Journal Issue: Work and Family Volume 21 Number 2 Fall 2011
At Work, but Needing Flexibility and Equity
Most American workers today are also caregivers. In 2008, among mothers of children under age eighteen, 71 percent participated in the workforce, which means most families no longer have a full-time stay-at-home parent; among all workers, both male and female, 42 percent reported that they had cared for an elderly person within the past five years.14 Workers with care responsibilities may be able to perform their jobs fully, but may also need some flexibility from their employers to manage work-family conflicts; such flexibility would include, for example, being allowed to negotiate, have input into, or control their hours or location of work, without fear of discrimination or penalty. For professional workers and those subject to mandatory overtime, the problem is most often too much work; for low-wage workers, it is more often too few hours and unpredictable schedules.15 Many higher earners, whether they are professionals tied to their BlackBerrys or nurses struggling to comply with mandatory overtime on little or no notice, would like to work fewer hours, while many low-wage workers can find only part-time work, or none at all, and often have highly unpredictable schedules.16
Several surveys confirm that employees see control over their hours of work as critical for managing day-to-day quality-of-life issues. A recent poll conducted by the Rockefeller Foundation and TIME, Inc., for The Shriver Report: A Woman's Nation Changes Everything asked, "Which of these things, in particular, would need to change in order for working parents to balance evenly their job or business, their marriage, and their children?" In response to the four broad options given— longer school hours or school years, more flexible work schedules, more paid time off, or better and more day-care options—half (51 percent) of those polled picked more flexible work schedules.17 In a poll conducted for the Heartland Alliance, "Millennials" (members of the generation born during the last quarter of the twentieth century) reported that workplace flexibility was almost as important to them as wages; they also ranked workplace flexibility as more important than strong benefits or intellectually interesting work.18 Workers caring for an elder family member too report that they would like to see greater schedule flexibility and options for managing time at work.19
Although workers report needing and wanting some flexibility in terms of hours or location of work, the nation's wage-and-hours regulatory structure, based on outdated models of who works and who gives care, provides little guidance to help employers deal with the realities of today's workforce. The FLSA, which lays out the national regulatory structure on hours, remains grounded in assumptions about work and family that are no longer valid—and in fact were never valid for large numbers of workers. Although many employers do address workplace flexibility issues, wide gaps exist regarding which workers have access to flexibility. Further, a growing body of research suggests that mothers and caregivers often experience explicit discrimination because of their roles as caregivers and their need for workplace flexibility.
The Fair Labor Standards Act
The 1938 Fair Labor Standards Act is the foundation of the nation's regulatory structure governing hours of work. The FLSA sets overtime thresholds by defining a regular workweek as being forty hours and requiring that workers covered by the law be paid 150 percent of the usual hourly wage for any hours worked above that threshold. When Congress passed the FLSA, its intent was to encourage employers to curtail the long hours of their current employees and to put more people to work. The law specifies that workers who need protection in terms of hours of work are those employed full time at regular jobs. The legislation was passed following decades of state efforts to restrict excessive work hours, at least for women and children.20 The FLSA initially excluded some groups of workers, but was gradually extended from the 1940s through the 1980s to include almost every worker except employees of state and local government and small farms, as well as some domestic workers.21
The FLSA's overtime provisions do not apply to all workers; indeed, they cover only the six in ten workers who are paid hourly wages.22 Salaried workers who earn at least $23,600 a year, who are paid on a salary basis with a "guaranteed minimum," and who perform exempt job duties are not protected by the FLSA's overtime provisions.23 No statutory limit governs the number of hours that salaried (known as "exempt") employees can be asked to work in a given week. In 2004, the Bush administration increased the share of workers who are categorized as exempt by expanding the definition of "executive, administrative, and professional" workers. At the time, analysts estimated that the redefinition would make 8 million more workers (about 6 percent of the total employed workforce) ineligible for overtime pay.24 The FLSA's failure to provide universal coverage thus creates conditions of overwork for exempt employees.
To the extent that the FLSA limits overtime for covered workers, it may help them better manage work-family conflict. In addition, its overtime provisions have improved the take-home pay of millions of lower- and middleclass families who benefit from overtime pay. But it places no limit on overtime work. Many workers must often work overtime with little or no notice, a practice that not only exacerbates the work-family conflict but is also a frequent source of contention between managers and employees.25
Because the FLSA was never targeted at the problem of underwork, it does not address part-time parity, sufficient hours of work, or scheduling. A careful analysis by Susan Lambert and Julia Henly of the scheduling issues facing low-wage workers documents how low-wage employees often experience "fluctuating and reduced work hours and unpredictable work schedules that can compromise their job performance and their ability to earn an adequate living."26 The authors find that "employers can and do vary workers' hours," making it hard for workers to coordinate work schedules with a family's need for care. The FLSA offers no guidance on these issues.
