[Joint House and Senate Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
S. Hrg. 111-456
BALANCING WORK AND FAMILY IN THE
RECESSION: HOW EMPLOYEES AND
EMPLOYERS ARE COPING
=======================================================================
HEARING
before the
JOINT ECONOMIC COMMITTEE
CONGRESS OF THE UNITED STATES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
JULY 23, 2009
__________
Printed for the use of the Joint Economic Committee
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JOINT ECONOMIC COMMITTEE
Created pursuant to Sec. 5(a) of Public Law 304, 79th Congress]
HOUSE OF REPRESENTATIVES SENATE
Carolyn B. Maloney, New York, Chair Charles E. Schumer, New York, Vice
Maurice D. Hinchey, New York Chairman
Baron P. Hill, Indiana Edward M. Kennedy, Massachusetts
Loretta Sanchez, California Jeff Bingaman, New Mexico
Elijah E. Cummings, Maryland Amy Klobuchar, Minnesota
Vic Snyder, Arkansas Robert P. Casey, Jr., Pennsylvania
Kevin Brady, Texas Jim Webb, Virginia
Ron Paul, Texas Sam Brownback, Kansas, Ranking
Michael C. Burgess, M.D., Texas Minority
John Campbell, California Jim DeMint, South Carolina
James E. Risch, Idaho
Robert F. Bennett, Utah
Nan Gibson, Executive Director
Jeff Schlagenhauf, Minority Staff Director
Christopher Frenze, House Republican Staff Director
C O N T E N T S
----------
Members
Hon. Carolyn B. Maloney, Chair, a U.S. Representative from New
York........................................................... 1
Hon. Kevin Brady, a U.S. Representative from Texas............... 2
Witnesses
Ellen Galinsky, President, Families and Work Institute, New York,
NY............................................................. 5
Cynthia Thomas Calvert, Deputy Director, The Center for Worklife
Law, San Francisco, CA......................................... 7
Karen Nussbaum, Executive Director, Working America, Washington,
DC............................................................. 8
Submissions for the Record
Prepared statement of Representative Carolyn B. Maloney.......... 30
Prepared statement of Representative Kevin Brady................. 30
Chart titled ``Organizational Chart of the House Democrats'
Health Plan''.............................................. 32
Prepared statement of Ellen Galinsky............................. 33
Prepared statement of Cynthia Thomas Calvert..................... 64
Prepared statement of Karen Nussbaum............................. 69
Prepared statement of Representative Elijah E. Cummings.......... 74
BALANCING WORK AND FAMILY IN THE
RECESSION: HOW EMPLOYEES AND
EMPLOYERS ARE COPING
----------
THURSDAY, JULY 23, 2009
Congress of the United States,
Joint Economic Committee,
Washington, DC.
The committee met, pursuant to call, at 10 a.m., in Room
210, Cannon House Office Building, The Honorable Carolyn B.
Maloney (Chair) presiding.
Representatives present: Maloney, Hinchey, Cummings, Brady,
and Snyder.
Staff present: Nan Gibson, Colleen Healy, Elisabeth Jacobs,
Andrew Wilson, Robert Drago, Rachel Greszler, Chris Frenze, and
Dan Miller.
OPENING STATEMENT OF THE HONORABLE CAROLYN B. MALONEY, CHAIR, A
U.S. REPRESENTATIVE FROM NEW YORK
Chair Maloney. The committee will come to order. And the
Chair welcomes the panel of witnesses, our distinguished panel,
and thanks you for your testimony.
The American workplace has not kept up with the changing
needs of workers and families. Both Ozzie and Harriet go to
work now, so most families no longer have a stay-at-home parent
to care for a new child, a sick spouse or an aging person.
Businesses that offer policies that help employees meet the
competing demands of work and family have seen the benefits to
their bottom lines with increased productivity and a more
committed workforce.
This is a timely hearing because employees and their
families, as well as employers, need flexibility more than
ever.
The value of flexibility to employers has increased because
the recession has pressed all sectors of business and
government to find ways to improve performance. Workplace
flexibility is an inexpensive and effective way to motivate
employees by humanizing jobs at times when so many aspects of
our economy are so harsh.
Some businesses do understand the value of flexibility for
workers. A 2007 survey conducted by this committee found that,
among America's largest and most successful employers, 79
percent provide paid leave for new parents, and 45 percent
provide unpaid leave beyond the 12 weeks mandated under the
Family and Medical Leave Act.
Businesses that rigidly cling to policies created when
employees had fewer family responsibilities have fallen behind
the times. Managers who believe there is one best way to get
the job done and do not listen to their employees are missing
out on valuable innovations. A lack of flexibility gives
demoralized employees even less reason to help their businesses
survive and thrive.
Perhaps most important in today's economic climate is that
flexibility can help save jobs. Employees understand this. A
survey conducted this March found that a solid majority of
employees are willing to take on additional and unpaid leave or
vacation or to switch to a 4-day workweek in order to prevent
layoffs. Many employees are ready to share their job with
another individual or to take on reduced hours with reduced
pay. Employees stand ready to work with employers to use
flexible workplace options to control costs and preserve jobs.
Flexibility is also crucial to the future of our economy.
Employers who do not support flexible work arrangements will
find valued employees fleeing at the first sign of recovery in
the labor market, in addition to losing out now on the benefits
of having a committed workforce.
The Working Families Flexibility Act, H.R. 1274, can help.
Our best employers are already using flexibility as a strategy
to weather the recession, and I hope we hear more about these
employers today. The Working Families Flexibility Act, which I
have sponsored in the House, will ultimately benefit all
American employees, businesses, and our economy by making the
strategy used by our most successful businesses into public
policy. It will generate the productivity we need to propel our
economy forward in these tough economic times and to sustain
our competitive position as the economy recovers.
I have long championed policies to support working
families, such as the Family and Medical Leave Act. That was
one of the first bills that I passed in 1993. I saw President
Clinton this past Monday, and he told me of all the
legislation, of all the things that he worked on, to balance
the budget, to bring down and control the budget and invest in
education and health care, of all the initiatives in his
administration, the one that the most people would walk up to
him on the street and thank him for was the Family and Medical
Leave Act.
But more must be done to help families, which is why I have
also sponsored the Federal Employees Paid Parental Leave Act,
which recently passed the House of Representatives and provides
new parents with 4 weeks of paid time off.
If we as a nation truly value families, then we need new
workplace policies that support our working families and set
our children on a path for success early in life.
I look forward to the testimony of our distinguished
witnesses today. I welcome the public. And I allow my colleague
and Ranking Member Mr. Brady as much time as he may desire.
[The prepared statement of Representative Maloney appears
in the Submissions for the Record on page 30.]
OPENING STATEMENT OF THE HONORABLE KEVIN BRADY, A U.S.
REPRESENTATIVE FROM TEXAS
Representative Brady. Thank you, Madam Chairman. I join
with you in welcoming our witnesses before us today, and I
recognize this is an issue near and dear to your heart that you
worked on for a long time and commend you for it.
The recession continues to destroy jobs and force the
unemployment rate ever higher, posing great hardships on
millions of families. Unfortunately, the stimulus legislation
has not yet been effective in boosting the economy. Last
January two top administration economists projected the
unemployment rate would not exceed 8 percent if the stimulus
were enacted, but as you know, the unemployment rate has risen
to 9\1/2\ percent and appears likely to climb significantly
higher.
Almost all businesses are under stiff pressure, and many
small businesses are struggling to survive in this very
challenging economic environment. They are unable to afford the
costs of expanded employer-provided benefits. An effort to
force small businesses to offer specific benefits would raise
costs, especially of employment, and undermine their financial
position.
Before coming to Congress I worked with small businesses,
ran one myself, and was director of three local Chambers of
Commerce. I know how hard small businesses struggle. The
recession in the '80s in Texas was particularly difficult; how
they struggled to provide benefits, keep workers on the
payroll, help them with their health-care costs, and it is a
tough fight. Small businesses historically account for much of
the job creation in the United States, about 70 percent, and
undermining their ability to create new jobs and opportunities
in a weak economy just isn't good economic policy. And over the
longer run, an effort to mandate employee benefits will tend to
reduce other forms of employee compensation, including wages.
Oftentimes there is only so much money to go around, and those
choices tend to offset each other in a negative way.
I remain concerned that the administration's policies to
increase Federal deficits and debt will burden the economy for
years to come and undermine job growth. Higher taxes, mandates,
and Federal spending could lead to a future with high
unemployment and lower living standards. Every new mandate or
tax Congress adopts now will only make the situation worse.
It is not too late to reconsider our economic policies and
avoid piling more costly mandates on an already overburdened
economy.
And what really concerns workers and small businesses back
home in Texas is the new Democrat health-care proposal and what
it would do to the quality and availability of their health
care. This 1,018-page proposal doesn't control costs, according
to the Congressional Budget Office, and will drive the budget
deficits even higher, and it would leave 17 million people
uninsured. A population approaching the size of Florida will
continue to come into our emergency rooms and to other health-
care providers without coverage. A maze of bureaucracy would be
created standing between patients and medical services.
According to the chart that the Minority staff of the Joint
Economic Committee--our economists and health-care staff went
through the provisions of the tricommittee bill line by line,
and what this new bill establishes is 31 new commissions,
agencies, and mandates that would decide what doctors you can
see, what treatments you deserve, and what medicines you can
receive. Medical care would be rationed, and the wait times for
even routine medical procedures would be extended. More taxes
would be levied, further damaging the economy. This is an
issue, Madam Chairman, that is of great concern.
Thank you.
[The prepared statement of Representative Kevin Brady
appears in the Submissions for the Record on page 30.]
[The chart titled ``Organizational Chart of the House
Democrats' Health Plan'' appears in the Submissions for the
Record on page 32.]
Chair Maloney. That is an issue that is being debated on
the floor. I would welcome doing a Special Order with you on
it, but the focus of this hearing is on flextime, work-family
balance. I appreciate your kind comments on my work in that
area and request that you look at the bill that I put in. It
mirrors legislation that was passed in London that would allow
workers to request flextime without being fired, would not be a
cost to the companies or to government, but would help working
families better balance work and family life. So I request you
to look at it and get back to me.
Representative Brady. I would be glad to, absolutely, Madam
Chairman.
Chair Maloney. I hope you can help me pass it in this
Congress and move forward to help working families.
Representative Brady. Thank you.
Chair Maloney. I would like to now introduce our panel of
very distinguished witnesses today. Ellen Galinsky is president
and cofounder of Families and Work Institute. She directs or
codirects the National Study of the Changing Workforce, the
most comprehensive nationally representative study of the U.S.
workforce; the National Study of Employers, a nationally
represented study tracking trends in employment benefits,
policies and practices; When Work Works, a project on workplace
effectiveness and flexibility now in 30 communities and three
States, funded by the Alfred P. Sloan Foundation; and the
Supporting Work Project, a Ford Foundation project that is
funding communities across the country to connect lower- and
midwage employees to publicly funded work support through their
employers.
Cynthia Thomas Calvert is an employment attorney and deputy
director of the Center for Worklife Law, a nonprofit program
located at the University of California, Hastings College of
the Law. Ms. Calvert is coauthor with Joan Williams of Worklife
Law's Guide to Family Responsibilities Discrimination and of
Solving the Part-Time Puzzle: The Law Firm's Guide to Balanced
Hours. A graduate of Georgetown University Law Center, Ms.
Calvert clerked for the Honorable Thomas Penfield Jackson and
had a practice focused on counseling employers about compliance
with employment laws.
Thank you for being here and send our good wishes to Joan
Williams.
