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[Senate Hearing 112-907]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 112-907
 

 BEYOND MOTHER'S DAY: HELPING THE MIDDLE CLASS BALANCE WORK AND FAMILY

=======================================================================

                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                                   ON

       EXAMINING HELPING THE MIDDLE CLASS BALANCE WORK AND FAMILY

                               __________

                              MAY 10, 2012

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and
                                Pensions

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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                       TOM HARKIN, Iowa, Chairman

BARBARA A. MIKULSKI, Maryland            MICHAEL B. ENZI, Wyoming
JEFF BINGAMAN, New Mexico                LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington                 RICHARD BURR, North Carolina
BERNARD SANDERS (I), Vermont             JOHNNY ISAKSON, Georgia
ROBERT P. CASEY, JR., Pennsylvania       RAND PAUL, Kentucky
KAY R. HAGAN, North Carolina             ORRIN G. HATCH, Utah
JEFF MERKLEY, Oregon                     JOHN McCAIN, Arizona
AL FRANKEN, Minnesota                    PAT ROBERTS, Kansas
MICHAEL F. BENNET, Colorado              LISA MURKOWSKI, Alaska
SHELDON WHITEHOUSE, Rhode Island         MARK KIRK, Illinois
RICHARD BLUMENTHAL, Connecticut

                    Daniel E. Smith, Staff Director

                  Pamela Smith, Deputy Staff Director

     Frank Macchiarola, Republican Staff Director and Chief Counsel

                                  (ii)

                            C O N T E N T S

                               __________

                               STATEMENTS

                         THURSDAY, MAY 10, 2012

                                                                   Page

                           Committee Members

Harkin, Hon. Tom, Chairman, Committee on Health, Education,
  Labor, and Pensions, opening statement.........................     1
Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming,
  opening statement..............................................     3
Merkley, Hon. Jeff, a U.S. Senator from the State of Oregon......    40
Franken, Hon. Al, a U.S. Senator from the State of Minnesota.....    42

                               Witnesses

O'Leary, Ann, J.D., Director, Children and Families Program,
  Center for the Next Generation, San Francisco, CA..............     6
    Prepared statement...........................................     8
Lichtman, Judith, Senior Advisor, National Partnership for Women
  and Families, Washington, DC...................................    14
    Prepared statement...........................................    15
Ortiz, Kimberly, Retail Worker, Bronx, NY........................    22
    Prepared statement...........................................    24
Phillips, Juanita, Director of Human Resources, Intuitive
  Research and Technology Corp., Huntsville, AL; On Behalf of the
  Society for Human Resource Management (SHRM), Alexandria, VA...    26
    Prepared statement...........................................    28

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Response to questions of Senator Harkin by:
        Ann O'Leary, J.D.........................................    52
        Kim Ortiz................................................    58
        Juanita Phillips.........................................    59
    Letter from Judith L. Lichtman to:
        Senator Harkin...........................................    60
        Senator Enzi.............................................    62

                                 (iii)

 
 BEYOND MOTHER'S DAY: HELPING THE MIDDLE CLASS BALANCE WORK AND FAMILY

                              ----------

                         THURSDAY, MAY 10, 2012

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:03 a.m. in
room SD-430, Dirksen Senate Office Building, Hon. Tom Harkin,
chairman of the committee, presiding.
    Present: Senators Harkin, Merkley, Franken, Whitehouse,
Blumenthal, and Enzi.

                  Opening Statement of Senator Harkin

    The Chairman. The Senate Committee on Health, Education,
Labor, and Pensions will please come to order.
    This Sunday is Mother's Day, and while it is a good time
for cards and flowers, it is also a good time for us to take a
look at how America's moms--and dads, too--are faring as they
try to balance the often competing demands of jobs and
families.
    This committee has held a series of hearings over the last
year to look at challenges facing the American middle class.
The challenges of working families have been a big part of this
discussion. What we have learned is that the middle class is
struggling. The American Dream is slipping away for millions of
people.
    As my constituent, Amanda Greubel, testified so eloquently
last year, her family did everything they were told to do in
order to achieve the American Dream. And she said,

          ``All we have ever wanted is security and a little
        comfort. To know that our bills are paid, our needs are
        met, and we can have a real getaway every now and then.
        That our children can pursue higher education without
        the burden of student loan debt, and that someday we
        can retire and enjoy our final years together in the
        way we choose.''

    That was Amanda's statement.
    But Amanda and so many others are struggling mightily. I
would point out that both she and her husband worked, and when
I met her, she and her husband were wondering how they would be
able to support the coming of their second child, which she has
since had.
    A secure family is a very important piece of the American
Dream for our middle class. It means more than just financial
security. It means having a good family life and being able to
spend time together. It means being able to care for your
children, and your parents when they need you, and to know that
they are well taken care of when you cannot be with them.
    Yet, one of the biggest stresses facing families today is
the conflicts they experience in caring for their family while
also working. Today, most parents of young children work
because even a modest middle class life today often requires
two incomes. Millions more workers provide caregiving to aging
parents or their relatives with disabilities. In 2009, an
estimated 66 million people provided unpaid caregiving, and
most of them worked during that time. So not surprisingly,
polls routinely show that families are extremely stressed.
    A Rockefeller Foundation survey in 2009 found that 75
percent of Americans report experiencing stress in their daily
lives, and other polls have shown more than 80 percent of
workers are unhappy with the balance between their work and
their life. This stress affects parents, and children, and
other family members. It also hurts businesses when workers'
productivity is affected because they are distracted, stressed,
or stretched too far.
    I might also add that in many of our studies that have been
done on health, a lot of the impacts of bad health are either
caused by undue stress or exacerbated, made even worse, by the
stress that families have if there is an illness.
    Unfortunately, our laws and workplace policies have not
kept up with the changing workforce. They are designed with the
assumption that families have a caregiver in the home to deal
with emergencies and tend to day to day family needs, but this
is often not the case. Work-family conflict has many forms and
faces.
    It is the professional dad who wants to leave work at a
decent hour so he can be home for family dinner and put the
kids to bed.
    It is the low-wage mom who is trying to arrange childcare
when her work schedule fluctuates every week; we are going to
hear more about that from one of our witnesses. Her wages do
not pay enough for quality care. She is docked pay if she takes
the day off when her child gets sick.
    It is the hardworking couple that has to tag team
parenting, one taking a day shift while the other takes a
nightshift so that someone is always there for the kids, but
they are never there together as a family during the week.
    It is the parent of a child with a disability who has to
quit her job because she cannot find an afterschool program
that will accommodate her child's significant disability, but
her employer will not let her alter her schedule.
    It is the new parents who want to take time off work with
their new baby, but they have no leave or cannot afford to lose
a paycheck.
    It is the middle-aged woman trying to help her aging mother
through a hospital stay, while holding down a full-time job
that stretches to 60 hours a week.
    All of these families are under enormous strain. All of
these workers put their financial security or jobs at risk if
they do what is right for their family. The stresses of these
day to day situations are common, but they do not have to be.
    We are here today to learn what families are experiencing
and what we can do to help. These are problems that we, as a
society, need to address through sound public policies, and by
doing everything we can to encourage all employers to adopt
family friendly workplace policies. Policies like paid sick
days, restoring a true 40 hour work week, making childcare more
accessible, all of which I include in my bill to restore the
middle class, the Rebuild America Act, as a starting point.
    There is much we can do, and I look forward to exploring
these, and other ideas, today. I am pleased to welcome today's
witnesses. We will hear from experts in the field of work-
family policy, and from a worker and mother who will tell us
firsthand about the difficulties of raising a family and
holding on to a job.
    I am looking forward to hearing the testimony today, and
learning more about the strains facing middle-class families,
and discussing how we can, as a society, build security and
opportunity for the future.
    And with that, I recognize Senator Enzi.

                   Opening Statement of Senator Enzi

    Senator Enzi. Thank you, Mr. Chairman.
    Good morning, and I want to welcome everybody to today's
HELP committee hearing on balancing work and family.
    For many working parents, achieving a good balance between
work and family is a daily struggle. This is a struggle my wife
and I experienced when we raised our children while she ran our
shoe stores, and I worked sometimes there and other positions.
Today, we do everything we can to support our children as they
try to balance their own lives as they pursue their careers,
provide for their families, and care for their children, which
are our grandchildren.
    For too many Americans, the daily struggle is not how to
balance a job, but how to get a job. The data on the shrinking
workforce is disturbing. This has been the worst jobs recovery
since the Great Depression by far. Economists agree that
unemployment is much worse than the 8.1 percent rate depicts.
Millions of workers have simply dropped out of the workforce.
With 3.7 job seekers for every opening, they have given up
looking for work and are no longer counted, although they may
want to go back to work. Unfortunately, we found that those who
stay out of the workforce for long periods of time have trouble
getting back in once the economy does finally rebound. I am
afraid this might even be more of a problem in today's high
tech workplaces where skills require constant updates.
    I know the American public does not need to be reminded
about the damage this jobless recovery is doing to our
workforce. What they need is a government willing and able to
focus on job creation. That is why it is so hard to understand
the position this Administration has taken against the Keystone
Pipeline, which would create 20,000 new jobs immediately that
will grow into more than 500,000 U.S. jobs. Estimates indicate
that it would bring $138.4 million in annual property taxes for
State and local governments, and $6.5 billion in personal
income for American workers. These staggering numbers are why
many labor unions have stated strong support for the project,
yet the Administration has directly halted the creation of
these jobs. I understand another application to permit the
pipeline has been submitted to the Administration, and I hope
we will not be denied this chance to add jobs to a jobless
recession yet again.
    Other promising job creating projects are being halted by
the Administration's regulations, such as the building of new
coal-fired power plants. Even the amazing progress being made
in extracting natural gas is being threatened by this
Administration's excessive regulation. The natural gas industry
has created thousands of jobs and holds the promise of domestic
energy security that could mean so much to our children's
future.
    The choices being made in Washington are directly impacting
the job market, which is making the situation for struggling
families even worse. In a good economy, employees have choices.
They can choose between a job that offers some work from home,
or provides onsite daycare, or is located near a desired
school. They may select an employer because it provides
exceptional healthcare, or educational benefits, or they may
choose the highest wage and overtime pay possible so they can
work hard and save up for the purchase of a family home.
    As American families find their way through this period,
there is one universal truth which is: there is not one single
solution for every family. The multitude of options families
can experiment with to find what works for them is a good
thing. Therefore, the best thing we can do in Washington is to
fire up job creation and let the economy expand upon itself so
that employees have options again.
    Of course, with even the best paid plans, the task of
balancing work and family life is never easy. And when illness
compounds the situation, the challenge becomes even greater.
Most private sector employers are well aware of this reality,
and increasingly responsive to it.
    For example, in the most recent member benefit survey
conducted by the Society for Human Resource Management, some 87
percent of the respondents reported their companies provided
paid sick leave either under a separate sick leave program or
as part of a general paid time off plan. Over 80 percent of the
respondents also indicated that they provide both short-term
and long-term disability insurance coverage, and an increasing
number utilized even more creative approaches such as paid time
off and sick leave banks or pools. Most employers make these
provisions both because they know that in the competitive labor
market, they must address this issue to attract and retain
quality employees, and quality employees are good for business.
    Today, the average cost of employee benefits for all
employers in the private sector, nearly 30 percent of the total
payroll cost, that is nearly $8.43 an hour, yet only 28 percent
of that $8.43 benefit cost is currently mandated by law. The
rest of it is just done. I expect the ratio will change quite a
bit once the healthcare law kicks in, but what these numbers
show is that employers are trying to find ways to provide
benefits valued by employees.
    However, some employees do not have paid sick leave
available at their place of work. And as I mentioned
previously, some of the employers decided rather than having
them decide whether they are sick or just need some time, they
just give them time and it is paid time off. The bulk of these
individuals are employed by smaller employers, and those small
employers very often face the same costs squeeze and financial
pressures that their employees face. That is a fact that we
need to always keep in mind as we discuss wages and benefits.
    We also need to remember that small companies grow into
large companies when they are allowed to flourish. This is the
great American advantage that has kept our economy on top for
so long. Small companies that struggle to make payroll in the
early years, can grow into successful companies that share
profits with their employees, offer generous benefit packages,
and flexible work environments.
    One of today's witnesses, Mrs. Juanita Phillips, is
representing a company exactly like this. In just 13 years,
INTUITIVE has grown from a 2-person operation to an employer of
240 employees, and it was ranked as ``The Second Best Small
Company to Work for in America'' in 2011. And in 2012, the
``Military Times EDGE'' named it ``The Second Best Company for
Veterans to Work For'' nationwide. I would add that INTUITIVE
was the smallest company on the list by far. Most of the other
employers that were recognized had over 10,000 employees.
    This is a story that we want to see happening over and over
again all over this country. We have to be careful that actions
we take in Washington do not crush the ability of small
businesses to be born and flourish. Although, we probably all
agree that the desirability of providing greater benefits for
all working men and women, the issue is not a simple one,
especially when we are talking about Federal Government
mandates.
    Whenever we impose unfunded mandates on employers, the
money necessary to pay those increased costs have to come from
somewhere. No matter how desirable the goal, one cannot simply
dismiss the costs as unimportant or inconsequential. Here, the
costs are decidedly not inconsequential, particularly for
smaller businesses.
    The pool of available labor dollars is not infinite, and
when we mandate their expenditure for a specific purpose such
as health insurance, we limit the ability of small employers to
grow and create the flexible jobs today's employees are
seeking.
    I want to thank all of you for being here today, and I look
forward to hearing your testimony.
    The Chairman. Thank you, Senator Enzi.
    We will move to our panel. I will introduce the witnesses.
    We have first, Ms. Ann O'Leary, director of the Children
and Families Program at the Center for the Next Generation, a
nonprofit aimed at supporting America's young people and
families. Ms. O'Leary is also a senior fellow at the Center for
American Progress; a lecturer at the University of California,
Berkeley, School of Law; a graduate of Mount Holyoke College;
Stanford University; and the University of California,
Berkeley, School of Law.
    Next, Judith Lichtman is a senior advisor at the National
Partnership for Women and Families, which promotes both
workplace fairness and policies that help employees meet the
demands of work and family. Ms. Lichtman has been a leader in
the women's movement for decades and as president of the
Partnership, she was instrumental in passage of the Pregnancy
Discrimination Act and the Family and Medical Leave Act. She is
a graduate of the University of Wisconsin Law School.
    Kimberly Ortiz is the mother of two children and has worked
for years in the retail industry in New York City. She was
previously employed as an assistant manager at the Statue of
Liberty gift shop and other retail jobs. She has attended
Lehman College, part of the City University of New York.
    Miss Juanita Phillips of Huntsville, AL is the director of
human resources at Intuitive Research and Technology
established in 1999. INTUITIVE is an engineering services and
support organization based in Alabama. Ms. Phillips is also the
governmental affairs director of the Society for Human Resource
Management of Alabama. She received her Master of Science in
Management and Human Resource Management from Florida Technical
University.
    We thank you all for being here. Your statements, which I
went over last evening, will all be made a part of the record
in their entirety. I would ask if you could sum it up in 5
minutes or so, we would appreciate it, and then we can get into
a discussion. Again, thank you all very much.
    Ms. O'Leary, we will start with you, and just go down the
line. Welcome. Please proceed.