Private-Sector Responses to the Need for Scheduling Flexibility
The gaps in FLSA worker protections leave a great deal of room for private-sector employers to experiment with flexible schedules to address work-family conflict. The FLSA itself allows workers and employers great leeway in how and where hours are worked.27 Employers can allow any employee— whether covered by or exempt from the FLSA overtime provisions—to vary arrival and departure times, days worked, and shift arrangements, or to take time off during the day so long as covered workers put in no more than forty hours in a given week if the employer wants to avoid paying overtime. Employers have even more flexibility regarding the hours of exempt workers. For example, exempt employees can have compressed workweeks over two-week intervals, working nine-hour days each week Monday through Thursday, then, every other Friday, alternating between working eight hours and taking the day off.
Whether compensatory time (a program, known as "comp time," that allows employees to work more hours than usual and bank them to use later to compensate them for the extra work) or flexibility programs are helpful for employees struggling to resolve workfamily conflict hinges on how they are implemented. A review of litigation history on comp time found that even within the public sector, where comp time is less contentious than it is in the private sector, employers limit their employees' ability to use comp time at their own discretion.28 In the private sector, which is less regulated and less unionized than the public sector, employees are likely to be even less able to make use of their comp time when it suits them.
Firms that experiment with workplace flexibility often allow employees to make requests for flexibility, thus beginning a process of negotiation over how the schedule will help both employees and employers to meet their needs.29 Few workers, however, have access to workplace flexibility, and those that do are still too often "mommy tracked." Only about a quarter of employees report having some kind of flexibility, although from about half to most of all employers report offering flexibility of some kind.30 Workers with the least access to predictable work schedules are disproportionately low-wage workers, women, and workers of color.31
Some firms offer comp time to their salaried employees who are exempt from the overtime provisions of the FLSA. In the private sector, this policy is available only to workers exempt from the FLSA's overtime provisions; about a third (36 percent) of employers offer comp time to some workers and one in five (18 percent) makes it available to all workers.32
Firms that voluntarily implement flexibility do so because they see it as good for their bottom line. A growing body of empirical research suggests that these policies enhance productivity by improving retention and reducing turnover. In 2010, the Council of Economic Advisers reviewed evidence on the economic value of adopting workplace flexibility and concluded that the "costs to firms of adopting these kinds of management practices can also be outweighed by reduced absenteeism, lower turnover, healthier workers, and increased productivity."33 In a review of research in The Shriver Report, Brad Harrington and Jamie Ladge cite several studies showing that when firms allow workers flexibility and managers implement it, the benefits are considerable.34
New Ideas for Workplace Flexibility
Government policy has a clear role in workplace flexibility. Although the government has been setting basic labor standards pertaining to hours of work for nearly a century, workers today both need and want better policies. Generally, to be considered effective at addressing workplace flexibility, new policies must work for employees as well as employers and give them some control over the hours or location of work so they can address their work-family conflicts. Further, participation should be at the worker's discretion and should not entail disparate pay or promotion penalties; it may entail pay cuts commensurate with reduced hours, but not penalties over time. Finally, new policies should not exacerbate the gaps left by the FLSA or undermine its protections.
Alternative Schedules and Compressed Workweeks. Federal, state, and local governments have experimented with several innovative programs to increase scheduling flexibility that could provide a model for policy makers. Since the late 1970s, for example, federal employees have had some access to two kinds of alternative work schedules, a "flexible work schedule" and a "compressed work schedule."35 In 2010, the Office of Personnel Management launched a pilot program called Results-Only Work Environment that allows employees to work whenever and wherever they want, as long as they complete their tasks. Initial results from the evaluation of the federal pilot found greater employee satisfaction, a shift in focus among both employees and employers to output instead of hours worked, and improved perception of leadership.36
State and local governments have also implemented alternative schedules. In 2008 Utah Governor Jon Huntsman moved most state employees to a four-day workweek by executive order.37 Although the primary goal of the reform was to reduce energy expenses, a Brigham Young University study found that implementing compressed schedules in Utah reduced work-life conflict and improved productivity.38 In 2006 Houston Mayor Bill White began a Flexible Workplace Initiative Program to encourage companies to implement flexible work-scheduling policies. In an annual Flex in the City program, participating Houston area employers "adopt new flexible workplace policies for two weeks." City government surveys of both employees and employers found that the flexible scheduling reduced traffic congestion, lowered commute costs, and increased productivity.39
Right-to-Request. The United Kingdom, New Zealand, and Australia have implemented policies that give workers the right to request a flexible schedule without fear of retaliation.40 Because many U.S. workers are subject to being disciplined for even asking about flexibility or predictability, the right to request could be a very important addition to the U.S. work-family policy framework.41 The new policies implemented abroad require employers to set up a process to discuss and negotiate workplace flexibility and permit them to turn down the requests only for certain business reasons. In the United Kingdom, for example, employers may refuse the request for flexibility only for such reasons as the burden of additional costs, negative effects on meeting customer demand or on business quality and performance, or the inability to reorganize the existing staff to make it work.42
