Archive for March, 2009

WorkLifeLaw’s Employer Alerts Suggest Ways to Prevent Pay Discrimination Against Part-Time Employees

Featured Guest Blogger March 30th, 2009

Consuela Pinto is Senior Counsel at the Center for WorkLife Law. She has more than ten years of experience as an employment attorney. Her extensive experience and expertise in the employment field is a result of practicing in both the government and private sectors. Pinto has been an active member of the Women’s Bar Association of the District of Columbia (WBA) since 1996 and a member of the WBA Foundation’s Board of Directors for the past five years. In 2004, she was named one of Washington, D.C.’s top attorneys by Washingtonian magazine. Please note that the views of our guest bloggers do not necessarily reflect the views of the Sloan Work and Family Research Network.

This entry is a response to Adria D. Martinelli’s guest blog, Looking a Flexible Schedule Gift Horse in the Mouth.

As may be evident from the title, our Employer Alerts are advisories for employers, giving them updates about laws and rulings in the family responsibilities discrimination area that they should be familiar with to avoid liability. I am both the author of the Alert and a management-side employment attorney, and I want to be clear that the purpose of the Alert is not to advocate for litigation against employers.

The topic of discussion in the Alert you are referencing was the recent passage of the Lilly Ledbetter Fair Pay Act of 2009 (the Ledbetter Act), which many organizations and attorneys on both sides of the issue agree will lead to an increase in the number of pay discrimination claims and calls for increased vigilance on the part of employers.

In keeping with its mission to eliminate FRD through education and prevention, we provided an example of how a pay discrimination claim may arise in the FRD context. The example of a female part-time employee who is paid at a lower rate than a full-time employee performing similar work is based on the decision Lovell v. BBNT Solutions (295 F. Supp. 2d 611 (E.D. Va. 2003); Lovell v. BBNT Solutions, 299 F. Supp. 2d 612 (E. D. Va. 2004) (plaintiff’s motion for reconsideration denied.)) After Lovell, a pay structure that pays part-time employees less than a proportional salary (i.e., 80% the salary for a full-time employee in the same or substantially familiar position for 80% of the hours) violates the Equal Pay Act (EPA). (The Ledbetter Act does not apply to the EPA. However, the holding in an EPA case may apply in a Title VII pay discrimination claim, which is impacted by the Ledbetter Act.) Thus, the potential for liability on the part of an employer is very real.

The Alert outlined steps employers can take to prevent liability for pay discrimination claims (i.e., avoid litigation). These steps included: (1) periodic compensation audits to determine whether pay decisions have an adverse impact on a protected category of employees, including women on reduced schedules; (2) properly documenting compensation policies, including the factors to be considered when making compensation decisions and the reasons for individual pay determinations and (3) implementing a centralized compensation process whereby Human Resource professionals review all compensation decisions before they are finalized.

WLL is a nonprofit research organization that seeks to eliminate family responsibilities discrimination in the workplace. WLL works with employers, employees, attorneys, legislators, journalists and researchers to identify and prevent FRD. For employers and their attorneys, WLL has developed a number of resources, including prevention checklists, key case lists, monthly e-mail alters, and training programs.

Looking a Flexible Schedule Gift Horse in the Mouth

Featured Guest Blogger March 30th, 2009

Adria B. Martinelli has practiced employment law in Delaware since joining Young Conaway Stargatt & Taylor in 2001 as a senior associate in the Employment Law Section. She is also a regular speaker on employment-related topics, and trains individual employers in various areas of employment law, including sexual harassment, performance evaluations and documentation, and exceptions to at-will employment. Adria serves as an editor of the Delaware Employment Law Letter and writes for the Delaware Employment Law Blog. Please note that the views of our guest bloggers do not necessarily reflect the views of the Sloan Work and Family Research Network.

I am the grateful beneficiary of a “flexible schedule” offered by my employer, and utilized primarily by mothers of young children.  I commend employers who have made the enlightened and informed decision to offer this benefit, one that I believe firmly will pay dividends in employee loyalty and ultimately save the employer money on hiring, retraining, etc.

