Statement of Statement of Jeffrey A. Norris President, Equal Employment Advisory Council

Meeting of April 22, 2009 - on Best Practices To Avoid Discrimination Against Caregivers

Acting Chair Ishimaru, Acting Vice Chair Griffin, Commissioners Earp and Barker, and colleagues: On behalf of the more than 300 corporate members of the Equal Employment Advisory Council (EEAC), I appreciate the opportunity to appear before the Commission to discuss programs and policies used by EEAC members to ensure that individuals with caregiving responsibilities are afforded equal employment opportunities in the workplace.

Introduction

First, I would like to commend the Commission on today's release of written guidance on "Employer Best Practices for Workers with Caregiving Responsibilities." We look forward to sharing your suggestions with our members who, as you know, are among the largest employers in the country and are fully committed to complying with our nation's employment nondiscrimination and affirmative action laws. In that vein, it should be emphasized that the initiatives our members undertake on behalf of employees with caregiving responsibilities that I will be discussing with you today are motivated less by a desire to avoid unlawful discrimination (as important as that is) than by a desire to attract and retain the most talented employees possible — many of whom have significant caregiving responsibilities. Acknowledging and addressing those responsibilities is essential to maintaining a talented and productive workforce.

In preparing today's testimony, I asked our members to provide me with examples of initiatives they have undertaken to ensure that individuals with caregiving responsibilities are afforded equal employment opportunities. Many examples were provided, several of which are reflected in your new guidance. I will summarize those initiatives according to whether they primarily address childcare, adult and eldercare, care for individuals with special needs, or caregiving generally.

I would like to devote the majority of my time, however, to new trends regarding flexible work arrangements. Employee surveys consistently reveal that attempting to balance work and family responsibilities is one of the most significant sources of stress on the job. An employer's willingness to be flexible with respect to where and when work is performed can go a long way towards reducing that stress and promoting employee job satisfaction and retention. Of course, not all employers are in a position to offer flexible work arrangements, nor do all jobs lend themselves to such treatment. Given the large size of many EEAC member companies and the variety of jobs they have, some are in the forefront of experimenting with new forms of job flexibility. Accordingly, I thought their experiences would be particularly appropriate for EEAC's testimony here today.

Current Programs To Facilitate Caregiving Responsibilities

All EEAC members are subject to the federal Family and Medical Leave Act (FMLA) and similar state laws. The initiatives summarized below comply with, and in many cases go well-beyond, the requirements of those laws.

Childcare

Backup Childcare – Several EEAC members offer backup childcare for occasions when the employee's normal childcare arrangements are for some reason unavailable. Some companies offer such services specifically during school vacations or holidays. The childcare may be provided at the employee's worksite or at an approved offsite facility. Often, there is no cost for such services, or the costs are subsidized by the company.

New Mother Care Centers – These centers are designed primarily for accommodating the needs of new mothers who are nursing their infants. Private space and refrigeration facilities are standard offerings.

Adoption Assistance – Some EEAC members provide employees with counseling, legal and financial assistance in navigating the often complicated path to adoption.

Adult and Eldercare

Counseling and Assessments – There often are a wide variety of services designed for adults and the elderly in need of care that generically can be categorized as counseling and assessments. Included in this group are such benefits as:

• free educational materials;
• personal consultations with professional care managers;
• assessments of home facilities;
• assisted living and nursing care facility evaluations;
• post-hospitalization assessments; and
• on-going care and monitoring of dependent family members.

Individuals with Special Needs

One EEAC member company has developed a cost-free estate planning resource for employees who are parents or grandparents of children with special needs. The service is designed to assist families through the maze of legal and financial complexities surrounding planning for the future of special needs children. Using a network of specialists, counseling is provided on such issues as meeting long-term care needs, structuring a financial plan to provide cash when needed, and preserving government benefits.

Federal law provides that if individuals with special needs are left assets in excess of $2,000 (life insurance proceeds, for example), they automatically lose eligibility for most government benefits such as Medicaid. This service provides advice for establishing and funding special needs trusts that will protect government benefit eligibility and ensure lifetime care. The service also provides current information on local and national resources, educational workshops, and other materials.

Leave Policies for Caregiving Generally

In addition to FMLA and standard pregnancy medical leave policies, EEAC members have broadened existing leave policies or created new ones to accommodate employees with caregiving responsibilities. One company, for example, converted its "sick leave" policy (available only for the employee's own illness) into an "unplanned absence policy" to provide paid time off for the unexpected illness of the employee or their family members. This company also allows employees to purchase up to five additional vacation days.

Some EEAC members have instituted leave policies to supplement FMLA leave. One company offers up to four weeks of unpaid "personal leave" for employees who are not yet FMLA eligible (i.e., they have not yet worked the required 12 months or 1,250 hours).

