad for our economy. It’s bad for the communities that desperately need more role models who are gainfully employed. So we’ve got to make sure Americans who’ve paid their debt to society can earn their second chance.

Across the country, thirty-five states and over 150 cities and counties have already adopted some form of “ban the box” legislation with the intent of counteracting the stigma of a criminal background on an application for government employment. These jurisdictions include: Tennessee, Georgia, Kentucky, Louisiana, and others.

Private sector employers have also fallen in line with this trend. Multinational companies such as Target, Coca-Cola, Google, American Airlines, and Walmart have all implemented ban the box policies.

The FCA places the federal government in lockstep with these jurisdictions and companies, and provides another template to states that have yet to enact similar legislation. Moreover, the FCA takes on the pacesetter paradigm by mandating that the federal government collect data on prospective federal employees with criminal records that are, in fact, hired and/or contracted by the federal government—a requirement that is lacking in most jurisdictions.

Supporters of the legislation argue that ban the box laws benefit the economy and local communities by expanding the availability of skilled labor across the country. They also argue that this legislation is one of the most effective methods of reducing recidivism among individuals with prior criminal histories.

After enacting the legislation, President Trump stated that the FCA “bring[s] Americans who have been on the sidelines back into the workforce.” And that this legislation is “rebuilding lives, rebuilding families, and rebuilding communities.”

“Second chance hiring is about safer communities, a stronger workforce, and a thriving economy. We believe in the dignity of work and the pride of a paycheck.” While the Space Force captures headlines following the President’s enactment of the NDAA, paid parental leave and ban the box legislation have the most notable effect on employers and employees entering a new decade. While imperfect, the trends set by the federal government will shape employment law and policy for several years across administrations. For now, however, employers and employees each have reason to cautiously celebrate these new developments in federal law.