Raising happy, healthy, adjusted children is the responsibility of our entire population, and the burden of doing so should not rest on the mother’s shoulders alone. However, the United States, unlike other industrialized nations, has little legislation to promote this ideal. Absent the FMLA, permitting new parents 12 weeks (unpaid) to bond with their children, and the Pregnancy Discrimination Act, which prevents employers from discriminating against women on the basis of their pregnancy, accommodations or benefits to assist new mothers in balancing their work and families are left largely to the employer’s discretion.

WorkLife Law has advocated aggressively and effectively on behalf of working mothers, suggesting litigation through existing statutes where possible to remedy inequities with respect to mothers in the workplace.  In part due to their efforts, the EEOC issued its guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, which helped to focus employers and EEOC investigators on subtle biases about the commitment of working mothers to their job responsibilities, that may result in actionable discrimination cases.

A recent “Employer Alert” from WorkLife Law, however, has taken it too far, suggesting the following:

[P]ay discrimination claims can arise in the context of reduced hours employees. Consider the female employee who returns from maternity leave and adopts a part-time schedule. She later learns that she is paid at a lower rate than a full-time male employee who performs similar work. Employers often fail to consider whether their pay decisions with respect to employees on a reduced schedule may be discriminatory.  Yet, the majority of employees on reduced hours schedules are women, typically mothers.

Thus, WorkLife Law suggests that a potential lawsuit may lie for women who are the beneficiaries of a part-time schedule but feel they are being paid at a “lower rate,” whatever that means. Most “flexible schedules” are afforded to professional woman on an annual salary. It goes with out saying that in exchange for a “reduced” or “flexible” schedule, women on these schedules accept some kind of salary cut. It is not always easy to quantify, but it is anticipated that a woman working fewer hours accepts less pay.

What often happens is that women on “reduced” schedules end up producing the same workload, or accomplishing the same tasks than their (predominantly male) co-workers do on a full-time schedule, either by working more than their agreed hours (perhaps at home), or simply by being more efficient.

Addressing this inequity through litigation is the wrong answer. First, it is unlikely to be successful. Flexible schedules are a benefit, currently left to the sole discretion of the employer. As long as they are offered to men and women alike, the fact that women who chose them may then suffer some unfairness in pay scale is not likely to be actionable. Courts have routinely held in other contexts that where a benefit, or lack thereof, may disparately impact one sex or the other, as long as the benefit is applied uniformly to both sexes, it is not discriminatory.  For instance, employees have litigated against employers who have failed to provide medical coverage for infertility treatments or even birth control, arguing that this unfairly impacts women.  Although such coverage clearly impacts women more than men, the vast majority of courts have held that as long as the coverage was gender-neutral, i.e., no coverage of infertility treatments for men or women, it did not violate Title VII.

Second, there is an easy answer for employers if they are faced with this litigation: no more flexible schedules. The fact is, there are always going to be inequities as to pay in the workplace. There are always workers who will say “I’m doing more work than my co-worker and getting paid the same.” The fact that this feeling may occur in the context of a flexible work schedule does not make it a violation of Title VII, nor do I think the beneficiaries of flexible schedules are ultimately going to benefit from this approach.

Unless or until legislation is passed addressing flexible schedules, the best way to address perceived inequities in pay is not through litigation.

What’s New From the Sloan Network?

Karen Corday March 27th, 2009

New from the Network:

New, free work and family content on the web:

Paid Sick Days Legislation Is Introduced Across the Country in Dire Economic Times

Julie Schwartz Weber March 25th, 2009

The 2009 legislative sessions are well in progress, and paid sick days campaigns are active across the country in 15 states. Advocates against the bills argue that in this recession, passing this legislation is a very bad idea, since employers should not have to comply with additional mandates in an already strained and shrinking economy. However, advocates for paid sick days are arguing quite the opposite. Rather, they argue, such work protections are especially necessary in this recession to reduce job loss and absenteeism, and ensure economic sustainability and productivity for families and businesses.