Karen Nussbaum has been at the AFL-CIO for over a dozen
years and is now the executive director of Working America, a
community affiliate of the AFL-CIO. Working America has 2.5
million members and is the fastest-growing organization for
working people in the country. Ms. Nussbaum was a founder and
director of 9 to 5, National Association of Working Women;
president of District 925 of SEIU; and the Director of the U.S.
Department of Labor Women's Bureau, the highest seat in the
Federal Government devoted to women's issues, during the
Clinton administration.
I want to thank you for your life's work and for being here
today with your testimony.
Ms. Galinsky, you are recognized for 5 minutes.
STATEMENT OF ELLEN GALINSKY, PRESIDENT, FAMILIES AND WORK
INSTITUTE, NEW YORK, NY
Ms. Galinsky. Thank you, and thank you so much for having
me here to talk about a new study that we are releasing today.
The impact of the recession on employers and on their human
resource policy has been widely debated and discussed in the
media and in the public, but the information to date has been
largely anecdotal, or it has come from consultants surveying
their client base. What we wanted to know is what is really
happening to employers and the way that they are dealing with
people. So the purpose of this study is to provide national
data. It is a nationally representative sample of U.S.
employers with 50 or more employees, and the population of
employers we surveyed is 400. We wanted to understand what
percentage of employers have taken steps to reduce labor and
operational costs in the past 12 months, and what specific
cost-reduction strategies they have used; what are they doing
to help their employees manage during the recession; and what
is happening to workplace flexibility and other worklife
policies at the same time. And then we wondered whether these
strategies or steps differ from employers with different
characteristics.
We found overall that the recession has taken a very severe
toll on employers. The most obvious indication of the
recession's impact on employers is the fact that two-thirds of
them report that their revenues have declined in the last 12
months; 28 percent, or just more than a quarter, say that their
revenues stayed about the same; and only 6 percent of
employers--I think this is important in a nationally
representative sample--say that their revenues have increased
or there is growth.
Most employers have made some effort to cut costs or to
control costs during the recession, 77 percent, but among those
employers that have seen revenues decline, it is 9 of 10. We
found that layoffs have been pervasive. For example, we found
that 64 percent of employers have cut back employees. We know
that, but this confirms what we read about with the
unemployment figures and what we experience.
The main strategy that employers have used is to decrease
or eliminate bonuses and salary increases, 69 percent; 61
percent have imposed hiring freezes; 57 percent have eliminated
all travel that is not essential to business. Other strategies
are less frequent, but, for example, we found that 29 percent--
and this is relevant to the health-care debate--29 percent have
reduced health-care benefits, or they have increased employees'
copay. Among those companies that have had reductions in hours,
29 percent have had voluntary reductions in hours, and 28
percent have had involuntary reductions in hours.
We also wondered whether employers are helping employees
manage during the recession, and we found that between 34 and
44 percent of employers report helping their employees manage
during the recession, doing such things as helping those that
they have had to lay off find jobs. Forty-three percent have
done so. We asked how often they communicate about the
financial situation of their companies, and 34 percent said
that they do so very often. We asked whether they are helping
them manage their own financial situation during the recession;
34 percent say yes. And we also wondered whether employers are
connecting employees to publicly funded services or supports,
both Federal or State or in their communities, and we found
that 44 percent of employers are doing that.
We also wondered about workplace flexibility. There have
been lots of articles in the media saying it is over; other
people saying they are using it, but they are using it in not
necessarily good ways. Perhaps one of the most surprising
findings of this study is that 81 percent of employers have--
are maintaining the flexibility that they offer, 13 percent are
increasing it during the recession, and only 6 percent have
reduced the flexibility that they offer. Perhaps that is
because employers recognize that flexibility is connected to
engagement, retention, health and wellness. Our studies
certainly show that.
We looked to see whether employers are differing in the
amount--if their composition of their workforce affects what
they do. We already know that men are disproportionately
affected by the recession, that the unemployment rate among men
is 9.8 percent and among women 7.5 percent. And we found
similarly that employers that have more than 50 percent women
tend to be more supportive during the recession. For example,
they are less likely to do layoffs. They are less likely to
reduce working hours. They are less likely to change the
scheduling of work. They are less likely to reduce salaries. We
also found that employers that have more women are also more
likely to communicate with their employees about what is
happening with their financial situation and more likely to
connect them to publicly funded benefits.
When we look at those who employ 50 percent or more of
hourly workers versus fewer than 50 percent, we find that
employers with more hourly workers are more likely to reduce
health-care coverage or to require larger copays. We also find
that, by a large margin, salaried employees who have been laid
off are more likely than hourly workers to get help in finding
new jobs, 55 percent versus 36 percent.
When we look at employers that have more unionized workers,
we find that they are more likely, for example, to cut back
flexibility, 11 percent, versus employers with fewer unionized
employees, 6 percent.
When we compare for-profit and nonprofit organizations, we
find that the recession has affected for-profit employers more.
That was a bit surprising to us, given that we hear so much
about donations, and it is true, being down in the nonprofit
sector. But we found that for-profits are more likely to report
lower revenues, 71 percent to 54 percent, and they are more
likely to have reduced or decreased bonuses or salary
increases, to lay off employees, to reduce contributions to
retirement funds; and to--or they are less likely, to help
employees manage their own financial situation.
Finally, we look at the difference between large employers,
those with 1,000 or more employees, and small employers, those
between 50 and 99 employees, and we find that larger employers
are more likely to eliminate travel. They are more likely to
increase telecommuting. They are more likely to offer buyouts
or other inducements for early retirement, and they are more
likely to provide support to employees to manage the recession.
So, in conclusion, I think our study makes it clear that
employers are reducing labor and operational costs, but it also
makes it clear that many employers are keeping flexibility, and
they are doing things to continue to engage and motivate the
talent, the people who are most important to their success now
and in their future.
Thank you.
Chair Maloney. Thank you. Thank you very much.
[The prepared statement of Ellen Galinsky appears in the
Submissions for the Record on page 33.]
Chair Maloney. Ms. Calvert.
STATEMENT OF CYNTHIA THOMAS CALVERT, DEPUTY DIRECTOR, THE
CENTER FOR WORKLIFE LAW, SAN FRANCISCO, CA
Ms. Calvert. Thank you. This morning I would like to share
some stories from the Worklife Law hotline. These stories from
the past 18 months show how some caregivers and flexible
workers are faring in the recession.
Although I will be discussing the employee's perspective, I
would like to note that Worklife Law includes the perspective
of the employer. We have a six stakeholder model that brings
together employees, employers, plaintiffs' lawyers, management-
side lawyers, unions, and public policymakers around the issue
of family responsibilities discrimination.
These stories involve two types of bias: caregiver bias and
flexible work bias. Caregiver bias is assumptions about
employees with family caregiving responsibilities, such as a
the assumption that a man with a dying father will miss
deadlines regardless of his actual performance. Caregiver bias
includes maternal wall bias, bias against mothers, such as a
pregnant woman will miss too much, or she will not be committed
to her job once she has had her baby, again without regard to
actual performance.
Flexible work bias mirrors and overlaps with caregiver
bias. Employees who work flexibly often encounter assumptions
about their commitment, dependability, ambition and competence.
The volume of calls to our hotline has more than doubled
since the economic downturn began. Many calls suggest that
employers are targeting caregivers and flexible workers for
termination. Some of this has been blatant, such as part-timers
telling us that they have been chosen for layoffs ahead of
employees who are working standard schedules. Some of it has
been more circumspect, such as the situation involving a
scientist Tobi who worked full time from home because she had a
daughter who was born with a disease that requires her to be
breast fed frequently, and Tobi is unable to pump milk. The
arrangement worked very well. Tobi was very productive. She had
happy clients. She won awards. She later received a new
supervisor, who allegedly referred to her telecommuting
arrangement as a mess she would have to fix. The supervisor
moved Tobi to a new team and reportedly told her to be in the
office 30 hours a week or to work part time, even though she
allegedly knew that these schedules would not allow Tobi to
feed her child. When they could not agree on a schedule, the
company terminated Tobi, and the supervisor had indeed fixed
the mess.
Another case in which a supervisor allegedly created a
difficult situation for a caregiver involved a single mother
who had been working successfully for nearly a year before she
was placed on a schedule of rotating nighttime shifts by her
new supervisor, making it impossible for her to find child
care. Other callers have had their flexible work arrangements
terminated, including several who were working part time when
they were told they needed to return to full-time work or be
terminated. The economic rationale for this is questionable.
Requiring employees to return to full-time work at greater pay
and with benefits costs employers money unless the employers
are banking on reducing the payroll by forcing the employees to
quit.
We have also received many calls from women who were
terminated shortly after their maternity leaves. One of these
calls was from an employee I will call Ann, who had performed
well at a large company for more than 6 years. Ann had a baby.
Her manager worked with her on setting her schedule, and he was
happy with her performance. And there is a lesson here. A
little flexibility on the part of the manager allowed the
company to retain a good worker.
Ann became pregnant again. A new manager changed her
schedule, putting her on late-night and very early morning
hours, and that is a second lesson. There is a pattern in which
flexibility works fine until a new manager arrives on the
scene. The manager may have a mandate to reorganize the
department. The manager may not be aware of the employee's
value. Regardless, the pattern typically involves termination
of flexibility and then action to terminate the employee if she
won't quit.
As the sole breadwinner, Ann had to stay employed. She
returned from maternity leave, and she asked for flexibility.
Instead she was laid off in a companywide RIF. She was the only
person in her department who was laid off despite her
seniority. And that is lesson three here: Having a child and
asking for flexibility are two key trigger points for bias and
discrimination.
In conclusion, research and experience show that, in the
absence of bias, employees will resolve work-family conflicts
through flexible schedules. Where the bias is strong, they
cannot. For this reason, we would encourage any policymaker who
is considering legislation to address the issue of bias. Thank
you.
[The prepared statement of Cynthia Thomas Calvert appears
in the Submissions for the Record on page 64.]
Chair Maloney. Ms. Nussbaum.
STATEMENT OF KAREN NUSSBAUM, EXECUTIVE DIRECTOR, WORKING
AMERICA, WASHINGTON, DC
Ms. Nussbaum. Thank you, Chair Maloney and Congressman
Brady. I am privileged to be here today in the company of Ellen
Galinsky and Cynthia Calvert to discuss the important issue of
work-family balance.
For generations, the problem of work and family was solved
simply by paying a family wage to a single breadwinner.
Accepted norms governed employer-employee relationships,
strengthened by unions. This solution was not available to
everyone, especially African Americans. But the post-World War
II economic boom saw a common increase in the standard of
living across all income groups. Families were tended to, and
communities benefited from the volunteer activities of their
members.
However, a 1974 Business Week editorial signaled a shift in
the employers' strategy. They advised cutting wages and
benefits and warned, quote, ``it will be a bitter pill for most
Americans to swallow, the idea of doing with less so that banks
and big businesses can have more.'' And indeed over the next 35
years, most Americans did end up doing with less. Median family
incomes stagnated and actually dropped in recent years. Twenty-
five years ago more than 80 percent of firms offered defined
benefit pensions; today less than a third do. Today nearly half
of private-sector workers have no paid sick leave, and nearly a
quarter of workers have no paid vacation or holidays. And
working swing shifts has become the cruel response to the need
for flexible work hours. Nearly half of all women work
different schedules than their spouses or partners.
The second part of the Business Week strategy also came
true. Banks and big businesses, until they crashed recently,
did get more. Since World War II, corporate profits grew at
twice the rate of workers' salaries. Between 2001 and 2004,
while workers' income fell slightly, corporate profits grew 62
percent. The number of working Americans without health
insurance falls every year, while from 2002 to 2005 alone,
insurance company profits soared by nearly 1,000 percent.
Former GE CEO Jack Welch, for one, says that there is,
quote, ``no such thing as work-life balance; that working women
have no choice but to sacrifice either work or family.'' But
Ellen Galinsky's impressive work has demonstrated over time
that work-life policies are viable and widespread, increase
productivity and personal satisfaction.