STATEMENT OF ANN O'LEARY, J.D., DIRECTOR, CHILDREN AND FAMILIES
   PROGRAM, CENTER FOR THE NEXT GENERATION, SAN FRANCISCO, CA

    Ms. O'Leary. Thank you very much, Chairman Harkin and
Ranking Member Enzi, and members of the committee for the
opportunity to testify on an issue that is so critical to
America's future, supporting hardworking middle-class parents,
so that they can improve the well-being of America's children.
    My name is Ann O'Leary. I am the Children and Families'
program director at the Center for the Next Generation, and a
senior fellow at the Center for American Progress. I come
before you as an expert on the subject of work-family laws and
policy.
    The United States has built its economy and social policies
around the assumption that when a child needs care, there will
be a family member who will be able to be away from work to
care for that child. This assumption has long been faulty as
mothers have rapidly increased their participation in the
workforce. We have entered a world of work that has never fully
updated its employment policies to account for workers that
combine work and family responsibilities.
    It is now all too evident that few families have a stay-at-
home parent as the vast majority of families now rely on the
income of mothers. Today, just 25 percent of families consist
of married parents with one at home and the other working. The
income of mothers has, thus, become an essential component of
family stability; 4 in 10 families rely on mothers to bring
home at least half of the family income. Another 2 in 10 rely
on mothers to earn at least a quarter of the family income.
    What is less well-known is that children are increasingly
facing health and educational challenges that demand greater
time and attention of their parents. From 1994 to 2006, the
prevalence of chronic health conditions in children--including
asthma, obesity, and behavior and learning problems--doubled
from 13 percent to 26 percent of children. More than a quarter
of our children have chronic health conditions. Any one of
these issues leads to absences in school for the child, and
missed work for parents.
    A child with asthma, for example, misses an average of 8
school days a year. This means that parents must miss work to
care for the child, or to take the child to a doctor, or to
have to find back up care, or simply go to work and leave the
child at home alone.
    The other trend impacting children is the rise of single
parent households, and the correlation between single parent
households and poor educational outcomes. In 1975, 9 percent of
our families were headed by a single, employed parent. Today,
that number is 24 percent.
    International assessments of reading skills illustrate what
that means. U.S. children in single parent households scored 23
points lower than their peers from two-parent families. That is
true even when you account for socioeconomic background. Other
countries with large populations of single parent households,
such as Chile or Austria, did not see such a difference in
educational attainment. Researchers attribute this disparity to
our lack of pro-family policies that provide single parents
sufficient time and resources for their children, including our
lack of paid family leave.
    The United States has no laws that require employers to
provide paid sick days or provide workers with the right to
even request flexible work hours, and many middle-income
workers do not receive the same pro-family workplace policies
as their professional counterparts. Up to one-third of middle-
income wage earners have no access to paid sick days. Only half
of the American workforce has the right to take unpaid family
and medical leave with a guarantee that they will not be fired
for doing so. As for guaranteed paid family leave, it is the
law in 178 countries. That is 91 percent of the world's
nations. It is not the law in the United States, nor do we have
paid family and medical leave. Employers that do offer these
benefits tend to provide them almost exclusively to
professional and high-end workers.
    As Mother's Day approaches, it is fitting to think of the
challenging job we ask of mothers and fathers. We ask them to
raise their children on their own with no guaranteed days off
for even when their child is born or in the early days when
their child is born. We ask them to provide care and attention
to a child with a chronic health condition, but allow them no
flexibility to schedule work and doctor's appointments to make
that possible. We ask far too many parents, many of whom are
single mothers, to subsist on a minimum wage that barely allows
an individual to live above the poverty line, affording them
little chance to provide quality childcare.
    These challenges will not be addressed by a quick fix, but
if we do not tackle these hard problems of providing true, pro-
family workplace policies, and ensuring that our country has
affordable, quality childcare, we will be leaving a generation
of parents unable to meet the needs of their children, and a
generation of American children less healthy and educated than
they deserve to be.
    I will leave you with one final thought that has always
stayed with me. Upon the birth of my first child, my very dear,
elder, and now late cousin, Deborah Dalfonso, told me that the
greatest gift that I could give my child would be the gift of
my time. The gift she was able to give her own daughter before
MS took her from us far too early.
    When I do my work, I often think of Deborah and think what
a different country it would be if we had an employer policy
that truly allowed parents, both to economically support their
families and to give their children the great gift of time.
    I thank you, Chairman Harkin and Senator Enzi, once again,
for calling this hearing and for making clear that these issues
are central to rebuilding the middle class, the strong middle
class, we need in America.
    Thank you.
    [The prepared statement of Ms. O'Leary follows:]
                Prepared Statement of Ann O'Leary, J.D.
    Thank you, Chairman Harkin, Ranking Member Enzi, and members of the
committee for the opportunity to testify on an issue that is so
critical to America's families and the well-being of America's
children--how we aid families in meeting their responsibilities at home
and at work.
    My name is Ann O'Leary. I am the Children and Families program
director at The Center for the Next Generation, a non-profit, non-
partisan think tank in San Francisco, and a Senior Fellow at the Center
for American Progress. I come before you as an expert on the subject of
work-family laws and policy. I have authored numerous scholarly
articles and policy reports on the subject. My testimony today is drawn
in part from a recent book chapter I authored, ``Risk Sharing When Work
and Family Clash: The Need for Government and Employer Innovation,''
published in a volume I co-edited with Yale Political Science Professor
Jacob Hacker, Shared Responsibility, Shared Risk: Government, Markets
and Social Policy in the Twenty-First Century (Oxford University Press,
2012).
                     changing family work patterns
    The United States has built its economy and its social policies
around the assumption that when a child needs care or a family member
is ill someone in the family is able and available to be away from work
to provide that care. This assumption has long been faulty as mothers
have rapidly increased their participation in the workforce and their
contributions to the family income, while employment benefits have
remained stagnant--modeled on the male worker with a stay-at-home
spouse--for the large majority of middle class and low-income workers.
    It is a well-known fact, and a lived reality, that few families
have a stay-at-home parent and the vast majority of families are
relying on the labor market income of mothers. Today, just 25 percent
of families consist of two married parents, with one parent at home and
one parent in the labor force.\1\ Earned income by mothers has become
an essential component in order for families to sustain themselves--4
in 10 families rely on mothers to bring home all or at least half of
the family income and another 2 in 10 families rely on mothers to bring
home at least a quarter of the family income.\2\ Male wages for full-
time middle-income workers have stagnated since 1969 making the
contribution of women's wages all the more important.\3\
---------------------------------------------------------------------------
    \1\ See Bureau of Labor Statistics, Economic News Release: Table 4.
Families with Own Children: Employment Status of Parents by Age of
Youngest Child and Family Type, 2010-11 Annual Averages, prepared by
the Bureau of Labor Statistics, U.S. Department of Labor, 2012,
available at: http://www.bls.gov/news.release/famee.t04.htm.
    \2\ Sarah Jane Glynn, ``The New Breadwinners: 2010 Update. Rates of
Women Supporting Their Families Economically Increased Since 2007,''
Center for American Progress, April 2012.
    \3\ Michael Greenstone and Adam Looney, ``Have Earnings Actually
Declined?'' The Brookings Institution, Hamilton Project, March 4, 2011
(stating that in 2009 the median full-time male worker aged 25-64
brought home $48,000--roughly the same as in 1969 after adjusting for
inflation).
---------------------------------------------------------------------------
                       changing needs of children
    What is less well-known is that children are increasingly facing
health and educational challenges that demand greater time and
attention from parents. From 1994 to 2006 the prevalence of chronic
health conditions in children--including asthma, obesity, and behavior/
learning problems--doubled from 13 percent to 26 percent of
children.\4\ Any one of these health issues leads to missed school for
children and missed work for parents. Take asthma as an example. The
Center for Disease Control estimates that 10 million children in
America have asthma. A child with asthma misses an average of eight
school days a year.\5\ This means parents must miss work to care for
the child or to take the child to the doctor's office, find back-up
care, or go to work and leave the child home alone.
---------------------------------------------------------------------------
    \4\ Jeanne Van Cleave, ET al., ``Dynamics of Obesity and Chronic
Health Conditions Among Children and Youth,'' Journal of American
Medical Association, 2010; 303(19):1915.
    \5\ Asthma and Allergy Foundation of America, ``Asthma Facts and
Figures,'' available at: http://www.aafa.org/
print.cfm?id=8&sub=42#_ftn20.
---------------------------------------------------------------------------
    The other trend impacting children is the rise in single-parent
households, and the correlation between single-parent headed households
and poor educational outcomes in the United States. In 1975, 9 percent
of families were headed by a single employed parent; today it is 24
percent of families.\6\ In fact, last year half of all births to women
under 30 were to single mothers.\7\ Unfortunately, on an international
assessment of reading skills, U.S. children in single-parent households
scored 23 points lower than their peers from two-parent families, even
after accounting for socio-economic background. Yet other countries
with similarly large populations of single-parent households, such as
Chile, Switzerland, Portugal and Austria, did not see significant
differences in the educational performance of children from single-
parent and two-parent families. Researchers attribute the educational
difficulties faced by children in the United States to our lack of pro-
family policies that leave single parents without time and resources
for their children, including a lack of paid maternity leave and lack
of any universal family or child allowance.\8\
---------------------------------------------------------------------------
    \6\ Institute of Education Sciences, Indicator 18: Parent's
Employment, Employment Status of Parents with Own Children under 18
Years Old, by Type of Family: 1975 to 1993, prepared by the Institute
of Education Sciences, U.S. Department of Education, 1996; Mark Mat
her, ``U.S. Children in Single Mother Families,'' Population Reference
Bureau, Data Brief, May 2010.
    \7\ Jason DeParle, ``For Women Under 30, Most Births Occur Outside
Marriage,'' The New York Times, February 17, 2012.
    \8\ Suet-Ling Pong, ET al., ``Family Policies and Children's School
Achievement in Single-Versus Two-Parent Families,'' Journal of Marriage
and Family 65 (August 2003); 681-99.
---------------------------------------------------------------------------
                        changing need of elders
    The need for time to care for and guide the education of children
is not the only family responsibility pressing on working parents. They
are also facing increasing responsibilities to care for ailing and
elderly parents.
    The U.S. Census Bureau predicts that the 65 and older population
will more than double from nearly 35 million in 2000 to over 71 million
in 2030, going from 12 percent to nearly 20 percent of the
population.\9\ This increase is due both to the aging of the baby
boomers and to more Americans living longer thanks to advances in
overall health and medical care. At the same time, the population of
typical caregivers--adult children ages 45 to 65--is expected to only
increase by 25 percent during this time period.\10\ The math just
doesn't add up in terms of the ratio of caregivers to older Americans.
In addition, most family caregivers are combining work and care, making
the challenges of caring for an elder parent or other relative
extremely challenging.
---------------------------------------------------------------------------
    \9\ U.S. Census Bureau, ``State Interim Population Projects by Age
and Sex, Table B1, Interim Projections of the Population by Selected
Age Groups for the United States and States: April 1, 2000 to July 1,
2030,'' available at http://www.census.gov/population/www/projections/
files/SummaryTabB1.pdf.
    \10\ Katherine Mack and Lee Thompson with Robert Friedland, ``Data
Profiles, Family Caregivers of Older Persons: Adult Children''
(Washington: The Center on an Aging Society, Georgetown University,
2005).
---------------------------------------------------------------------------
    Not only are Americans living longer, but the health conditions
they face in later life are changing. The incidence of Alzheimer's and
other dementias is expected to increase. By 2050, researchers predict
that as many as 16 million individuals age 65 and older will be living
with Alzheimer's disease, triple the number living with the disease
today.\11\ What's more, today's generation of Alzheimer's caregivers
face unique challenges. With many women giving birth later in life, 37
percent of today's female caregivers are caring for both a family
member with Alzheimer's disease and children under 18 years of age
still living at home.\12\
---------------------------------------------------------------------------
    \11\ L.E. Hebert and others, ``Alzheimer's Disease in the U.S.
Population: Prevalence Estimates Using the 2000 Census,'' Archives of
Neurology 60(2003):1119-22, p. 1121.
    \12\ Ibid.
---------------------------------------------------------------------------
                      unchanged workplace policies
    With few adults left at home to attend to unexpected family
caregiving needs combined with increasing health and educational needs
of children and an increasing need to care for aging relatives, workers
need greater flexibility to combine their responsibilities at home and
at work.
    Yet the United States has no laws requiring that employers provide
paid sick days or provide workers with a right to receive or even
request flexible work hours.\13\ Middle-income workers do not receive
the same pro-family workplace policies as their professional
counterparts. Between one-quarter and one-third of those workers making
middle-income wages have no access to paid sick days.\14\ In addition,
middle-income workers commonly have highly rigid work schedules that
hold workers to a strict absentee policy regardless of the reason for
needing to be absent, which can lead to loss of jobs when a worker must
miss work due to an unavoidable family conflict.\15\
---------------------------------------------------------------------------
    \13\ Ann O'Leary and Karen Kornbluh, ``Family Friendly for All
Families,'' in The Shriver Report: A Woman's Nation Changes Everything,
ed. Heather Boushey and Ann O'Leary (Washington, DC: Center for
American Progress, 2009), 91-93.
    \14\ Bureau of Labor Statistics, Table 6. Selected Paid Leave
Policies: Access, National Compensation Survey, March 2011 (showing
that 34 percent of private sector workers making the second lowest 25th
percentile of average wages did not have access to paid sick days and
26 percent of workers making the second highest 25th percentile of
average wages did not have access to paid sick days).
    \15\ Joan C. Williams and Heather Boushey, ``The Three Faces of
Work-Family Conflict: The Poor, the Professionals, and the Missing
Middle,'' The Center for American Progress and WorkLife Law, January
2010.
---------------------------------------------------------------------------
    Only half of the American workforce has the right to take unpaid
family and medical leave with a guarantee that they won't be fired for
doing so.\16\ While the policy of unpaid job-protected family and
medical leave, guaranteed to eligible workers through the Family and
Medical Leave Act, is most likely to benefit middle-income workers,\17\
the hit to their family income can still be quite dramatic and can
discourage the primary breadwinner (often the man) from taking time off
upon the arrival of a newborn or to care for a sick child because the
family simply cannot afford it.
---------------------------------------------------------------------------
    \16\ Family and Medical Leave Act, U.S. Code 29 (2000),
Sec. Sec. 2601-54; Jane Waldfogel, ``Family and Medical Leave: Evidence
from the 2000 Surveys,'' Monthly Labor Review 124(9) (2001): 19-20.
    \17\ U.S. Department of Labor, ``Balancing the Needs of Families
and Employers: Family and Medical Leave Surveys,'' 2000 Survey, Table
3.3. Demographic Characteristics of Leave Takers by Eligibility Status
(showing that 55.2 percent of FMLA eligible leave takers make between
