Written Testimony of Deane Ilukowicz Vice President of Human Resources Hypertherm, Inc.

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

Good afternoon, Chair Berrien and Commissioners Feldblum, Ishimaru, Lipnic and Barker, and General Counsel Lopez. My name is Deane Ilukowicz. I am currently the Vice President of Human Resources at Hypertherm—an associate or employee owned company. In addition to my professional role I am also the wife of a working professional and the mother of a 4-year old.

Hypertherm is based in Hanover, NH, and designs and manufactures the world's most advanced metal cutting systems for use in a variety of industries such as shipbuilding, manufacturing, and automotive repair. Hypertherm's mission statement is "To provide our Customers with the best high-temperature metal cutting products and services in the world, to provide for the development and well-being of our Associates, and to enrich our communities and environment." Hypertherm is a global company with more than 1,200 Associates located in more than 20 countries. More than 60% of our Associates are non-exempt as classified under FLSA – 50% work in production. Ninety-eight percent of Hypertherm products are manufactured in New Hampshire. Hypertherm has maintained a no layoff policy since founded in 1968.

Hypertherm was named a Best Company to Work for in New Hampshire, sponsored by NH Business Magazine, in 1997, 1999, 2000, 2001, 2002, 2005, 2006, 2008 and 2009. We were inducted into the Hall of Fame in 2003-2004 and 2010-2011. Hypertherm is the only company to be inducted into the Hall of Fame twice. The only years it was not named to the list were 1998 and 2007, which were years the company did not enter the competition. The Company has also been recognized as a national (in the small and medium size company category) Great Place to Work, sponsored by The Great Place to Work Institute.

Flexible Scheduling

Hypertherm has been named a FlexFriendy company for the past two years and provides a platform for Associates to explore flexible work arrangements. The FlexFriendly designation, sponsored by EmployMoms, highlights companies that are progressive in culture, policy, and demonstrated practice, and focused on meeting the needs of 21st Century Workforce. (See http://www.employflex.com/).

Here are some quotes from our FlexFriendly survey application:

"Hypertherm, Inc. provides associates with the opportunity to change their work schedules to balance work and family schedules. This allows parents to go to their children's after school events, take care of parent appointments, and meet personal needs during working hours. This also allows for more coverage over more hours at Hypertherm that supports our customers in all time zones."

-- Carolyn Maloney, Corporate Treasurer

"My interest in Hypertherm was for many reasons but one of those reasons was because it is a 'family friendly' company. With that came the understanding that as a mother of four there would be times where I would want to be with my children. Having a flexible schedule allows me to be there for my children at school activities or sport events. Knowing how important this has been in my schedule means I have also tried to ensure associates working for me have this flexibility whenever possible."

-- Sarah Dwyer, Functional Team Leader, Talent Acquisition

"I believe that the "flex" schedules create a win-win situation where associates are able to get a flexible schedule and the company is able to get a more productive and satisfied associate. Additionally, flexible scheduling can help to fill roles on the team that no one else would normally want. Hilary Noyes, for example, is able to get a flexible schedule that allows her to be home with the kids and we get a very qualified and capable associate to give excellent Customer Service from 5pm until 9pm. This type of situation helps to set us apart from our competition."

-- Dan Damm, Functional Team Leader, Customer Fulfillment

Hypertherm provides flexibility during normal shift hours for personal matters, such as doctor's appointments, school visits, etc which cannot be handled outside normal working hours. However, we recognize that there are times in an Associate's life when regular work hours become a problem and there is a need for even more flexibility and perhaps for a longer period of time. Each life situation is unique and each job has different responsibilities. At Hypertherm, we believe that work rules should be kept to a minimum, and we rely in good faith on the ability, honesty, integrity, and good business judgment of associates to maintain fairness and equity in the work place. However, we also recognize that determining when a flexible work schedule is the appropriate alternative to an Associate's request can be at best difficult, thus we have created guidelines to aid leaders and Associates through the process.

Not all requests can be granted due to the needs of the business. The decision to allow a flexible schedule is based on many factors, and it is important that each request be considered on its own merit. It is not Hypertherm's intention to create alternative work schedules for jobs, but rather to accommodate the special requests that come from Associates. Because of that, the responsibility lies with the Associate to make the initial request for a schedule adjustment. We provide Associates a template to frame their requests and suggested questions for leaders to walk through as they are making decisions. Human Resources signs off on every recommendation for approval or denial of a request from a leader to ensure fairness, consistency and compliance.

Paid Time Off

Hypertherm offers many programs that promote balance and flexibility for all Associates. Hypertherm's paid time off program is structured in one common bucket of hours, Earned Time Off (ETO). This provides Associates the flexibility to choose how to use their paid time off rather than dictating certain hours for vacation and others for sickness. In 2012 we also introduced the Gift of Time program. This program provides Associates the opportunity to donate paid time to another Associate in need. We currently have three Associates taking advantage of this program. Two Associates are battling serious illnesses and one Associate's wife has a serious illness. We provide time off in these situations but, providing additional paid time off provides these Associates extra time, without worrying about pay, to spend with their families.