However, after 30 years of voluntary adoption of work-
family measures, we also know that these policies will not
become a reality for most workers if they are left up to
voluntary action. This moment combines the economic crisis, the
history of success where work-life balance issues have been
implemented and the outstanding need. It is the perfect
opportunity for us to take the next step and to create
standards. Two policy recommendations would create the
foundation for productive workplaces.
The most effective and flexible way to create customized
improvements at the workplace is by enabling working people to
talk directly to their employer. This is sometimes known as
collective bargaining. The Employee Free Choice Act would
restore the right to collective bargaining, which would help
create ever-evolving work-life balance.
Uncontrolled health-care costs have crowded out the
possibility of other workplace improvements, so solving the
health-care crisis would create a new floor for work-family
balance.
In addition, there are key standards that would help create
a new framework.
Congress should support the Healthy Families Act, which
would provide full-time employees with 7 paid sick days per
year.
The Family and Medical Leave Act that you cited, Chair
Maloney, has been a great success; yet half of all private-
sector workers don't even have access to it, and four out of
five who do have access report that they can't take it because
it is unpaid. So we should expand it, and we should provide
wage replacement.
I would like to recognize your work, Chair Maloney, for
your leadership on the issue of flexible work hours--the
Working Families Flexibility Act, which seeks to advance that
cause.
The government should correct the misclassification of
employees as independent contractors, which allows employers to
avoid taxes and benefits altogether on growing numbers of
workers.
And finally, child care and preschool were successful
corporate and government policies in World War II and have been
sorely needed ever since and somehow have just dropped out of
the public debate.
In conclusion, it has taken years to achieve basic
workplace standards, in some cases a century of struggle. Many
benefits workers took for granted in the 1950s are now
seriously eroded. We are far behind all other industrial
countries in both standards and practice, and we have seen that
without standards we will not have the practice. Now is the
time to put the next generation of workplace standards in
place.
Thank you.
[The prepared statement of Karen Nussbaum appears in the
Submissions for the Record on page 69.]
Chair Maloney. Thank you all for your testimony.
The economic downturn is hurting both employers and
employees. The unemployment rate is now at 9.5 percent. Can you
each elaborate on how flexibility policies can help businesses
and workers balance competing demands between work and family?
Ms. Galinsky.
Ms. Galinsky. A number of employers have recognized that,
if they provide flexibility, they can save jobs, and at the
same time they can help people manage their work and family
lives. We found in the study when the interviewers asked
employers in the interviews how they were managing the
recession, that some employers had informal ways. They had sort
of the proverbial suggestion box for how to cut costs. And
often those suggestions led to saving jobs and led to greater
flexibility. Other employers had more formal standards, a
labor-management committee, for example, to come up with these
kinds of solutions, and they found that both reducing hours or
they found that compressed workweek might make a difference.
I think the important thing and part of our definition of
flexibility is that it has to work for both the employer and
the employee. If it only works for the employee, in our view,
it is not right, and if it only works for the employer, it is
not right. We found in our study that 57 percent of employers
give employees some or a lot of choice about the flexible
schedules that they work, and it is critical to me that, if we
are going to use flexibility to deal with issues of the
recession, that employers need to be a part of the discussion
and a part of the solution.
Ms. Calvert. I would echo that you have to have a solution
that meets the needs of both employers and employees. We spend
a significant amount of time at Worklife Law and at our Project
for Attorney Retention, which is one of our initiatives
crafting business-based solutions to flexibility. And we have
come up with a number of best practices for employers that will
help them to retain valued employees, which has been proven to
increase client satisfaction or customer satisfaction; improve
profits; of course, improve productivity, morale, retention,
things of that nature. But in crafting these best practices, we
have worked very closely with the employers to ensure that we
are not suggesting things that are unworkable in the workplace.
One of the best practices that we suggest is that employees
be allowed to craft individually tailored schedules to meet
their unique family situations rather than having certain types
of flexibility prescribed by the employer or perhaps mandated
by legislation. The employers we are aware of who have
implemented this have done so with great success and have very
satisfied employees.
One of the things we have been exploring recently is the
use of reduced hours as an alternative to layoffs, and we have
heard some encouraging reports from some employers who have
done that. As work levels drop off, the employers can match
supply and demand by also reducing the hours worked by the
employees, reduce the salaries, save on payroll without having
to lay people off.
Chair Maloney. Ms. Nussbaum.
Ms. Nussbaum. I would agree that we need to find solutions
that work within each individual workplace, and I would echo my
earlier comments about the most effective way of accomplishing
that is when employees and employers can meet together to work
out those solutions in a collective bargaining framework. That
provides the greatest flexibility and making sure that we meet
the needs of the employer and the employee.
A recent report by the Labor Project for Working Families
finds that, in fact, workers with unions on the job are far
more likely to have a whole host of flexible arrangements or
leave provisions that allow them to meet their family needs.
But I would also like to say that the problem--the
magnitude of the problem goes beyond what individual employers
and employees may be able to work out on their own. We have
seen a shift in the burden of the cost of achieving work-life
balance over the last 35 or 40 years that has all gone on the
shoulders of working families, and it is not sustainable. And
the costs then accrue to society as a whole. As children get
less attention, they do less well in school. Parents have to
leave the workforce to attend to family medical needs. These
are huge costs that lead to greater losses in productivity in
the future. And that is why we need underlying standards.
Chair Maloney. My time has expired.
Mr. Brady is recognized for 5 minutes.
Representative Brady. Thank you, Madam Chairman.
I agree that I think workforce bias does exist, but not
just within the business community. There are thousands and
thousands of complaints against the Federal Government for
gender bias, age bias, poor supervisory decisions when it
relates to families and workers. Small businesses, in my
experience, want to hire and keep good employees. In recessions
they find it very difficult to do both.
What we don't often hear in hotlines is I know of a 17-
worker organization in the Eighth Congressional District who
one of the workers had a second child, a 3-year-old and then a
second child, and couldn't afford the health care for the
second child. So the employer made arrangements to have the
infant in the office for the first year until the family could
afford to get the day care that they needed. It took
adjustments. It was good for the office, I think, and they kept
a very valued employee, and I think there is a lot of that
flexibility going on.
The problem is small businesses need to have the
flexibility. One size doesn't fit all, and my concern again is
what is the cost of this? Larry Summers, who is one of the
President's key advisors, said, quote, Mandated benefits are
like a public program financed by benefit taxes. There is no
sense in which benefits become free just because government
mandates that employers offer them to workers. So my belief is
that we ought to retain that flexibility for especially our
small-business community.
So I wanted to ask our panelists, that is one of the key
concerns of the small-business community of mine; so would you
tackle that head on and give us your thoughts? Why don't we go
back the other way. Why don't we start with Ms. Nussbaum and
work our way down the panel.
Ms. Nussbaum. I would appreciate the concerns for small
business and the tremendous pressures that they are under, and
I do think that we need to find solutions that take that into
account.
I do think, though, that as we have brought in generations
of new policies, there have been at times a concern that was
not really in relation to the actual implementation of a new
policy, and that we may find that by setting some new
standards, such as the Workplace Flexibility Act, or extending
leave, unpaid family leave, to far greater numbers of employees
will not have a negative effect. I think that we have to look
at that experience and see how we can create a higher floor for
most workers, including those in small business, and then make
exemptions where we need to.
Representative Brady. Thanks, Ms. Nussbaum.
Ms. Calvert.
Ms. Calvert. If I understand your question, you are asking
how we can tackle the flexibility issue and flexibility bias
without a mandate on employers; is that correct?
Representative Brady. Yes.
Ms. Calvert. One of the key ways is a right-to-request law,
and I should preface my response by saying Worklife Law does
not promote any particular legislation. We provide technical
guidance to policyholders based on our research. But based on
our research, based on what we know also from what we are
seeing at the hotline, a bill such as H.R. 1274 balances the
interests of employers and employees and encourages them to
engage in a dialogue without mandating certain types of
flexibility to be given. The employers remain free to fashion
with the employee what will work for that particular workplace.
Fortunately, we do see in a number of best practices workplaces
that type of back and forth already going on, and we know that
it can be very successful.
In terms of things such as expanding the FMLA, which
certainly I know certainly a lot of people want to do, I think
we need to look at whether extending the FMLA benefits to
smaller employers would substantially increase their costs or
their burdens, and it is too early at this point for me to give
much information on that. But I would note that a number of the
small employers that I have worked with in my private practice
already provide FMLA-type benefits to their employees. A lot of
these are 10-employee organizations, 15, 20. And the reason
they do so is it is good for business. They want to be able to
keep their employees, and they realize that it is the right
thing to do. So for employers of that sort, there would not be
any additional cost to them.
Mr. Brady. Thanks, Ms. Calvert.
Ms. Galinsky.
Ms. Galinsky. We have been tracking what employers are
doing for the last decade. When we began to look at this, our
assumption was that smaller employers would be less flexible,
and that it was the large employers, because it was the large
employers who were getting written about in most of the media
reports, and they are easier to find and, therefore, obviously
easier to write about.
We found that, in fact, to our surprise, smaller employers
were, in fact, more flexible when we first started to look at
this than larger employers. And it is probably because people
all knew each other, and so it would be harder to say no to the
kinds of stories that you were telling if--when you probably
know that aunt or that father or that child or that sort of
thing.
We found that the culture of flexibility, which is what is
really important--it is how people--despite what the policies
are, it is how people really treat each other, it is whether
there is jeopardy for using the flexibility that you have--was
more pervasive among smaller employers. We are looking at this
from an employee perspective; so I am talking about any size.
When we do surveys of employers, we look at employers with 50
or more. We found the last time we looked at this issue, that
smaller employers were no longer more flexible than larger
employers, and the main reason--one of the main reasons is that
large employers were catching up to smaller employers.
Now, smaller employers are less likely to have programs and
policies and written procedures. Whether or not you have
programs or policies in a company, it is whether people talk to
each other, it is how they talk to each other, it is how they
solve their problems that really make the difference, and
whether there is jeopardy for using what happens. So you can
have a wonderful policy, but I think, as Ms. Calvert said, if
there is jeopardy for using it, it doesn't work. We found that
the level of jeopardy in the United States for the last two
decades that we have been tracking, it has not gone down. About
two in five employees feel that there is jeopardy for using the
flexibility that their employers offer.
So we need to create a way of having dialogue so that
employers and employees can work out these issues in the way
that this bill proposes, for example. But we also need to
ensure that there is not jeopardy for using it, because then it
really doesn't achieve the kind of productivity effects, the
kind of loyalty engagement effects that most people want.
Mr. Brady. I have not read your survey in depth, but what
you are saying, I think, is reflective. Larger corporations
have better benefits. Small businesses can be a little more
flexible. Although as you get smaller, you get to 10 employees,
8 employees, 5 employees, providing time off, losing an
employee for an extended time just either shifts the burden or
has a real direct impact on that small business. So in some
ways there is sort of a middle ground on this, and, again, a
reason why the one-size-fits-all doesn't work quite as well.
But I think your survey results are really interesting.
Madam Chairman, I apologize. We have a Ways and Means
hearing, and I apologize for leaving.
Chair Maloney. Thank you for being here. We certainly
understand. It is very busy at the end of the session here. But
this bill is very flexible, and the employer and the employee
are able to work out a flexible time schedule, and the employer
can turn down the request, but the employee will not be fired
for having requested it. So I hope you will consider it. Thank
you for being here.
Mr. Hinchey--excuse me. Mr. Cummings was here earlier.
Representative Cummings. Thank you very much. Thank you,
Madam Chair.
Chair Maloney. I am used to Mr. Hinchey's sitting next to
me.
