Written Testimony of Maryann Parker Associate General Counsel Service Employee International Union (SEIU)

Meeting of February 15, 2012 - Unlawful Discrimination Against Pregnant Workers and Workers with Caregiving Responsibilities

Thank you very much for the opportunity to testify today concerning your mission to protect economic opportunity for all American workers, and in particular for workers who are pregnant or engaged in family caregiving responsibilities.

The Service Employees International Union is the fastest-growing private-sector union in the United States. 2.2 million members strong, SEIU is the nation's largest healthcare union, representing nurses, doctors, lab techs, and home care workers; the largest property services union, with members in the building services, janitorial and security industries; and the second-largest public services union, including members who work for state and local government, educational institutions, human services providers and family child care homes.

My remarks will focus on the role that unions can play to address the work-life fit issues faced by low-wage, hourly-paid workers. I begin with the union story of the passage and implementation of the 1978 Pregnancy Discrimination Act ("PDA"), which highlights the unique capacity of worker organizations to transform workplace culture and practices. Second, I set forth the trend toward low-wage service sector work in today's economy, and describe the particular challenges experienced by three groups of SEIU members. Third, through a case study of a recently-organized unit of direct care workers, I consider how collective bargaining can deliver important improvements for low-wage workers. In conclusion, I suggest that unions can and should lead in facilitating the implementation of best practices for accommodation of family responsibilities.

1. Introduction: Unions and the Implementation of the PDA

Unions played key roles within the coalitions that passed civil rights legislation, the FMLA, and the Affordable Care Act – to name just a few. Currently, SEIU is working to guarantee paid sick leave, achieve a national standard for paid parental leave, expand funding for early care and education, and defend the Affordable Care Act. The passage of the PDA in 1978 also resulted, in part, from union-sponsored litigation, education and advocacy to end pregnancy discrimination.¹

Upon passage of the PDA, unions turned to the daunting task of implementing the Act. In the implementation phase, unions were called on to penetrate worksites across America, integrating the law's guarantees into collective bargaining agreements, addressing violations through grievance procedures, and educating employers, workers and union leaders.² As Judy Scott, General Counsel at SEIU, wrote in an article marking the Thirtieth Anniversary of the law:

The organizational strength of the labor movement kicked into action after passage of the PDA to make sure the law was actually converted into day-to-day employment practices, often through new contract provisions, and then put into practice on the shop floors of our factories, down in our coal mines, and in the offices and worksites of our service sector. In these ways, union workplaces set a pattern for positive changes across entire industries.³

In addition to playing this facilitative role, unions had another, more fundamental job: negotiating good terms and conditions of work at union worksites. In many sectors, unions delivered the American Dream, and the PDA transformed women's lives by empowering them to take and keep jobs with good pay, excellent benefits, and accommodations for employees requiring lighter-duty assignments. But the PDA only guaranteed pregnant workers access to the rights and benefits available to other workers. In the 1970s and now, equal access to jobs that lack adequate pay and benefits does not, on its own, improve the lives of pregnant workers and workers with caregiving responsibilities.

2. Low-Wage Work in the Modern Economy: Challenges for Work-Life Fit

The U.S. economy has changed dramatically since the passage of the PDA. Today, the hourly jobs that American workers strive to balance with their caregiving responsibilities are very often not good jobs. Life is harder for many U.S. workers: the bottom 30 percent of families must find a way to get by on income that has decreased, in real terms, by 29 percent since passage of the PDA – even though family earners work more hours now than they did 30 years ago.⁴

Today's jobs are not likely to involve production of goods; the United States economy continues to shift away from manufacturing and toward the service sector.⁵ Studies estimate that between one-quarter and one-third of Americans work low-wage jobs in growing service sector fields including retail, janitorial and cleaning, care provision, and food service.⁶ And the trends in the service sector are toward low-wage, part-time jobs.⁷

In a 2011 report, Joan C. Williams and Penelope Huang of the Center for WorkLife Law summarized the dilemma faced by low-income families in this way:

Three elements create a widespread lack of work-life fit. First, low-wage families have higher loads of family care. Second, they lack the financial resources to purchase stable, reliable child- and elder-care. Third, their just-in-time jobs just don't fit the day-to-day realities of their lives.⁸

