Articles Posted in Women, Wellness, & Work-Life Balance

Traveling for work has its pros and cons.  I spent the last two weeks in sunny Santa Monica, California.  I was there to take multiple depositions in an expedited proceeding, which meant that I escaped my hotel room / conference room for a combined total of approximately 4 hours over a 14-day period.  In fact, I didn’t leave my hotel room or the conference room from which we were working at all until Day 4, when I took the extreme liberty of walking to the beach and back.  (Picture below).  I was out of the room for about 10 minutes-I didn’t even put my toes in the sand for fear that I’d never return to the room.

Two weeks felt like a long time to be away from home.  But it also felt like a long time to be away from my regular work routine.  In particular, my email Inbox expanded beyond my normal comfort level, as I prioritized the case that required my attention the most.Sunny Santa Monica

It wasn’t until late in the evening that I was able to make meager headway in responding to emails I’d received for other matters.  But, had it not been for those late-night (and, sometimes, very early morning) email binges, I would never have been able to get caught up upon my return.  I also would have had some very unhappy clients, who require their lawyer’s prompt attention to deal with emergency issues as they arise.

So I have to question the premise of a recent opinion piece in the NYT, titled, End the Tyranny of 24/7 Email.  The piece features companies, such as Daimler, the German automaker, that sets limits on when employees can send and receive emails.  According to the article, “limiting workplace email seems radical, but it’s a trend in Germany,” where some companies have “adopted policies that limit work-related email to some employees on evenings and weekends.”

On the one hand, putting technical barriers and/or policies in place that restrict certain employees can have its benefits.  In particular, it limits the risks associated with non-exempt employees who send emails during off-hours and who must be paid for that time as time worked.  But it also seems to have some less-than-ideal outcomes.  Specifically, as we move more and more towards a flexible work schedule in an increasingly mobile society, the ability to respond to emails when and where we want can be very important.  And limitations on that ability may not be all its cracked up to be.

Alas, the work-life balance continues to be more of a juggling act than a graceful performance on a balancing bar. Either way, it’s good to be home.

Earlier this month, the President proclaimed October 2012 National Disability Employment Awareness Month (NDEAM). The observance is intended to raise awareness about disability employment issues and to celebrate the contributions of our country’s workers with disabilities. This year’s theme is “A Strong Workforce is an Inclusive Workforce: What Can YOU Do?”

In conjunction with NDEAM, he U.S. Department of Labor has launched an online Workplace Flexibility Toolkit to “provide employees, job seekers, employers, policymakers and researchers with information, resources and a unique approach to workplace flexibility.”

According to the U.S. DOL, the toolkit “points visitors to case studies, fact and tip sheets, issue briefs, reports, articles, websites with additional information, other related toolkits and a list of frequently asked questions. It is searchable by type of resource, target audience and types of workplace flexibility, including place, time and task.”

Health-and-wellness benefits are all the rage. Some employers offer their employees a discount on gym memberships. Some offer a monthly stipend to be used towards the fees at a health-club. And some have an on-site fitness center.

Employers who are considering building an on-site fitness center for employees commonly want to know how they can protect themselves against a personal-injury lawsuit. For example, an employee drops a dumbbell on his foot and breaks a toe. (Don’t laugh, people, broken toes are brutal!)

What’s to stop the employee from suing his employer for his injury? Assuming that lifting weights is not part of the employee’s job, it would not have been an injury incurred in the “course and scope” of his employment and, therefore, would not be covered by workers’ comp. And you, dear employer, own the equipment, including the dumbbell, so you’d surely be the first defendant to be named.

To avoid the “no-good-deed-goes-unpunished” phenomenon, employers will ask whether they can require employees to sign a waiver or release as a condition of using the fitness center. Until a few years ago, the answer was, “not really.” Of course, you could require that they sign a waiver but it would not be effective if you ever needed to use it because the law prohibited waivers of claims for future injury.

In 2008, in Slowe v. Pike Creek Court Club, the Delaware Superior Court held that such claims could be released but only if “the language makes it crystal clear and unequivocal that the parties specifically contemplated such a release.” In Slowe, the court held that the waiver at issue did not meet this “crystal-clear-and-unequivocal” standard and, consequently, the waiver was not effective, but left open the possibility that a “properly-worded release might effect a waiver of premises liability.”