Advocates for both sides are working hard in Connecticut and Minnesota, two of the fifteen states introducing such legislation and the two states that are closest to enacting a paid sick days law. Introduced on January 27th, Connecticut bill HB 6187 was approved on March 3rd by the Assembly’s Labor and Public Employees Committee with a vote of 8 to 3. HB 6187 would require employers with fifty or more employees to provide 6 paid sick days to their employees to use to address the employee’s or the employees’ child’s mental or physical illness or injury, to seek preventative medical care for the employee or employee’s child, or to deal with sexual assault or family violence issues.

Meanwhile, Minnesota’s 2009 paid sick days legislation was similarly approved by committee this month. HF 612, the Healthy Families, Healthy Workplace Act, is modeled after the San Francisco ordinance, the first paid sick days legislation passed by a locality in the country. HF 612 guarantees all workers paid sick time, regardless of the size of their employer, though large employers (those with greater than 10 employees) would provide for more paid sick days than smaller employers. In addition, while HF 612 provides paid time off for similar reasons included in the Connecticut bill (mental or physical illness or injury, preventative care, and treatment due to domestic abuse), it extends further than the Connecticut bill. In Minnesota, an employee can take paid sick days to care for herself, her child, and also care for the needs of a spouse, parent, grandparent, or other extended family member.

Self-Employed Women Balance Work, Family Life

Featured Guest Blogger March 23rd, 2009

Self-employed women have been an increasing demographic in our society over the past 15 years:
A recent study, entitled Self-Employed Women and Time Use, administered by the Office of Advocacy of the U.S. Small Business Administration, compared self-employed women to wage-and-salary earners and found that self-employed women are able to spend more time with their children and families, compared to their wage-and-salary earning counterparts. The study found that self-employed women spend about 3.5 more hours per week in household activities than wage-and-salary earning women do, and 6 more hours than men do.

These findings bring up a question for me. With the understanding that women are more likely to be self-employed at home than men are, does this contribute to our expectations of women “doing it all?” For example, our expectation of a self-employed woman will be that she earns an income and does her work well. When she is working from home, do we also expect that she cares for the home? After all, she is there.

I’m not self-employed, but as a PhD student who often works from home, I feel like I am. My “business goal” is finishing my dissertation. I want to devote my time to my work, yet, at lunch, I can’t help but notice that laundry has to be done and the toaster oven could use a cleaning. I’m there, so I might as well just take care of that, too. For whatever reason, because I am home, I feel the obligation to multitask and do two jobs—my regular work, and the housework. Maybe I should start working at the library? Of course, then I wouldn’t be working from home. Catch-22.

What’s New From the Sloan Network?

Karen Corday March 20th, 2009

New from the Network:

  • New poll question: Due to the economic climate, have you changed your lifestyle? Answer on our home page or at the blog.

New, free work and family content on the web:

Have You Used the FMLA?

Judi Casey March 18th, 2009

Recently (2/10-3/11/09), the Sloan Network posted a poll on people’s use of the FMLA. Here’s what the sixty-six respondents indicated:

36% had not used the FMLA
30% had used all 12 weeks
15% had only used some of the FMLA
9% indicated that they were not eligible (business too small or not at their job long enough)
9% wanted to use it, but could not afford time-off without pay

As of January 16, 2009, there are some important changes to the FMLA, including leave for caretakers of military personnel as well as leave for families with family members in the National Guard and Reserves.

We have numerous resources on the FMLA at the Network including a Topic Page, Fact Sheet, a Class Activity from our Teaching Resources page, Policy Leadership Series, and Work and Family Policy in the Judiciary.

Check out our new poll on the economic climate and your work-family lifestyle at our home page or blog. Prior poll results are available here.

How Will “Best” Companies Respond to the Recession?

Featured Guest Blogger March 16th, 2009

Richard Federico is the author of Battling to Be the Best: Why Companies Compete for Best-Place-to-Work Lists (WorldatWork Press). He’s lived and worked through several recessions. Please note that the views of our guest bloggers do not necessarily reflect the views of the Sloan Work and Family Research Network.

