Delaware Employment Law Blog

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!

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

Work-life balance is a hot topic in the world of workplace initiatives. It’s so hot, in fact, that it can be difficult to keep up with the latest developments.  Here are a few items to get you started:

Work-Life Balance Award Act of 2010

This bill was introduced on March 16 by two Democrats on the U.S. House Education and Labor Committee. The Act would establish an annual Work-Life Balance Award to be presented by the U.S. Secretary of Labor based on recommendations from an appointed advisory board. Any private and public employers of any size, except federal agencies, would be eligible for the reward. The list of winners would be published on the U.S. Department of Labor’s website.

Work-Life Balance on NPR

National Public Radio has an interesting series on work-life balance and the need for more flexible work arrangements, done in the context of its impact on children and the education system. You can listen to the program (for free, of course), via the NPR website

Why We Should Dump “Balance” from “Work-Life Balance” Altogether

Cali Williams Yost is the go-to expert in the area of work-life balance and flexible working arrangements. Except that, according to Yost, there’s really no such thing. In an interview with BNet, Yost encourages businesses to drop the word “balance” in favor of “fit.” She says that “balance” suggests that there’s a right way to manage your life and work. But there’s no one right answer for anyone and what’s “right” is likely to change over time, depending on where you are at the moment.

Sloan Work and Family Network published a list of the Top 10 Posts from its blog for 2009 and I am so honored that my post, The Four-Day Workweek and the Death of the Flexible-Workplace Initiative, ranked #1! The four-day workweek got a lot of publicity in the latter half of 2008 and early 2009 but lost its fizzle as the economy continued to worsen. Although the concept was touted by advocates as a way to promote a flexible work schedule, I argued that it served the exact opposite purpose and served to create an inflexible workplace.

Have a look at the Four-Day Workweek post, along with the other excellent articles that combine to form the 10 most popular blog posts of the year at the Sloan Work and Family Network Blog.

The February 2010 issue of Law Practice Today, the webzine published by the ABA's Law Practice Management section, is now available and can be read in its entirety at the Law Practice Management section's website.  I was the issue editor for this edition, which focuses on the Human Resources side of management.  The articles are great and offer lessons that apply to all industries.  They include:

Managing Your Relationships With Your Staff

Avoiding Retaliation Liability

Fostering an Entrepreneurial Spirit in Associates

Taking a Break From the Professional Hurricane

How Law Firms Can Use an Ombudsman to Resolve Conflicts

Appreciating the Difficulty Involved in HR Issues

Important Keys to Practice Success

Outsourcing Legal Support Services

Hardcore Scanning for Law Offices of Any Size

Women Rainmakers: Wanji J. Walcott, American Express

28th Edition: What's Hot in Technology for 2010 (Podcast)

All of the articles are excellent but I want to give an extra-loud "thanks" to fellow employment-law bloggers, Jon Hyman of the Ohio Employment Law Blog, and Phil Miles of Lawffice Space, who each wrote features for the webzine.  John authored Avoiding Retaliation Liability, which deals with the hottest topic in employment litigation these days and gives great advice on how not to become a defendant in a retaliation lawsuit. And Phil wrote Fostering an Entrepreneurial Spirit in Associates, which reminds us of the undeniable link between engagement, motivation, and success. 

Glass-ceiling research shows women continue to be harmed by gender stereotypes.  Managers continue to discriminate against female subordinates because they incorrectly perceive women as having greater conflicts between their family responsibilities and their work responsibilities than men, reports The Academy of Management Journal. Somewhat surprisingly, both male and female managers harbor this misperception.

The study, entitled “Bosses’ Perceptions of Family-Work Conflict and Women’s Promotability: Glass Ceiling Affects,” was conducted by members of the University of Illinois at Chicago’s Department of Managerial Studies. Lead author Jenny Hoobler commented that she expected that “[w]hat we’re talking about … is one of the subtle, entrenched forms of discrimination that make up the glass ceiling.”

The study cautions women about using company-sponsored programs such as on-site child care, flex time or paid parental leave, which are designed to assist employees with work-life balance. The problem is that managers may view use of such benefits as confirmation of women’s greater susceptibility to work-family conflicts, and then view such women as less committed to the company and less promotable than their male counterparts who do not make use of such benefits.

The authors recommend that to reduce the potential that gender stereotyping will affect workplace decisions, companies should educate managers about their own possible biases and should be aware of and guard against allowing “biased perceptions of caregiving roles” to affect promotion decisions.