In July, the court had the opportunity to address the issue again and, this time, found the waiver to be enforceable. In Hong v. Hockessin Athletic Club, the plaintiff, a member of the athletic club, signed a comprehensive waiver of liability and release in connection with her membership agreement. The waiver expressly stated that she and all others on her membership assumed the risk of “any injury or damage incurred while engaging in any physical exercise or activity or use of any club facility on the premises,” including the use of “any equipment in the facility.” The court held that this was sufficient to constitute a waiver in “crystal clear and unequivocal” terms and dismissed the suit.

There are no guarantees in life or in the law and this situation is no exception. Although this case offers employers some very good news when it comes to avoiding liability for on-site injury of employees and visitors, it is, of course, not a guarantee. Nevertheless, in light of this case, there seems to be no reason not to require a waiver for your on-site fitness center.

Hong v. Hockessin Athletic Club, No. N12C-05-004-PLA (Del. Super. July 18, 2012).

I’m working from home today but not by choice. Our office is quasi-closed today as a result a water main break just a few blocks away from our building in Wilmington, as shown in the video below by 6abc.

Of course, just because I can’t go to the office to work doesn’t mean I get to take the day off–the work still must be done. In the era of mobile computing and the paperless office, this does not present much of a technological challenge. I have ready access to everything I would have access to if I were sitting at my desk. Well, everything but my multiple-monitor computer set-up, I suppose.

But I digress. Which brings me back to my original point.

Working at home is hard. For me, anyway. I am too easily distracted. By the cat, who is as cute as can be and who just loves it when he’s got a lap to sit in, pesky laptop be damned. By the bonsai tree that could use a meticulous pruning. By my car, which is calling to me at this very moment, asking that I give her a nice wash, followed by a leisurely drive with the top down.

Blue Heron

By the view from my deck of the Brandywine Creek, which is as beautiful and serene as one might imagine a lazy creek to be on a clear day in June. Or the Great Blue Heron who, and I am not making this up, is perched on a rock, looking for lunch, at this very moment.

Or the rose garden at the end of my street, which is in full bloom and beautiful beyond belief.

I live in a park, people! It’s not my fault that I’m surrounded by all of these incredible distractions! Blame Mother Nature!

Josephine Rose Garden

But, again, I digress. The point that I am trying to get around to making is that, as a general rule, working from home really doesn’t work for me. At my desk, I’m a disciplined, focused, work-generating fool of a task-master. But at home, I find that I mostly just walk in circles.

Maybe I’ll read some news articles to help me find the working-from-home sweet spot. For example, the Top 10 Mistakes Everyone Makes When Working From Home on Or How to Work From Home Without Losing Your Mind (or Your Job) by Ask a Manager’s Alison Green at US News’ On Careers blog. According to Attorney Marketing blog, 2% of lawyers work from home all of the time. And good for them–there are plenty of benefits of telecommuting for those who have the self-control to stay on task.

Or maybe I’ll just get back to work. Wish me luck and have a great Friday, wherever you may be today!

A law first proposed by the late Senator Ted Kennedy has been resurrected and introduced in the Senate by Bob Casey (D-Pa.) and Tom Harkin (D-Iowa). The law mirrors legislation introduced in the House of Representatives in March 2009 which, to date, has gone  nowhere. Premised on the purported need of employees to have more flexible work options, it authorizes an employee to request from an employer a change in the terms or conditions of the employee’s employment if the request relates to: (1) the number of hours the employee is required to work; (2) the times when the employee is required to work; or   (3) where the employee is required to work.Juggle work and home with red hands

The proposal does not require the employer to grant any requests, but does set forth employer duties with respect to such requests, and makes it unlawful for an employer to interfere with any rights provided to an employee under the Act. Under regulations to be promulgated by the Secretary of Labor, an employer would have to hold a meeting with the requesting employee and give the employee a written decision on the request, discussing the reason for any rejection and addressing a prescribed list of possible explanations. An employee would be entitled to request reconsideration and the employer would be required to provide a written response to that request as well. In short, it would create an unnecessary paperwork nightmare.

The proposed law also authorizes an employee to file a complaint with the Administrator of the Wage and Hour Division of the Employment Standards Administration of the Department of Labor for any alleged violations of rights, and provides for the investigation and assessment of civil penalties or the award of relief for alleged violations.

The timing of its introduction suggests that S. 3840  is a political ploy. In view of the current mood of the populace, passage of the legislation is, to put it mildly, a longshot.

How important is office space to employees?  Very important, apparently, according to this article discussing a “summer office swap” conducted at a Boston-area advertising agency.  During the summer months at this forward-thinking firm, nearly every employee switches office space based on a lottery system.