Representative Cummings. No problem.
To all of you, without adequate protections in place, work-
life conflicts are potentially more severe for low-wage workers
than they are for higher-wage workers. An employer may be less
likely to make accommodations for an employee viewed as less
critical to the operations.
Could you describe in greater detail the key obstacles that
low-wage workers are challenged with versus middle-wage
earners?
Ms. Calvert.
Ms. Calvert. A number of obstacles. One is just simply
access to alternatives for things like child care and elder
care, care of a sick spouse. Low-wage workers do not have as
many resources available to them.
Another is an issue that you just flagged, which is the
issue of value to the organization. An employer may be a lot
less likely to--might be a lot less likely to accommodate or to
make some provisions for someone who is easily replaced.
The other is the nature of the work. We like to see
employers be creative in coming up with ways to do different
types of jobs flexibly, but there are some jobs that just
require you to be physically present for a certain number of
hours in a certain place, and that does limit the amount of
flexibility that is available. That tends to fall more in the
low-wage category. So a number of these obstacles make it a
little bit more difficult, certainly not impossible, to provide
flexibility to low-wage workers. It is absolutely critical.
These people need their jobs. Without the flexibility many of
them can't work. We hear that on our hotline all the time.
Representative Cummings. One of the things, very quickly,
is in talking to some employers in my district, they tell me
that with this recession, the situation that we have here
today, they are more likely to let people go; in other words,
to fire them and hire somebody else that will fit. In other
words, if there are people who are absent, they are less--the
employer is less likely to go along with X amount of absentees.
In other words, they will reduce those absentees and say, okay,
since so many people are not working, I can get somebody to do
this job, they will come. So that creates a problem, too,
because you have got a workforce that is in--particularly for
a, quote, noncritical-type employee.
Ms. Galinsky.
Ms. Galinsky. When we look at both employers that employ
low-wage workers or we look at employees and their experiences,
because we do studies of both employers and employees, we find
what you are saying is absolutely true. Lower-wage employees or
low-wage employees who live in low-income households tend to
have much less access to flexibility.
My own view is that we are living in the 21st century with
20th century attitudes, and part of that is the fact that--we
have been talking about a number of them--that flexibility will
only work for the employer or the employee. It has to work for
both. Or that the Congresswoman began with the Ozzie and
Harriet story. Eighty percent of couples in the workforce are
now dual-earner couples, and women bring in 44 percent of
family income now. We find that one in four women, 26 percent,
is earning more--at least 10 percent or more than her husband.
So that is another outmoded view.
I think an outmoded view is that low-wage workers are less
valuable to their employer. They are the backbone often. They
are the customer service person who answers the phone, the
person who takes the reservation, the person at the call
center, the person who checks you into the hotel. They are the
frontline people at most businesses. And even though it may be
quicker to hire someone else and get rid of the person who is
not working out, I think that in the end that doesn't serve the
employer very well, because employees look around and see how
each other is being treated, and they are less willing to give
their all for an employer who doesn't treat employees well.
Now, that is not to say that in a tough time that tough
decisions don't have to get made, but I think that we need to
move to a 21st century recognition that our economy very much
depends on the diversity of different kinds of people, all
different kinds of backgrounds, all different generations, but
also all different kinds of jobs, and that there are many
industries--the industries where lower-wage workers are treated
well are the industries that tend to be more successful--or the
companies. I don't mean the industries. The companies.
Representative Cummings. Thank you.
[The prepared statement of Representative Cummings appears
in the Submissions for the Record on page 74.]
Chair Maloney. Mr. Hinchey for 5 minutes. Thank you.
Representative Hinchey. Thank you very much, Madam
Chairman.
And thank you very much for being here. I just have a
couple of questions.
I wanted to ask Ms. Galinsky, you talked about the fact
that there were 57 percent of the employers who were engaged in
flexibility, and that was having a positive effect to some
extent.
Ms. Galinsky. No. This particular study looks at how the
recession is affecting employers. It is a study that we just
released earlier this morning. We found in that study that 81
percent of employers had maintained the flexibility that they
offered, 13 percent had increased it, and 6 percent had reduced
it during the recession. And my point was that I guess, because
we didn't ask, but I guess that they see that there is a value
to having flexibility. That is why they are not dropping it at
this point.
We have found in many studies that employers that are good
employers, and that isn't just having flexibility, but the
employers that give people learning opportunities, that help
people succeed on their jobs and so forth, they are effective
employers and they have flexibility, tend to be much more--to
have more employees who are more engaged, who want to stay on
the job, who are more loyal, those sorts of things. So being an
effective and flexible employer tends to pay off for the
business.
Representative Hinchey. Thank you. Thanks very much for
clearing that up.
The situation that we are dealing with, of course, in the
context of this economy is something that we have to try to
deal with more effectively. One of the aspects of that in an
interesting way is how the number of women in the working force
has continued to grow. The information we have, for example, is
back in '75 was less than half; just 2 years ago it was up
above 71 percent, and that number is continuing. So--and that
71 percent is 70 percent of mothers in the labor force.
So this is a situation that is having an interesting effect
on families and, of course, an interesting effect on women, and
I think to a large extent the effect it is having on women and
to some extent at least is positive, because it enables them to
be out there in the world, doing things that may be creative or
in some case maybe not, but in any case that is the situation.
What are we going to do to deal with this more effectively?
One of the things that is happening now is that the wage
increase has gone up. Do you think it should go up even more?
That wage increase was increased 2 years ago. Now I think it is
taking effect. I think it takes effect this week, maybe today.
Should we be increasing that more?
Ms. Galinsky. I want to say one thing about women before I
talk about wages, which is that, interestingly enough, we tend
to think of work-life or work-family issues as being a women's
issue. And yes, women tend to take the majority of
responsibility for their family, although men are increasingly
taking more. According to women now, 31 percent of their
husbands are taking as much or more responsibility for their
children as they are.
Men are feeling more work-life conflict these days than
women, and I just want to make sure to say that the work-life
conflict is an equal opportunity problem. And we need to pay
attention to older people, younger people, women and men, in
all of the aspects of their work and family life.
I think the issues of poverty are very pervasive and
difficult issues in our country, and particularly for women who
earn less, on average, for many reasons. But we are now in a
situation where women are about half of the labor force. The
recession has brought up women's levels in the labor force
undoubtedly. And one in four of them are earning at least 10
percent or more than their husbands. So we cannot look at
women's earnings as pin money or second earnings or that sort
of thing.
We have to understand that families wouldn't be surviving
in this economy often--if there are two people in the family--
if both of them weren't working. And not only do we need to pay
attention to how much money they are earning, which was your
question, but I think we need to--and we have a project
concerned with this--that we need to pay attention to taking
advantage of things like the Earned Income Tax Credit and other
things that the government offers that can help low-income
families to have more money in their pockets.
And we need to create a system, particularly in this bad
economy where middle-income and low-income people are suffering
and people are suffering throughout the economy, where people
can not only earn more money and have some sort of economic
stability--being worried about losing your job is probably the
biggest predictor we see of poor health, poor mental, poor
physical health, and so it is going to cost us money in health
care; but we also need to make sure that employees can take
advantage of the things the government or their communities
have provided for them.
Ms. Nussbaum. Minimum wage, I believe, is going up today.
More women than men work at the minimum wage. I would recommend
that we do increase the minimum wage to make it more of a
living wage. When the minimum wage is so low that workers can't
support themselves or their families, it is unsustainable. And
I do think that the Congress should index it, and then not have
to worry about it again in the future, not have to take those
votes and take their attention away from other really important
issues.
I would like to also comment on the low-wage worker
problem, where any difficulty encountered in the workforce is
devastating for a family operating on low wages without the
resources that Ms. Calvert was referring to to solve a problem.
But we found, in practical experience, that there is nothing
about low-wage jobs that makes them not available to flexible
work arrangements or being able to take use of leave
provisions; that there is nothing endemic about the work, it is
about whether you have the bargaining power to make it happen
in your workplace. And that if there were any place to
concentrate to create greater flexibility and a higher floor,
it would be among low-wage workers because when they encounter
a problem, it becomes a spiral where a family requires greater
government services, has greater difficulty reentering the
workforce, and it is much more costly.
Chair Maloney. Thank you.
Mr. Snyder.
Representative Snyder. Thank you, Madam Chairman. I am
sorry I was late for the beginning of the hearing.
Mr. Brady has left, but he spent most of his--at least the
written statement I have--talking about health care. So I
wanted to ask you all about health care.
I have to make one comment. In his written statement he
says that the Democratic plan, I guess Mr. Waxman's proposal,
would leave 17 million people uninsured. And he is lamenting
that, which we all do. I think a significant number of those
people are in an illegal status, and so they would not be
covered by the bill. We will always have people be out of it.
But my guess is that in the final version of the bill that
actually gets signed into law by President Obama, we will find
that we drop that number down even further. But I just don't
understand lamenting the fact that 30-plus million people will
get health insurance, even by his analysis, which seems like a
great victory when you have almost 50 million without health
insurance, and that means for longer than a year without health
insurance.
The question I would ask you is if you all have any
comments or expertise on the area of small business and their
ability to provide health insurance for themselves and their
employees; and what has the trend been and what direction do
you see the trend going with regard to the ability of small
businesses to provide health insurance to their employees,
which includes themselves in most cases? If you all would
comment on that issue.
Ms. Nussbaum. We can provide information for you. I don't
have information directly available at this moment.
Ms. Galinsky. We have the information, too. And I don't
have it memorized, but I think that there are a lot of--I think
that it is not just small business, but we have an increasing
number of contract workers, too, who lose their jobs and then
come back as working for the employer but not covered by any
benefits.
I know that when employees don't have health insurance and
when they worry about losing their jobs, that that is so
critical to family well-being. It is so highly correlated with
everything negative that you want to look at--worry,
depression, lack of engagement at work, all those sorts of
things. So that is kind of, to me, a floor of taking care of
families is providing for them economically and helping them
take care of their families and their health.
Representative Snyder. If you all have that information, I
think it would be helpful. I agree.
You know, we talk about the number one thing that Americans
want is they want a good job and a good economy--which we all
want, right? In fact, what we want is the money that comes from
that good job and a good economy. It is what we want to buy.
And the number one thing we want to buy as best we can with
that money is good health for our family, good health for our
family members. And even those with good jobs in small
business, a lot of them are not able to do that because small
businesses are increasingly bailing out on health insurance
because their rates go up higher, because of small groups and
all those things that you are familiar with.
I yield back, Madam Chairman.
Chair Maloney. Thank you very much for raising that very
important issue. And hopefully we will get health care this
year.
I recently reintroduced the Working Families Flexibility
Act, which would give employees the right to request flexible
work arrangements and not face being fired for having asked.
How does flexible scheduling help businesses succeed? And
if you have examples of firms that use a right to request
process like the one my bill proposes, if you could elaborate.
And it is based on a United Kingdom model that has been
successful in Britain.
And basically, if I could ask, why is legislation that sets
guidelines for our right to request important? And Ms. Nussbaum
and Ms. Calvert and Ms. Galinsky, I am very interested in your
response.
Ms. Nussbaum. I think there is a presumption on the part of
employers that maintaining control over every aspect of
employees is to their benefit; that if they concede the right
to request--a change in schedule, for example--that they lose
control and it becomes untenable. In fact, the opposite is
true; that if employees have greater control over their work
life, their working conditions, that it creates a more stable
work environment. That has been our experience over 100 years
of collective bargaining. It is certainly the case in many
countries where we do see similar provisions enacted, that all
industrialized countries actually have greater flexibility that
is guaranteed. And I think that this is a modest but important
first step and could be easily accommodated.
Chair Maloney. Thank you very much.
Ms. Calvert.