If you’re an associate at the law firm Quinn Emanuel, the answer is “very, very often.”  According to legal tabloid, Above the Law, clients of the firm expect their attorneys to be on call 24/7.  Well, according to a memo written by a partner and circulated to associates, 24/7 may be “something of an exaggeration—but not much.”

In fact, the memo tells associates, they should check their e-mail while they’re in the office, as well as during off-duty time.  Specifically, unless there is a “good reason not to,” which the memo defines as “when you are asleep, in court, or in a tunnel,” associates are expected to check their e-mails once an hour. 

How would your employees respond to a directive like this? How would such an instruction affect morale, not too mention productivity.  This means that, when out to dinner, associates would have to check their Blackberries twice, maybe more, during the meal.  How romantic.

Workplace Prof Blog reports that, last week, Congress designated October as National Work and Family Life Month.  The primary force behind the measure was the Alliance for Work-Life Progress, and the purpose was to encourage employers and employees to seek flexible work environments to better balance the needs of work and families.

October is also Workplace Politics Awareness Month.  So, how can we put these two noble causes together? 

How about by creating an “official” work-life policy.  An often-heard complaint is the lack of transparency in part-time or remote-work policies. Many organizations, especially in professional-services fields, negotiate reduced-hour schedules on a case-by-case basis. This often results in unequal application of the policy.  The uncertainty also causes some employees to avoid the discussion altogether. In other words, those “in the know” is more likely to request a flex or reduced-hours schedule than someone outside the loop, only because the employee in the know feels more confident that they’ll get an answer they’re expecting.

To prevent unfairly preferential treatment of those with access to the key information holders (i.e., the “favorites”), create a policy on flex schedules for circulation to all employees.

Unemployment is painful for anyone who wants to work but is unable to locate a suitable position.  With the increases in unemployment finally starting to lessen, the aftermath of layoffs has come into focus.  The manufacturing and construction industries were two of the hardest hit by the recession, suffering higher job losses than other industries.  Because these two industries employ disproportionately large numbers of males, men have suffered an equally disproportionate number of job losses. 

Since December 2007, men were at the receiving end of more than 74% of cuts.  Women, on the other hand, hold nearly 50% of payroll jobs, making them less vulnerable to financially motivated layoffs.  In June 2009, a record 1.4 million men left the labor force, as compared to a near-record 1.2 million women. 

The highest unemployment rate for men since the Great Depression was 10.1% in 1982.  In June, that number reached 10%. Post-Great Depression, the record for women was in 1982, 9.3%. Currently, it’s 7.6% today.

What is less easy to quantify is the impact this shift has had on workplace and home-life dynamics.  As more and more women find themselves in a position of the sole wage earner, societal attitudes inevitably will be affected in some way, even if it's not immediately noticeable.

Becky Beaupre Gillespie, of Good Enough Is the New Perfect, wrote a very insightful post detailing the struggle she and her husband have experienced in navigating their roles since he was let go from his job with a national law firm.  Her journey is surely one that many working women are experiencing across the country.  How it will impact the gender roles is yet to be seen.

While in law school, I was defeated in the semi-final round of a moot court competition.  The reason for the loss?  My outfit. I’d worn a pantsuit and a female judge, who was a judge in real life, also, ridiculed the choice, telling me that no “real lawyer” would ever have worn pants to argue before the U.S. Supreme Court, which was who we were “pretending” to argue before in the competition.  The harsh criticism came as a total shock to me and I’ve never forgotten it. 

Well, after these many years, I’ve finally been vindicated. In her first argument before the country’s highest court, Solicitor General Elena Kagan, former Dean of Harvard Law School, wore a navy blue pantsuit and light blue blouse. So it seems that my judge was wrong.  A woman would and, in fact, did wear pants before the Supreme Court after all.  Does this brazen fashion choice signify a coming of age for women in the legal profession? 

Well, almost.

It would have been a far more remarkable silent victory but for the fact that it wasn’t silent at all.  Kagan’s choice was all over the legal newsboards.  Above The Law ran a story detailing the choice and discussing the outfit at length. The fact that her clothing garnered so much attention lessened the potentially important impact of what was surely a high point in Kagan’s legal legacy.  Had the media not found it so remarkable, Kagan’s pantsuit choice may have been a much more significant symbol of how far women have come in our profession.  But, by spotlighting it as a key point of interest, the news stories just reminds us that our fashion choices do matter—at least to the interested public. 

