[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

                               __________

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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.
---------------------------------------------------------------------------
    \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:
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
                           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.
---------------------------------------------------------------------------
    \4\ Galinsky, Ellen, James T. Bond, and Kelly Sakai, 2008 National 
Study of Employers, Families and Work Institute.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
  

                                  
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