Ms. Calvert. The right to request law would, by providing
guidance to employers and by stimulating conversation in the
public and in the workplace about flexibility, would have, in
my view, a very good effect on the overall state of flexibility
in the workplace.
One of the things in the bill that I think is very
important is the anti-retaliation provision. A lot of
conversation right now is not happening in workplaces because
of the bias against flexible workers. Workers often feel that
if they even bring up the topic, it is the professional kiss of
death. We certainly have seen that in our work with law firms.
In terms of employers who are already engaging in this type
of process, there are a number of best practices law firms that
have good, flexible work policies in their handbooks. And they
have procedures whereby any lawyer, for any reason--not limited
to child care, not limited to mothers--can request flexibility
upon a showing of how the flexibility will benefit the employer
and how it will work in practice.
If it sounds a little bit familiar, it does track some of
the language in the bill. We have seen this play out for
months, and in some cases years now, in these law firms. They
are retaining very good workers, they are retaining women, they
are advancing their women.
Importantly, they are also retaining men. A lot of men want
flexibility. And the stigma against them requesting flexibility
is even greater than against women because they have the double
whammy. Not only are they now putting themselves in this
flexible worker category, but they are now working against
their sexual stereotype.
And so having a provision by which they feel free to be
able to request flexibility without retaliation would have a
very good effect.
Chair Maloney. Ms. Galinsky.
Ms. Galinsky. When the law was passed in the U.K. and when
the law was passed in New Zealand, it interested me greatly
that employers began to copy the law; it is usually the other
way around. But in this case, employers began to use the
provisions of those laws to create their own flexibility
policies.
When the Family and Medical Leave Act was passed in 1993,
there was a huge amount of business opposition to it. You can
remember that and I can remember that--you can all remember
that--it was seen as the ``camel's nose under the tent'' and so
forth.
What is very different today than in 1993 is that
businesses are using flexibility. They are using it for their
own purposes. And there are groups here in this room today that
bring in a business constituency to talk about how to create
policy that works for business and works for employers.
World of Work is here, and that has been their stance. As a
representative of businesses, Corporate Voices is here in this
room, and that has been their stance: to have a corporate voice
in the public policies that affect families. And WF 2010 from
Georgetown Law Center is here, and they have brought together
both employer representatives and employee representatives to
come up with their platform.
So I think it is a different time. And keep introducing the
bill because I think there should be a different debate because
business groups and business and employee groups are now saying
that they want to have a voice and be a part of the public
policy discussion.
Thank you for having me.
Chair Maloney. Thank you very much. My time has expired.
Mr. Cummings.
Representative Cummings. Ms. Nussbaum, you wrote in your
testimony--and I am just piggybacking on what Ms. Galinsky was
just talking about--you wrote that more of the private sector
should be subject to the Family and Medical Leave Act. Tell us
in more detail how you suggest going about that sort of
expansion; and, other than widening the scope of businesses
subject to the act, the additional changes that you think we
need to make.
Ms. Nussbaum. My written testimony provides detail on what
kinds of changes, but they include expanding to smaller
companies, lowering the amount of time a worker needs to be in
the company in order to be eligible for family medical leave,
and the reasons for which you can take family medical leave.
All of those things would be important expansions, and I think
easily accommodated, not disruptive, and incredibly important
to the workers, who would then have access to it.
Additionally, I think that in order to make family medical
leave really effective, we have to provide wage replacement. As
I testified earlier, 80 percent of workers say that they could
not take the leave because they had no wage replacement. And so
unpaid leave becomes a nice sounding benefit, but not one that
is really of practical use for most people.
Representative Cummings. And Ms. Calvert, legal action or
the threat of legal action is an obvious recourse that
employees have against a company's violation of internal policy
or Federal/State labor laws. It is reasonable to assume that
lower-income workers may have less access to legal
representation in these cases. Are resources available for low-
income workers to address discrimination or other complaints?
And what role can unions play in all of that?
Ms. Calvert. You are right, there is definitely a problem
of access to legal representation for lower-wage workers. On
our hotline we do our best, if someone has a claim, to find
resources for them. Sometimes lawyers will take their cases on
a contingency basis, depending upon the strength of the case.
There are a number of pro bono services, women's law centers
and the like, around the country to which we can refer these
people. We also have some resources available that anyone can
use to try to resolve their problems within their workplace on
their own.
The role of unions is very, very important. We have
resources available for unions to make sure that they
understand the legal scope of family responsibilities,
discrimination, how it plays out, what the remedies are that
are available. And, very clearly, unions have a strong role to
play.
Representative Cummings. Ms. Galinsky, I am just going to
go back to some of the things that you were saying earlier. You
referred back to the Ozzie and Harriet statement, and then you
talked about how more folks are coming to the table, businesses
and whatever. And I think that is why broad-based diversity in
making decisions and policy is so important.
I have often said in my district and other places that I
would hate to even imagine the Congress without women. And I am
serious. Because I think it is so important--and I can say that
about African-Americans and others, too. Because it is so
important that if you are going to set policy for a diverse
group of people, then you need diverse people setting the
policy.
And so I say that to say that, you know, I was trying to
figure, as you were talking earlier about how do we bring--you
said we had a 21st century situation and acting like we are in
the 20th century--but how can we bring ourselves up to date
because things have changed tremendously, but it just seems
like we just haven't caught up as a society? Do you have any
suggestions?
Ms. Galinsky. That feels like my life's work. I think that
what we try to do at the Families and Work Institute is to look
at the assumptions, and then look at the realities. And we
collect data on employers and employees on an ongoing basis so
that we can look at the trends to see what is real and what is
happening.
So I think that having data both of what the trends are in
the demographics of the workforce and in the realities of
people's lives, but also what best practices are.
Next week we will be releasing a report. We have an award
program called When Work Works, which we are in 30 communities
and three States, where we have a process for giving awards to
employers that are more flexible and effective. And the
employer self-nominates. If they are in the top 20 percent of
employers nationally, then they give the survey to employees.
Two-thirds of the winning vote comes from employees.
We then produce a book that has some of the best practices
of what employers are doing around the country. We can
instantly produce reports for what employers are doing for the
recession--I have one with me today, for example, if you want
to see it.
We started out with less than 100 winners, we now have 260
winners. Next year we are going to have more than 440 winners.
There are really good things happening all over the country.
But we do find, to go back to your first point, that when
companies have more diverse leadership, they tend to be more
effective and flexible workplaces. And that has been a
consistent finding of our National Study of Employers. If you
look at who is making the decisions, when there is more
diversity there, they tend to be more supportive of both
succeeding as employers--obviously they have to succeed as
employers--but also helping their employees at the same time,
and helping their employees have a good personal and family
life as well as be effective at work.
I think the big change is coming among younger employees.
Among younger employees, for example, we find that women are
just as ambitious as men. Women with children are just as
ambitious as women without children. All these are firsts. We
find that the attitudes toward work and family life have
changed. We find that the composition of that younger
population is much more diverse, but they still want the same
things that all of us want. Their values for what they want at
work aren't that different than other generations.
Representative Cummings. Thank you.
Chair Maloney. Mr. Hinchey.
Representative Hinchey. Thank you very much, Madam
Chairman. This has been very interesting, frankly, and I thank
you very much.
We are struggling with this economy here, this Congress,
and trying to figure out what to do. One of the most
significant things that we are dealing with right now is the
health-care issue. And there is a possibility that that bill
could pass the House of Representatives next week. But
nevertheless, that is only a possibility; it is also possible
it may be extended out for some time because of the controversy
associated with it.
I wonder if you might have any suggestions or
recommendations about that, how much you think it is effective.
Also, with regard to unionization, we know that people who
work in unions make more money. We also have some recent
information that says--something that came out by the Labor
Project for Working Families--showing that 46 percent of
unionized workers receive pay while on leave compared with only
29 percent of nonunionized workers. I wonder if you have any
comment on that or any suggestions.
And then finally, with regard to this economic development
program, the so-called stimulus bill, what is your attitude
about that? How effective do you think it is? And what
additionally might we be focusing on in order to generate an
improvement in this economy? If you wouldn't mind, the three of
you, I would appreciate it.
Ms. Nussbaum. Thank you.
This also refers back to Congressman Snyder's question
earlier on health care. I think the most important element in
health care and making it affordable for small businesses is
the public option, that unless we can control costs, we will
not have effective health-care reform. That is the absolute
essential element to it, and it is what makes it available for
small businesses.
And if we don't solve the health-care crisis, we will never
be able to resolve the rest of these problems because it will
continue to sap our economy. It is the absolute fundamental. It
removes the burden from employers. It takes it out of
collective bargaining and restores health to American families.
I don't think it could be more important.
On unionization, certainly the work and family benefits,
clearly there is a differential with regard to work and family
benefits; unionized workers are far more likely to enjoy them,
as well as have higher pay. And what we find is that workers
who don't have a union know that. A majority of workers say
that they would join a union tomorrow if they had the chance.
Our 2.5 million members in Working America who do not have a
union on the job are looking for just these kinds of
improvements in their lives. And they know that they will
achieve that when they achieve strength in numbers; that is
what they are looking for. And we have got majority support in
the public to try to allow labor law reform to take place.
Passing the Employee Free Choice Act will make that more
available as the most flexible, most effective way to improve
work-life balance and working conditions for all workers.
Finally, on the stimulus, we believe that the stimulus has
not gone far enough, that we need a greater stimulus; that the
problem here requires the greatest possible action on the part
of the government; that we have got to get money into job
creation and get it in fast.
So we applaud the work that has gone on so far, but we
believe that actually what we need is more.
Ms. Calvert. Certainly, paid family leave is a goal of
many, and unions have been very effective in obtaining
benefits. One area where we would like to help unions is
exploring the ways in which bias can be addressed in the
bargaining process, ways that bias in the workplace can be
addressed through the collective bargaining.
With regard to health care and the stimulus, I am sorry,
but that is beyond my area of expertise.
Ms. Galinsky. We have a report that we are going to release
around Labor Day on the health of American workers, the mental
and physical health, because our National Study of the Changing
Workforce for the first time includes items on physical health.
So I will have a lot more to say about health at that time. But
it is, as you can imagine, a pretty mixed picture.
Representative Hinchey. Thank you very much.
Chair Maloney. Thank you, Mr. Hinchey.
And Ms. Galinsky, you seem to have a report a month. You
are very busy.
I would just like to ask finally, for my part, what role do
you think work-life balance policies can play in promoting
women's success in the workplace? It used to be very rare to
have women in the workplace. Now it is commonplace, and work
balance issues and work-life balance issues are becoming more
important.
Could you comment on that, Ms. Galinsky, and all the
panelists if you so wish?
Ms. Galinsky. One of the wonderful changes that I have seen
in the three decades that I have done research on this subject
is that we used to think we had to live this as part of the
21st century versus the 20th century, you had to have an
either/or world. And I know that that dragon, as Karen Nussbaum
mentioned, was raised with Jack Welch in his comments a few
days ago.
I don't think we live in an either/or world. I think we
live in a both/and world. And I don't think that women can
succeed without having a supportive workplace, but neither do I
think men can succeed without having a supportive workplace.
And for the first time this has become a much more legitimate
area of conversation. So I am hopeful that all of us working
collectively can help make that a reality for more families
because it is not just those families with children. We find
that 43 percent of employees have had elder-care
responsibilities in the past 5 years, and more than 50 percent
of us expect to in the next 5 years. So this is an issue.
The issue of work and family life affects us all when we
are young, when we are older, when we are in the middle, and
whatever our family circumstances. So I think all of us can't
succeed without having supportive and effective workplaces,
flexible and effective workplaces.
Chair Maloney. Ms. Calvert.
