In April, the Equal Employment Opportunity Commission (EEOC) held a public meeting to discuss whether to develop guidance on work/family balance and the intersection with federal antidiscrimination laws.1
That the EEOC felt the need to convene a panel of experts to discuss how employers handle work/family balance issues is not a surprise.
As the number of employees seeking and the number of companies offering opportunities to balance work and family has grown, so too has the related litigation. Between 1996 and 2005, the number of lawsuits involving what has become known as "family responsibilities discrimination" grew by more than 400% (from 97 to 481), according to a 2006 study by the Center for WorkLife Law ("Litigating the Maternal Wall: U.S. Lawsuits Charging Discrimination Against Workers with Family Responsibilities," July 6, 2006).
While the term "family responsibilities discrimination" encompasses a number of different causes of action, it frequently involves gender stereotyping claims, which were first recognized by the Supreme Court as a form of sex discrimination almost 20 years ago in the landmark Price Waterhouse v. Hopkins case.
Gender stereotyping occurs when an employer makes assumptions about an employee's abilities and/or preferences based on his or her gender; for example, assuming that an employee who is also a mother will not want to relocate for a promotion or will not want to work the third shift despite a pay differential. This has been referred to as the "maternal wall."
Men may also make out gender stereotyping claims. Traditionally, male gender stereotyping claims were brought by effeminate men claiming disparate treatment because they did not live up to societal expectations regarding masculinity. As more men pursue flexible workplace arrangements, similar societal expectations regarding a man's role with regard to breadwinning and childcare may yield the next line of male gender stereotyping claims.
Gender stereotyping claims are not the only discrimination claims employers face relative to work/life balance. Family responsibilities discrimination also includes Equal Pay Act claims, disparate impact claims, retaliation claims, Fair Labor Standards Act (FLSA) claims and Americans with Disabilities Act (ADA) claims, among others. Beyond discrimination, flexible workplace arrangements also raise wage and hour, benefits and workers' compensation issues.
The Current Landscape
In January 2005, the Simmons School of Management and Bright Horizons Family Solutions published a study titled "The New Workforce Reality: Insights for Today, Implications for Tomorrow," for which they surveyed more than 2,000 employees at 13 U.S.-based companies and found, among other things:
95% of men and women surveyed rated their "life outside of work" as equally or more important than their jobs.
When asked to identify what characteristics factor into creating the ideal job, the top two responses from both men and women were "working for an organization that respects personal/family concerns" and "working for a supervisor who is responsive to personal/family concerns."
When asked to identify the gaps between their current and ideal jobs, men and women indicated that they wanted to have some scheduled work hours from their homes, more control over their schedule and to work in an organization with flexible work policies and programs.
These survey results are significant in that they make clear that (1) almost all employees are looking for some flexibility in their work arrangements, and (2) this is a significant issue for both men and women.
Employers have begun to respond to employee demands for more flexible workplaces. According to a 2005 survey of major U.S. employers conducted by Hewitt Associates, 74% of employers offered some form of alternative work arrangements.
Alternative work arrangements come in many forms. The most common alternative work arrangements include:
Flex-time: Instead of working a standard work day (e.g., from 9 a.m. to 5 p.m.), employees have flexibility as to when they begin and end their work day within certain limits. Meal breaks may also be shortened or skipped altogether.
Part-time: Employees work something less than a full-time schedule at reduced pay. Benefits may also be affected.
Telecommuting: Employees spend at least some time working from a remote location rather than a central work site.
Job sharing: Two part-time employees share a single job.
Compressed work week: Employees work more hours per day and fewer days per week.
Minimizing The Legal Risk
There are a number of things employers can do to minimize the legal risks created by requests for and implementation of flexible work arrangements.
1. Draft a Policy Addressing Flexible Workplace Arrangements.
A flexible workplace policy will make it more likely that employee requests for flexible work arrangements are given similar consideration and, if properly drafted and well-executed, can minimize the risk of discrimination claims. In addition to describing the kinds of flexible workplace arrangements available to employees, an effective flexible workplace policy will address the following:
Eligibility requirements: To the extent not all employees will be eligible for the flexible work arrangements the company offers, the eligibility requirements should be clearly articulated. These may include department or position, duration of employment, discipline history, performance record and/or history with regard to accuracy and timely reporting of hours worked.