Will companies on best-place-to-work lists, like Fortune, Working Mother and AARP, have the courage to step to the forefront and protect their cultures for work-life friendliness? Are they authentic? Or are they just “best” in good times? Let’s take them to the test–your companies included. We’d love to hear some chatter about all the great things your companies are doing to make my fears go away.

For example, using some of Fortune’s Best Companies list selection criteria:

Do you still care as a company as measured by:

  • How you’re treating the people you laid off.  Providing the very best transition and outplacement services?  Protecting the diversity balance you worked so hard to achieve? Developing “alumni” programs that will get some of the lost back after the turmoil subsides?
  • How you’re dealing with work-life balance issues for the survivors. Is your flexibility program still robust, well-used and respected by your managers–or has it become just words on paper?
  • How you‘re helping the survivors deal with financial stress. Providing educational, counseling and spirituality support? Offering EAP, wellness and other stress relief help? Including family members in your counseling efforts?
  • How you’re helping people in times of need. Do you have compassionate programs in place? Are these programs also touching your recently lost and your retirees?
  • How you’re speaking and listening to the survivors. Are you communicating bad news honestly and thoroughly? Are you offering hope? Are you continuing to provide forums for frank employee feedback? More importantly, do you listen to the feedback? Is executive management still approachable?
  • How you’re recognizing and rewarding the survivors. To counteract the absence of bonuses and salary increases, are you expanding your non-cash reward and recognition programs?
  • How you’re continuing to celebrate and have fun.  Are you still encouraging celebration and fun–or at least still holding the holiday and special event parties you had before the “dollar doom” paralyzed corporate America?

It’s your turn.

What’s New From the Sloan Network?

Karen Corday March 13th, 2009

New from the Network:

  • On February 26, Judi Casey presented a webcast for the Society of Human Resource Managers: Flexible Work Arrangements: A Strategic Business Imperative in Any Economy.
  • New entry in the Work and Family Encyclopedia: Ethnographic Methods and Work-Family Research.
  • New poll question: Due to the economic climate, have you changed your lifestyle? Answer on our home page or at the blog.

New, free work and family content on the web:

For Families, Layoffs Shift Responsibilities, Roles

Featured Guest Blogger March 12th, 2009

Maggie Jackson is an award-winning author and journalist known for her penetrating coverage of U.S. social issues. She writes the popular “Balancing Acts” column in the Sunday Boston Globe, and her work has also appeared in The New York Times, Gastronomica, and on National Public Radio. Her latest book, Distracted: The Erosion of Attention and the Coming Dark Age, details the steep costs of our current epidemic deficits of attention, while revealing the astonishing scientific discoveries that can help us rekindle our powers of focus in a world of speed and overload. Please note that the views of our guest bloggers do not necessarily reflect the views of the Sloan Work and Family Research Network.

The news seemed promising: married women, who’ve been contributing a growing share of median family income for years, are becoming crucial breadwinners during the recession.

But taking a closer look at this trend for my Balancing Acts column, I realized that working wives’ new clout isn’t entirely cause for celebration for many dual-earner families.

Many families are depending more on women financially because recent steep layoffs have hit men hardest. And this rejiggering of roles is hurting many families, since women more often work part-time and earn less on average than men in the same jobs. This is just one more reason why families today are so squeezed and couples are under enormous psychological stress.

Speaking with couples in this situation, I could hear terror and desperation in their voices. Many had always sought to be equal providers, or at least to take turns being the main provider. But a layoff steals the power of choice away from people and robs them of their secure feelings about the future.

In the long run, it is promising that women are contributing more to family finances, and that men are doing more at home. But to help families in future, we need equal pay, along with real flexibility in gender roles, so that men and women can adapt their work/home responsibilities both to their desires and to their family’s needs in times of lean and plenty. Such advances could ease some of the pain that many families are experiencing today.

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