Hypertherm recently was recognized by the Dave Thomas Foundation for Adoption. We offer six weeks of paid maternity leave after the birth or adoption of a child. In addition we provide five days of paternity leave for both new natural and adoptive fathers. We offer daycare and elder care referral services to all Associates. We have dedicated nursing rooms in every location for mothers who are returning to the work environment to have a safe and private location to express. One of the greatest examples of the flexibility of these types of benefits is evidenced by one of our female associates who agreed to be a surrogate for her brother and sister-in-law. She came to us and disclosed the nature of her pregnancy. We of course provided her the maximum benefits as we would with any other pregnancy. After supporting her we had a second woman come forward who had offered to be a surrogate. She will be offered the same benefits. Hypertherm also provides preferred parking to expectant mothers.

Health and Wellness

Hypertherm demonstrates a strong commitment to promoting Associate wellness and healthy lifestyles. We opened our Wellness Center in February of 2009. This center is located in New Hampshire but truly provides value to our global population. For example, when the H1N1 virus first came on the scene, the health care professionals at the Wellness Center provided information to our global population. Our 24 hour Associate Assistance Program is also available to all Associates and their families for a whole host of health issues, and provides referrals to local wellness related resources. One of the functions of our Associate Assistance program is to provide caregivers added resources. For example, the program offers support, referrals and counseling for parenting skills, child and elder care solutions.

The wellness center employs a RN and PA for 60+ hours per week. They focus on disease management coaching, voluntary smoking cessation programs (in preparation for a tobacco free campus in September 2012), acute illness care, workers' compensation injury assessment and management, weight loss coaching, safety response training, and injury/illness response. This benefit allows associates to minimize their missed time from work and see a medical professional without having to worry about long wait times or co-payments, saving Associates valuable time. Our Wellness Center staff has extensive hours, including early morning hours to accommodate Associates on our third shift, and our RN and PA are willing to come in on any shift to provide care to our Associates. We also employ an Occupational Therapist eight hours per week, who conducts a new hire assessment (focused on ergonomics) for every newly hired Associate. Other benefits offered by our Wellness Center include "hands free" CPR training and flu shots for associates and their family members over the age of 16.

In 2011 we added a dedicated Wellness Program Manager to our Human Resources organization. All of her time is dedicated towards improving the well being our Associates. A major project that she sponsors each year is our annual Wellness Fair, which is hosted in the late spring. We also sponsor an annual Financial Wellness Fair each fall. Another popular event hosted by the on-site Wellness Committee was a "healthy option" cooking contest. Associates took regular recipes and prepared them in an alternative way to promote "healthy eating habits."

We recognize that finding time for regular exercise can be a challenge for our Associates who have families and caregiving responsibilities, and even for those who don't. So at Hypertherm, we make it easy for Associates to find the time to engage in exercise to stay healthy. Our on-site exercise facilities provide a wide range of exercise equipment including weights, treadmills, bikes and a stair-climber. Aerobic and yoga sessions with professional instructors are offered at no cost to Associates. We host a series of wellness classes, including subsidized Weight Watchers and free Smoking Cessation programs. Providing access to these programs on-site and during regular working hours is particularly helpful for working care givers who may not have the ability to fit exercise into their challenging routines.

Safety

Hypertherm works hard at safety and we are proud of our record and recent VPP Star designation. The Company was selected as a STAR worksite by the Occupational Safety and Health Administration's (OSHA) Voluntary Protection Program (VPP).  Hypertherm joined an elite group of organizations to receive STAR VPP status. Currently less than 2,200 worksites across the country have the designation.

The VPP recognizes organizations that have outstanding safety and health practices. Organizations must maintain injury and illness rates below U.S. Government averages for their industry. For 2010, Hypertherm's rate was less than one incident per 100 full-time Associates, compared with an industry average of nearly eight incidents per 100 workers.

In addition, organizations have to demonstrate a disciplined system of hazard prevention and control, training programs, and worker involvement. The selection process included a rigorous five day onsite evaluation by five OSHA safety and health professionals.  This recognition is a testament to the hard work and commitment to safety that all Hypertherm Associates have made over the last few years.  

Hypertherm's success is based on an integrated health protection approach that involves integrating traditional workplace health protection (e.g., ergonomics, physical safety) with our on-site wellness/health care resources. Hypertherm's culture promotes Associate involvement in our safety and wellness programs, and the early reporting of safety & health issues. Our Associates, safety team and wellness/health staff, work together in the interactive design of workplace interventions to enhance the overall well being of all Hypertherm associates.  

We have a three person dedicated safety team, and an active Associate Safety Committee and First Aid Team. We have been commended by national OSHA and the State of New Hampshire for our enviable safety record. A mobile vision unit visits Hypertherm every two weeks to provide safety glasses (including prescription glasses at no cost) for Associates. We provide every associate with a new pair of safety shoes every year. Again, providing access to these services on site provides working caregivers the opportunity to obtain these items during their normal working hours.