Nonetheless, the fact that Kagan was not dissuaded in her selection by the media’s interest does give me a great deal of satisfaction.  Would I follow Kagan’s lead?  I’d like to think so but I dare not speculate.  After all, an attorney with Kagan’s pedigree has plenty of reasons to be as confident as she was—she’s got the legal acumen to back up any outfit she “dares” to wear. 

See also:

Gender Discrimination & Dress Codes. Who wears the skirt, I mean, pants in your office?

Are Women Attorneys Being Stricken by a Pantsuit Pandemic?

The Pantsuit Pandemic Part II

Thanks to everyone who attended the audio conference on Caregiver Discrimination, presented by Adria B. Martinelli and Margaret M. DiBianca.  As promised during the conference, we’re posting some of the many resources that are available online where employers can locate specific information and research to use in pitching the idea of Flexible Workplace Arrangements.

Two of the Leading Work-Life Centers

Workplace Flexibility 2010, at the Georgetown University Law Center, has a virtual tremendous amount of helpful resources,including A Fact Sheet on Flexible Work Arrangements and Flexible Work Arrangements: The Overview Memo.

Another leader in the field of work-life balance is the Sloan Work and Family Institute.  Here, you’ll find a treasure trove of detailed information about flexible work arrangements, including an extensive compilation of Workplace Flexibility Case Studies.

U.S. DOL

The U.S. Department of Labor (DOL), has a good webpage on the topic of flexible workplace initiatives, where it links to several other great resources, including:

Article: "Incidence of Flexible Work Schedules Increases"
A Bureau of Labor Statistics (BLS) Monthly Labor Review article stating that from 1991 to 1997, the percentage of full-time wage and salary workers with flexible work schedules on their principal job increased from 15.1 percent to 27.6 percent.

Article: "Flexible Schedules and Shift Work: Replacing the '9-To-5' Workday?"
Article from BLS' Monthly Labor Review Online.

Article: "Over One Quarter of Full-time Workers Have Flexible Schedules"
More information on flexible schedules.

Article: "Flexible Work Schedules: What Are We Trading Off to Get Them?"
More information on flexible schedules.

Article: "Executives most likely to have flexible work hours"
More information on flexible schedules.

Article: "Workers with Longer Workweeks Often Earn More Per Hour"
Article published by the Bureau of Labor Statistics stating that the weekly earnings of workers who work an extended workweek (between 45 and 99 hours) earn at least 32% more money than those who work a standard workweek (between 35 and 44 hours).

Index of BLS Reports on Workers on Flexible and Shift Schedules
A report from the Bureau of Labor Statistics on the trend towards flexible work schedules.

10 More (Great) Resources

The Center for Companies that Care is a national, not-for-profit organization “dedicated to enhancing the well-being of employees and communities."

Center for Women's Business Research “is the go-to source on the trends, characteristics, achievements, and challenges of women business owners and their enterprises."

Center for Work-Life Policy (CWLP), “undertakes research and works with employers to design, promote, and implement workplace policies that increase productivity and enhance personal/family well-being. CWLP is committed to promoting policies that enable individuals to realize their full potential across the divides of gender, race and class."

Corporate Voices for Working Families is a “non-profit corporate membership organization created to bring the private sector voice into the public dialogue on issues affecting working families."

The MIT Workplace Center is part of the MIT Sloan School of Management

Parenting in the Workplace Institute’s  mission is "to promote, educate, and provide resources for successful implementation of parenting in the workplace structures nationally and worldwide."

Rutgers Center for Women and Work, is part of the School of Management and Labor Relations, and addresses “women’s advancement in the workplace and conducts cutting-edge research on successful public and workplace policies.”

WFC Resources formerly Work & Family Connection) has been working since 1984 “to help employers create a workplace that's both supportive and effective."

When Work Works “is a nationwide initiative to highlight the importance of workforce effectiveness and workplace flexibility as strategies to enhance businesses' competitive advantage in the global economy and yield positive business results."

Winning Workplaces is a not-for-profit providing consulting, training and information to “help small and midsize organizations create great workplaces."

And, of course, Delaware Employment Law Blog has bunches of resources, too.

See Previous posts on Alternative-Work Schedules, Flextime Initiatives, Telecommuting, and other Work-Life Balance issues.

