Statement of Cynthia Thomas Calvert Deputy Director, The Center for WorkLife Lawwww.worklifelaw.org, CynthiaCalvert@worklifelaw.org

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

Good morning, Acting Chair Ishimaru, Acting Vice-Chair Griffin, Commissioners Earp and Barker, and colleagues. Thank you for the opportunity to participate in this meeting today. My name is Cynthia Thomas Calvert, and I am the Deputy Director of the Center for WorkLife Law at the University of California, Hastings College of the Law. WorkLife Law is a nonprofit research and advocacy center that works with employers, employees, lawyers, legislators, and others to identify and eliminate family responsibilities discrimination, also known as caregiver discrimination. Our work is directed at preventing discrimination against family caregivers in the workplace, including public education and trainings for managers and human resources professionals.

I have co-authored several books with the Director of WorkLife Law, Distinguished Professor of Law Joan C. Williams, including the only treatise on family responsibilities discrimination ("FRD").¹ My private law practice has focused on employment law compliance counseling for employers, including FRD counseling, and I have written articles and given numerous presentations about FRD. Additionally, for nearly two decades, I have researched the issue of flexible work arrangements. Professor Williams and I have authored a book for law firms about implementing non-stigmatized reduced hours programs for lawyers,² and we write and speak frequently about flexible work arrangements for all workers. We are currently conducting research under a grant from the Alfred P. Sloan Foundation about flexibility stigma. In addition, we are convening next month a working group of prominent management-side employment lawyers to create tools for employers to use to prevent FRD claims.

WorkLife Law has identified a number of best practices for employers to use to prevent caregiver discrimination claims.³ These include providing training for managers, supervisors, and human resources professionals about the causes and common patterns of FRD, adopting a policy stating that the employer will not discriminate based on family caregiving obligations, and reviewing other policies such as those relating to hiring, attendance, leave and promotion, to ensure they do not negatively impact caregivers.

This morning, I would like to discuss a different best practice: the role of flexible work arrangements in preventing caregiver discrimination. This topic is particularly relevant now in light of the recent economic downturn. There have been mixed reports in the media about the effect of the economy on flexible work programs; some state that employers no longer feel the need to offer such programs and employees fear to use them,⁴ and others report that employers are using flexible work options as an alternative to layoffs in order to retain their valued employees.⁵ This variety of responses to the recession demonstrates that employers will benefit tremendously from guidance from the Commission about best practices to prevent caregiver discrimination that include flexible work programs.

Let me first address how flexible work programs play a role in preventing caregiver discrimination. Having an effective flexible work program is not a magic bullet that shields employers from claims by caregiver employees. An employer could, for example, provide a terrific reduced hours program and still discriminate against a mother or father of a young child by denying training and promotions based on the assumption that he or she is not committed to work. Yet while not a magic bullet, best practices flexible work programs greatly reduce employers' chances of being sued by their family caregiver employees for two reasons. First, stigma associated with use of flexible work arrangements can often lead to a claim of caregiver discrimination, such as where a man is punished with poor work assignments and difficult schedules for taking time off to care for his family in a workplace where women are not punished for engaging in family caregiving. A best practices employer that actively works to prevent the stigma will necessarily work to prevent the discrimination at the same time.

Second, in implementing effective, nonstigmatized flexible programs, employers often work with large segments of their management and workers to address the assumptions that underlie caregiver discrimination and take steps to create cultures that are supportive of employees' lives outside of work. In so doing, they cut discrimination off at the pass. Here's an example: if a supervisor scrutinizes the punctuality of a new mother who is working reduced hours on the assumption that women want to be home with their babies and thus are likely to come in late and leave early, and then disciplines the mother for minor time infractions while at the same time allowing other employees to come and go as they please, a caregiver discrimination claim is possible – particularly if the discipline leads to termination. If the supervisor works at a company that is implementing a best practices flexible work program, the implementation would likely include training that would make the supervisor aware of the assumption and give him or her an opportunity to consider whether treating the mother differently is appropriate in light of the company's business objective of retaining her as an employee and in light of the law prohibiting discrimination against caregivers based on gender stereotypes.

The economic downturn does not change the beneficial role nonstigmatized flexible work programs can play in a company's risk management program. In fact, the slow economy gives employers an additional need for programs such as reduced hours, job sharing, and telecommuting because of their potential to save costs. The challenge for employers in a recession is threefold: control costs, match the supply of workers to the demand created by the amount of work to be done, and maintain their companies as viable organizations. Flexibility helps employers in all three respects. If employers reduce their supply of workers not by laying them off but by asking them to reduce their hours and pay, they match their supply of workers to demand and save payroll costs. In addition, they save severance costs and the administrative costs related to managing large scale layoffs. For example, as we found in an analysis of law firms, laying off one attorney in a practice group with average compensation of $200,000 saves a firm $211,000 after benefits and layoff-related costs are taken into account, but if six attorneys in the practice group voluntarily reduce their hours and pay by 20%, it would save the firm $240,000.⁶ Additional savings may be realized through allowing employees to work at home to save on office costs. And, importantly, employees who are not laid off will be available to increase their hours as the economy turns around and the demand for work increases. Their employers will be able to react quickly to new work orders, and will avoid the expense and effort of hiring and training new workers. Keeping these trained and experienced employees further strengthens the company by maintaining customer relationships and institutional knowledge, and bolstering the employees' loyalty to the employer.