$30,000 and $75,000).
---------------------------------------------------------------------------
    While 91 percent of the world's nations (178 countries) guarantee
paid maternity leave under national law, the United States does not. We
have no national social insurance to provide wage replacement when a
worker needs to take leave for family or medical reasons, and employers
that offer these benefits tend to provide them almost exclusively to
professional and high-end workers.\18\
---------------------------------------------------------------------------
    \18\ Workplace Flexibility 2010 and Berkeley CHEFS, ``Chapter 2:
Temporary Disability Insurance,'' in Family Security Insurance: A New
Foundation for Economic Security (Washington: Workplace Flexibility
2010 and Berkeley CHEFS, 2010) (hereinafter ``Family Security Insurance
Report'').
---------------------------------------------------------------------------
    Despite increased Federal investments in the last several years,
direct support for child care and elder care reaches few families, and
provides limited assistance for those it does reach.\19\ And our
government health programs--Medicare for the elderly and disabled and
Medicaid for the poor--have policies that favor family care over
institutional care, operating on the assumption that family members are
available to provide such care.\20\ These policies are good for
patients and welcomed by family members, but in order for them to be
effective workers must be able to take time away from work without
losing their job to provide this care.
---------------------------------------------------------------------------
    \19\ Peter S. Goodman, ``Cuts to Child Care Subsidy Thwart More Job
Seekers,'' New York Times, May 23, 2010.
    \20\ See Andrew E. Scharlach and Amanda J. Lehning, ``Government's
Role in Aging and Long-Term Care,'' in Shared Responsibility, Shared
Risk: Government, Markets and U.S. Social Policy in the Twenty-First
Century, ed. Jacob S. Hacker and Ann O'Leary (New York, NY: Oxford
University Press, 2011).
---------------------------------------------------------------------------
                 consequences for workers and families
    The primary risk to families when work and care clash is the loss
of steady income workers experience when they lose their job or cut
back their hours to address the family caregiving needs. Many workers
are unable to replace earned income with employer-provided paid leave,
government assistance, or family savings. An additional financial
burden families face is the high cost of providing care while family
members work--for example, a spot at a child care center or a paid
caregiver to assist with an ailing parent. Middle-income families face
unique difficulties because they are often without government aid,
without employer policies to support them, and without enough family
income to afford high quality child care or family care for an ailing
relative. The other detriment to family is the missed time with their
child or ailing relative, which has negative health and educational
impacts as well as intangible effects on parents and children.
Decrease in Family Incomes Due to Work-Family Clashes
    Families use different strategies for managing work and care, many
of which lead to lower incomes (and sometimes no income). For some
families negotiating work and caregiving, one member works part-time--
more often the woman in a two-parent family.\21\ Other workers adjust
their work schedules to deal with caregiving conflicts that may
ultimately reduce their income, including going to work late or leaving
early.\22\ Other strategies directly lead to lower incomes, including
refusing overtime work or turning down a promotion.\23\ Finally, some
workers simply leave their jobs because they cannot combine work and
care.\24\
---------------------------------------------------------------------------
    \21\ Bureau of Labor Statistics, Women in the Labor Force: A
Databook, prepared by the Bureau of Labor Statistics, U.S. Department
of Labor, 2009, ``Employed persons by full- and part-time status and
sex, 1970-2008 annual averages, Table 20,'' (showing that just under 25
percent of women work part-time compared to just over 17 percent of
men).
    \22\ MetLife Mature Market Institute, National Alliance for
Caregiving, and Center for Productive Aging at Towson University, The
MetLife Study of Sons at Work Balancing Employment and Eldercare
(Westport, CT: Mature Market Institute MetLife, 2003) (showing that 78
percent of men and 84 percent of women reported coming in late or
leaving early as a result of an elder care conflict) (hereinafter Sons
at Work Study); ``Alzheimer's Association Women & Alzheimer's Poll,
2010,'' Ann O'Leary, ``What's the Workplace Impact?,'' in The Shriver
Report: A Woman's Nation Take on Alzheimer's, ed. Angela Timashenka
Geiger, ET al. (Washington, DC: Alzheimer's Association, 2010)
(hereinafter Women & Alzheimer's Poll) (finding that 61 percent of
female and 70 percent of male working Alzheimer's caregivers reported
needed to go in late or leave early from work as a result of caregiving
conflict).
    \23\ MetLife, Sons at Work Study (showing 8 percent of women and 8
percent of men turned down a promotion due to an elder caregiving
conflict; and showing that 16 percent of men and 24 percent of women
turned down overtime work as a result of caregiving responsibilities);
``Women & Alzheimer's Poll'' (showing that 11 percent of women and 14
percent of men turned down promotion due to caregiving conflict; and
showing that 11 percent of women and 8 percent of men lost a job
benefit as a result of caregiving).
    \24\ Sons at Work Study (showing 20 percent of women and 11 percent
of men considered quitting their jobs due to an elder caregiving
conflict); ``Women & Alzheimer's Poll'' (showing that 12 percent of
women and 8 percent of men had to give up working entirely due to
caregiving conflict).
---------------------------------------------------------------------------
    These decreases in labor market participation have short-term and
long-term consequences for family economic security, including loss of
income, loss of health insurance, loss in retirement earnings, and
negative impacts on future earnings potential.\25\
---------------------------------------------------------------------------
    \25\ Gillian Lester, ``A Defense of Paid Family Leave,'' Harvard
Women's Law Journal 28 (2005): 21-22.
---------------------------------------------------------------------------
Inability to Afford Child Care and Elder Care
    The additional risk that workers face in combining work and care is
the inability to afford paid care for children, sick family members or
aging relatives. Low-income workers and lower middle-income families
are much more likely to spend a significant percentage of their income
on child care expenses. A single mother working full-time for minimum
wage will need to spend approximately 32 percent of her family income
on child care expenses, and a two-parent family with both parents
working full-time minimum wage jobs will end up spending about 18
percent of their family income on child care expenses.\26\ Lower
middle-class families are also much more likely to rely on child care
provided by relatives, including another working parent--termed ``tag-
team parenting'' as one person provides care to the children while the
other works, and then they trade shifts.\27\ These informal or within-
family child care arrangements are more prone to break down, causing
workers to miss work.
---------------------------------------------------------------------------
    \26\ Kristin Smith and Kristi Gozjolko, Low Income and Impoverished
Families Pay More Disproportionately for Child Care (Durham, NH: Carsey
Institute at the University of New Hampshire Policy Brief No. 16,
2010).
    \27\ ``Nearly Half of Preschoolers Receive Child Care from
Relatives,'' U.S. Census Bureau press release, February 28, 2008
(noting that among the 11.8 million children younger than 5 whose
mothers were employed, 30 percent were cared for on a regular basis by
a grandparent during their mother's working hours and another 25
percent received care from their fathers during the mother's working
hours).
---------------------------------------------------------------------------
Lack of Time With Children and Ailing Relatives has Negative Impacts
    In addition to the quantifiable loss of family income and inability
to afford child care, a lack of ability to take time away from work
when a family member needs care or support has real negative impacts on
their well-being. In the first years of a child's life, a child's
overall physical, cognitive, and behavioral outcomes are better when
his or her parents have sufficient time off work after the birth or
adoption of a child.\28\ Further, parental workplace flexibility during
the first year of a child's life, including a significant amount of
time off and/or flexibility in scheduling, can have positive
developmental effects for children.\29\ And according to a research
review conducted by the Institute for Women's Policy Research, parents
play a critical role in helping children improve their health after a
hospitalization and in helping children cope with chronic illnesses,
including asthma and diabetes, both of which lead to better educational
outcomes for children.\30\
---------------------------------------------------------------------------
    \28\ Christopher Ruhm, Parental Employment and Child Cognitive
Development, 39 J. Hum. Resources 155 (2004); Jeanne Brooks-Gunn, Wen-
Jui Han & Jane Waldfogel, Maternal Employment and Child Cognitive
Outcomes in the First Three Years of Life: The NICHD Study of Early
Child Care, 73 Child Dev. 1052 (2002); Christopher Ruhm, Parental Leave
and Child Health, 19 J. Health Econ. 931 (2000); Pauline Hopper &
Edward Zigler, The Medical and Social Science Basis for a National
Infant Care Leave Policy, 58 Am. J. Orthopsychiatry 324 (1988).
    \29\ Jeanne Brooks-Gunn, Wen-Jui Han & Jane Waldfogel, First-Year
Maternal Employment and Child Development in the First Seven Years, 75
Monographs of Soc'y for Res. in Child Dev. 1, 35-49 (2010).
    \30\ Institute for Women's Policy Research, ``Denver Paid Sick Days
Would Promote Children's School Success,'' October 2011.
---------------------------------------------------------------------------
                          government response
    The political rhetoric and policy proposals to address ``work-
family conflict'' have been strikingly similar across the decades.
Since the 1960s, Presidential Commissions and reports have recommended
various forms of workplace flexibility, including increased government
investments in child care and paid maternity or paid family leave.\31\
---------------------------------------------------------------------------
    \31\ For a review of government action, see O'Leary and Kornbluh,
``Family Friendly for All Families,'' 78.
---------------------------------------------------------------------------
    Despite many years of consistent recommendations there is no
comprehensive national strategy to address the mismatch between
workplace rules and family responsibilities. Instead, the Government
has addressed problems of work-care conflict by requiring employers to
offer workplace benefits that aid workers in providing unpaid family
care and in accessing benefits that could be used for paid maternity
leave but only if the employer otherwise has a short-term disability
policy; by directly offering subsidies or benefits to allow low-income
families to purchase child care; and by offering now limited cash aid
to our lowest income parents as long as they agree to work for the cash
aid. I will focus only on the first two strategies in this testimony.
Employer Policies
    The Government plays an active role in incentivizing and mandating
certain employer-provided benefits. While the Government does not
require employers to provide paid family leave, paid sick days, or
short-term disability benefits it forbids employers from discriminating
on the basis of gender in the provision of employee benefits.
    This antidiscrimination law--Title VII of the Civil Rights Act of
1964, as amended by the Pregnancy Discrimination Act of 1978 (PDA)
\32\--has had its strongest impact on the provision of paid leave for
pregnancy and childbirth for highly educated female workers. Title VII
only requires employers to offer benefits to all employees on the same
terms; it does not proactively require employers to provide paid
maternity leave or paid family leave. For college-educated women
workers, the law has made a big difference because many employers of
professional workers were already offering short-term disability
insurance and paid sick days. The PDA effectively required those
benefits to be made available for the purposes of pregnancy and child
birth. From 1961 to 1965, only 14 percent of college-educated women
workers received paid leave before or after the birth of their first
child.\33\ This number dramatically increased to 59 percent of college-
educated women workers in the immediate period after passage of the
PDA, and holds at 66 percent of professional workers in 2008.\34\ For
less-educated workers, the law has made little difference with regard
to employee benefits because these workers are less likely to have
access to any paid leave.\35\ For workers with less than a high school
degree, the access to paid leave after child birth remained nearly
constant from 1961 to 2008 fluctuating between 18 and 19 percent.\36\
---------------------------------------------------------------------------
    \32\ Civil Rights Act of 1964, U.S. Code 42 (2006) Sec. 2000e-2;
Pregnancy Discrimination Act, U.S. Code 42 (2006) Sec. 2000-e(k).
    \33\ Lynda Laughlin, Maternity Leave and Employment Patterns of
First Time Mothers: 1961-2008, (Washington, DC: U.S. Census Bureau,
October 2011), 12 (Figure 3).
    \34\ Ibid.
    \35\ Workplace Flexibility 2010 and Berkeley CHEFS, Family Security
Insurance Report, Chapter 2.
    \36\ Ibid.
---------------------------------------------------------------------------
    In addition to the title VII requirement of equal access to
employer-sponsored benefits required, the Government also affirmatively
requires some employers to offer job-protected family leave to workers.
The Family and Medical Leave Act of 1993 (FMLA) mandates that certain
employers provide unpaid leave, regardless of gender, to care for
family or medical needs. FMLA provides qualified employees with the
right to take up to 12 weeks each year of job-protected unpaid leave
for the birth or care of the employee's child, care of an immediate
family member with a serious health condition, or for an employee's own
serious health condition.\37\ This law provides critical economic
security to eligible workers because it requires that the worker get
his or her job back upon returning from leave. It also prevents
employers from dropping or reducing an employee's health insurance
benefits because the worker took FMLA leave: employers are required to
maintain the same group health plan coverage before and after a worker
has taken FMLA leave.\38\ As important as these benefits are, only
about half of the workforce is covered under FMLA.\39\ Furthermore,
many people caring for ailing relatives do not qualify for FMLA because
workers may only take time off to care for a spouse, child or parent.
For example, 40 percent of Alzheimer's caregivers are providing care to
a relative who would fall outside the allowable family members for whom
a caregiver can take leave under the FMLA, including grandparents,
siblings, in-laws, and aunts and uncles.\40\
---------------------------------------------------------------------------
    \37\ Family and Medical Leave Act, U.S. Code 29 (2000)
Sec. Sec. 2601-54.
    \38\ Ibid., Sec. Sec. 2601, 2614(c).
    \39\ Jane Waldfogel, ``Family and Medical Leave: Evidence from the
2000 Surveys,'' Monthly Labor Review 124(9) (2001): 19-20.
    \40\ Alzheimer's Association, ``Women & Alzheimer's Poll'' (2010).
---------------------------------------------------------------------------
    Too many lower and middle-income families work for employers that
do not offer benefits to all workers that would allow mothers to access
them on an equal basis and many employees do not qualify for FMLA.
Child Care Support
    The Government provides child care support both in the form of
subsidies to low-income working parents and tax credits to middle-
income parents. In both instances, the aid barely scratches the surface
of need. While Congress infused federally supported child care programs
with $4.1 billion extra dollars as part of the economic recovery
package, the funding did not bring the program back to the number of
families it was serving 5 years ago. With more and more States unable
to provide State funding to support child care, many workers struggle
to afford child care while they work.\41\
---------------------------------------------------------------------------
    \41\ Goodman, ``Cuts to Child Care Subsidy Thwart More Job
Seekers.''
---------------------------------------------------------------------------
                               conclusion
    As Mother's Day approaches, it is fitting to think of the
challenging job we are asking mothers to do. For too many mothers, we
are asking them to raise their children on their own with no time off
even for the child's birth or early days. For other mothers, we are
asking them to provide the best care and attention to a child with a
chronic health condition and allowing them no flexibility to schedule
work and doctor's appointments to make that possible. For too many, we
are asking them to subsist on a minimum wage that barely provides
poverty wages and offering them no help to afford quality child care.
Of course, mothers are not alone--it is also fathers who face these
same challenges.
    These challenges will not be addressed by a quick fix, but if we
don't tackle these hard problems--by increasing parental income,
providing true pro-family workplace policies, and ensuring that our
country has affordable, quality child care--we will be leaving a
generation of parents feeling unable to meet the needs of their
children and a generation of children less healthy and educated than
they deserve to be.

    The Chairman. Thank you very much, Ms. O'Leary.
    Ms. Lichtman, welcome.