Ms. Calvert. I would certainly echo that and the earlier
comments about work-life balance not being a women's issue. We
certainly see a lot of men who are striving for that. We hear
from a lot of people that they prefer the term ``work-life
integration'' because they don't view things as necessarily
needing to be in balance, but something that one is always
striving to achieve, realizing that sometimes work takes
priority, sometimes family takes priority.
In terms of women's advancement, I see a direct
correlation--and I think most researchers do--and that is
because, although it is not a women's issue, women still do the
bulk of the caregiving in this country. And to the extent that
they are burdened by that, the playing field in the workplace
is certainly not level.
There was a study done a couple of years ago, and MIT did
another study last year on New Jersey women lawyers, in which
they looked at law firms and women being promoted in the law
firms. They found that most of the men had stay-at-home
spouses, and most of the women did not. And the women were
pointing to that as a key reason why they were not being
promoted within their firms. They were not able to devote the
same sort of level of attention and time and effort to their
work, given that disparity.
So when work life is viewed as an issue for both genders
and when everyone is working to integrate their work and their
lives, I think we are going to see even more promotability of
women.
Chair Maloney. Ms. Nussbaum.
Ms. Nussbaum. My generation was part of demanding equality
for women, and what we got was equal employment opportunities
and a bad workplace. We ended up getting those jobs just like
they always were, which just doesn't work.
We do indeed have it all. We have the responsibility for
providing wages in our families; we have the responsibility for
providing health care in our families; for elder care in our
families; for raising our children; for dealing with our
community responsibilities. I don't know that is really what we
intended.
I think what we want is to have it all in a way that
recognizes that we cannot string out women and men and their
families to the last ragged edge by not providing any supports.
Chair Maloney. Thank you, and very well said by all of you.
Representative Cummings.
Representative Cummings. Ms. Nussbaum, I wasn't going to
ask any other questions, but based on what you just said, I was
just curious. I would imagine--and Ms. Calvert and Ms.
Galinsky, you might want to comment on this. I was just
thinking that when you talk to a lot of young people, they get
married and they think they are going to have this rosy, rosy
life--and I am sure they will. And then they have all the stuff
that you just talked about, I mean, this balancing act. You see
them rushing here and rushing there.
I mean, this has to have an impact on our divorce rates,
and that is that quality of life--I can't think of a better
statement than that--that people experience. You know, we can't
always measure quality of life, but it is so significant. And
so many people are striving for it, and they have an image of
what it is supposed to feel like, look like, and when they see
that they can't get it, because of the very things that you
just talked about, then they throw up their hands and say, you
know what, I am going to get a divorce, or I am just going to
go another route.
I mean, I was just wondering, have you all looked at
divorce quality-of-life issues with regard to the things that
you are talking about today?
Ms. Nussbaum. One of the very saddest consequences, I
think, of a workplace that really doesn't meet the needs of
women and families--or men--is that so many people, especially
young people, feel like they have no one to count on, that the
only person I can count on is myself. There is a fractured
sense of community. There is no sense that you can change
things; that all you can do is try to struggle through on your
own.
That is a sad, sad comment. I don't think it is the America
that we want to live in, but it is an accurate reflection of
the lives of most people, especially young people. And I think
it is one of the many reasons that we need to rebuild a social
fabric that tends to our families.
Ms. Calvert. Well, while we haven't studied divorce per se,
there certainly have been a lot of studies of lawyers that have
concluded they have very high rates of divorce. Of course the
legal profession is known for having very high demanding hours,
very high stress, low flexibility, although our project for
attorney retention is certainly trying to change that.
But one thing that I would note is we probably have some
lessons to learn from this younger generation, which is taking
much more of an approach of work where you want to, when you
want to. It is a very healthy attitude. We see people who are
finding that quality of life that you are talking about, while
still being very productive at work by putting in a lot of
effort because they are able to integrate their work and their
life outside the office.
Ms. Galinsky. I would agree with what Ms. Calvert said. We
find that young people still want it all, but they are
realistic about what that means. They don't expect to have it
all and do it all. They don't necessarily want it sequentially.
We have asked these sorts of questions.
This generation of young people is much more family-centric
than boomers were. They see the generations before them who
gave their all to employers and then got downsized, so that
they are more realistic.
But I don't think that the notion of change is over for
younger people. I think that they do expect to try to make it
work in different ways, particularly since they have grown up
with technology and they are used to working in different ways.
And so they are ushering in a change that I think we can help
support and be hopeful about.
They are more realistic than we were, but they still want
to try to make it work. And they don't necessarily like the
word ``balance'' either, because they see it as a choice word,
either/or, if this side is up, that side is down. Some use
integration. We use the words ``work-life fit'' because it is
what works for you is what is important. And each of us has
different priorities on different days of the week and
different hours of the week.
But I do think there is some hope toward your having this
hearing, we are discussing this, it is in the media. And I
think we can continue to try to work to make it work.
Representative Cummings. Thank you.
Chair Maloney. Thank you.
Mr. Hinchey, for the last word.
Representative Hinchey. Well, this isn't the last word, but
again, thank you. Thank you very much for everything that you
have done.
One of the things that interests me is the contribution
that women are making to the betterment of this economy. And I
think that that has been very, very substantial. The more women
become involved in economic circumstances, the better the
circumstances improve, the stronger they become, the more
insight we get, the more creativity. And I think that that is
based upon something--which I can't help but laugh a little bit
as I think about it--that women generally are more insightful,
and maybe even smarter than men on an average basis. So the
contribution that they are making--and I don't mind saying that
because I think it is true--but the contribution that women are
making to the economy is very substantial.
One of the problems with women and the economic conditions
and maintaining those circumstances and improving them is
maternity leave. There are a lot of things that happen with
regard to women working and then needing to go off on maternity
leave that jeopardizes their working future.
So I wonder if you might have some ideas about that
situation and anything that we might be able to do to make sure
that there is sufficient maternity leave, and that the
maternity leave isn't jeopardizing women's jobs; that they can
continue to have those jobs and also continue to advance in the
context of that employment.
Ms. Galinsky. We used to think of flexibility as simply
the--and I am talking in the seventies or so--as the hours that
people worked. And now I think there is a much broader
understanding that flexibility isn't just--and this started in
the 1990s or so when the definition expanded--but flexibility
isn't just the hours that you work during any one week, full-
time versus what was seen as alternative part-time, or it was
seen as abnormal--alternative work schedules is what it was
called. And no longer is that true.
I think we need to think about flexibility, about when we
work, about where we work, and about how we work throughout our
lives. We look very strongly at flex careers, which is the fact
that it may be having time off when you have a baby, whether
you are a father or a mother, or it may be when you have elder
care and you are older. So we need to think about flexibility
in careers or in the lifecycle of work.
People are going to work longer in retirement because they
can't--into their retirement years. We now in our study are
going to do a whole report on working in retirement, which is
what a lot of people call their post-retirement jobs, that we
need to support people. And there have been a lot of models for
how to do that.
The reason that women fall behind when they have babies is
because their salaries decline for the amount of time that they
stay out. And so we need to keep people connected to the
workforce when they are leaving; initiatives like Personal
Pursuits or extended leave, where you are connected to your
employer, you continue to get training, you come in and
substitute for people while you are away--that solves some of
the small business issues.
We need to think of those kinds of creative solutions that
don't jeopardize people economically, because the reality of
life today is that people move in and out of the workforce,
whether they are unfortunately downsized and have to move out,
not by choice, or whether it is because they are having a
family issue, like a wonderful thing like having a baby or a
difficult thing like having an elder-care crisis.
Ms. Calvert. I am very glad that you raised the issue of
maternity leave, because we get so many calls to our hotline
involving maternity leave, women who are fired just before they
go on leave so that they won't get paid leave; women who are
fired during their leave or shortly thereafter.
There is a tremendous amount of bias around maternity
leave, a lot of discrimination. And one of the things that we
look to is an increase in paternity leave use so that employers
do not look at a young woman that they just hired and make an
automatic assumption that down the road she is going to be lost
to them for a few months for maternity leave.
It would be much more equitable if an employer were able to
look at any young person that he or she just hired and say that
person is likely to need some time off for child-bearing or
child-rearing, whatever, at some point in their careers. It
would be even better if the employer then went one step further
and said, you know what? All of us are going to need some time
off at some point during our careers to recover from a heart
attack, a car accident, take care of a sick spouse or parent.
And so, really, we are very focused on this issue of
maternity leave as being something that is damaging to women
and their careers. And certainly it absolutely is right now,
but that is not something that is a given. And that is one of
the nice things about the FMLA; it doesn't limit the leave just
to women.
And so if we can make full use of the FMLA's provision and
then encourage employers to get rid of the caregiver bias, it
will go a long way.
Ms. Nussbaum. And I would also like to suggest that
expanding and providing wage replacement for family medical
leave is the obvious next step for providing maternity leave.
We are the only industrialized nation that doesn't have it.
Recently, I met with a woman in government, from Malaysia.
And I was prepared to condescend to her, frankly, about their
bad working conditions. But when I told her that we didn't have
maternity leave here, she chastised me for having failed our
nation's women. How could we possibly have done such a poor job
in failing to provide such a basic benefit? I do believe that
taking this next step on FMLA would be the way to resolve that.
Representative Hinchey. Thank you.
Chair Maloney. Thank you. And I do want to note that we did
pass paid maternity leave for Federal employees. It was a bill
of mine that has gotten through the House. Senator Webb is
sponsoring it in the Senate. And Congressman Stark has a bill
in that would expand paid family leave to the private sector,
which I am obviously supporting and hope we will be able to
pass in this session.
I would like to thank all of you for your life's work and
for being here today to talk about work-family fit in the
recession and how workers and employers are coping. And as I
said, if we as a nation truly value families, then we have to
have policies that are in place that speak to valuing the
families. And we need to have workplace policies that support
not only the working families, but their children also. This is
important for a path to success not only for working men and
women, but for their families and their children.
I thank you very much for being here. Congratulations on
the report you issued today, Ms. Galinsky. And thank you all
for your testimony. Thank you.
[Whereupon, at 11:35 p.m., the committee was adjourned.]
SUBMISSIONS FOR THE RECORD
Prepared Statement of Representative Carolyn B. Maloney, Chair, Joint
Economic Committee
Good morning. I want to welcome our distinguished panel of
witnesses and thank you all for your testimony today.
The American workplace has not kept pace with the changing needs of
workers and families. Both Ozzie and Harriet go to work now, so most
families no longer have a stay-at-home parent to care for a new child,
a sick spouse, or an aging parent.
Businesses that offer policies that help employees meet the
competing demands of work and family have seen the benefits to their
bottom lines with increased productivity and a more committed
workforce.
This is a timely hearing because employees and their families, as
well as employers, need flexibility more than ever.
The value of flexibility to employers has increased because the
recession has pressed all sectors of business and government to find
ways to improve performance. Workplace flexibility is an inexpensive
and effective way to motivate employees by humanizing jobs at a time
when so many aspects of our economy are harsh.
Some businesses do understand the value of flexibility for workers.
A 2007 survey conducted by this committee found that among America's
largest and most successful employers, 79 percent provide paid leave
for new parents, and 45 percent provide unpaid leave beyond the 12
weeks mandated under the Family and Medical Leave Act.
Businesses that rigidly cling to policies created when employees
had fewer family responsibilities have fallen behind the times.
Managers who believe there is ``one best way'' to get the job done, and
do not listen to their employees, are missing out on valuable
innovations. A lack of flexibility gives demoralized employees even
less reason to help their businesses survive and thrive.
Perhaps most important in today's economic climate is that
flexibility can help save jobs. Employees understand this--a survey
conducted this March found that a solid majority of employees are
willing to take on additional and unpaid leave or vacation, or to
switch to a four-day workweek in order to prevent layoffs. Many
employees are ready to share their job with another individual, or to
take on reduced hours with reduced pay. Employees stand ready to work
with employers to use flexible workplace options to control costs and
preserve jobs.