This leads to an important question: if employers provide flexible work programs, will employees use them? There have been reports of employees deciding not to work flexibly because they fear they will be first in line when layoffs come. At many workplaces, this is a legitimate fear; WorkLife Law has received numerous complaints from employees who believe they have been targeted for layoff because they work a non-standard schedule.⁷ A best practices employer would work actively to allay those fears and to make flexible work a viable option that employees can choose without derailing their careers. One way to encourage employee use of flexible work programs is to let it be known throughout the organization that employees who work flexibly are valued and will develop professionally because flexible work is a business initiative designed to ensure the long-term health of the organization. Tying flexibility to business objectives such as strong customer service, retention of talented employees, cost reduction, and improved morale and productivity is key. Backing these words up with action – promoting flexible workers, retaining flexible workers in a layoff, giving flexible workers the same opportunities as standard workers – will allow employees to trust the programs.

We are often asked if any companies are still providing flexible work options to employees and, more to the point, whether any are using flexible work options to cut costs in this downturn. The answers are yes and yes. At WorkLife Law, we have heard from employers that they are maintaining robust flexible work programs because the reasons they created the programs in the first place – to meet workers' needs, to attract and retain the best possible workforce – still exist in this economy. We have heard of other employers that are creating recession-responsive flexible work programs to cut costs without losing the competitive edge their employees give them. These include Ernst & Young and George Mason University, which are encouraging employees to "test drive" flexible work options; the University of California, which is offering a temporary voluntary time reduction program to deal with anticipated budget cuts; KPMG, which in the 2001 slowdown, successfully offered a voluntary leave of absence program; KPMG Europe, which, in the current slowdown, has asked employees to volunteer to work fewer days or to take a sabbatical; Cisco Systems and Accenture, which rode out the 2001 slowdown with voluntary sabbaticals and were able to retain top talent; Sigma Group, a New Jersey advertising firm, which has allowed employees to choose to take a sabbatical or work part-time to avoid layoffs; Honda Motors, which has encouraged employees to take unpaid vacation time, and Blue Cross and Blue Shield of Massachusetts, which has allowed qualifying employees to work from home for the past three years to keep costs down.

In conclusion, employers have the opportunity and incentive in this economy to adopt best practices that will give employees the freedom to meet their family caregiving obligations by cutting back their hours, working from home, or taking off blocks of time. If implemented carefully, with training and an emphasis on removing stigma, these flexible programs will reap rewards for employers as well as employees, including a reduction in exposure to caregiver discrimination lawsuits.

Once again, I thank you for the opportunity to speak here today.

Footnotes

¹ Williams, Joan C. and Cynthia Thomas Calvert. WorkLife Law's Guide to Family Responsibilities Discrimination (WLL Press 2006 & 2008 update).

² Williams, Joan C. and Cynthia Thomas Calvert. Solving the Part-Time Puzzle: The Law Firm's Guide to Balanced Hours (NALP 2004).

³ WorkLife Law. "Model Policy for Employers," http://www.worklifelaw.org/EmployerModelPolicy.html; Calvert, Cynthia Thomas. "How to Protect Your Company from Family Responsibilities Discrimination Lawsuits," BLR HR Daily Advisor, Jan. 19, 2007, https://hrdailyadvisor.blr.com/2007/01/19/how-to-protect-your-company-from-family-responsibilities-discrimination-lawsuits/ ; WorkLife Law. "Prevent FRD," https://worklifelaw.org/get-help/frd-faqs/.

⁴ Shin, Annys. "As Cuts Loom, Will Working From Home Lead to a Layoff?" The Washington Post, Mar. 23, 2009, p. A1.

⁵ Dominus, Susan. "$80,000 for a Year Off? She'll Take It!" The New York Times, April 12, 2009, http://www.nytimes.com/2009/04/13/nyregion/13bigcity.html?_r=2; Richtel, Matt. "More Companies Are Cutting Labor Costs Without Layoffs." The New York Times, Dec. 21, 2008, http://www.nytimes.com/2008/12/22/business/22layoffs.html?_r=1.

⁶ Project for Attorney Retention, "Balanced Hours Programs – A Sound Business Strategy in Turbulent Times." http://www.pardc.org/PressReleases/BH%20Programs%20-%20A%20Sound%20Business%20Strategy.pdf.

⁷ Williams, Joan. "Peaceful Revolution: Women and Work: Why Employers' Work/Life Policies Can – and Should – Survive the Recession." http://www.huffingtonpost.com/joan-williams/ipeaceful-revolutioni-wom_b_179539.html.