Twitter continues to gain popularity and I've jumped on the bandwagon.  Here are my "tweets" from this week, grouped into rough categories by topic.

Social Media

Video HowCreate an Account in LinkedIn (via Professionally Speaking) http://bit.ly/R130x Now you've got no excuse to avoid #social #networking

Using Twitter as a teaching tool (via #elearning future) http://bit.ly/10rdhc

RT @mashable High School Admins Coerce Cheerleader for Facebook Password http://bit.ly/1O2xWf (and then disclose the info on her pers. pg.)

RT @fyiscreening4 Tips On How To Use Social Networks For Employee Screening (from N.Y. Law Journal)  http://bit.ly/j3zcv

RT @Twitter_Tips Top 10 Rules of Twitter Etiquette: http://ow.ly/iekG --Share this guide: http://bit.ly/44Vft3

RT @LissaLawyer: AmLaw Daily asks whether the Future is "Oh So Social" http://bit.ly/LmVpV

RT @HRSocialMedia: White House using LinkedIn to get comments from small business on health care reform http://tinyurl.com/lcnexv

Canada's #privacy commissioner gives #Facebook a failing grade http://bit.ly/5VCoh (RT: @cybercourt)

RT @mashable Top 5 Funniest Fake Facebook Pages http://bit.ly/bkPDV. Slate's fake Obama #Facebook page is a riot

Legal

FTC has postponed (again) the start of its "Red-Flag Rule" until November due to ?s re: how to comply. http://bit.ly/drImZ

Thanks to @MelanieMcClure for mention of my "anti-harassment policy tip sheet" http://tinyurl.com/mhh5hn

RT @Eric_B_Meyer: Philly Inquirer article rips Sen. Specter for wavering on #EFCA.

In Philly, $10m #verdict in police officers' race-bias suit cut to $30k max per Title VII cap http://bit.ly/KJJoH

Presentations and Public Speaking

Delaware gets its own #Ignite night! (via The News Journal) YCST E-law did #Pecha Kucha back in April w/great response. http://bit.ly/OLi09

RT @pptninja: 31 Flavors of PowerPoint - Part I http://bit.ly/Dvdxb #ppt (Great post re: diff. presentation styles needed diff. settings

Work-Life Balance

WSJ's The Juggle talks about how we handle pressure differently at home vs. at work. Is there anyone who doesn't? http://bit.ly/xaNwW

RT @DrDavidBallardRT @jessicapeterson Employees financial problems cost employers $4.5 billion annually (BusinessWeek) http://bit.ly/TiM3b

The Paperless Office

RT @DisabilityTips 6 Myths of Going "Paperless" | Colorado Social Security Law http://bit.ly/nYAJV

Why are fed courts so opposed to #technology in the #courtroom? NY lawyers want the rules changed. Agreed. http://bit.ly/11WvzD

Great #acrobat article re: What You Can Accomplish With Adobe Acrobat Forms http://is.gd/1NqkM RT @acroboy: RT @wikiatech.

Management & Leadership

Here's a real shocker from @nytimes: Corner Office: No Doubts: Women Are Better Managers http://bit.ly/3eFOVv (via @wbowser)

Great book on management: Not Everyone Gets a Trophy by Bruce Telgan. Supposed to be re: Gen Y but is applicable to all http://bit.ly/EB3mj

RT @hrmagazine: PricewaterhouseCoopers offers program to develop 1st-yr college students. http://bit.ly/M9H7s Great idea for #GenY!

President Obama has made an “almost apology” to the police officer he offended with his “acted stupidly” comment.  The President made the comment when discussing the arrest of Black Harvard scholar, Henry Louis Gates, Jr., by Cambridge, Mass. police. The police were called to Gates’ home to investigate a possible break-in but ended up arresting Gates for disorderly conduct.  From most accounts, it seemed that both sides probably overreacted. No charges were pressed.  When later asked to comment on the incident, which was perceived as having racial undertones, President Obama said the arrest was a “stupid” thing to do.

Oh my.  Cambridge police, as you may imagine, didn’t appreciate the accusation that they, as a collective whole, tending to act stupidly. 

Responding to the escalating pushback, Obama called Gates and the arresting officer, Sgt. James Crowley, to “clear the air.”  At a subsequent press gathering, the President told reporters that he had called both men and invited them for a beer at the White House.  The President did not say whether his calls included an apology, nor did he apologize publicly about his comment.  