Some low-wage hourly workers are tied to rigid schedules, with no ability to take a break or adjust their schedules even in the most trivial way to accommodate caregiving needs. Other low-wage workers might envy a rigid work week: workers in health care and hospitality settings often receive little notice of their work schedules, face mandatory overtime, and struggle to arrange care around unpredictable, unstable demands for work.⁹

Distressingly, low-income hourly workers pay penalties at the workplace for the mismatch between work and family responsibilities. As Stephanie Bornstein wrote in another 2011 report from the Center for WorkLife Law, those workers face "blatant, 1970s-style pregnancy discrimination; little tolerance for tardiness or absences, regardless of the exigent circumstances; and a near total lack of flexibility at work."¹⁰

And yet, for many low-wage, part-time workers, including hundreds of thousands represented by SEIU, the need to address work/life balance has not emerged as a rallying cry. This result may stem from the fact that experts and policymakers have frequently identified "too much" work as the major obstacle to meeting the demands of family responsibilities.¹¹ While that may be true for many salaried professionals, low-wage hourly workers face different challenges.

Snapshot #1: Janitors
For many janitors and building service members, this conclusion runs counter to the fact that securing more work hours is a top priority at the bargaining table. A typical schedule for building cleaners runs from 8-12 p.m., 5 days a week – just 20 hours of work, often at a low wage rate. As a result, many cleaners must work a second or even third job to make ends meet, further complicating the task of balancing their work and home lives. In this context, "too little" work, not "too much" work, becomes the key work-family issue.¹²

Snapshot #2: School Bus Drivers
To further complicate the picture, "good" public sector jobs are increasingly becoming low-wage, contingent jobs that offer few family-friendly benefits. For example, SEIU and other unions have worked to organize employees of the private bus service contractors that have replaced public sector school bus service in many communities. Public-sector bus drivers are far more likely to earn decent pay and benefits, and have access to labor-management relationships that facilitate solutions to "non-economic" issues in the workplace, including work/life fit issues. Private-sector bus drivers often work part-time or irregular schedules, and cannot access or afford employer-sponsored health insurance. And should these bus drivers or their children get sick – not an unlikely prospect in a job that involves constant exposure to school kids – many lack paid sick time, and therefore risk income or discipline if they do not report to work. Indeed, this is a widespread phenomenon among low-income workers: Seventy-one percent cannot use leave to care for sick family members.13

Snapshot #3: Family Child Care providers
SEIU also represents many workers who are not employees at all, but rather independent providers who contract with states and localities to provide in-home care to children, the elderly, and the disabled. Family child care providers organized in SEIU have emerged as vital participants in state child care subsidy systems that support low-income parents who work or attend school. Given the high cost of center-based child care, middle-class families also depend on these home-based, flexible, affordable care providers. However, given low subsidy reimbursement rates and limited access to benefits, many providers struggle to cover bills and meet their own basic needs.

Family child care providers working together in SEIU have bargained for important improvements in child care subsidy programs and, in turn, enhanced the stability and quality of child care in home-based settings. But these front-line providers bear the brunt of our nation's wholly inadequate child care system. To achieve real gains, union work among early care providers must take place within the context of a redoubled national commitment to fund and deliver high-quality, affordable child care options for working parents. Subsidy programs reach only the very poor, and do so in sporadic, inadequate fashion.¹⁴ The National Women's Law Center has reported that families in 37 states were worse off in 2011 than they were in 2010, based on an evaluation of many policies essential to ensuring accessible, high-quality child care assistance programs.¹⁵ And despite compelling research on the essential need to fund high-quality early education and care for children, the report reached an even more troubling conclusion: Because families achieved little progress with child care assistance in the past decade, many have lost ground since 2001.¹⁶ Among the many policy priorities facing advocates for work/life balance, a system that guarantees adequate access to high-quality child care must rank at or near the top.¹⁷

3. Making a Difference for Today's Low-Wage Workers: The Union Role

Workers want a greater say with their employers, and want unions to represent and amplify their ability to influence conditions in their workplaces.¹⁸ In two substantial ways, unions help low-wage workers achieve better life-family balance. First, across the board, unionized workers receive more pay and better, more useful benefit packages than their nonunionized counterparts.¹⁹ Second, unions actualize workplace policies and laws: they play a "facilitation" role. Much as industrial unions did in 1978 in the first wave of PDA implementation, today's unions help workers learn and insist upon their rights on the job, ensure enforcement of workplace laws and contract provisions, and protect workers from retaliation.²⁰

A recent contract win in SEIU demonstrates the potential for collective bargaining to result in immediate and important improvements for low-wage workers with family responsibilities. The case of Sullivan & Associates illustrates how unions can play an essential role in improving the lives of low-wage workers, and help achieve better conditions for work-life balance in their lives.