Decision-making authority and process: The policy should make clear that the company decides whether to grant an employee's request for a flexible work arrangement. While an employee's direct supervisor should play a role in the decision-making process, consistency can be assured only if higher level management and/or human resources is also involved. Employees should also be advised regarding the criteria that the company considers in making these determinations - for example, the requirements of the employee's job, the amount of interaction with other employees and/or customers/ clients/vendors required by the job, the amount of day-to-day supervision recommended, the type of flexible work arrangement being requested, the business needs of the company, the availability of others when the employee will not be available or will be available only remotely, etc.
Effect on other terms and conditions of employment: The policy should make clear that the flexible work arrangement will not affect the other terms and conditions of employment, including the employee's at-will status. It should also be clear that all of the company's policies and procedures remain in effect, including those addressed in the company's employee handbook. A reminder regarding reporting workplace injuries, confidentiality of company information and (lack of) workplace privacy is recommended for those employees who will be telecommuting. All non-exempt employees should be reminded that they are required to track and report accurately and timely all hours worked.
Monitoring and evaluation: Flexible workplace arrangements will be monitored and evaluated periodically, with new arrangements receiving additional scrutiny. Make clear that flexible workplace arrangements may be terminated at any time by the company if the company does not believe the arrangement is working satisfactorily. Sometimes arrangements do not work because of the manager; sometimes they do not work because of the employee. In either case, it is important not to assume that the failure of one arrangement means other attempts will fail too.
2. Consider Wage and Hour Risks for Non-Exempt Employees.
Non-exempt employees must be paid based on the hours they work each work week and, in some states, based on the hours they work each work day. Consequently, it is imperative that non-exempt employees accurately report all hours worked.
When non-exempt employees telecommute there is a risk that employers will not capture all of the hours that they work. It is imperative that employees understand they must report all hours worked, wherever they are working the hours.
For non-exempt employees who work a flex-time schedule and take a reduced meal break, the risk of not paying for all hours worked is even greater. Since the DOL's enforcement position has been that the FLSA permits meal breaks to be unpaid only if they are at least 30 minutes and uninterrupted, a meal break of less than 30 minutes may mean the employer is liable not only for the period that was worked but also for the remainder of the 30 minutes.
3. Do Not Ignore the FMLA or ADA.
Even if a company does not offer flexible workplace arrangements, employees may be entitled to such arrangements under the FMLA and/or the ADA.
If a workplace is FMLA-covered and if an employee meets the eligibility requirements for leave under the FMLA, the employee may be entitled to intermittent leave in the form of a reduced or otherwise flexible schedule.
Likewise, if an employee is a qualified individual with a disability, the employee may be entitled to a reduced or otherwise flexible work schedule as a reasonable accommodation, unless the employer can demonstrate an undue hardship. Undue hardship arguments are less likely to succeed where the company has permitted other employees to work flexible schedules, particularly if those other employees have similar jobs and/or responsibilities to the employee requesting the reasonable accommodation.
4. Consult the Company's Employee Benefit Plans.
Employees should not be denied company benefits simply because they take advantage of flexible work arrangements. Rather, the terms of a company's insured or retirement benefit plans will govern employee eligibility for such benefits. To the extent a part-time employee, for example, is eligible to participate in the company's 401(k) plan or group health plan and the company denies the employee this opportunity to do so, the employer may be facing a denial of benefits claim under the Employee Retirement Income Security Act.
5. Report All Workers' Compensation Claims.
Confirm that employees who are injured off-site but while working are covered by the company's workers' compensation policy. If they are not, this could lead to liability in tort for employees injured while telecommuting or otherwise working off-site.
Employees should be advised that injuries that occur while telecommuting should be treated the same as injuries that occur while at the worksite and the same reporting procedures should be followed.
Employers should not wait for the EEOC to develop guidance regarding work/life balance. A proactive approach to flexible workplace issues will not only help employers to minimize the legal risk associated with requests for and implementation of flexible work arrangements but will also help the company to attract and retain the significant percentage of the population that is looking for a flexible workplace.1 On May 23, 2007 (following the drafting of this article), the EEOC issued guidance on discrimination based on work/life balance issues. A copy of this guidance, along with a question-and-answer fact sheet, may be obtained from the EEOC website, www.eeoc.gov.
Jennifer Blum Feldman is an attorney in Wolf, Block, Schorr and Solis-Cohen's Employment Services Practice Group, where she focuses her practice on preventive counseling and compliance, in particular with regard to EEO and wage and hour issues. She also provides training to in-house counsel, managers and other employees and has significant experience as a litigator defending local, regional and national companies in single-plaintiff and class action employment litigation. This article should not be construed as legal advice or as pertaining to specific factual situations.