Giving Back to Our Community

Hypertherm also has a strong community service program. Over the past two years Hypertherm associates have donated an average of 8,000 hours of volunteer time with over two thirds of the associates committing their time each year to a non-profit organization of their choosing. This paid time off is provided to Associates during their normal working hours whenever possible and many of our Associates utilize this time off to spend with their children in the school environment. We also have strong leadership on many boards in our community and we develop associate leadership skills through champions who recruit volunteers for their projects. These projects include developing an after school art program to help kids stay out of trouble, and developing educational programs that include visits to the theater.

Hypertherm has also developed philanthropy partnerships with over 60 non profit organizations we support financially through the HOPE Foundation. We work to involve associates in these partnerships that include: The Upper Valley Haven, a homeless shelter and food pantry; the Children's Hospital at Dartmouth; The Friends of the Norris Cotton Cancer Center; and the Upper Valley Land Trust and Upper Valley Trails Alliance.

Our ongoing donation to the community includes the establishment of the Hypertherm Technical Training Institute. More than three years ago Hypertherm realized that there was too little preparation for jobs in advanced manufacturing industries. Through a partnership with the community college system we built a program that provides skill development opportunities. This not only helps parents and caregivers who want to build more opportunity for themselves and their families, but any member of our community.

Conclusion

So you might ask yourself why a small New England based company spends so much time, energy and resources on our Associates. At Hypertherm we believe our Associates are our most valuable resources. In 2001 the Couch family established Hypertherm as an Associate Owned company to underscore this point of view. Hypertherm believes that giving Associates a solid stake in the business is the recipe for success. We provide programs for our Associates not just because the law says we should, but because we believe it is good business and the right thing to do. Our commitment to our associates is what drives our policies which are then compared to the law to ensure compliance. In most cases we actually provide much more than the law requires. Going above and beyond what the law requires not only provides our Associates with superior benefits, it helps ensure that Hypertherm remains an employer of choice for all workers, regardless of familial status. So while we target all positions to have a base compensation at market mid points we provide a package of tangible and intangible benefits that bring rewards far above manufacturing norms.

Hypertherm provides access to all of our family friendly policies to every Associate regardless of whether they are hourly or salaried. While it is admittedly more challenging at times to accommodate a production Associate's work schedule we work very closely with all Associates to ensure that we are being thoughtful to each situation. For example, we provide access to our on-site Wellness Center during regular shift hours. This provides Associates with care giving challenges the option to manage their own health while at work. We will also work with Associates on short term changes in shift schedules if they are trying to manage family challenges. We believe work in advanced manufacturing is noble and want to contribute to exhibiting best practices in our community, our industry, and across all manufacturers.

On the other hand, there may be companies that look primarily to the requirements of the law to design their policies. When the laws are complicated and confusing, this can derail even companies who want to do the right thing. In our view the current laws are confusing, complicated and sometimes contradictory. For example, let's look at Susan, a purchasing agent, who has been with her company for a year and a half working full time. Susan is four months pregnant and been diagnosed with back pain by her physician, and has already used nine weeks of FMLA leave for a back injury earlier that year. Susan returns to work with a note stating that she was examined by her doctor and is able to work a limited schedule with alternating periods of rest and standing work, and Susan has also requested a change in her work hours to help her rest.

In considering Susan's request for reasonable accommodation and time out of work, the company must consider two separate laws. Both FMLA and ADA offer the potential for leave for this employee – under the FMLA, it would be leave for pregnancy related issues, and under the ADA, it would be leave as a reasonable accommodation. But each law has different provisions which must be reconciled and reviewed and reconciled, including coverage eligibility, coverage thresholds, and length of leave, medical certification, and fitness for duty certification. We would have to make separate requests for information from physicians for eligibility for ADA and FMLA. Does back pain "substantially limit one or more major life activities" per the ADA? If eligible for ADA then there would have to be a follow up to determine if the accommodations requested were reasonable. The time out would be counted toward FMLA and end at twelve weeks but she may still be eligible for more time through ADA. We would have to consult two separate Federal agencies for questions on this associate, as ADA is regulated through the EEOC and FMLA through the Department of Labor.

While the Commission's fact sheet provides some general guidance it does not incorporate The Pregnancy Disability Act. More case study type examples that are not egregious or "black and white" would help employers ensure that they are in compliance with the law. Some of the administrative time and other employer resources devoted to technical compliance with multiple sets of complex rules that interact with each other could, I submit, be better utilized if devoted more directly to the well-being of our associates.

Therefore, Hypertherm would like to see the Commission focus on clarifying what it takes to comply with current laws. Laws that need clarification include the Pregnancy Discrimination Act, the Family and Medical Leave Act, The Affordable Care Act's Break Time for Nursing Mothers provision of the Fair Labor Standards Act, and the EEOC's Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. One of our communication principles at Hypertherm is to try to limit announcements to one page. Regardless of who "owns" each respective piece of legislation, EEOC or DOL, it would be helpful to employers to have coordinated, very concise documents that clearly provide employers what they need to know.