There were a small number of managers with offices, and regardless of how high their pick was, they could not keep an office. However, who did get the office appeared to depend on an elaborate bartering system, which resulted in more lowly office types offering services such as babysitting, car washing, and coffee retrieval in exchange for a seat in a coveted manager office.clip_image002

The article is a good reminder of how important office space is to employees. More than a few employment discrimination lawsuits have been based, in part, on the office (or cubicle) an employee is assigned to.

In 2003, there was a Delaware case involving a plaintiff who filed a federal lawsuit which entailed, among other things, his objection to an office space “auction” at University of Delaware – where the best offices would go to the highest bidder and the money raised would go into a fund for use of the Department.

More recently, I had a case where among a plaintiff’s evidence of “retaliation,” were claims that she was given a “dirty, dusty cubical walls filled with dust mites.” And of course, who can forget the movie Office Space, and Milton, whose most prized possession was his Swingline stapler, and whose cubicle was continually moved until he was eventually wound up in a dimly lit basement among the boxes.

The legal profession is one of the last standouts where a good portion of the employees – lawyers and paralegals – typically have real offices with doors: associates have window offices, partners have bigger window offices, and paralegals have interior window-less offices. I know this is unusual for most of corporate America. But as the Boston Globe article illustrated, even among cubicles there is a hierarchy: those closest to the window, most shielded from foot traffic, etc.

Employers should keep in mind the importance of office space to employees, and what a difference small changes can make. In this era of layoffs and belt-tightening, there may be simple and relatively inexpensive ways to reward your employees and keep them happy: think about small ways their work environment can be improved. Many (indeed most) employers are not cut out for the “summer office swap” conducted by the Boston firm – if this was ever attempted in a law firm, I’m quite certain it would result in a revolt that would make the Pakistani lawyers revolt look tame. Nevertheless, consider what might work for your workplace: access to natural light, modest levels of privacy, can go a long way to build employee loyalty.

Utah was the first (and only) state in the U.S. to move to a mandatory four-day workweek.  Under the system, which was implemented by former Gov. Jon Huntsman in 2008, almost all state employees were converted to a schedule of four, 10-hour days per week.  As readers of this blog may recall, I have not been the biggest proponent of the four-day workweek.  See The Cons of a 4-Day Workweek.  

But not everyone agreed.  In fact, for a while, the compressed-week schedule was very, very popular and local governments around the country began to initiate pilot groups to test it.  These efforts were supported by announcements that the Utah program was generating lots of savings for the State and lauded as an official “success.” 

Well, as it turns out, Utah may have been wearing rose-colored glasses when it made the “success” determination, according to a recent audit. The State admitted that it had not seen the reduced energy costs that it had hoped for (realizing only about $500,000 in savings in the first year, as compared to the expected $3 million).  But the audit says it goes a bit deeper, finding that the State overestimated how much money it saved in saved overtime and other costs.  In fairness to the Utah program, though, employee surveys do indicate that employees prefer the four-day workweek, so there must be some supporters. 

Katie Keuhner-Herbert’s article on Human Resource Executive about the audit and the four-day workweek program in Utah. See Reassessing Four-Day WorkweeksThe article points out some of the flaws in the four-day workweek and pinpoints some sticking points for employers and employees alike.  (For purposes of full disclosure, I’m quoted in the article–but don’t let that deter you.)

See also

  • Positive Benefits of a Four-Day Work Week
  • 5 Steps Toward a More Flexible Workplace
  • Should a Four-Day Work Week Be Mandatory*
  • It’s Saturday Today in Utah: 4 Day Work Week
  • Alternatives to the Four Day Work Week
  • Popularity of the 4-day Week Continues to Grow
  • Will Four-Day School Week Push the Four-Day Work Week Trend?
  • Utah’s Mandatory 4-Day Work Week Will Save the World. Sort of.
  • The trial in a class-action lawsuit alleging that Novartis Pharmaceuticals practiced sex discrimination against female employees has begun in a federal court in New York. The class of plaintiffs includes more than 5,600 saleswomen, who are seeking $200 million in damages. According to the New York Times, the suit alleges discriminatory pay and promotions targeting women, particularly pregnant ones.

    It remains to be seen if the plaintiffs will be able to prove their case, but the allegations include some pretty shocking (and dumb) comments by managers, including my favorite, in which a manager reportedly told a saleswoman that he preferred not to hire young women, saying, “First comes love, then comes marriage, then comes flex time and a baby carriage.”