Many are now asking whether a true apology is necessary or appropriate, or whether it’s enough to simply “clear the air” and put the whole issue to rest.

My answer to this question is a practical one.  If “clearing the air” without a full-blown apology actually does the trick, then no apology is needed. But, more often than not, if you want to be sure that the matter is resolved, an apology is the way to go.  Remember, you don’t have to apologize for something you didn’t do. So, if your intentions were good but the words came out wrong, then apologize for your word choice. 

Is a public apology needed?  Again, I vote “no.”  If those persons who were offended by the comment, they were offended only on behalf of the individuals involved.  No slight was done to members of the public directly.  So, it makes sense that, if the individuals involved are satisfied with the President’s almost-apology, then the public should be satisfied, as well. 

In the workplace, conflict arises constantly.  Employees who understand the value of a sincere and immediate apology (or even an almost-apology), will avoid more senseless arguments, hurt feelings, and have less stress overall.  Plus, when you are the one apologizing, you feel as if you’ve conquered a big part of the conflict just by stepping up to the plate and taking responsibility for your actions. Then, even if the conflict does not resolve, you can take away the satisfaction of knowing that you tried and then let go of the results over which you have no control.

With that in mind, be extra kind to your co-workers today.  It’s Monday, after all.

"There’s no such thing as work-life balance . . . There are work-life choices, and you make them, and they have consequences,” proclaims former General Electric Co. Chief Executive Jack Welch. The Wall Street Journal reported Mr. Welch’s comment made to the Society for Human Resource Management’s annual conference in New Orleans on June 28.

Mr. Welch added that he knows the women who have reached the top of Archer Daniels, and of   DuPont, and that they’ve had “pretty straight careers.”

One female CEO quoted in the article commented that women can “take a couple of years off,” to raise children and still become CEOs. “But if you take a decade off, you probably aren’t going to make it to the top.”

None of these observations is particularly shocking. It’s not surprising that most current female CEOs have had “pretty straight careers.” Nor should it be a barn-stormer that someone who spends ten years out of the work-force—male or female—is unlikely to make it to the highest possible rung on the corporate ladder. I would expect that anyone who makes it to the CEO level has had to make tremendous sacrifices in their personal life to get there. Obviously, those who make it to CEO are a unique breed in many respects.

For anything short of CEO, however, to the extent “straight career” means full-time with no time out of the workforce whatsoever, one would hope companies are learning that’s not the only way to get from point A to B. When a woman takes time off or slows down her career for family reasons, it may take her longer to get to the top, but her cumulative experience should be what counts. Her path to get there—whether straight, jagged, or curvy—should not matter.

To read more posts on work-life balance, see:

Maybe It’s Not All Gloom and Doom for Work-Life Balance
Editor’s Note: A Moment for Reflection
Looking a Flexible-Schedule Gift Horse in the Mouth

Delaware has the 17th highest rate of adult obesity in the country, with more than one in four adults classified as obese, according to a new report by the Trust for America’s Health and the Robert Wood Johnson Foundation. Employers bear many of the indirect costs of this obesity rate, including higher disability costs, more sick days, and increased workers’ compensation claims. The report indicated that Delaware’s obesity rate increased significantly in the past three years—a sign that current health and wellness policies aren’t cutting it.

So what can Delaware employers do? The study highlights three steps employers can take to promote healthier lifestyles:

· Provide workplace wellness programs and preventative care benefits

· Give employees a chance to take breaks for exercise during the work-day

· Offer coverage for wellness services such as nutrition counseling and weight management programs

Some companies have already rolled out in-house yoga classes, discounted gym memberships, and free massages for stress reduction. How those perks will weather the economic downturn is an open question. Other options? Employers can offer healthier food choices at company meetings and events, and improve selections at the office cafeteria.

F as in Fat: How Obesity Policies Are Failing in America 2009, was released on July 1, 2009.  For a list of other blogs covering wellness and work-life balance, see our blogroll, including the 50 Best Blogs on Wellness, Women's Interests, and Work-Life Balance

*This guest post is by Summer Associate Christen Martosella. Christen will be entering her second year of law school at NYU in the Fall but, until then, she's busy making a great impression at YCS&T.  Thanks, Christen!