   STATEMENT OF JUDITH L. LICHTMAN, SENIOR ADVISOR, NATIONAL
       PARTNERSHIP FOR WOMEN AND FAMILIES, WASHINGTON, DC

    Ms. Lichtman. Good morning, Chairman Harkin, Ranking Member
Enzi, members of the committee, and my fellow panelists.
    I particularly want to thank you, Senator Harkin, as the
lead sponsor of the Rebuild America Act. You have been a
tireless and effective champion for middle class families for
many decades.
    I am Judith Lichtman, senior advisor at the National
Partnership for Women and Families, a nonprofit, nonpartisan
advocacy organization which, for 40 years, has worked to
promote fairness in the workplace, access to quality,
affordable healthcare, and policies that help women and men
meet the dual demands of work and family.
    This hearing comes at a critical time for our Nation's
workers and their families. As Ann has discussed, demographic
changes and an uneven recovery point to a perfect storm that
demands new national public policies.
    Our society has changed, but our Nation's workplace
policies have not kept pace. Our chief national work-family
law, the Federal Family and Medical Leave Act of 1993, was an
important first step to help workers manage the dual demands of
work and family. It is working well and it has been used more
than 100 million times.
    But FMLA was only a first step. Our Nation needs a strong
work-family policy that helps families stay in the middle class
and help those with lower incomes to gain upward mobility.
    These policies include job protected paid sick days, paid
family and medical leave, flexible work arrangements,
affordable childcare and job protected time away from work to
attend school meetings, or preventive medical care
appointments.
    Other policies, such as raising the minimum wage,
protecting workers' ability to earn overtime, and protecting
the rights of workers to organize are also critically important
to middle-class prosperity and to mobility.
    False assumptions contribute to our Nation's failure to
provide working families with public policies they need. The
most egregious false assumptions are the ones that relate to
work-family conflicts and seeing it as just nothing more than a
personal problem, in which government has no role to play, and
that we should let the private sector fashion these policies on
a voluntary basis. But let us be clear, public policies are
critically important in setting our Nation's course and in
building a strong middle class.
    In the 21st century, national standards that build on the
success of FMLA are needed to help families maintain their
short-term financial stability and protect their long-term
economic security when illness strikes or medical needs arise.
    We also need to strengthen our national commitment to
childcare, to be sure that the next generation has the best
possible start. We also believe it is time to face the reality
that voluntary, private sector action has real limits. The
absence of a national paid sick day standard has left more than
40 million workers without access to even a single paid sick
day which too often leads to economic hardships, job loss, and
poor health.
    The Rebuild America Act includes, among other important
provisions, a critical step toward a more family friendly
Nation, the Healthy Families Act. This legislation creates a
national paid sick day standard that would allow workers to
earn up to 7 paid sick days a year to recover from short-term
illnesses, to care for sick family members, to seek routine
medical care, or to seek assistance for domestic violence,
sexual assault, or stalking. Enacting this law would allow an
additional 30.3 million workers to gain access to paid sick
days covering almost 90 percent of the private sector.
    On Tuesday, the National Partnership released a report
called ``Expecting Better: A State By State Analysis,'' and
sadly, what this report did was to point out that too few
States have adopted innovations that help working families meet
their responsibilities, and that is why national action is so
critical and so timely.
    Beyond providing paid sick days and paid family leave, we
also have to look to expand workplace flexibility in a
meaningful way.
    And finally, we recommend several ways to expand the Family
and Medical Leave Act to include workers, and small businesses,
and those who work part-time to allow leave to address domestic
violence, sexual assault, or stalking; and to expand the
definition of family member to allow domestic partners, and the
children of domestic partners, to become eligible.
    Laws like the Family and Medical Leave Act could not be
more important in these tough economic times, and more workers
need access to the protection it affords.
    Mr. Chairman, Senators, working families in our country
need and want family friendly policies that promote their
economic security including paid sick days, paid family leave,
workplace flexibility, and expanded FMLA.
    Importantly, adopting these policies will help strengthen
the middle class, promote economic security for all families
regardless of income, and help rebuild our economy. These
policies are about renewing the American Dream for millions of
workers who play by the rules, and deserve a fair shot.
    I thank you.
    [The prepared statement of Ms. Lichtman follows:]
                Prepared Statement of Judith L. Lichtman
    Good morning, Chairman Harkin, Ranking Member Enzi, members of the
committee and my fellow panelists. Thank you for inviting me to testify
on behalf of the National Partnership for Women & Families. I
particularly want to thank you, Senator Harkin. As the lead sponsor of
the Rebuild America Act, you have been a tireless and effective
champion for middle class families.
    I am Judith Lichtman, senior advisor at the National Partnership
for Women & Families, a nonprofit, nonpartisan advocacy organization.
For four decades, we have fought for every major policy advance that
has helped women and families. We promote fairness in the workplace,
reproductive health and rights, access to quality, affordable health
care, and policies that help women and men meet the dual demands of
work and family. Our goal is to create a society that is free, fair and
just, where nobody has to experience discrimination, all workplaces are
family friendly, and every family has access to quality, affordable
health care and real economic security.
      an urgent need for a national commitment to working families
    This hearing comes at a critical time for our Nation's workers and
their families. There is an urgent need for a national commitment to
help men and women manage the dual demands of work and family. The
economy is recovering unevenly, with a labor market that is failing to
create enough jobs for those seeking employment. Fewer jobs, less
income and slower economic growth mean workers are stretched thin and
face bigger challenges when managing work and family responsibilities.
Women now make up half of America's workforce, and their incomes are
increasingly important to families' economic survival. At the same
time, women continue to have primary responsibility for family
caregiving. Between 1975 and 2009, the share of women in the labor
force with children under 18 increased from 47.4 percent to 71.3
percent.\1\ Working men are also investing more time in child care and
are reporting higher levels of work-family conflict. And many more U.S.
workers are assuming eldercare responsibilities--a trend that will
intensify as our country's population ages. These and other demographic
changes discussed today point to a perfect storm that demands new
national public policies.
---------------------------------------------------------------------------
    \1\ U.S. Bureau of Labor Statistics. (2010). Women in the Labor
Force: A Databook (2010 Edition). Employment status of women by
presence and age of youngest child, March 1975-2010 (Table 7).
Retrieved 7 May 2012, from http://www.bls.gov/cps/wlf-table7-2011.pdf.
---------------------------------------------------------------------------
       public policies are needed to reflect our changing society
    Our society has changed, but our Nation's workplace policies have
not kept pace. Our chief national work-family law, the Family and
Medical Leave Act (FMLA), was enacted nearly 20 years ago as an
important first step to help workers manage the dual demands of work
and family. The law has been used more than 100 million times by
workers to care for newborn and newly adopted children, for children,
spouses and parents with serious health conditions, and to address
their own serious health needs. Laws like the FMLA could not be more
important in these tough economic times, and more workers need access
to the protections it affords.\2\
---------------------------------------------------------------------------
    \2\ The U.S. Supreme Court struck down one of the law's fundamental
provisions earlier this year in Coleman v. Maryland Court of Appeals.
With that decision, the Court deprived millions of State workers
meaningful recourse if their request to take leave under the FMLA to
recover from serious illness, including pregnancy and childbirth, is
wrongly denied. It was a deeply troubling decision, and it sends us in
exactly the wrong direction.
---------------------------------------------------------------------------
    Indeed, there have been recent advances. In 2008 and again in 2009,
the FMLA was amended to help military families and to cover flight
crews. Senator Merkley's provision in the 2010 health reform law, which
ensures new mothers have the time and space to pump breast milk at
work, was another step forward. Yet significant additional progress
toward securing national family friendly policies is badly needed.
    Adopting strong work-family policies helps families stay in the
middle class and helps those with lower incomes gain upward mobility.
Workers want and need a comprehensive set of policies that recognize
their responsibilities at home as their children grow and their parents
or other loved ones age. These policies include job-protected paid sick
days, paid family and medical leave, flexible work arrangements,
affordable child care and job-protected time away from work to attend
school meetings or preventive medical care appointments. Other
policies, such as raising the minimum wage, protecting workers' ability
to earn overtime and protecting the right of workers to organize, are
also critically important to middle class prosperity and mobility.
    Other countries understand working families' need for family
friendly policies. The United States stands alone among industrialized
nations in its failure to adopt national policies that help workers
take time off for day-to-day medical needs, serious illnesses or to
care for new babies. Out of 178 countries, the United States is one of
just four that fails to provide paid maternity or paternity leave.\3\
And according to the Center for Economic and Policy Research, the
United States is the only one of 22 countries ranked highly for
economic development that fails to guarantee workers paid time off for
illness.\4\
---------------------------------------------------------------------------
    \3\ Heymann, J., & Earle, A. (2009). Raising the Global Floor:
Dismantling the Myth That We Can't Afford Good Working Conditions for
Everyone. Stanford, CA: Stanford University Press.
    \4\ Heymann, J., Rho, H.J., Schmitt, J. & Earle, A. (2009).
Contagion Nation: A Comparison of Paid Sick Day Policies in 22
Countries. Center for Economic and Policy Research Publication.
Retrieved 7 May 2012, from http://www.cepr.net/documents/publications/
paid-sick-days-
2009-05.pdf.
---------------------------------------------------------------------------
              false assumptions have impeded our progress
    False assumptions contribute to our Nation's failure to provide
working families with the policies they need. The most egregious false
assumption is that work-family conflict is a personal problem and that
government has no role to play. But let's be clear: Public policies are
critically important in setting our Nation's course. Minimum wage and
overtime laws, laws regulating working conditions and other standards
that we now take for granted helped build our middle class. In the 21st
century, national standards that build on the success of the FMLA are
needed to help working fathers in Iowa, adult daughters caring for
elderly parents in Wyoming and workers in every other corner of this
Nation maintain their short-term financial stability and protect their
long-term economic security when illness strikes or medical needs
arise. We also need to strengthen our national commitment to child care
to be sure that the next generation has the best possible start.
    A second false and harmful assumption is that expanding work-family
policies harms businesses. In fact, these policies benefit business.
Research confirms what working families and responsible employers
already know: When businesses take care of their workers, they are
better able to retain them, and when workers have the security of paid
time off and flexibility, their commitment, productivity and morale
increases and employers reap the benefits of lower turnover and
training costs and higher retention rates.\5\ Studies show that the
costs of losing an employee, including advertising for, interviewing
and training a replacement is often much greater than the cost of
providing short-term leave to retain an existing worker. The average
cost of turnover can range from 25 percent to 200 percent of an
employee's total annual compensation.\6\
---------------------------------------------------------------------------
    \5\ National Partnership for Women & Families. (2011, March).
Taking Care of Business: The Business Benefits of Paid Leave. Retrieved
7 May 2012, from http://www.nationalpartnership
.org/site/DocServer/
W_F_Taking_Care_of_Business_March_Update.pdf?docID=8721.
    \6\ Sasha Corporation. (2007). Compilation of Turnover Cost
Studies. Retrieved 26 April 2012, from http://www.sashacorp.com/
turnframe.html.
---------------------------------------------------------------------------
    A third, related misconception is that expanded leave policies are
too costly for taxpayers. In reality, these policies provide cost-
savings to governments as well as to businesses. A recent study shows
that if all workers had paid sick days, 1.3 million emergency room
visits could be prevented each year in the United States, saving $1.1
billion annually. More than half of these savings--$517 million--would
go to taxpayer-funded health insurance programs such as Medicare and
the State Children's Health Insurance Program.\7\ In addition, both
women and men who take paid leave after a child's birth are
significantly less likely to rely on public assistance or food stamps
in the following year.\8\ And women who take paid leave are more likely
to be working 9 to 12 months after a child's birth and to have higher
earnings.\9\
---------------------------------------------------------------------------
    \7\ Miller, K., Williams, C., & Yi, Y. (2011, October 31). Paid
Sick Days and Health: Cost Savings from Reduced Emergency Department
Visits. Institute for Women's Policy Research publication. Retrieved 21
November 2011, from http://www.iwpr.org/publications/pubs/paid-sick-
days- and-health-cost-savings-from-reduced-emergency-department-visits.
    \8\ Houser, L., & Varatanian, T. (2012, January). Pay Matters: The
Positive Economic Impacts of Paid Family Leave for Families, Businesses
and the Public. Rutgers Center for Women and Work Publication.
Retrieved 26 April 2012, from http://smlr.rutgers.edu/paymatters-
cwwreport-january2012.
    \9\ Ibid.
---------------------------------------------------------------------------
    A final false assumption is that work-family policies are of
concern to women only. However, with more and more women in the
workforce, men are also increasingly managing responsibilities at home
as well as in the workplace and seeking better ways to balance work and
family responsibilities.
    Mr. Chairman, strong majorities of people in the United States
across the political spectrum support a national paid sick days law and
believe that family and maternity leave is an important labor standard.
Policies that would provide more flexibility and predictability to
workers while recognizing the needs of business are overwhelmingly
popular as well. These policies are commonsense solutions to the
struggles that working- and middle-class families face, and policy
innovations in these areas are long overdue.
    That is why the National Partnership welcomes the opportunity to
work with you and Congress on the Rebuild America Act. We want to
commend you for leading this important conversation. The bill is a
powerful package that America's working- and middle-class families
urgently need. In addition to creating a national paid sick days
standard, the Act would raise the minimum wage, protect overtime pay
and workers' right to band together, as well as strengthen investments
in child care assistance. The bill challenges the wrong-headed
assumptions discussed above and recognizes that it is time to establish
family friendly policies that reflect today's realities.
workers and their families need paid sick days to protect their health
                         and economic security
    The Rebuild America Act includes an important first step toward a
more family friendly nation--the Healthy Families Act (S. 984/H.R.
1876). The Healthy Families Act creates a national paid sick days
standard that would allow workers to earn up to seven paid sick days a
year to recover from short-term illnesses, to care for a sick family
member, to seek routine medical care or to seek assistance related to
domestic violence, sexual assault or stalking. This proposed
legislation is about guaranteeing that U.S. workers have access to one
of the most basic components of a quality job.
    The fact is that today, nearly 40 million workers across the
country--about 40 percent of the private-sector workforce--have no paid
sick days they can use when they get sick.\10\ Millions more have no
paid sick time they can use to care for a sick child, spouse or parent.
Among the lowest wage workers, 8 in 10 lose income and risk job loss or
workplace discipline when they are ill.\11\
---------------------------------------------------------------------------
    \10\ U.S. Bureau of Labor Statistics. (2011, March). Employee
Benefits Survey Table 33. Leave benefits: Access, private industry
workers, National Compensation Survey. Retrieved 26 April 2012, from
http://www.bls.gov/ncs/ebs/benefits/2011/ownership/private/
table21a.pdf.
    \11\ Ibid.
---------------------------------------------------------------------------
    When workers have no paid sick days, their families' economic
security is jeopardized. An average worker without paid sick days who
takes just 3.5 unpaid days away from work in a month compromises her
family's ability to afford the month's groceries.\12\ And that assumes
the worker is lucky enough to keep her job. Nearly one-quarter of
adults in the United States report that they have lost a job or been
threatened with job loss for taking time off work to recover from an
illness or care for a sick child.\13\
---------------------------------------------------------------------------
    \12\ Gould, E., Filion, K., & Green, A. (2011, June 29). The Need
for Paid Sick Days: The lack of a federal policy further erodes family
economic security. Economic Policy Institute publication. Retrieved 12
August 2011, from http://www.epi.org/page/-/
BriefingPaper319.pdf?nocdn=1.
    \13\ Smith, T. & Kim, J. (2010, June). Paid Sick Days: Attitudes
and Experiences (unpublished calculation). National Opinion Research
Center at the University of Chicago Publication. Retrieved 26 April
2012, from http://www.publicwelfare.org/resources/DocFiles/
psd2010final.pdf.
---------------------------------------------------------------------------
    There is a direct relationship between parents having access to
paid time off and the health of their children. Children get well
faster when a parent cares for them. But in nearly two-thirds of
families with children, all adults in the household work, and 53
percent of working mothers and 48 percent of working fathers don't have
paid sick days to care for an ill child. Parents without paid sick days
are five times more likely to take a child or other family member to an
emergency room because they cannot take time off during work hours.\14\
---------------------------------------------------------------------------
    \14\ Ibid.
---------------------------------------------------------------------------
    In addition, as the baby boom generation ages, the 66 million
people who serve as caregivers to older adults have an increasingly
urgent need for paid sick days.\15\ Workers without paid sick days that
can be used for family care must choose between caring for a sick
parent or spouse and keeping a job. And at a time when record numbers
of workers are staying on the job well past traditional retirement age,
older workers, in particular, need paid sick days to get the medical
care they need to manage their own chronic conditions and other
emerging health needs.
---------------------------------------------------------------------------
    \15\ National Alliance for Caregiving. (2009, November). Caregiving
in the U.S. National Alliance for Caregiving and AARP Publication.
Retrieved 16 November 2011, from http://www.caregiving.org/data/
Caregiving_in_the_US_2009_full_report.pdf.
---------------------------------------------------------------------------
    Providing paid sick days is cost-effective. ``Presenteeism''--when
employees come to work despite illness--costs our national economy $160
billion annually in lost productivity, surpassing the cost of
absenteeism.\16\ Working people with paid sick days are more productive
and less likely to leave their jobs, which saves businesses money by
reducing turnover.
---------------------------------------------------------------------------
    \16\ Stewart, W., ET al. (2003, December). Lost Productive Health