Sullivan & Associates: The Work
Approximately 500 direct care workers at Sullivan & Associates, a Massachusetts provider of community based services for the disabled, began organizing with SEIU Local 509 in 2010. Sullivan, a private employer that receives virtually all of its income from federal and state funding streams, operated some 77 group homes and three day programs located across central and western Massachusetts at the time of the workers' October 2010 petition for union representation.

To meet the demand for 24-hour-per-day, 365-day-per-year staffing at its group homes, Sullivan management must piece together a crazy quilt of schedules and staggered shift changes. Direct care workers, many of them immigrants, are typically paid nine or ten dollars per hour for strenuous, often dangerous work.²¹ Workers could hope to receive a one-dollar raise after four years on the job; otherwise, their base hourly wage rates would never increase. At such low wage rates, even assuming a full-time schedule, a worker who tried to support even a small family on a Sullivan paycheck would be living in poverty.

A survey of Sullivan workers in late 2010 presented a compelling picture of complex lives and contingent work. Over half of the survey respondents worked a second job. Nearly a third of them had child care responsibilities. One-eighth attended school. A substantial proportion relied on car pools or public transit to meet all of their commitments. Part-time work schedules were common; nearly a quarter of survey respondents reported working only on weekends, and another fifteen percent were designated "floaters" who worked shifts on an ad-hoc basis. Schedule changes routinely scrambled each worker's complex set of responsibilities. And the frequent practice of denying work hours when the individual for whom the employee typically cares is absent or otherwise not in need of care, referred to as "absence of individuals," meant that Sullivan workers could never be sure if they would take home a full week's pay.

Addressing Family Responsibilities In Collective Bargaining
The Sullivan workers chose to unionize in SEIU Local 509, and recently reached their first collective bargaining agreement ("CBA") with Guidewire Inc. (formerly Sullivan & Associates).²² The union contract has not turned direct care jobs at Massachusetts group homes into good jobs, or even the only jobs these workers need to support their families. However, the contract affords these low-wage workers important measures of security and stability. A list of provisions from the CBA between SEIU and Guidewire demonstrates how a union can deliver tangible, transformative benefits to workers even in a first contract.²³

Highlights of the Guidewire contract include:

Base Wage Increases: The CBA includes percentage increases to base wage rates in 2012, 2013 and 2014, and seniority increases for long-term employees. (Art. 19.) Prior to reaching this contract, wage rates never went up Guidewire; this is typical in the industry. The increases are small; however, they are in line with increases in public-sector employment and publicly-funded industries, given the deep cuts to state budgets in recent years. And over time, even small wage increases allow workers to build economic resources and better meet the complex needs in their lives, including caregiving needs in their families.

Improved Leave Provisions: The CBA sets forth rules governing all types of leave and spells out accruals for vacation and personal time. (Arts. 14, 15, 17, 18.) It establishes a small but important allotment of personal hours for part-time workers – a large contingent of employees at Guidewire. Now all employees, with minimal notice, can meet family responsibilities without risking discipline or losing income.

The CBA acknowledges that Guidewire is a covered employer under the Massachusetts Small Necessity Leave Act, which entitles employees to take up to 24 hours of leave annually to attend a child's education-related school activities, or accompany a child or elder relative to a medical appointment. In states where such laws do not exist, the Labor Project's database contains examples of contract language that make limited hours of leave available for family obligations and other emergency needs.

Hours of Work: Among other provisions, the CBA addresses the "absence of individuals" problem that frequently resulted in workers earning far less than their full paycheck in a given week. In order to stabilize earnings, staff members affected by the absence of the individuals for whom they usually provide care have priority rights to open shifts; Article 11, Section 2 of the contract sets forth a sequence for filling open shifts once they are accommodated. The parties further agreed that the employer will text notices of open shifts to most effectively reach employees and adjust schedules.

This provision ameliorates the problem of lost work hours; model provisions in the Labor Project's database take the next step, guaranteeing set hours of work with pay for full-time, part-time, and on-call workers. The database also includes provisions from hotel contracts that allow for shift scheduling by seniority, and options for voluntary agreements to end shifts early.