Work-life balance and its place in the current economy is a familiar topic to this blog (see "The "Sandwiched Generation", Work-Life Balance Issues At Risk in the New Economy?, and Should Gen Y Abandon Any Hope for Work-Life Balance?).  Law 21, which describes itself as “Dispatches from a Legal Profession on the Brink” recently posted a well-written and thought-provoking blog on this topic, which concluded that “we’ll soon be closing the book on one of the legal profession’s most-used and least-understood phrases of the last decade: “work-life balance.””

Most commentators in this area seem to agree that—at least in the legal profession—any discussion or concern about Work-Life Balance is a thing of the past.  A past when the economy was good, attorneys were in great demand, and law firms competed for the best and brightest by offering whatever they could to attract them.  This included at least engaging in discussion of, the now-verboten Work-Life Balance topic.

Few would disagree that economy drives this discussion.  Law firms (or any employers, for that  matter) are never going to promote Work-Life Balance because of their generosity or genuine concern for the well-being of their employees. However, they will consider it when they believe it ultimately benefits their bottom line. In good economic times, some employers bought into the notion that promoting Work-Life Balance (or at least uttering the words during the hiring process) would make them competitive in recruiting the top candidates. And that retaining these qualified employees would also mean saving on the bottom line by not having to retrain new employees to replace those who might decide to leave the workplace as a result of inflexible work policies.

What is being overlooked in the current Gloom-And-Doom forecasts, however, is that “flexible” (or reduced) work-schedules can also benefit the employer’s bottom line in a very direct way. Typically, reduced or flexible schedule means reduced compensation.  In the legal world, reduced work-schedules means the attorney is “off,” or at least seriously derailed from, the partnership track. Nobody wants to share the partnership pie in these trying economic times for firms. The old model of law firms who desired associates willing to do whatever it takes, in exchange for partnership on a 7, 8, or 9-year track, is no longer such an appealing one.

At the same time that people are declaring the end of Work-Life Balance, law firms are delaying start dates for new associates, paying associates a portion of their salary to take a year off to spend time with their family or pursue non-profit endeavors, and some are even apparently considering reducing attorneys to four-day work-weeks.  While these employer-driven, sometimes mandatory reduced schedules with accompanying reduced pay is certainly not ideal for many, it beats the alternative (layoffs).  And in the end, it continues to redefine the “model” of the perfect lawyer.  When the economy begins to improve, I believe this rethinking of the old standard will help, not hurt, the Work-Life Balance cause.

Regular readers of the Delaware Employment Law Blog may have noticed the lack of postings in the last few weeks. The inactivity was not a result of my being too busy with client work, personal obligations, or vacation (fancy the thought). Instead, I have not being posting because I was recovering from a nasty case of pneumonia. For a little more than a week, I was rendered powerless by the illness, which has given me an opportunity to stop and think.

Continue reading "Editor’s Note: A Moment for Reflection" »

We can't do it all. At least not all at once, says the author of a new book, Rapt:  Attention and the Focused Life.  The book's author, Winifred Gallagher proposes that multitasking really is a myth and says she has the science to prove it.  According to Gallagher, our brains have a finite processing capacity at any given time.  And once that limit is reached, you can pretend to "multitask" all you want but the reality is that your brain is only getting some of the stimulus you're feeding it. 

She says this is especially true with sounds, which is why she carries earplugs for use in particularly noisy or busy public places.  The next time you've got Dateline on the kitchen television while cooking dinner and talking to your spouse, think about which of those three activities is really being given the attention you intend.

In an interview with the N.Y.T., Gallagher offers some practical advice for tackling the constant stream of information most of us face. 

She recommends starting your work day concentrating on your most important task for 90 minutes. At that point your prefrontal cortex probably needs a rest, and you can answer e-mail, return phone calls and sip caffeine (which does help attention) before focusing again. But until that first break, don’t get distracted by anything else, because it can take the brain 20 minutes to do the equivalent of rebooting after an interruption.

Of course, this would be so much easier if we didn't have so much to do.  But, such is the delicate balance of single-tasking and still "getting things done."

EEOC issued Employer Best Practices for Workers With Caregiving Responsibilities, a technical-assistance guide, last week.  Caregiver or Family-Responsibilities Discrimination, according to the EEOC, occurs when an employer makes an adverse employment decision based on the employee's care-giving responsibilities.  Because this type of discrimination is a derivative of gender discrimination, the basic premises begins with parents of young children.  But it extends in the opposite direction, as well, to employers whose own parents are the ones in need of caregiving.  This second category is the less commonly recognized of the two forms of discrimination.  But there is a third type, as well.  A  dual-income household where both caregivers are working and care not only for children, but also for aging parents, is known as a "sandwiched" home.  The sandwiched generation are those who are at a very fragile point, having responsibility for multiple generations.