Time Costs from Health Conditions in the United States: Results from
the American Productivity Audit. Journal of Occupational and
Environmental Medicine, 45(12), 1234-46. Retrieved 22 November 2011,
from http://www.workhealth.org/whatsnew/whnewrap/
Stewart%20etal_lost%20productive%20work%20
time%20costs%20from%20health%20conditions%20in%20the%20US_%20results%20f
rom%
20the%20American%20Productivity%20Audit%202003.pdf.
---------------------------------------------------------------------------
    If we were to decide as a nation that providing paid sick days is a
basic right similar to the minimum wage, an additional 30.3 million
workers gain access to paid sick days under the proposal in the Rebuild
America Act, bringing coverage to 90 percent of the private sector
workforce.\17\ Nearly half of the increased access to paid sick leave
would accrue to female workers, who continue to be more likely than men
to provide care to a sick child or family member.\18\ This is what
building economic opportunity for families should look like. And
perhaps that is why the public strongly favors a law ensuring paid sick
days. Three-quarters of the public supports a law guaranteeing all
workers a minimum number of paid sick days, according to a 2010 survey
conducted by the National Opinion Research Center at the University of
Chicago. A full 86 percent favors a proposed law guaranteeing up to
seven paid sick days annually.\19\
---------------------------------------------------------------------------
    \17\ Joint Economic Committee of the U.S. Congress. (2010, March).
Expanding Access to Paid Sick Leave: The Impact of the Healthy Families
Act on America's Workers. Retrieved 7 May 2012, from http://
jec.senate.gov/public/index.cfm?a=Files.Serve&File_id=abf8aca7-6b94-
4152-b720-2d8d04b81ed6.
    \18\ Ibid.
    \19\ See note 13.
---------------------------------------------------------------------------
    The good news is that there is momentum in the States to provide
access to paid sick days. In 2011, Connecticut became the first State
to adopt a paid sick days law, and Seattle became the fourth city,
joining the trailblazing cities of San Francisco, Milwaukee and
Washington, DC. Active campaigns and growing efforts are underway in
many other States and cities across the country. The reality, though,
is that we need a national standard. A working mother in Oregon and a
working father in North Carolina should have the same right as workers
in Connecticut to take a day away from work to care for a feverish
child, a parent with a broken hip or to get the medical care they need
to stay healthy.
 paid family and medical leave provides families time to care without
                 jeopardizing their financial stability
    While providing paid sick days would help address the day-to-day
health needs of families by guaranteeing paid, job-protected time off
for common illnesses and short-term caregiving needs, we must also
expand work-family policies to include wage replacement when workers
must take time away from work to address their own serious health
condition, care for a family member with a serious health condition, or
care for a newborn or newly adopted child.
    When such personal or family needs arise, workers frequently have
no choice but to take unpaid leave or quit their jobs. As a result, for
many workers, the birth of a child or an illness in the family creates
a cycle of economic risk. Thirteen percent of families with a new baby
become poor within a month.\20\ Providing paid family and medical leave
helps workers to perform essential caregiving responsibilities without
risking their economic security.
---------------------------------------------------------------------------
    \20\ Rynell, A. (2008, October). Causes of Poverty: Findings from
Recent Research. The Heartland Alliance publication. Retrieved 7 May
2012, from http://www.heartlandalliance.org/whatwedo/advocacy/reports/
causes-of-poverty.pdf.
---------------------------------------------------------------------------
    Parents who are financially able to take leave are in a better
position to give new babies the critical care they need in the early
stages of life, laying a strong foundation for later development.\21\
In addition, access to paid leave gives parents time to find the child
care they will need in order to return successfully to work. Being
forced to go back to work soon after a child's arrival only increases
the odds of a child being placed in a poor or unstable child care
setting, and this can negatively impact both children and their
parents.
---------------------------------------------------------------------------
    \21\ Skinner, C., & Ochshorn, S. (2012, April). Paid Leave:
Strengthening Families and Our Future. National Center for Children in
Poverty publication. Retrieved 7 May 2012, from http://nccp.org/
publications/pdf/text_1059.pdf.
---------------------------------------------------------------------------
    Adopting a paid leave standard is not just about caring for a new
child. By 2050, there will be 88.5 million older adults--accounting for
more than 20 percent of the U.S. population.\22\ This means that even
more workers will need time off work to care for aging family members.
Today, approximately one-third of caregivers who provide eldercare end
up leaving the workforce or reducing the number of hours they work--
taking a financial toll on their current economic stability and
impacting their long-term retirement security.\23\ The average worker
over 50 years of age who leaves the workforce to take care of a parent
will lose more than $300,000 in earnings and retirement income.\24\ As
a Nation, we can't afford to ignore the impending eldercare crisis.
---------------------------------------------------------------------------
    \22\ U.S. Census Bureau. (2011, March 23). Older Americans Month:
May 2011. Retrieved 7 May 2012, from http://www.census.gov/newsroom/
releases/archives/facts_for_features_special_
editions/cb11-ff08.html.
    \23\ MetLife Mature Market Institute. (2011, June). The MetLife
Study of Caregiving Costs to Working Caregivers (p. 10). MetLife Mature
Market Institute Publication. Retrieved 11 October 2011, from http://
www.caregiving.org/wp-content/uploads/2011/06/mmi-caregiving-costs-
working-caregivers.pdf.
    \24\ Ibid.
---------------------------------------------------------------------------
    Neither employers' policies nor public policies are on pace to meet
the caregiving needs of working families. Only half of the workforce
has access to job-protected unpaid leave under the FMLA; this leaves
approximately 75 million workers without any protection under the
law.\25\ A meager 11 percent of workers in the United States have
access to paid family leave through their employers.\26\ Among first-
time mothers, only about 50 percent can cobble together any form of
paid leave, whether sick or vacation days, disability insurance or
something else--and that number has been stagnant for a decade. Among
women with low levels of formal education, fewer than 20 percent have
access to paid leave--and that number has not increased since 1961.\27\
What's more, fewer than 40 percent of workers have access to short-term
disability insurance through their employers; this disability coverage
provides partial pay during a worker's medical leave.\28\ Workers and
their families need a national paid leave standard.
---------------------------------------------------------------------------
    \25\ Waldfogel, J. (2001, September). Family and Medical Leave:
Evidence from the 2000 Surveys. Monthly Labor Review, 17-23. Retrieved
14 December 2011, from http://www.bls.gov/opub/mlr/2001/09/
art2full.pdf. U.S. Department of Labor, Bureau of Labor Statistics.
(2010). Employment status of the civilian noninstitutional population
by age, sex, and race (Table 3). Retrieved 27 June 2011, from http://
www.bls.gov/cps/cpsaat3.pdf (Unpublished calculation).
    \26\ See note 10.
    \27\ Laughlin, L. (2011, October). Maternity Leave and Employment:
Patterns of First-Time Mothers 1961-2008. U.S. Census Bureau
Publication. Retrieved 26 April 2012 from, http://www.census.gov/prod/
2011pubs/p70-128.pdf.
    \28\ U.S. Bureau of Labor Statistics. (2011, March). Employee
Benefits Survey Table 17. Insurance benefits: Access, participation,
and take-up rates, private industry workers, National Compensation
Survey. Retrieved 26 April 2012, from http://www.bls.gov/ncs/ebs/
benefits/2011/
ownership/private/table12a.pdf.
---------------------------------------------------------------------------
    To better understand the need for--and the potential power of--a
national paid leave policy solution, it is critical to look at the
States. I would like to highlight the report the National Partnership
released on Tuesday called Expecting Better: A State-by-State Analysis
of Laws That Help New Parents. This is a comprehensive review of
Federal and State laws that help expecting parents manage after a new
child arrives. It also includes a special section that details State
laws that help workers manage other family caregiving
responsibilities.\29\
---------------------------------------------------------------------------
    \29\ National Partnership for Women & Families. (2012). Expecting
Better: A State-by-State Analysis of Laws That Help New Parents.
Retrieved 8 May 2012, from www.national
partnership.org/ExpectingBetter.
---------------------------------------------------------------------------
    As our report explains, two States have created paid leave
insurance systems. California created the Nation's first statewide paid
family leave insurance program in 2002, and New Jersey followed in
2008. These programs were built upon those States' much older and well-
established temporary disability insurance systems, which workers have
been using for decades to take leave from work to address their own
serious health conditions. We believe they provide a model for what a
national commitment to paid family leave should look like.\30\ Other
States have expanded upon the Federal FMLA by making unpaid family and
medical leave available to workers who are not covered by Federal law.
---------------------------------------------------------------------------
    \30\ For more information about paid leave programs and research in
support of paid leave, see National Partnership for Women & Families.
(2012). Securing Financial Stability & Good Health for Working
Families: A Briefing Book on Paid Family and Medical Leave. Retrieved 7
May 2012, from http://www.nationalpartnership.org/site/DocServer/
Paid_Leave_Briefing_
Book_FINAL.pdf?docID=10161.
---------------------------------------------------------------------------
    California's program demonstrates some of the benefits of paid
leave. Women who use California's paid leave program are better able to
arrange child care and to breastfeed their children for longer, both of
which are associated with improved child well-being.\31\ Men are more
likely to take leave now, sharing more equally in caregiving
responsibilities with women.\32\ And California employers have been
able to implement the program smoothly. About 60 percent have been able
to coordinate their own benefits with the State program, which has
likely led to cost savings.\33\
---------------------------------------------------------------------------
    \31\ Appelbaum, E., & Milkman, R. (2011). Leaves That Pay: Employer
and Worker Experiences with Paid Family Leave in California. Center for
Economic and Public Research Publication. Retrieved 26 April 2012, from
http://www.cepr.net/documents/publications/paid-familyleave-1-2011
.pdf.
    \32\ Ibid.
    \33\ Ibid.
---------------------------------------------------------------------------
    Unfortunately, too few States have adopted innovations that help
working families meet their responsibilities at work and at home, and
that is why national action is so critical and so timely. In our
report, only two States, California and Connecticut, receive a grade of
A-, the highest grade any State earned, for the policies they've put in
place, and we've discussed both of those States' chief innovations
here. A handful of States, including New Jersey, Oregon, Washington and
Hawaii, get B's for policies that expand upon the Federal policy floor
set by the FMLA, the 1978 Pregnancy Discrimination Act and the 2010
provision in the Affordable Care Act that guarantees many new mothers a
place and break time to express breast milk after they return to work.
    Some States have made small improvements in particular policy areas
but overall have done very little to improve upon the Federal floor.
For example, women in Iowa have greater access to pregnancy-related
medical leave under State law than under Federal law because State law
makes leave available to women in smaller businesses and with less time
on the job than the Federal FMLA does, yet State law provides for a
shorter maximum period of leave (8 weeks maximum, compared to 12 weeks
under the FMLA). Pennsylvania provides longer periods of leave to its
own State employees but has not adopted laws that expand access to
private-sector workers.
    Other States--18 of them, in fact, including Georgia, North
Carolina, Utah and Wyoming--receive a grade of F for failing to enact
any State laws or policies that help private-sector workers or even
State employees better manage their work-
family needs when a new child arrives.
    We at the National Partnership are convinced that failing to
provide paid leave is shortsighted, self-defeating, and a mistake that
costs families, businesses and our Nation dearly. We urge you to
seriously consider paid leave as a policy change that protects the
short- and long-term economic security of families, helps businesses
and our economy, and saves taxpayer dollars.
   workplace flexibility must meet the needs of workers and employers
    Beyond providing paid sick days and paid family leave, we must also
look to expand workplace flexibility in a meaningful way. This is
important because, in the face of an extremely tight labor market,
workers are being asked to be more flexible to help meet business
needs. The National Partnership and Family Values @Work convened a
series of discussion groups in Dallas, Atlanta, Los Angeles and New
York City and conducted in-depth interviews with workers in the Midwest
in 2010 and 2011. These discussions illuminated key challenges that
workers across industries and wage levels face. Of particular note, the
lower-wage workers we spoke with identified scheduling demands--being
required to work unpredictable and constantly changing shifts, and
having to work overtime with little or no notice--as key sources of
conflict between their responsibilities at work and at home.\34\
---------------------------------------------------------------------------
    \34\ National Partnership for Women & Families and Family Values at
Work. (2011, February). Los Angeles Workers Speak: The Employee Case
for Flexibility in Hourly, Lower-Wage Jobs. Retrieved 7 May 2012, from
http://www.nationalpartnership.org/site/DocServer/W_F_Work
flex_LA_Workers_Voice.pdf?docID=8241.
---------------------------------------------------------------------------
    Recent empirical research confirms that ``flexibility'' can too
often take forms that hurt, rather than help, workers and their
families.\35\ For example, workers, and particularly low-wage workers,
are too often asked to work unpredictable hours--either more hours than
they want through mandatory overtime, or too few hours, which prevents
them from affording basic expenses. ``Flexibility'' too often also
means that workers have little or no advance notice of their work
schedules on a given day or in a given week. The increase in ``just-in-
time'' scheduling, where a worker only finds out just before a shift
whether he or she will be needed that day, means that we have a growing
army of underemployed people who are sitting at home just waiting to
work and uncertain whether they will have earned any money at the end
of the day. ``Flexibility'' for an employer in planning shifts may also
lead to rigid schedules for workers, who are told to report for certain
hours without the ability to even slightly vary starting and ending
times.
---------------------------------------------------------------------------
    \35\ Watson, L., & Swanberg, J. (2011, May). Flexible Workplace
Solutions for Low-Wage Hourly Workers: A Framework for a National
Conversation. Workplace Flexibility 2010 and Institute for Workplace
Innovation (iwin) publication. Retrieved 7 May 2012, from http://
www.uky.edu/Centers/iwin/LWPolicyFinal.pdf.
---------------------------------------------------------------------------
    Scheduling practices that provide little advance notice or control
to workers create significant practical challenges that are often
costly and prevent workers and their families from thriving. Workers
who do not know their schedules or shift lengths in advance cannot
easily find affordable, high-quality child care; they must either pay
for child care they may not use or cobble together last-minute
arrangements with family, friends or babysitters. Unpredictable
schedules also mean that workers face practical challenges in getting
to their jobs because public transportation schedules may not
accommodate their work hours; workers who are ``on call'' may even take
a costly bus or car ride across town to get to work, only to find that
their shifts have been canceled. Scheduling practices and rigid shift
schedules also create barriers to seeking the education and training
that can lead to better and more lucrative employment that provides
greater financial security down the road.
    A growing number of employers and the Administration have
recognized that workplace flexibility is a 21st century imperative. The
Council of Economic Advisers found that, as more businesses adopt
flexibility practices, the benefits to society, in the form of reduced
traffic, improved employment outcomes and more efficient allocation of
employees to employers, may be greater than the gains to individual
businesses and employees.\36\
---------------------------------------------------------------------------
    \36\ Executive Office of the President Council of Economic
Advisors. (2010, March). Work-Life Balance and the Economics of
Workplace Flexibility. Retrieved 7 May 2012, from http://
www.whitehouse.gov/files/documents/100331-cea-economics-workplace-
flexibility.pdf.
---------------------------------------------------------------------------
    Senator Casey's legislation, the Working Families Flexibility Act,
is a good first step that offers some procedural protections to workers
who seek flexibility. It puts in place a process for workers to request
a temporary or permanent change in their work schedules, such as the
number of hours the worker is required to be on the job, the times when
the worker is required to be on the job or on notice, the place the
worker is required to work, and notice of schedule assignments. This
legislation provides workers with job protection when making the
request.
    We must be certain, however, that policy solutions addressing
workplace flexibility work for both employers and employees. Giving
employees a greater voice in the workplace, as the Rebuild America Act
proposes, is critically important. We firmly believe that collective
bargaining provides one of the most effective ways to create a process
of meaningful flexibility in the workplace. Laws providing employees
the ability to leave work for short periods of time during the workday
to attend school meetings are also critically important; some States
have taken the lead on this and we urge Federal lawmakers to follow.
                       the fmla must be expanded
    Finally, we would also ask you to consider several ways to expand
the Family and Medical Leave Act. Such expansions are necessary to
allow more workers to access protections afforded by the law and to
recognize the diversity in our Nation's families. For example, we
should expand the definition of ``family member'' to allow workers FMLA
leave to care for a domestic partner, parent-in-law, adult child,
sibling, grandchild or grandparent. We should allow workers to use FMLA
leave to address domestic violence, sexual assault or stalking and
their effects. Furthermore, in order to deal with one of the most
devastating life experiences, we should amend the FMLA to entitle an
eligible worker to up to 12 weeks of leave to grieve the death of a son
or daughter. And last but not least, we should amend the FMLA to cover
businesses with 25 or more employees--currently the FMLA applies to
employers with 50 or more employees--and to allow part-time employees
to become eligible once they have been on the job for at least 12
months. This is critical in today's economy, given that millions of
Americans are underemployed or relegated to part-time jobs while
seeking full-time employment. Enacting these changes to the FMLA would
provide much-needed relief to the millions of workers currently
ineligible for the leave it provides.
                               conclusion
    Working families in our country need and want family friendly
policies that promote their economic security. Some States and cities
have already taken the lead on this, and the time has come for Federal
action as well. Proposals like the Healthy Families Act, the Rebuild
America Act, paid family and medical leave insurance programs, access
to child care, expanded access to the FMLA, and increased workplace
flexibility would make a tremendous difference to the health and well-
being of our Nation's workers and their families.
    But perhaps just as important, adopting these policies will help
strengthen the middle class, promote economic security for all families
regardless of income, and rebuild our economy. These policies are about
renewing the American dream for millions of workers who play by the
rules and deserve a fair shot.
    Chairman Harkin and members of the committee, we thank you for the
opportunity to participate in this important discussion. At the
National Partnership for Women & Families, we look forward to working
with you to make these policies a reality.