Flexibility is also crucial to the future of our economy. Employers
who do not support flexible work arrangements will find valued
employees fleeing at the first sign of recovery in the labor market, in
addition to losing out now on the benefits of having a committed
workforce.
The Working Families Flexibility Act can help. Our best employers
are already using flexibility as a strategy to weather the recession,
and I hope we hear more about these employers today. The Working
Families Flexibility Act, which I have sponsored in the House, will
ultimately benefit all American employees, businesses, and our economy
by making the strategy used by our most successful businesses into
public policy.
It will generate the productivity we need to propel our economy
forward in these tough times and to sustain our competitive position as
the economy recovers.
I have long championed policies to support working families, such
as the Family and Medical Leave Act of 1993. But more must be done to
help families, which is why I have also sponsored the Federal Employees
Paid Parental Leave Act, which recently passed the House of
Representatives and provides new parents with four weeks of paid time
off.
If we as a nation truly value families, then we need new workplace
policies that support our working families and set our children on a
path for success early in life.
I look forward to the testimony of our witnesses today.
______
Prepared Statement of Representative Kevin Brady, Senior House
Republican
I am pleased to join in welcoming the witnesses before us today.
The recession continues to destroy jobs and force the unemployment
rate ever higher, imposing great hardship on millions of families.
Unfortunately, the stimulus legislation has not been effective in
boosting the economy. Last January, two top Administration economists
projected that the unemployment rate would not exceed 8.0 percent if
the stimulus were enacted, but the unemployment rate has risen to 9.5
percent and appears likely to climb significantly higher.
Almost all businesses are under pressure, and many small businesses
struggling to survive in this very challenging economic environment are
unable to afford the costs of expanded employer-provided benefits. An
effort to force small businesses to offer specific benefits would raise
costs, especially of employment, and undermine their financial
position.
Small businesses historically account for much of the job creation
in the United States and undermining their ability to create new jobs
and opportunities in a weak economy is not good economic policy. Over
the longer run an effort to mandate employee benefits will tend to
reduce other forms of employee compensation, including wages.
I remain concerned that Administration policies to increase federal
deficits and debt will burden the economy for years to come and
undermine job growth. Higher taxes, mandates, and federal spending
could lead to a future with high unemployment and lower living
standards. Every new mandate or tax Congress adopts now would only make
the situation worse. It is not too late to reconsider our economic
policies and avoid piling more costly mandates on an already
overburdened economy.
What really concerns workers is what the Democrats' health care
proposal would do to the quality and availability of their health care.
This 1018 page proposal doesn't control costs and will drive the budget
deficits even higher, according to the Congressional Budget Office
(CBO). It would leave 17 million people uninsured, a population
approaching that of Florida.
A maze of bureaucracy would be created standing between patients
and medical service providers. It would establish at least 31 new
commissions, agencies and mandates that would decide what doctors you
can see, what treatments you deserve, and what medicines you can
receive. Medical care would be rationed and wait times for even routine
medical procedures would be extended. More taxes would be levied,
further damaging the economy.
The bottom line is that if the Democrats plan were adopted, a
person needing medical care will be much more likely to encounter
delays in treatment and their choice of insurance plans and doctors
will be more limited. It is not too late to stop this misguided and
poorly conceived health care proposal. Congress should not rush through
a deeply flawed proposal on a party line vote, but instead carefully
consider the interests of patients in assuring the availability of
quality health care without unnecessary bureaucratic mandates and
controls.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of Cynthia Thomas Calvert, Deputy Director, The
Center for Worklife Law
introduction
Chairman Maloney, Vice Chairman Schumer, Ranking Members Brady and
Brownback, and Members of the Joint Economic Committee, thank you for
inviting me to speak about work/family balance in the current economy.
My name is Cynthia Thomas Calvert, and I am the Deputy Director of the
Center for WorkLife Law at the University of California Hastings
College of the Law. I have been researching work/life and flexible work
issues for more than twenty years, the last ten of which have been with
WorkLife Law's Director, Distinguished Professor of Law Joan Williams.
I am the co-author, with Professor Williams, of the only legal treatise
on family responsibilities discrimination, WorkLife Law's Guide to
Family Responsibilities Discrimination, and of Solving the Part-Time
Puzzle: The Law Firm's Guide to Balanced Hours. As part of my work at
WorkLife Law, I manage a hotline for employees who believe they are
facing FRD. My testimony today will be based largely on information
learned from the hotline.
Although I will be speaking today primarily about the employee's
perspective, it is important to note that WorkLife Law also includes
the perspective of the employer. WorkLife Law is a nonprofit research
and advocacy group with a unique ``six stakeholder'' model that brings
together employees, employers, plaintiffs' employment lawyers,
management-side employment lawyers, unions, and public policymakers.
WorkLife Law works with these groups to educate them about FRD and
flexible work bias, and to craft business-based solutions.
In addition to maintaining the hotline, WorkLife Law has pioneered
the research of family responsibilities discrimination (``FRD'').\1\ We
maintain a database of nearly 2000 FRD cases and track trends in FRD
litigation. We publish an email alert for employers about recent
developments in FRD and provide resources and training materials for
employers and their lawyers to use to prevent FRD in the workplace. We
educate plaintiffs' and employers' lawyers about FRD case law, and
provide technical assistance to policymakers who seek to address FRD
and flexible work bias through public policy. We are currently
developing a database of union arbitration decisions that involve FRD,
and we provide training and information to unions as well. By working
with all stakeholders, we obtain and present nuanced and balanced
viewpoints that enable us to create usable and effective strategies for
preventing and addressing discrimination against caregivers and
flexible workers.
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\1\ E.g., Williams, Joan and Cynthia Thomas Calvert, WorkLife Law's
Guide to Family Responsibilities Discrimination (WLL Press 2006 &
updates); Joan C. Williams & Stephanie Bornstein, The Evolution of
``FReD'': Family Responsibilities Discrimination and Developments in
the Law of Stereotyping and Implicit Bias, 59(6) Hastings Law Journal
1311 (2008).
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FRD lawsuits can be brought as sex discrimination cases, family and
medical leave retaliation, breach of contract, and other types of
lawsuits. FRD can arise at any level of an organization, from hourly
shift workers to top management. The number of FRD cases has increased
rapidly. In 2006, WorkLife Law reported a nearly 400% increase in the
number of FRD lawsuits filed between 1996 and 2005 as compared to the
prior decade, 1986 to 1995. WLL is in the process of updating this
data. Preliminary results indicate a sharp increase in the number of
FRD cases in 2007 (316 cases) and 2008 (348 cases) as compared to 2006
(176 cases). Plaintiffs prevail on motions, resulting in settlements,
or win verdicts in approximately 50% of the cases. Settlements and
verdicts average $100,000, and WorkLife Law has a database of over 125
verdicts that exceed $100,000; several are multi-million dollar
verdicts.
bias against employees with family responsibilities
FRD, also known as caregiver discrimination,\2\ is employment
discrimination based on family caregiving responsibilities. It
manifests itself in many ways, including:
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\2\ See Enforcement Guidance: Unlawful Disparate Treatment of
Workers with Caregiving Responsibilities, Equal Employment Opportunity
Commission (2006), available at http://www.eeoc.gov/policy/docs/
caregiving.html.
refusing to hire pregnant women;
not promoting mothers of young children;
punishing male employees for taking time off to care for
their children; and
giving unwarranted negative evaluations to employees who
take leave to care for aging parents.
FRD is typically caused by unexamined bias about how employees with
family caregiving responsibilities will or should act. For example, a
supervisor may assume that a man who is taking care of his dying father
will be distracted, and therefore not promote him, even though the man
continues to perform at the same high level he always has. Although FRD
is certainly not confined to women, a large segment of the unexamined
biases that cause FRD is maternal wall bias: bias against women because
they are or one day may be mothers.\3\ A common bias is that a pregnant
woman will not be a good employee because she will have poor attendance
or will not be as committed to her job once she is a mother, which can
lead a supervisor to terminate her. An illustration of a bias based on
beliefs about how caregivers should act comes from an employee who
contacted WorkLife Law's hotline: her supervisor apparently believed
that mothers should be at home with their children, so the supervisor
cut her hours to less than half of full-time, telling her that this
would allow her to see more of her kids.
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\3\ Williams, Joan and Nancy Segal, ``Beyond the Maternal Wall:
Relief for Family Caregivers who are Discriminated Against on the
Job,'' 26 Harv. Women's L.J. 77 (2003).
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flexible work bias
We are very encouraged by the findings of the Families and Work
Institute showing that many work/family programs provided by employers
are relatively unchanged by the recession.\4\ These findings are
consistent with what WorkLife Law has learned from the employers with
whom it works: the business reasons for offering flexibility, such as
retention of good workers and increased productivity and morale, have
not changed.
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\4\ Galinsky, Ellen, James T. Bond, and Kelly Sakai, 2008 National
Study of Employers, Families and Work Institute.
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Unfortunately, what also has remained unchanged is the prevalence
of flexible work bias. Flexible work bias mirrors and often overlaps
with family responsibilities bias. Employees who work flexibly often
encounter unspoken and often unrecognized assumptions on the part of
supervisors and co-workers about their commitment, dependability,
worth, ambition, competence, availability, and suitability for
promotion. These assumptions affect how supervisors perceive flexible
workers and their performance, which in turn affects the assignments
they receive, and how their work is evaluated and rewarded. While
employers may not be changing their work/family programs, employees may
engage in ``bias avoidance'' by not taking advantage of such programs
for fear of being marginalized or penalized at work--behavior that may
be exacerbated by today's economic climate in which most employees have
at least some fear of losing their jobs.
Here is an example of how flexible work bias commonly plays out in
the workplace, which is drawn from calls to our hotline: Tonya is a
hard worker who regularly receives raises and is given training
opportunities to enable her to be prepared for a promotion. Once Tonya
begins to work reduced hours and to work some of the hours from home,
attitudes toward her change. She doesn't get the challenging
assignments anymore, because supervisors reserve those for the ``go-
getters'' in the department who are more committed to their work and
can be counted on to complete assignments on time. Tonya no longer
receives training opportunities, because her employer assumes that she
does not want a promotion and, even if she does, those opportunities
should be reserved for employees who are the ``future'' of the company.
Tonya, who used to be able to arrive at and leave the office as
desired, now finds that her hours are scrutinized. When she is out of
the office, everyone assumes it is for schedule-related reasons, even
if the real reason is a visit to a customer. Tonya's work product is
reviewed more closely now, as if it may contain more errors due to
inattention or incompetence. She receives a more critical performance
review, and, consequently, a proportionately lesser raise than when
working standard hours. She begins to understand that her future with
the company has become cloudy, or perhaps has vanished completely.
Interestingly, supervisors in other departments, who work with Tonya
but are unaware of her change in schedule, think she is doing the same
great job as ever, as do her customers.
This example shows how subtle, often unrecognized assumptions can
add up to create a significant flexible work bias that sets up a lesser
``flex track,'' much like maternal wall or caregiver bias sets up a
``mommy track'' in the workplace. Other common examples of flexible
work bias include hostile situations in which supervisors actively try
to get rid of workers on flexible schedules, either by creating
situations that justify termination or by making work so unpleasant
that the employees will quit.
worklife law hotline
The flexible work bias and caregiver bias largely explain why FRD
and related claims come to our WorkLife Law hotline. Many of the
employees who contact us are facing personnel actions based on biased
assumptions, not on their actual performance.