Another company offers "Working Caregiver Leave" to be used by employees who are not yet FMLA eligible, or whose FMLA leave has been exhausted. Working Caregiver Leave can extend for up to 12 consecutive weeks in any calendar year. It must be used for purposes of caring for the extraordinary needs of a "family member" (broadly defined to include not only the employee's own family members, but the family members of a spouse or domestic partner as well), and the employee must work a minimum of 20 hours each week he or she is on leave. During the period of leave the employee continues to receive benefits that equal those he or she would have received when working normal hours (30, 35, 38, 40 hrs...). The policy was originally created to help mothers returning from maternity leave to integrate back into the workforce gradually, but it has proven to have broader application in practice.

Workplace Flexibility

Workplace flexibility programs are intended to provide flexibility regarding when and where work gets done in order to address employees' personal needs and preferences. As noted earlier, work/life balance is consistently noted by employees as an essential ingredient of a productive work environment, and the "millennial" generation has come to expect such flexibility. EEAC members increasingly are looking to flexible work arrangements as one way to become recognized as an "employer of choice" in the quest to acquire and retain talented employees. While such programs benefit all employees, they often are of particular benefit for employees with caregiving responsibilities.

Workplace flexibility arrangements exist in many forms at EEAC member companies. In most organizations they may be used either individually or in combination with one another to accommodate the employee's unique circumstances. They may not be available for all jobs nor are they necessarily available at all times for the same job. The primary criteria for use of flexible work arrangements are (1) the needs of the business, (2) the needs of the employee, and (3) the ability of the employee to perform his or her job. Supervisory authorization is almost invariably required as a condition to using a flexible work arrangement.

Workplace flexibility programs at most EEAC companies have two primary components. One component adjusts an employee's work schedule or location; the other provides time off from work.

Work Schedule or Location Adjustments

Flexible work arrangements often include adjustable work hours — varying the start and end of the workday around core hours. They may also include a modified work week in which a full schedule is worked, but the normal five-day schedule is adjusted (e.g., compressed into four 10-hour days) to accommodate personal needs. Finally, these programs often enable an employee to work from home or elsewhere to accommodate personal needs.

Time Off From Work

Time off options offered by one EEAC member company reflect the innovative ways some progressive companies are attempting to accommodate the personal needs of their employees:

• Vacation Carryover and Advance – when an employee needs additional days off in a certain year for personal reasons, vacation days may be "saved" from one year to use the next and/or "borrowed" from next year to be used this year;
• Part-Time Regular – working between 20 and 30 hours per week for up to 2 years, with full benefits, to address pressing family needs such as childcare;
• Extended Part-Time – working between 20 and 30 hours per week after 2 years of working as a Part-Time Regular, with reduced benefits, to address ongoing pressing family needs;
• Leaves of Absence – extended unpaid periods away from work to attend to personal matters, with some continued eligibility for certain benefits;
• Personal Time – time off for personal matters that cannot be arranged at other times such as doctor's appointments, teachers' conferences, personal emergencies, jury duty and so forth.

Because of the wide variety of purposes for which personal leave may be requested, the time off may be either paid or unpaid, and in certain circumstances limits may apply.

Assessing Compliance With Nondiscrimination Requirements

With the exception of statutorily mandated leave requirements (e.g., FMLA) the programs discussed in this testimony are voluntary and are motivated primarily by a desire to attract and retain a talented workforce. That said, they do constitute terms, conditions, and privileges of employment that must be implemented on a nondiscriminatory basis under the laws that EEOC enforces.

In evaluating corporate caregiver programs, the EEOC must be mindful of the fact that not all companies are in a position to be able to provide the benefits discussed in this testimony. Moreover, for those companies that are in a position to provide caregiver services, the specific benefits that are made available, and to whom they are made available, can vary significantly depending upon the circumstances. For example:

• Not all establishments are large enough to accommodate on-site childcare or new mother care facilities;
• Not all jobs (e.g., manufacturing; delivery) can be performed on a reduced or adjusted schedule or performed from a remote location;
• Jobs that can be performed flexibly at one point in time may not be able to be performed flexibly at another point in time due to changed business conditions;
• Some employees may be capable of working flexibly without compromising results, while other employees performing the same job cannot. Indeed, one EEAC member requires employees to demonstrate to their supervisor exactly how the job will be performed as a condition to being authorized to work flexibly;
• Many of the benefits afforded to caregivers are intended to be of limited duration to accommodate specific, short-term needs. They do not constitute entitlements and rarely are designed to be permanent.

The key to compliance assessment for both EEAC members and the EEOC is to ensure that when caregiver benefits are made available they are made available to all similarly-situated employees on an equitable basis. To assist in this process, several EEAC member companies have established complaint procedures through which employees who feel they have not been afforded equal benefits can request an investigation of their treatment. While the procedures for filing such complaints and conducting the investigations vary, all are designed to ensure that there is no unlawful disparate treatment in the application of the company's programs. Detailed standards, guidance and training for supervisors often are provided to foster consistency in application.

Conclusion

Once again, EEAC appreciates the Commission's new guidance on "Employer Best Practices for Workers with Caregiving Responsibilities." For the reasons outlined above, such practices are essential components of corporate efforts to develop and retain talented and productive employees. We appreciate the opportunity to inform the Commission about our members' workplace flexibility initiatives and hope that the information we have provided will be useful to the Commission in evaluating such programs in the future. Thank you.