Labor-Management Committee: The CBA gives union and management representatives a monthly forum to discuss issues of mutual concern. (Art. 7.)

Just Cause and Disciplinary Actions: The CBA transforms Guidewire workers from at-will employees, who can be fired for any (lawful) reason or no reason at all, to workers who are protected by a just cause standard for all discipline, including termination. (Art. 6.) This provision grants workers a measure of security that will, among other things, empower them to assert their legal rights to take family and medical leave and to be free from discrimination on the basis of gender, pregnancy, disability and other protected characteristics.

Grievance Procedure: Direct care workers at Guidewire can now file complaints alleging a violation of the CBA, and their union can elect to bring a grievance to a permanent arbitration panel for resolution.

In several reports based on their arbitration decision database, the Center for WorkLife Law has documented the power of the grievance process to provide workers with a second line of defense against family responsibility discrimination.²⁴ Rooted in the realities of a particular workplace and the law of its contract, arbitrators may be able to find ways to protect workers from serious discipline on account of family responsibilities where Courts, or the EEOC, lack the necessary tools. To cite just a few examples, arbitrators have:

• Found an employer lacked "just cause" to fire a mental health aide with nine years' seniority when she refused mandatory overtime because her babysitter could not stay, and her employer would not allow her children to sleep at the workplace;²⁵
• Reduced a father's discharge to a suspension for declining an assignment because he had to pick up his daughter;²⁶ and
• Overturned the discharge of a telephone installer who left work to pick up her child rather than risk her child's safety or jeopardize her child care arrangements.²⁷

Those workers – however difficult their family situations – are relatively lucky, because they had access to union representation and just cause provisions. Nonunionized workers in similar situations are far more vulnerable to job loss and discipline, just as the Sullivan workers were before reaching their CBA.²⁸

4. Conclusion: The Union Role in Facilitating Work-Life Fit in Low-Wage Jobs

Low-wage workers and their unions may see work-life balance as a luxury issue that is secondary to their primary goal of improving wages and benefits. As the Sullivan experience illustrates, however, low-wage workers balance work and family responsibilities on a fine edge, and their needs for solutions are real and acute. The union's unique ability to deliver some measure of job security and stability should be a powerful reason for workers to join a union organizing drive; in turn, CBA provisions that protect workers' ability to balance work and family without penalty should be top priorities for union bargaining teams.

In addition, low-wage worker unions can play a key facilitative role in transforming American workplaces to better reflect the realities of workers' lives. Social scientists, policy makers and lawyers have identified a number of strategies and tools that employers could use to better accommodate workers' family responsibilities even while reducing the transaction costs of a high-turnover workforce. The labor movement is uniquely suited to lead this paradigm shift. As they did in the wake of the enactment of the PDA, workers and their unions can and should facilitate implementation of best practices to accommodate the family responsibilities at all American workplaces.

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Footnotes

¹See generally Judith A. Scott, Why a Union Voice Makes a Real Difference for Women Workers: Then and Now (2009), Symposium: Respecting Expecting: The 30th Anniversary of Pregnancy Discrimination, 21 Yale. J. L. & Feminism 233.

²See, e.g. id. at 239 (Scott describes a "bizarre" post-PDA grievance concerning a plant manager's decision to prevent a nursing mother from resuming her work on the production line because he contended that the breast milk could leak onto the shop floor and cause others to slip and injure themselves.)

³Id. at 235-36.

⁴ Joan C. Williams and Heather Boushey, Center for WorkLife Law and Center for American Progress, The Three Faces of Work-Family Conflict: The Poor, the Professionals, and the Missing Middle (2010), available at https://www.americanprogress.org/issues/economy/reports/2010/01/25/7194/the-three-faces-of-work-family-conflict/ at 11.

⁵Bureau of Labor Statistics, Occupational Outlook Handbook, 2010-11 Edition, Overview of the 2008-18 Projections, Dec. 3, 2010, available at https://centerforinquiry.org/wp-content/uploads/sites/33/quackwatch/credential/occ/2010-11OOH.pdf.