Right-to-request legislation has increased the number of workers in the United Kingdom with flexible schedules.43 Only 10 percent of requests have been turned down since the law was enacted. And although the law applied originally only to workers with a child under the age of six, the business community joined with workers to lobby to extend it gradually to workers with caregiving responsibilities for disabled or ill adults or for children under age eighteen by April 2011.44
Making the right-to-request model work in the United States would require careful analysis of how to adapt it to fit the U.S. legal and institutional structure. For example, the right to request would have to be made available to workers across the income distribution. 45 Employees would have to be assured a right to request a schedule that works for them, as well as their employer, even in the absence of a union setting. For right-to-request to be effective in the United States, it should also be used to help workers who do not want to (or cannot) work overtime, who want to place limits on their hours, and who need help in addressing the issue of scheduling predictability. Right-to-request legislation, in the form of the Working Families Flexibility Act, was introduced in the 111th Congress by Carolyn Maloney in the House of Representatives and Robert Casey in the Senate. So far, New Hampshire is the only state where such legislation has been introduced.46
Equal Rights in the Workplace
The foundation for equitable treatment at work in the United States is laid out in Title VII of the 1964 Civil Rights Act. As originally passed, Title VII protected individuals against employment discrimination on the basis of sex, race, color, national origin, and religion; it has been amended to include pregnant women, and other legislation has expanded the rights of the disabled. Although the Civil Rights Act ensures that all employees have an equal opportunity within the existing workplace structure, it does not require an employer to make changes to the workplace to address specific protected class issues. And although having broad protections from unfair treatment certainly helps some caregivers address discrimination in the workplace, nevertheless, as Ann O'Leary and Karen Kornbluh note, "Equal protection laws are only as good as the nature and quantity of benefits the employer provides to other workers."47
In 1978 the Pregnancy Discrimination Act amended Title VII to prohibit discrimination on the basis of pregnancy. The Pregnancy Discrimination Act has helped normalize a pregnant woman as a still-functioning employee,48 but it does not mandate that employers take any specific positive actions; they must only offer pregnant women the same benefits that they offer any other worker.49 For example, a company may fire an employee for breast feeding too often, making the argument that breast feeding is part of child care and not part of pregnancy.50 The Patient Protection and Affordable Care Act of 2010 now requires employers with more than fifty employees to provide appropriate breaks and locations so that working mothers covered by FLSA can pump breast milk.51
The Americans with Disabilities Act (ADA) of 1990 prohibits discrimination on the basis of disability in employment, as well as in other areas such as public services, public accommodations, transportation, and telecommunications.52 For employees with disabilities, the ADA provides workplace flexibility by requiring employers to provide "reasonable accommodations" that enable employees to perform their jobs. An employer is not required by the ADA to provide a reasonable accommodation if doing so would create an "undue hardship"—defined as "significant difficulty or expense." The ADA also covers caregivers for the disabled.
Evidence is growing that workers with care responsibilities experience discrimination in the workplace and that government policy has a role in ensuring workplace equity. Joan Williams, at the Center for WorkLife Law, has coined the phrase "family responsibility discrimination" to describe disparate treatment at work of "pregnant women, mothers and fathers of young children, and workers with aging parents or sick spouses or partners." She notes that these workers "may be rejected for hire, passed over for promotion, demoted, harassed, or terminated—despite good performance—simply because their employers make personnel decisions based on stereotypical notions of how they will or should act given their family responsibilities." 53 Sociologists Shelley Correll, Stephen Benard, and In Paik have found that among two groups of job candidates with identical credentials, the group identified as mothers was perceived to be less competent, less promotable, less likely to be recommended for management, and less likely to be recommended for hire, and that the mothers had lower recommended starting salaries than nonmothers.54
Employment discrimination is particularly problematic in the United States, where most workers have no explicit employment contract and thus can be fired for any reason not explicitly prohibited through judicial or statutory exceptions.55 Workers with care responsibilities may need to request flexible work arrangements, but may have no job-protected mechanism even for asking their employer to help them resolve their workfamily conflict.
New Ideas to Address Family Responsibilities Discrimination
In 2007, the Equal Employment Opportunity Commission (EEOC), the enforcement agency for the Civil Rights Act, laid out how the laws that establish workplace fairness also provide protections for workers with family responsibilities. Although no one law specifically addresses the dual role that most workers now play as workers and caregivers, a framework based on the growing body of case law is emerging. The EEOC's caregiver guidance outlines how, based on current law, workers cannot be subject to a hostile work environment or treated differently once they develop caregiver responsibilities, or be held to stricter standards (for example, about requesting leave or timeliness) than other workers. It also highlights difficulties in the workplace for women who are pregnant or have young children, as well as for men, when they request flexible schedules, and what treatment constitutes discrimination for them.56 The guidance, however, does not provide a framework that would give workers the time and flexibility to take care of caregiving obligations and not be discriminated against as a result.
For the future, one possibility would be to transform the EEOC caregiver guidance into legislation. The Australian state of New South Wales has done something similar, implementing protection for employees against discrimination based on care responsibilities, and requiring employers to affirmatively provide reasonable, flexible work schedules unless doing so would cause them undue hardship.57