WorkLife Law has been running the hotline since 2003. In the first
five years of our hotline's operation, we received a total of
approximately 315 inquiries. The volume of calls to our hotline then
increased dramatically. In 2008, we received approximately 125
inquiries, double our previous annual average, with the bulk of the
calls coming in the last quarter. This year, in the six-month period
between January and July 15 alone, we have had approximately 92
inquiries, which suggests that we will receive more than 175 inquiries
for this calendar year.
The inquiries come mostly from women, but also from some men. Men
can face caregiver bias and flexible work bias, and it is important to
note that they also often face hostile gender bias: if they are
somewhat involved with their families, such as coaching soccer, they
are ``great guys''; if they engage in regular caregiving, they are
``wimps,'' no longer viewed as team players, and seen as lacking the
drive necessary to get ahead.
Calls and emails to the hotline come from all types of workers. We
have heard, for example, from workers in retail, manufacturing, public
safety, education, corporate management, and law firms. We hear from
hourly workers, department managers, and vice presidents. We hear
primarily from pregnant women and parents of young children, and we
also hear from adult children of aging parents, employees with sick or
disabled spouses, and grandparents who are guardians of their
grandchildren.
hotline inquiries in the recessionary period
Many of the hotline calls suggest that employers are targeting
family caregivers and flexible workers for termination. Some of this
appears to be attributable to hostile forms of bias, such as in the
case of one caller who reported that when she was pregnant, her
supervisor told her that he had doubts she could get her work done once
she had children and she was really inconveniencing him and her
department. When she asked after returning from maternity leave if she
could work a flexible schedule, he told her no, that she could quit if
she couldn't hack it. In the ensuing weeks, he acted abusively toward
her and she did in fact quit.
Another example that suggests hostility involves a scientist who
worked for Shell Oil. Shell Oil has a reputation for having very
effective flexible work policies,\5\ but as this example suggests, a
terrific policy can quickly be undone by a single supervisor.
---------------------------------------------------------------------------
\5\ E.g., L.M. Sixel, Women's Group to Honor Winner with a
Difference, Houston Chronicle, Houston Chronicle, Jan. 17, 2004, at B1
(Shell's compressed work schedule, flexible work arrangements, and
maternity leave programs as among the reasons they received an award
from Catalyst for diversity and inclusivity); see also Shell Oil's
website, http://www.shell.us/home/content/usa/a boutshel I/careers/
professions Is/rewards_benefits/professional_rewardsbenefits.html#work-
life_balance_5 (listing Shell's work/family programs).
---------------------------------------------------------------------------
This call came into our hotline in January of this year, from Tobi
Kosanke. Tobi now has a lawyer, and has filed a complaint with the
EEOC. The following allegations are from that complaint. Tobi worked
from home, examining thin sections of rock through a microscope. This
arrangement was created because her daughter was born with a
medication-resistant disease that requires her to be breastfed
frequently and Tobi has health issues that prevent her from pumping
milk at work. The arrangement worked well, Tobi was very productive,
had happy clients, and won special recognition awards. After a couple
of years, she got a new supervisor who referred to her telecommuting
arrangement as ``a mess'' she would have to fix. The new supervisor
moved Tobi to a new team and told her to return her microscope to the
company. The supervisor then told Tobi to be in the office 30 hours per
week or work part-time and take a pay cut, even though the supervisor
was aware that these schedules would not allow Tobi to feed her child.
Tobi took FMLA leave and tried to wean her child, but was not
successful. Faced with a choice between a paycheck and her daughter's
health, she says she asked to work part-time or take a sabbatical, but
the company terminated her instead.
It should be noted, however, that many terminations that are not
based on hostile bias may involve bias nonetheless. An equally likely,
although untested, reason for termination of family caregivers and
flexible workers in the current economy may be the pressure supervisors
feel to show good results with fewer resources as their budgets shrink.
They may feel that they have to weed out underperformers and trim
personnel costs to maintain their bottom line. The problem arises when
supervisors assume that those employees with caregiving
responsibilities or who telecommute or work flexible schedules are the
``underperformers.'' Thus, the supervisors' response to this pressure
is no less based on bias: when they take personnel actions based not on
actual employee performance but on assumptions of how caregivers and
flexible workers should or will perform, they are engaging in
discrimination.
We have received other inquiries from employees in the past
eighteen months who have had their flexible work arrangements
eliminated, some of whom were told the elimination was for economic
reasons. Some reported that their employers eliminated the company's
flex time policy and telecommuting policy. These callers unanimously
expressed their needs for flexibility and feelings of near desperation
at facing unemployment because of their inability to work a standard
schedule. Several were working part-time for caregiving reasons, but
were told that they must return to full-time work or be terminated. The
economic rationale for this is hard to understand. Requiring employees
to return to full-time work, at greater pay and with benefits, costs
employers money unless the employers are banking on reducing number of
employees on the payroll by forcing the employees to quit.
In another indication that employers may be using the recession as
an excuse to terminate family caregivers, since January 2008, we have
received 45 inquiries from women who were terminated shortly before,
during, or shortly after their pregnancies. Several of these
terminations were carried out by supervisors who expressly questioned
the new mothers' ability to combine work and family, but most were more
circumspect. Several women were told there was not enough work, but
these women told us that it was because their work had been given to
others. Several were told their positions were eliminated for budgetary
reasons, but the circumstances raise questions: one was not given the
option of applying for other open positions, one said there was enough
funding to move another employee to full-time hours and provide him
benefits, and two reported that their employer hired other employees in
their department after terminating them.
One example from this group is particularly instructive.\6\ An
employee had performed well at a large company for more than six years.
She had a child, and everything was fine. Her manager worked with her
on her schedule, and was happy as long as she was getting her work
done. That is lesson one: a little flexibility on the manager's part
allowed the company to retain a good worker. She became pregnant again,
and soon before she left on leave, she had a new manager. The new
manager changed her schedule, putting her on late night and very early
morning shifts that she could not work because of the lack of public
transportation at those hours. That is lesson two: WorkLife Law has
noticed a pattern in court cases and calls to the hotline in which
flexibility works fine for everyone until a new manager arrives. The
manager may feel a mandate to reorganize the department or may lack a
personal relationship with the employees and an understanding of their
value to the organization. But whatever the reason, the pattern
typically includes the termination of flexibility and action to
terminate the employee.
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\6\ Hotline calls are confidential. In the examples in this
section, unless otherwise indicated, facts that would identify the
caller have been removed or altered.
---------------------------------------------------------------------------
This employee was the sole breadwinner for her family, however, so
she did her best to make it work with her new manager. When she went
out on leave, others were hired to do her work. She returned to work as
planned, and asked if she could take one day a week off or work from
home one day a week. She didn't receive an answer. Instead, she was
laid off at the end of last year as part of a recession-based, company-
wide RIF. She was the only person in her department who was let go,
despite her seniority and record of satisfactory performance. This is
lesson three: having a child and asking for flexibility are two key
trigger points for bias and discrimination.
Almost a third of the inquiries in the past eighteen months have
come from employees who feel squeezed between job and family demands.
Some of the most heart-wrenching stories come from this group,
involving employees who literally weigh the need to put food on the
table against the need to provide for the safety and care of
dependents. Three recent callers told of being fired because they
missed work because their children were hospitalized, even though they
had alerted their employer to the reason for their absences. Another
caller missed one day of work because her childcare failed and she
could not leave her toddler unattended; she was fired even though
others in her company missed days of work for other reasons and were
not fired. In some of these instances, it appears that the employer has
created the situation to force the employees to quit so the employer
can avoid paying unemployment and perhaps reduce the likelihood of a
lawsuit. In one such situation, a single mother who had been working
successfully for nearly a year was placed on a schedule of rotating
shifts by a new supervisor, making it impossible for her find
childcare. Another with special needs children was told she would have
to work large amounts of overtime, although others in her department
were not required to. Another caller, a brand new mother, worked
overtime for weeks on end, and when she finally asked for a break--
which just meant a return to standard hours for a period of time--she
was fired.
While flexible work options would resolve most of these situations,
the hotline callers state that their supervisors have refused their
requests for flexibility, or that they have received a message that
their use of such options would impact their careers negatively.
Another way to state this is that in workplaces where flexible work
bias is weak or nonexistent, employees will resolve work/family
conflict through flexible work schedules. Where the bias is too great,
they feel they cannot. In one of the strongest examples of bias, some
part-time employees reported the belief that they were being targeted
for layoffs before employees working standard schedules.\7\ In today's
economy, employees simply cannot afford to do anything that would
threaten their jobs.
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\7\ In another example of flexible work bias, an employee who
recently returned from her second maternity leave was denied a
promotion after she said she wanted to cut back her hours to take care
of her baby's medical conditions. Another who cut back her hours for
childcare reasons was not given any work to do.
---------------------------------------------------------------------------
In conclusion, bias against family caregivers and flexible workers
is a pressing problem in the workforce. Its effect on employees is
clear, but we also need to remember that these biases damage employers'
bottom lines. They cost employers not just in terms of legal liability,
but also in terms of unscheduled absenteeism, worker attrition, smaller
available talent pool, lowered productivity and morale, higher health
costs, and poorer customer service.\8\ Employers and employees will
both benefit from bias prevention programs and from effective systems
to address bias as it occurs.
---------------------------------------------------------------------------
\8\ See, e.g., WFC Resources, Making the business case for
flexibility, available at http://www.workfamily.com/Work-
IifeClearinghouse/UpDates/ud0043.htm (collecting studies).
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We appreciate the Committee holding this hearing and we stand ready
to assist in any way in your efforts going forward.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of Representative Elijah E. Cummings
Thank you, Madam Chair, for holding this critical hearing on
employees' ability to balance work and family.
I also want to thank you for your tireless leadership to improve
the strength and health of all American working families.
I look forward to the testimony of all our witnesses. Along with
the macroeconomic assessment of our economy that we hear each month
from the Bureau of Labor Statistics, hearings such as this that focus
on individual firms and employees remind us of the real impact of the
recession.
During our economy's more sunny days, the emergence of workplace
benefits like flex-time, telecommuting, compressed work schedules, and
paid sick leave were an attractive benefit to recruit and retain
employees.
However, the economic forecast today is still cloudy, and so many
of the businesses in our districts, small and large, have been forced
to make hard choices and take decisive cost-cutting action to stay
afloat.
Often, this means letting employees go; regrettably in some cases,
lay-offs have taken the form of discrimination against pregnant women,
parents of young children, and caretakers of elderly family members.
Further, we know from a 2008 study from Ms. Galinsky's Families and
Work Institute, that women, including those with children, increasingly
aspire to move into jobs with more responsibility.
Also, at the Committee's hearing in April on the gender pay gap, we
heard that discrimination still exists against women in the form of
lower pay for equal work.
Now, with people losing their jobs (not to mention their homes and
their savings), it infuriates me that a termination may not be a
business decision, rather the pretext for further discrimination
against women and families.
However, I am encouraged to see that, as Ms. Galinsky has written,
that many firms have responded to the economic crisis by maintaining,
and in some cases, expanding policies to facilitate a strong work-and-
life balance for their employees.
This not only displays compassion for employees in a woeful
economy, but also smart business sense.
By continuing to offer flexible schedules, paid sick leave, and
other work-life benefits, companies are engendering loyalty and
longevity in their workforce, and reducing long-term turnover-related
expenses.
As the sun begins to re-emerge over our economy, businesses will
grow, new businesses will spring up, and the markets will recover.
But right now, we have to keep people in their jobs and their
homes, and provide them the ability to care for their families.
This means not only enforcing and strengthening the protections
that exist, like the Family Medical Leave Act, but also helping the
business community realize that helping employees care for their
families is an investment in a firm's long-term success.
Again, I applaud the Chair for her determined leadership on this
front. I look forward to the testimony of our witnesses and a
productive discussion. With that, I yield back.
Thank you.