As many as 9-13% of American households can be characterized as a sandwiched household.  The typical couple includes a 44-year-old man and a 42 year-old-woman, who have been married for just less than 20 years. Both spouses work full time.  There are two children in the home and two aging parents who require assistance in performing daily tasks of living, such as transportation, shopping, making care-related decisions, housekeeping, and managing money.  

Until the economy enjoys a significant improvement, it is easy to imagine that the number of sandwiched households will continue to grow.  Aging parents who, in good financial times, may have been able to afford the expense of assisted living, may see a more reasonable option as living with an adult child.  Of course, as we continue to outlive previous generations, the number of aging parents will continue to grow. 

Employers can play a key role in the lives of employees facing these challenges at home.  Of course, alternative work schedules can be used to attract and retain the best employees of all ages and in all stages of life.  To a group facing extraordinary pressures at home, an alternative work schedule may separate a good employer from a great one. Even aside from these more formal workplace initiatives, though, employers can take important steps to improve the work-family culture in the workplace.  Managers who are sensitive to employees' personal needs, for example, can be a great source of comfort to an otherwise over-burdened employee.  Guilt is not an emotional area in which they come up short and it's the last thing they need to feel at work when the pressures of home require them to leave early or to take a longer lunch.

For more on Family Responsibilities Discrimination (FRD), see:

Family Responsibility Discrimination. Download of a Short and Sweet Summary of the FRD Now Available

Employers, the EEOC issued a new technical assistance document yesterday, titled Employer Best Practices for Workers with Caregiving Responsibilities. This document supplements the U.S. Equal Employment Opportunity Commission's Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, issued in May 2007.

The Guidance explains the circumstances under which discrimination against workers with  caregiving responsibilities might constitute discrimination based on characteristics protected by federal employment discrimination laws, and suggests best practices that employers may adopt to reduce the chance of EEO violations against caregivers. Best practices are proactive measures that go beyond federal non-discrimination requirements.

The issuance of the Best Practices demonstrates how the new administration is continuing to pay attention to this issue, despite the fact the current economic environment has pushed “family-friendly” policies  to the back burner for many employers. In light of this environment, the EEOC wisely emphasizes in the Best Practices that employers adopting flexible workplace policies may not only experience decreased complaints of unlawful discrimination, but may also benefit their workers, their customer base, and their bottom line. As the Best Practices states:

Numerous studies have found that flexible workplace policies enhance employee productivity, reduce absenteeism, reduce costs, and appear to positively affect profits. They also aid recruitment and retention efforts, allowing employers to retain a talented, knowledgeable workforce and save the money and time that would otherwise have been spent recruiting, interviewing, selecting and training new employees. The benefits of these programs remain constant regardless of the economic climate, and some employers have implemented workplace flexibility programs as an alternative to workforce reductions. Such programs not only enable employers to “go lean without being mean,” but they also can position organizations to rebound quickly as soon as business improves.

The Best Practices provides specific recommendations for employers, including:

1. train managers about employers’ legal obligations relating to employees with family responsibilities;
2. implement an EEO policy that prohibits discrimination against caregivers;
3. respond to complaints of caregiver discrimination promptly and effectively;
4. review employment policies and practices;
5. monitor compensation practices and performance appraisal systems;
6. where overtime is required, make it family friendly; and
7. promote an inclusive workplace culture.

Despite the many other pressing issues on President Obama’s agenda, it is clear the new administration is not going let this one fall by the wayside.  Just last month, it was reported that President Obama created a White House Council on Women and Girls. Stay tuned – I don’t think this is the last we are going to see from this administration on these matters.

Previous posts about Family Responsibilities Discrimination: The Maternal Profiling Debate Continues, Looking a Flexible-Schedule Gift Horse in the Mouth, Laid Off & Pregnant.

Flexible schedules is a topic of particular interest to me, in some part, because I am the grateful beneficiary of one.   I commend employers, including my own, who have made the enlightened and informed decision to offer this benefit.  It's a decision that I firmly believe will pay dividends in employee loyalty and ultimately save the employer money on hiring, retraining, etc.

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

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

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

Continue reading "Looking a Flexible-Schedule Gift Horse in the Mouth" »