    The Chairman. Thank you very much, Ms. Lichtman.
    Now we will turn to Kimberly Ortiz. Kimberly, welcome and
please proceed.

          STATEMENT OF KIMBERLY ORTIZ, RETAIL WORKER,
                           BRONX, NY

    Ms. Ortiz. Good morning and thank you all very much for
inviting me to speak on this important hearing in honor of
Mother's Day. I am grateful for your dedication to these issues
and for the opportunity to let you know how they have
personally impacted me and my family.
    My name is Kimberly Ortiz, and I am a single mother of two
boys. We live in the Bronx, which is the poorest urban County
in New York City where nearly three in five Hispanic single
mothers, like myself, live in poverty. My son Aiden is almost 6
years old and my son Ethan is 4 years old. They are beautiful
boys who, unfortunately, are both on the autism spectrum and
require special needs.
    Most of my jobs have been in retail and have been low wage.
Starting at 16-years-old, I worked full-time, mostly earning
less than $10 an hour. I stayed at the same jobs for years at a
time, receiving promotions, but no raises to a livable
standard. I learned very young that I was poor and have felt
what poverty is like for most of my life.
    Growing up as a kid, I remember times when we had no
Thanksgiving dinners, or Con Edison would come and cutoff the
lights, and I do not remember a time where we did not rely on
food stamps. Now, as a mother myself working full-time I,
unfortunately, also have to rely on food stamps and Medicaid
because my earnings are simply not enough.
    I worked at the Statue of Liberty for almost 5 years, and
even with the title of assistant manager, was only making $9.25
catering to New York City's large tourist economy where
approximately 4 million people visit each year at $20 a ticket.
Despite the steady flow of tourists to the Statue, I was only
notified of my schedule 3 to 4 days ahead of time. I was
supposed to receive my schedule about a week in advance, which
is not much, but it never happened. Still, I was eager to work
hard and I volunteered my time as much as I could. I would come
in early, offered to stay late, whatever was needed to get the
job done.
    Toward the end of my time at the Statue, I gave birth to my
first son Aiden. I literally did not buy anything for about a
month and a half because I had to take that time off, because
they did not offer any maternity leave or anything like that,
and I was on survival mode. I bought nothing extra except for
what my sons needed, and I had to borrow money here and there
from my very poor family, literally $20 here and there.
    Once Aiden was born, my manager's attitude completely
changed toward me. I still wanted to work full-time, but I
needed hours that were conducive to family life now. So because
I could not come in at 5:30 a.m. anymore, they cut me from 45
hours a week to about 15, even though I had seniority, was
available for more hours, and desperately needed them. My
mangers were not flexible with me even though I had been
extremely flexible with them.
    I worked everywhere in the Statue, from the kitchen, to the
gift shop, to inside the Statue, and the audio tours. I thought
that the years of hard work I provided would come into
consideration. Unfortunately, I was wrong. My managers started
calling me unreliable, and if an emergency popped up, and they
will with newborns, I was penalized.
    One time, my son got really sick with a double ear
infection, and I had to take 4 days off work to care for him. I
called my manager from the emergency room to let her know what
was going on, and she said she did not know if I would be
penalized, if there would be any repercussions for this time
off. I submitted notes from the doctor, but was still
disciplined. These 4 days were unpaid, so once again, I had to
borrow money from friends and family members.
    Healthcare became a huge stress in my life. The Statue of
Liberty offered benefits, but they were very expensive. I made
about $260 a week and $45 went toward this healthcare that they
provided. But I realized that the co-payments were also about
$40, even if I did not need to see a doctor. I discontinued
that coverage and was forced to rely on free clinics, since I
did not qualify for Medicaid. Somehow, $260 a week for a family
of two was too much to be eligible for Medicaid. We would
experience 6-hour waits at the free clinics, and each visit was
an all-day affair. It was a double-edged sword: I had to go to
the doctor, but yet, I had to take the pay cut.
    I sadly realized that the years of loyalty and hard work
meant nothing. It was ironic that I worked at the Statue of
Liberty, the symbol of freedom and liberty, yet I had a full-
time, managerial job and I still could not provide for my
family.
    Because of low wages, scheduling issues, and lack of paid
time off that I have experienced as a working mother, I joined
an organization of retail workers dedicated to improving the
standards and opportunities in the industry called the Retail
Action Project.
    This past fall, I was part of a team that surveyed 500
retail workers in five boroughs of New York City. Went to
dozens of stores and spoke to plenty of workers, and what I
heard was exactly what I had been experiencing. Workers told me
about the erratic, just-in-time scheduling and many people I
spoke to were not put on a regular schedule and had call-in
shifts where you need to call-in 2 hours prior to the time you
are scheduled to see if they need you.
    As a mom, I need to know when I am working so I can
properly set up healthcare. It was hard enough to do that with
3 days' notice; I cannot imagine doing it with 2 hours' notice.
I love to work, I love being a mom, but I need a clear,
consistent schedule and reasonable work hours that would allow
me to still be active and engaged in my children's lives so I
will not have to borrow money when I take a day off from work
or have to go to the doctor.
    I have been fighting to join the middle class for years. I
do what I have to do to survive and invest in my family's
future, working full-time, studying toward a college degree in
social work while being a good mother to my sons. As a single
mother, I need to be present for Aiden and Ethan, and provide
for them. This is what middle class means to me.
    Thank you for your time.
    [The prepared statement of Ms. Ortiz follows:]
                  Prepared Statement of Kimberly Ortiz
    Good morning, and thank you all very much for inviting me to speak
on this important hearing in honor of Mother's Day. I am grateful for
your dedication to these issues, and for the opportunity to let you
know how they have personally impacted my family.
    My name is Kimberly Ortiz, and I'm a single mother of two boys. We
live in the Bronx, which is the poorest urban county in the Nation in
New York City--where nearly three in five Hispanic single mothers like
me live in poverty. My son Aidan is almost 6 years old, and my son
Ethan is 4 years old. They are beautiful boys who are both on the
autism spectrum, and require special needs. Most of my jobs have been
in retail, and have been low-wage. Starting at 16 years old, I worked
full time, mostly earning less than $10/hr. I've stayed at the same
jobs for years at a time, receiving promotions, but no raises to a
livable standard. I learned I was poor at a very young age and have
felt what poverty is like for most of my life. Growing up as a kid, we
had no Thanksgiving dinners, Con Edison would cutoff our lights, and I
don't remember a time that we didn't rely on food stamps to get by.
Now, as a mother myself working full-time, I still have to rely on food
stamps and Medicaid because my earnings are simply not enough.
    I worked at the Statue of Liberty for almost 5 years, and even with
the title of ``Assistant Manager'', I was only making $9.25 an hour at
the gift shop, catering to New York City's large tourist economy, where
approximately 4 million people visit each year, at $20 per ticket.
Despite the steady flow of tourists to the Statue and their steady
hours of operation, I was only notified of my weekly schedule 3-4 days
ahead of time. I was supposed to receive my schedule 1 week in
advance--which isn't much--but that never happened. Still, I was eager
to work hard--I often volunteered to come in early or stay late--
whatever was needed to get the job done. Toward the end of my time at
the Statue, I gave birth to my first son Aidan--and took a month and a
half off without pay, because that job didn't offer any paid time off.
I literally didn't buy anything extra leading up to his birth in order
to save, and was in complete survival mode as my mother helped as much
as she could, and my father helped out with his unemployment, but this
literally meant $20 loans here and there.
    Once Aidan was born, my manager's attitude completely changed
toward me. I still wanted to work full-time, but I needed hours that
were conducive to family life. So, because I couldn't come in at 5:30
a.m. anymore, they cut me from 40-45 hours per week to 15-20, even
though I had seniority, was available for more hours, and desperately
needed them. My managers were not flexible with my hours, even though I
had been extremely flexible for them. I had worked everywhere at the
Statue: in the kitchen, the concession stand, gift shop, and audio
tours--and I thought that the years of hard work I provided would come
into consideration. I was wrong. Managers started calling me
unreliable, and if any emergency popped up (as is typical with any
newborn), I was given a hard time. One time, my son got really sick
with a double ear infection, and I had to take 4 days off. My manager
told me she couldn't guarantee there would be no repercussions for this
unexpected time off when I called her from the hospital emergency room
with my sick son. And sure enough, when I returned to work I was
written up and ``cautioned.'' I submitted notes from the doctor, but I
was still disciplined. These 4 days were all unpaid, so I borrowed
money from friends, family, and neighbors for essentials like diapers
and food. As long as my sons and I have those basic necessities, I know
how to make do with nothing else.
    Health care became a huge stress in my life. The Statue of Liberty
offered benefits, but they cost $45 per week for my son and I. At
first, I paid for the coverage from my weekly paycheck of $260 per
week, but realized the co-pays for any appointment were also $40, and I
simply couldn't afford it any longer. I discontinued that coverage, and
was forced to rely on free clinics since I didn't qualify for Medicaid.
Somehow $260 per week for a family of two was too much income to be
eligible for Medicaid. We'd experience 6 hour waits at the free health
clinics, and each visit was an all day affair--which took away further
time from work. It was a double-edged sword: I had to go to the doctor
because we had no choice, so I had to bite the bullet and take the cut
on my paycheck. Eventually, I sadly realized that the loyalty and years
of work meant nothing. It was ironic that I worked at the symbol of
freedom and liberty for our country, yet, at that full-time managerial
job, I still couldn't provide my family with the basics we needed to
live in our city.
    I'm thankful that my mother is available to assist with childcare,
and I pay her out of my paychecks on a weekly basis. But because the
Statue of Liberty gave me such little advance notice of my schedule,
it's very difficult to let my mother and cousin know when I need them
to be available. And because my children have special needs, it was not
easy to find adequate caregivers. If my mother is unavailable when I've
been scheduled for work, I rely on my cousin. If they are both
unavailable, I need to call out from my job. It's very helpful to be on
Medicaid now, due to my sons' diagnosis and having a temporary job, but
our eligibility is always being re-evaluated and I can't rely on it
forever.
    Because of the low wages, scheduling issues, and lack of paid time
off that I've experienced as a working mother, I joined an organization
of retail workers dedicated to improving the standards and
opportunities in the industry, called the Retail Action Project. This
past fall, I was part of a team that surveyed 500 retail workers in all
five boroughs of New York City. I went to dozens of stores and spoke to
sales, stock, and cashier workers about their wages, schedules, and
paid sick days. And what I heard was exactly what I'd been
experiencing! We found that women of color in retail are paid less, are
less likely to be promoted, and often don't receive benefits like
health care or paid sick days through their employer. Workers told me
about their erratic ``just in time'' schedules, and many people I spoke
with weren't put on the regular schedule, but had ``call-in'' shifts
where they were required to call in to their jobs 2 hours before their
shift to see if the store needed them. People are expected to reserve
their availability on these ``call-in'' days, because their employer
may need them. As a mom, I need to know when I'm working to properly
set up childcare. It was hard enough with 3 days' notice, so I can't
even imagine 2 hours notice! Out of all the workers surveyed, less than
a quarter had ever taken a paid sick day, and only 17 percent had a set
schedule. These stories and numbers really echoed what I had been
through.
    I love to work and I love being a mom, but I need a clear,
consistent schedule and reasonable work hours that would allow me to
still be an active, engaged parent in my children's lives. I am more
than willing to work hard. I want to work full time, and I should be
paid a living wage, and have a few paid sick days for myself or my
sons--so I won't have to borrow money for food and diapers when I take
a day off work to take my son to the ER. I've been fighting to join the
middle class for years, I do what I have to do to survive and invest in
my family's future--working full-time, studying towards a college
degree in social work while being a good mother to my sons. But working
without some basics, I won't be able to get there. A few paid sick days
a year, a set schedule, and wages that keep up with the rising cost of
living would make a tremendous difference in my family's life. As a
single mother, I need to be present for Ethan and Aiden, and provide
for them. This is what middle class means to me. Thank you very much
for your time.