⁶Joan C. Williams and Penelope Huang, Center for WorkLife Law, Improving Work-Life Fit in Hourly Jobs: An Underutilized Cost-Cutting Strategy in a Globalized World (2011), available at http://worklifelaw.org/pubs/ImprovingWork-LifeFit.pdf, at 6. See also Liz Watson and Jennifer Swanberg, Workplace Flexibility 2010, Georgetown Law, and The Institute for Workplace Innovation (iwin), University of Kentucky, Flexible Workplace Solutions for Low-Wage Hourly Workers: A Framework for A National Conversation (2011), available at http://workplaceflexibility2010.org/images/uploads/whatsnew/Flexible%20Workplace%20Solutions%20for%20Low-Wage%20Hourly%20Workers.pdf, at 10 (finding 24% of the overall workforce in low-wage hourly jobs) and 12 (DOL projects growth in low-wage service sector).

⁷See, e.g., Kris Maher, More People Pushed Into Part-Time Workforce, Wall St. J., Mar. 8, 2008 ("Growth of part-time staff in the [retail service] sector has been slightly outpacing that of full-time staff since 2000, according to Labor Department figures.").

⁸ Williams and Huang, supra note 6, at 11.

⁹See generally Watson and Swanberg, supra note 6.

¹⁰ Stephanie Bornstein, Center for WorkLife Law, Poor, Pregnant and Fired: Caregiver Discrimination Against Low-Wage Workers (2011), available at: https://worklifelaw.org/publications/PoorPregnantAndFired.pdf, at 10.

¹¹Suzanne M. Bianchi, Changing Families, Changing Workplaces, The Future of Children, Princeton – Brookings, Vol. 21, Number 2, Fall 2011, available at: https://futureofchildren.princeton.edu/sites/futureofchildren/files/media/work_and_family_21_02_fulljournal.pdf, at 26.

¹²Id.

¹³ Williams and Boushey, supra note 4, at 28.

¹⁴Id. at 16.

¹⁵See generally Karen Shulman and Helen Blank, National Women's Law Center, State Child Care Assistance Policies 2011: Reduced Support for Families in Challenging Times, (2011) available at: https://nwlc.org/wp-content/uploads/2016/11/fact-sheet-on-state-child-care-assistance-policies-2017.pdf.

¹⁶See id. at 12.

¹⁷ Williams and Boushey, supra note 4, at 61 ("Some crucial policies such as paid family and medical leave or childcare programs will require – dare we say it – subsidies.") and at 67-68.

¹⁸See, e.g., Richard B. Freeman, Economic Policy Institute Brief Paper #182, Do Workers Want Unions? More Than Ever, (2007), available at http://www.epi.org/publication/bp182/.

¹⁹ Jenifer MacGillvary with Netsy Firestein, UC Berkeley Center for Labor Research and Education and Labor Project for Working Families, Do Unions Make a Difference? (2009), available at https://laborcenter.berkeley.edu/family-friendly-workplaces-do-unions-make-a-difference/, at 7.

²⁰See id. (citing studies) and at 8-11 (FMLA and the facilitation effect).

²¹ In January of 2011, Stephanie Moulton, a direct care worker, was murdered at the Massachusetts group home where she worked. See Deborah Sontag, "A Schizophrenic, a Slain Worker, Troubling Questions," The New York Times, June 16, 2011, available at:http://www.nytimes.com/2011/06/17/us/17MENTAL.html?pagewanted=all.

²² The Contract between SEIU Local 509 and Guidewire, Inc. is available at: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwi39Lv0yoXuAhVMwlkKHT40AIcQFjAAegQIARAC&url=https%3A%2F.

²³ The Labor Project for Working Families resource network maintains a comprehensive database of resources for bargaining at https://workingfamilies.org/; a contract language database is available at www.learnworkfamily.org.

²⁴See generally Joan C. Williams, WorkLife Law, One Sick Child Away from Being Fired: When "Opting Out" is Not an option (2006), available at: http://www.worklifelaw.org/pubs/onesickchild.pdf; Bornstein, supra note 10; Williams and Boushey, supra note 4.

²⁵ Williams, supra note 24, citing State of New York, Rochester Psychiatric Center, 87 LA 725 (Babiskin, 1986).

²⁶ Williams and Boushey, supra note 4, at 41 citing Jefferson Partners, 109 LA 335 (Bailey, 1997).

²⁷Id. at 44, citing GTE California Inc., case no. 11-91-86 (Miller, 1992).

²⁸Id. at 37.