    As we’ve long known, flexible schedules can play an important-often critical-role in work-family balance. Without the option, many women report they would not return to the workplace (at least for some period of time following their maternity leave) after having a new child. But the fact the option exists on the company books does not necessarily mean it’s an appealing one: in many workplaces they are offered, but not widely utilized because of the stigma associated with them. Other employees take advantage of them, but understand they’re a “career killer.” If the reported comment by a Novartis manager is true, it reveals a far more sinister possibility: the mere existence of flexible schedules may result in women being discriminated against from the outset, based on fear that they might actually use them.

    As I’ve posted before, making an employment decision because of mere assumptions about a woman’s caregiving responsibilities and how that might affect her performance, is sex discrimination, plain and simple. It’s been labeled as Family Responsibility Discrimination or Caregiver Discrimination, and if it’s not based on actual performance, it’s illegal. So is failure to hire or promote a woman out of fear she might eventually utilize a firm’s flex-time schedule.

    If employers are going to offer flex-time schedules, they can’t discriminate against the women who elect to use them. Even worse is treating women differently based on the mere possibility that they might use them.

    The Department of Labor’s Women’s Bureau released its list of the 20 Leading Occupations of Employed Women.  The data supports stereotypes such as “nursing is a woman’s job” and “all secretaries are female.”  There were some jobs, though, that I was surprised to learn are largely held by women, including customer-service representatives and accountants and auditors.  Here are the other 18 jobs and the percentage of each held by women, according to the DOL:


    Secretaries and administrative assistants 


    Registered nurses


    Elementary and middle school teachers




    Nursing, psychiatric, and home-health aides


    Retail salespersons


    First-line supervisors/managers  of retail sales workers


    Waiters and waitresses


    Maids and housekeeping cleaners


    Customer service representatives


    Childcare workers


    Bookkeeping, accounting, and auditing clerks


    Receptionists and information clerks


    First-line supervisors/managers of office and admin support


    Managers, all others


    Accountants and auditors


    Teacher assistants




    Office clerks, general


    Personal and home care aides


    See the original:

    20 Leading Occupations of Employed Women Fact Sheet  at the U.S. Department of Labor Women’s Bureau website.

    Workplace flexibility has been a hot topic, a highlight of which was President Obama’s White House Forum on Workplace Flexibility, televised earlier this week. The forum was designed as an opportunity for labor leaders, CEOs, small business owners, and policy experts to share their ideas and strategies for making the workplace more flexible for workers and their families. During the conference, the President compared flexible work schedules to the early stages of email: some companies have it, some don’t, but eventually, all companies will. Get ready employers – if you haven’t gotten aboard yet, the train may run you over!

    Juggle work and home workplace flexibility

    With healthcare out of the way, the administration is freed up to focus on other priorities. During the campaign, then-candidate Obama included work-life issues as an important part of his agenda, committing to expand FMLA, to prevent caregiver discrimination, and to offer incentives to employers to expand flexible work arrangements.  The forum indicates  that work-life issues remain a focus of this administration. Although the Obamas now have a personal chef, chauffeurs, and other assistance to make their “balance” a little easier, I am sure that Michelle’s experience managing a demanding career and raising her two girls has helped to ensure this issue remains on the President’s radar screen.

    The discussion has taken different varied focuses over the years, but the bottom line is this: for many reasons, in order to retain employees in the modern workforce, employers have to reinvent the old model of an ideal worker. Flexible work schedules are over and over again focused on as the reasonable way to accommodate the needs of both employer and employee. The impetus for employers to engage in this discussion has  evolved a bit over the years.

    First, employers were interested in the topic primarily due to the economics of investment in skilled workforce (particularly professional women), who often left the job because unable to balance their work and family responsibilities. Then Gen Y came along, with both males and females placing a greater value on “down” time, whether with family or pursuing other activities. Gen Y consistently ranks workplace flexibility among the most desirable employment benefits. With the economic downturn, the discussion turned to how flexible schedules could immediately help the bottom line (4-day workweeks, voluntary reduction in hours for reduction in pay, etc.).

    Law and politics have not shied away from the discussion: both Republican and Democratic administrations have made important advancements to the cause of work-life balance. In 2007, the EEOC under the Bush administration issued it Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiver Responsibilities. In 2009, Obama’s administration issued  Employer Best Practices for Workers with Caregiver Responsibilities, which focused primarily on flexible work arrangements. The White House Forum has work-life balance advocates everywhere eager to see what will come next!


    See these related posts for more about work-life balance:

    Resources for Work-Life Balance and Flexible Work Arrangements

    Maybe It’s Not All Gloom and Doom for Work-Life Balance

    Looking a Flexible-Schedule Gift Horse in the Mouth

    Caregiver Discrimination: The “Sandwiched Generation”

    5 Steps Toward a More Flexible Workplace

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