    The Chairman. Well, thank you, Ms. Ortiz, for a very
poignant, powerful presentation. It is nice to hear what real
life is like once in a while around this place.
    Ms. Phillips.

  STATEMENT OF JUANITA PHILLIPS, DIRECTOR OF HUMAN RESOURCES,
  INTUITIVE RESEARCH AND TECHNOLOGY CORP., HUNTSVILLE, AL; ON
  BEHALF OF THE SOCIETY FOR HUMAN RESOURCE MANAGEMENT (SHRM),
                         ALEXANDRIA, VA

    Ms. Phillips. Good morning, Chairman Harkin, Ranking Member
Enzi, and distinguished Senators.
    My name is Juanita Phillips and I am director of human
resources at Intuitive Research and Technology Corporation; we
just go by INTUITIVE. Thank you for this opportunity.
    On a personal note, I am a mother of two, and have two
granddaughters, three of the members of my HR team are also
young mothers, so we are all excited about Mother's Day this
weekend.
    I appear before you today on behalf of the Society for
Human Resource Management or SHRM. SHRM is engaged in a
significant effort to educate HR professionals and their
organizations about the importance of effective and flexible
workplaces, which has included their partnership with the
Families and Work Institute, one of the key elements of which
is the When Work Works Initiative. In addition, SHRM co-chairs
the National Coalition to Protect Family Leave, which is a
broad-based group dedicated to protecting the integrity of the
Family and Medical Leave Act.
    My organization, INTUITIVE, has 243 employees. As a
relatively small, flexible employer, we can be creative in
providing employee benefits and programs. These practices have
helped us achieve a 92 percent retention rate and earned us a
lot of recognition. We were named the No. 2 ``Best Small
Company to Work For in the U.S.'' in 2011 by the Great Place to
Work Institute, and ranked No. 2 in the ``Best for Vets Award''
given by the Military Times EDGE magazine for 2012. We also
appeared in AARP's ``Top 50 Employers in the U.S. for Workers
Over 50'' 3 years in a row.
    These awards, along with many others, are evidence of the
success of the programs and overall approaches we take in
helping our people manage their home and work responsibilities.
    Some of the components of INTUITIVE's approach to fostering
such an effective and flexible workplace include: first, we
offer flexible work hours. Our full-time exempt employees work
80 non-prescribed hours during a 2-week pay period, providing
them flexibility for appointments, school activities and other
events. And our employees work a variety of arrangements.
Previously retired employees find our flexible scheduling
particularly attractive. In fact, 25 percent of our employees
are actually retired from somewhere else.
    We also give generous paid time off, or PTO, which is the
combination of vacation and sick leave. The PTO approach treats
employees as adults. They manage their time off accrual,
however they wish, without keeping track of multiple banks of
leave or needing excuses to give us to satisfy requirements for
certain types of leave.
    Then there are our parental leave benefits. Our short-term
disability, which is available to all full-time employees at
no-cost provides 70 percent of regular pay for up to 11 weeks
for new moms. We bonus with PTO as well and employees have
chosen to use the paid benefits that INTUITIVE provides rather
than electing to use unpaid FMLA.
    We have a very robust veteran's information program, or VIP
we call it, that includes providing up to 3 days off with pay
per year for VA hospital appointments, or for a family member's
mid-tour return visit. And we love calling our vets VIP's.
    Mr. Chairman, all these practices are voluntary. INTUITIVE
offers these benefits because they work for our employees, and
they help us attract and retain the best. We are an example of
why SHRM has strong concern with a one-size-fits-all mandate
contained in Senate 984, the Healthy Families Act.
    First, the qualifying events in the bill are ill-defined.
We anticipate that employers and employees will have the same
types of difficulties as they do with the administering of
intermittent FMLA leave.
    Second, the Healthy Families Act would force employers to
comply with yet another statute in the already complex web of
inconsistent leave obligations.
    Third, the Healthy Families Act would disrupt current
employer paid leave practices. It would require all covered
employers to amend or drop existing leave policies in order to
comply.
    Fourth, employers would have to cutback or eliminate other
employee benefits such as health or retirement benefits, or
forego wage increases, or in our case, decrease profit sharing.
Many employees may prefer higher wages or other benefits over
receiving additional paid sick leave.
    It has been argued that generous employers like mine,
INTUITIVE, should welcome the Healthy Families Act because it
would level the playing field, but that misses the point. We
give generous paid leave so we can be an employer of choice.
What we do not want is a government-imposed paid leave mandate
to take away our competitive edge.
    While SHRM has serious concerns about the Healthy Families
Act, both SHRM and its members believe the United States must
have a 21st century workplace flexibility policy that meets the
needs of both employees and employers.
    SHRM has developed five principles to help guide the
creation of a new workplace flexibility statute. In short, we
believe in return for meeting a minimum requirement, employers
who choose to provide paid leave should qualify for a
statutorily defined safe harbor. If Congress wants to compel
employers to offer paid leave, we do not believe it should
punish the employers that already do.
    Mr. Chairman, SHRM remains committed to working with the
committee to help ensure employees have more access to leave.
    Thank you.
    [The prepared statement of Ms. Phillips follows:]
                 Prepared Statement of Juanita Phillips
                              introduction
    Good morning Chairman Harkin, Ranking Member Enzi, and
distinguished Senators. My name is Juanita Phillips, and I am director
of Human Resources at Intuitive Research and Technology Corporation
(INTUITIVE) at our company headquarters in Huntsville, AL. I am pleased
to appear before you today on behalf of the Society for Human Resource
Management (SHRM), of which I have been a member for nearly 20 years. I
am also a member of the north Alabama SHRM chapter and the Alabama SHRM
State Council. Thank you for this opportunity to testify before the
committee on workplace flexibility issues.
    By way of introduction, I have over 24 years of experience as an HR
professional at a publishing company, an engine manufacturing company
and several Federal Government contractors. I've managed HR in both
collective bargaining and non-unionized environments.
    SHRM is the world's largest association devoted to human resource
(HR) management. Representing more than 260,000 members in over 140
countries, the Society serves the needs of HR professionals and
advances the interests of the HR profession. Founded in 1948, SHRM has
more than 575 affiliated chapters within the United States and
subsidiary offices in China and India.
    SHRM co-chairs the National Coalition to Protect Family Leave,
which is a broad-based group of organizations, companies and
associations dedicated to protecting the integrity of the Family and
Medical Leave Act of 1993. The Coalition supports public policy that
promotes voluntary, employer-provided leave benefits to maximize
flexibility for both employers and employees.
    In addition to advocating for a new approach to workplace
flexibility public policy, SHRM has also engaged in a significant
effort to educate HR professionals and their organizations about the
importance of effective and flexible workplaces. In February 2011, SHRM
formed a multi-year partnership with the Families and Work Institute
(FWI), the preeminent work-family think tank known for rigorous
research on workplace flexibility issues. One of the key elements of
the SHRM/FWI partnership is called the When Work Works program, a
nationwide initiative that intends to promote workplace flexibility
through research and local partnerships. Additional information about
the SHRM/FWI partnership is offered toward the conclusion of my
testimony.
    My organization, INTUITIVE, is an engineering and analytical
services firm begun in 1999 with one contract and two employees. Our
two owners, located next door and down the hall from me, are very
active workers in the company. We have 243 employees; all but about a
dozen work within Alabama. It is not easy to get a job with INTUITIVE;
we put a great deal of effort into our hiring processes. We are not
hiring a person for a specific job but are choosing someone to be part
of our company. We then put a great deal of thought and planning into
how we will keep those people and are very proud of our 92 percent
retention rate. Each full-time employee has a written plan of what he
or she would like to accomplish professionally, and I touch base with
each manager quarterly to talk about progress toward those plans. In
the 13 years we have been in business, we have not laid off anyone due
to lack of work. We are 26 percent veterans, 16 percent disabled, 25
percent retired from elsewhere, and 10 percent co-ops, interns and
student hires.
    In today's economy, organizations must compete in the global market
for skilled, dedicated employees, while managing their labor costs and
expenses to remain competitive. HR professionals and employers must
also address how to manage their business when faced with challenges
such as employee absences due to illness, injury, military deployment
or other circumstances. These situations, if not managed correctly, can
lead to added workload for colleagues, as well as low employee
productivity and low morale. Flexible work arrangements can often help
employers meet the needs of their employees under these circumstances,
but the same approach will not work for all positions and employees.
    In my testimony, I will share with you some of the workplace
flexibility practices at my company, reveal recent SHRM research on
employer-provided benefits, describe the merits and challenges inherent
in the Family and Medical Leave Act (FMLA) and proposed Healthy
Families Act, discuss SHRM's effort to educate HR professionals and
their organizations about the importance of effective and flexible
workplaces, and offer SHRM's workplace flexibility policy
recommendations to Congress.
              workplace flexibility practices at intuitive
    Being a small company of 243 employees, INTUITIVE is able to be
creative in providing employee benefits and programs. These practices
have helped us achieve a 92 percent retention rate and have earned us
recognition by several organizations. We were named the No. 2 Best
Small Company to Work for in the United States in 2011 by the Great
Place to Work Institute (two-third of scoring based on anonymous on-
line employee surveys),\1\ and ranked No. 2 in the Best for Vets Award
given by the Military Times/Edge magazine for 2012.\2\
---------------------------------------------------------------------------
    \1\ Great Place to Work Institute (2011). Great Place to Work
Rankings: 2011 Best Small & Medium Workplaces. http://
www.greatplacetowork.com/best-companies/2011-the-great-place-to-workr-
rankings-the-best-small-a-medium-workplaces-presented-by-entrepreneurr-
/678.
    \2\ Military Times EDGE (2012). Best for Vets 2012: Employers.
http://www.militarytimesedge
.com/projects/best-for-veterans/best-employers-for-veterans/2012/.
---------------------------------------------------------------------------
    In 2011, INTUITIVE was the only company in north Alabama to be
recognized for the fourth year in a row as one of the Best Places to
Work in Huntsville (entirely based on anonymous on-line employee
surveys) by the Huntsville/Madison County Chamber of Commerce, the
North Alabama Society for Human Resource Management and the National
Children's Advocacy Center. We also won the Family Friendly Award for
Huntsville, and we have appeared in AARP's Top 50 Employers in the U.S.
for Workers over 50 for the last 3 years in a row. These awards are
evidence of the programs and overall approaches we take at INTUITIVE in
helping our people manage their home and work responsibilities.
    Having the ability to design our workplace policies and practices
in ways that support our mission and values, and that develop and
fulfill our employees, is critical to us. Organizations like ours want
to be able to continue to manage our workplace in ways that work for
our company culture and help us meet our business objectives. It is of
utmost importance to us to inspire and engage our employees. Our 92
percent retention rate, and a greater than 1,330 percent increase in
the number of individuals applying for positions in the last few years,
both can be greatly attributed to our employees feeling that their work
is more than just a job. In fact, the ``wall words'' on the wall in the
HR department state: ```Nothing sells our company like the stories of
engaged workers who take pride in where they work.''
    Here are some of the components of INTUITIVE's approach to being an
effective and flexible workplace:

    Flexibility--One of the key components for helping employees meet
their work and life obligations is being able to offer flexible work
hours. Because we serve many customers that have differing approaches
to work hours, we are generally able to match up candidates and
employees with the type of flexibility they need. This can sometimes
even be done on a temporary basis, when an employee has such a need. We
have full-time and part-time positions, and a ``provisional'' category.
This is a category for those who don't fit the other two--such as those
who work full-time for periods of time and then part-time for periods
of time; those who work on a couple of projects per year and don't work
in between; those whose hours are sporadic; and our co-ops, interns,
and student hires. Our full-time exempt employees work 80 non-
prescribed hours during the 2-week pay period, providing them with
flexibility for appointments, school activities, and other events. We
also have employees who have compressed work weeks, some who
telecommute, and we also offer job sharing and phased retirement.
Employees can better meet their work and life needs when flexible
options are available.
    While we provide a flexible workplace for all employees, our
flexible work schedule is especially attractive to retirees. We have
many employees who have previously retired, but come to work for us
because they have the skills we need to support specific customers. Our
structure allows us to be able to provide the flexibility they often
want. In fact, 25 percent of our employees are retired from elsewhere,
and 8 percent are using our phased retirement approach. Overall, 30
percent of our workforce has flexible start and stop times; 10 percent
have a compressed work week; and 4 percent work from home. We believe
all these practices contribute to our ability to attract, hire, and
retain the best talent.
    PTO--INTUITIVE offers employees Paid Time Off (PTO) leave, which is
a combination of vacation and sick leave. The amount of PTO we offer to
our employees is above the average in our area, per Chamber of Commerce
sponsored wage and benefit surveys. New employees receive 15 PTO days
per year, accrued per pay period and available for use immediately, and
employees reach 20 days of PTO at 3 years of service. The PTO approach
to providing leave is consistent with treating employees as adults;
they manage their time-off accruals however they wish without keeping
track of multiple banks of leave or needing excuses to satisfy
requirements for certain types of leave. Additionally, there are no
issues over whether sick leave covers caring for a child or a relative,
or the employee's own illness. PTO can be used for any reason and no
documentation is required by the employee. Along with our monetary
bonus programs, we also have the option of giving employees additional
PTO, especially those employees with circumstances where they may
appreciate additional PTO days more than money. Overall, providing our
employees PTO leave instead of separate vacation and sick leave
contributes positively to our professional environment.
    Holidays--Another way we provide flexibility to our employees is
that INTUITIVE makes all 10 of our holidays floatable. If employees
prefer to work any particular holiday, they may do so as long as their
workplace is open that day and they have supervisory approval. All
earned holidays simply must be used before the end of the calendar
year. This approach is valuable to an employee in that it provides them
with flexibility for scheduling time off, and for making their holidays
coincide or alternate with a working spouse's holidays, depending on
their needs.
    Veterans Programs and VIP Leave--I mentioned that INTUITIVE was
named the No. 2 Best for Vets Award winner among employers, according
to Military Times/Edge Magazine this year. INTUITIVE has a very active
veterans network within the company, and a very robust veterans
program, including each new-hire vet getting to meet our VIP (Veterans
Information Program) Contact Coordinator on his or her first day and
then being connected to a veteran within the company through a
mentoring program. We have a VIP site on our employee intranet portal,
which is dedicated entirely to information and resources for our
veterans. One component of our VIP Program is VIP Leave, which provides
up to 3 days off with pay per year for appointments at a VA hospital or
for a family member's mid-tour return visit. Additionally, activated
reservists are given the difference between their military pay and
their civilian pay for up to 6 months. And we love calling our vets
``VIPs.''
    Elder Care Benefit--We see employees who are also caregivers
becoming more common. Some of our employees are not only taking care of
children, but are also taking care of elderly loved ones. We are proud
to have an elder care benefit that provides each employee with a free,
annual, 45-minute consultation with experts in the field of elder care,
and provides discounts on further services. This benefit also includes
four ``Lunch `n' Learn'' seminars annually on various elder care
topics, which a spouse or family member may also attend. A Lunch `n'
Learn session is also provided for managers on the topic of supervising
caregivers. The information shared is excellent, the resources are much
appreciated, and it is a program that further assists employees with
meeting their personal and work needs.
    Parental Leave and Disability Insurance--Our short-term disability,
which is available to all full-time employees at no cost and available
for purchase by non-full-time employees, provides 70 percent of regular
pay for up to 11 weeks for new mothers. When fathers in our company
plan to take time off for a birth or adoption, they generally have
saved enough leave for the event. When they are short, we find a
performance event for which to provide them a bonus of additional PTO.
We also provide an Adoption Benefit, which is financial assistance
awarded upon completion of a successful adoption in which neither
adopting parent is the biological parent. Due to our generous short-
term disability policy and bonus practices, employees have generally
chosen to use those benefits rather than electing to use FMLA in the
13-year life of our company. In addition to the short-term disability
described above, the company provides long-term disability to all full-
time employees, and makes it available for purchase to non-full-time
employees.
    Mr. Chairman, at its core, workplace flexibility is about improving
business results by giving people more control over their work time and
schedules. Traditionally, ``work flex'' meant variable hours. Today,
when we say work flex, we are talking about an effective workplace
where realistic work patterns meet the needs of both employers and
employees.
    All of these practices I described are voluntary. We are not
required to offer these benefits at INTUITIVE, but we do because they
work well for our employees and help us attract and retain the best
people. However, if INTUITIVE's benefits were forced onto another
employer in Huntsville, or across the State or the country, these
benefits might not work as well in meeting the business needs of their
organizations and the personal needs of their employees. For flexible
workplaces to be effective, they have to work for both the employee and
the employer. What works at one organization may not be appropriate for
another organization's culture, business structure or industry.
                             shrm research
    On April 30, 2012, SHRM and the Families and Work Institute (FWI)
jointly released the 2012 National Study of Employers.\3\ First
conducted by FWI in 1998, the National Study of Employers is the most
comprehensive and far-reaching study of the practices, policies,
programs and benefits provided by U.S. employers to address the
changing needs of today's workforce and workplace, including workplace
flexibility, health care and economic security benefits, care-giving
leave and elder care assistance.
---------------------------------------------------------------------------
    \3\ Matos, K. & E. Galinsky (2012). 2012 National Study of
Employers. http://familiesand
work.org/site/research/reports/NSE_2012_.pdf.
---------------------------------------------------------------------------
    This survey found that employers are increasing employees' options
for managing when and where they work, while reducing some options that
affect how much they work. For example, significantly more employers
are allowing at least some employees to:

     use flex time and periodically change starting and
quitting times within some range of hours (66 percent in 2005 to 77
percent in 2012);
     take time off during the workday to attend to important
family or personal needs without loss of pay (77 percent in 2005 to 87
percent in 2012);
     work some of their regular paid hours at home on an
occasional basis (34 percent in 2005 to 63 percent in 2012); and

    At the same time, opportunities to work a reduced schedule or take
extended leaves away from work have declined. Significant decreases
were found in employers allowing at least some of their employees to:

     return to work gradually after childbirth or adoption (86
percent in 2005 to 73 percent in 2012),
     take a career break for personal or family
responsibilities (73 percent in 2005 to 52 percent in 2012), and
     move from full-time to part-time work and back again while
remaining in the same position or level (54 percent in 2005 to 41
percent in 2012).

    While there has been a decrease in the maximum length of care-
giving leaves for new fathers following childbirth, new adoptive
parents, and employees caring for seriously ill family members, the
study also found that more employers today are providing at least some
replacement pay for maternity leave during the period of disability.
    The data show that employers continue to find ways to offer
flexibility to their employees, despite the economic challenges they
face. Employers are dealing with lingering economic instability by
trying to accomplish more with fewer employees. While it may have been
expected that employers would cut back on flexibility entirely during
the economic downturn, we are seeing employers leverage flexibility to
remain competitive and recruit and retain the best talent.
    Each year, SHRM surveys its members to produce an Employee Benefits
research report that provides comprehensive information about the types
of benefits U.S. employers offer to their employees. For the 2011
Employee Benefits research report by SHRM, 284 benefits were explored,
covering the areas of health care and welfare benefits, preventive
health and wellness benefits, retirement savings and planning benefits,
financial and compensation benefits, leave benefits, family friendly
benefits, flexible working benefits, employee services benefits,
housing and relocation benefits, and business travel benefits. The
report also examines trends in employee benefit offerings over the last
5 years.
    Regarding paid leave benefits, the 2011 Employee Benefits research
report found that:

     97 percent of respondents said their organizations provide
paid holidays,
     92 percent provide paid vacation days (48 percent provide
paid time off (PTO) plans, 44 percent provide paid vacation plans), and
     90 percent provide paid bereavement leave.

    Regarding flexible working benefits, the report revealed that:

     53 percent provide flextime,
     45 percent provide telecommuting on an ad-hoc basis, 34
percent provide telecommuting on a part-time basis, and 20 percent
provide telecommuting on a full-time basis, and
     35 percent provide compressed workweek.\4\
---------------------------------------------------------------------------
    \4\ Society for Human Resource Management (2011). 2011 Employee
Benefits: A Research Report by SHRM.
---------------------------------------------------------------------------
                      family and medical leave act
    The Family and Medical Leave Act of 1993 (FMLA) provides unpaid
leave for the birth, adoption or foster care placement of an employee's
child, as well as for the ``serious health condition'' of a spouse,
son, daughter, or parent, or for the employee's own medical condition.
The leave also provides specific protections for employees who have
family members that have been called-up to serve on active duty in the
military or for employees to take care of a covered service member who
has suffered an injury or illness incurred in the line of duty.
    From the beginning, HR professionals have struggled to interpret
various provisions of the FMLA. What began as a fairly simple 12-page
document has become 200 pages of regulations governing how the law is
to be implemented. This is the result of a well-intentioned, but
counter-productive attempt to anticipate every situation in every
workplace in every industry--without regard for the evolving and
diverse needs of today's workforce or the new operations and
technologies that organizations employ to stay competitive.
    Among the problems associated with implementing the FMLA are the
definitions of a serious health condition, intermittent leave, and
medical certifications. In fact, 47 percent of SHRM members responding
to the 2007 SHRM FMLA and Its Impact on Organizations Survey reported
that they have experienced challenges in granting leave for an
employee's serious health condition as a result of a chronic condition
(ongoing injuries, ongoing illnesses, and/or non-life threatening
conditions). Vague FMLA rules mean that practically any ailment lasting
3 calendar days and including a doctor's visit now qualifies as a
serious medical condition. Although we believe Congress intended
medical leave under the FMLA to be taken only for truly serious health
conditions, SHRM members regularly report that individuals use this
leave to avoid coming to work even when they are not experiencing
serious symptoms. This behavior is damaging to employers and fellow
employees alike.
    I have experienced the above difficulties at various organizations.
However, while our employees are covered by and eligible for the FMLA,
INTUITIVE is generally able, through our programs, to provide short-
term disability and paid leave benefits to employees while they are out
on leave. When an employee returns from leave, he or she returns to
their same work, or something even better that is in keeping with their
personal professional goals, which as I mentioned are in writing and
are routinely reviewed for progress.
                          healthy families act
    Mr. Chairman, we share the goal that employees should have the
ability to take time off to attend to their own or a close family
member's health, or to seek or provide help related to domestic
violence. However, at a time when employers are facing unprecedented
challenges, imposing a costly paid leave mandate on employers could
easily result in additional job loss or cuts in other important
employee benefits.
    As a result, SHRM has strong concerns with the one-size-fits-all
mandate contained in S. 984, the ``Healthy Families Act (HFA).'' The
bill would require public and private employers with 15 or more
employees to provide 56 hours--effectively 7 days--of paid sick leave
annually to each employee. Employees who work for 20 or more calendar
workweeks in the current or preceding year would be eligible for HFA
leave, and they would accrue 1 hour of paid sick leave for every 30
hours worked. Under the HFA, an employee begins accruing the sick time
upon commencement of employment and is able to begin using the leave
after 60 days. The paid sick time could be used for the employee's own
medical needs or to care for a child, parent, spouse, or any other
blood relative, or for an absence resulting from domestic violence,
sexual assault or stalking. While the HFA presents a host of practical
concerns, I would note four significant challenges with this bill from
an HR professional's perspective.
    First, despite the merit of employer-provided leave for the nominal
events in the legislation, the qualifying events that may trigger leave
eligibility for the employee in the HFA, like the current FMLA, are
still vague and ill-defined. Under the current FMLA, employers and
employees alike must make a determination if the requested leave is
eligible for coverage as a qualifying event. While in many instances
this determination of leave eligibility under the FMLA can be made
easily, in others it requires the employer and employee to make a
rather subjective, sometimes intrusive determination to determine leave
eligibility--often leaving both parties frustrated and distrustful of
each other. The HFA allows an employer to require an employee's request
for paid sick time be supported by a certification issued by a health
care provider, but only if the leave duration was longer than 3
consecutive workdays. But episodic or intermittent leave use under the
FMLA remains the primary administrative challenge for employers. Thus,
unfortunately, we anticipate that employers and employees will have a
similar experience under the HFA in trying to determine leave
eligibility.
    Second, the HFA would disrupt current employer paid leave
offerings. For example, the legislation states that unless the
employer's existing leave policy meets the ``requirements'' and the
``purposes and conditions outlined in subsection (b)'', the employer
will still be required to provide the additional paid sick time
required by the HFA. If enacted, the HFA would require all covered
employers to amend or drop their existing leave policies to comply with
the HFA requirements. HR professionals, not the Federal Government, are
best situated to understand the benefit preferences of the employees at
their respective organizations.
    Third, the HFA specifically states that the Act does not
``supersede (including preempting) any provision of any State or local
law that provides greater paid sick time or leave rights,'' thus
forcing employers to comply with a patchwork of varying Federal, State
and local leave laws--as well as their own leave policies. As it stands
now, employers consistently report challenges in navigating the various
conflicting requirements of overlapping State and Federal leave and
disability laws. The HFA would only add to the already complex web of
inconsistent but overlapping leave obligations.
    Finally, the HFA's inflexible approach could cause employers to
reduce wages or other benefits to pay for the leave mandate and
associated compliance costs, thereby limiting employees' benefit and
compensation options. Any employer has a finite pool of resources for
total compensation. Thus, if organizations are required to offer paid
sick leave, they will likely absorb this added cost by cutting back or
eliminating other employee benefits, such as health or retirement
benefits, or forgo wage increases. Keep in mind that many employees may
prefer higher wages or other benefits over receiving more paid sick
leave--yet another way the HFA's one-size-fits-all approach will not
meet the needs of all employees.
    SHRM believes the Federal Government should encourage paid leave--
without creating new mandates on employers and employees. As has been
our experience under the FMLA, proscriptive attempts to micro-manage
how, when and under what circumstances leave must be requested,
granted, documented and used would be counter-productive to encouraging
flexibility and innovation. If an employer paid sick leave mandate were
enacted, an employer's focus would have to be on documentation of
incremental leave and the reasons for the leave, rather than on seeking
innovative ways to help employees to meet the demands of both their
work and personal lives.
    As mentioned, my company provides 20 days of paid leave, plus 10
floatable paid holidays, and other leave including bereavement and VIP
leave. It is unclear whether the HFA would require INTUITIVE to provide
another 7 days of leave in addition to our PTO. In this economy, many
employers cannot afford that. Even those that can afford it will have
to cut employee benefits somewhere else. In our case at INTUITIVE,
profits are shared with the employees through our profit sharing
program. The cost of adding 7 additional days of paid leave, on top of
our 30-plus days of leave, would have to come from somewhere and would
therefore curtail or remove some other benefit, or lessen our profit
sharing.
    It's been argued that generous employers like INTUITIVE should
welcome the HFA because it would level the playing field for small
businesses that offer paid leave. But that view misses the point of why
INTUITIVE or any employer gives paid leave. We provide generous paid
leave so that we can continue to be an employer of choice for employees
and applicants in our area. What we do not want is a government-imposed
paid leave mandate to take away our competitive edge over other
employers.
    If Congress wants to compel employers to offer paid leave, we do
not believe it should punish the employers that already do.
Organizations such as ours that are already extremely successful with
flexible workplace outcomes should not be brought down to the mediocre
level that regulatory approaches would be trying to get not-so-well-run
companies up to achieving.
   shrm's principles for a 21st century workplace flexibility policy
    While SHRM has serious concerns about the HFA, both SHRM and its
members believe the United States must have a 21st Century workplace
flexibility policy that reflects the nature of today's workforce, and
that meets the needs of both employees and employers. It should enable
employees to meet their work and personal needs while providing
predictability and stability to employers. Most importantly, such an
approach must encourage employers to offer greater flexibility,
creativity and innovation to meet the needs of their employees and
their families.
    In 2009, SHRM developed a set of five principles to help guide the
creation of a new workplace flexibility statute.\5\ In essence, SHRM
believes that all employers should be encouraged to provide paid leave
for illness, vacation and personal days to accommodate the needs of
employees and their family members. In return for meeting a minimum
eligibility requirement, employers who choose to provide paid leave
would be considered to have satisfied Federal, State and local
requirements and would qualify for a statutorily defined ``safe
harbor.'' The principles are as follows:
---------------------------------------------------------------------------
    \5\ Society for Human Resource Management (2009). Principles for a
21st Century Workplace Flexibility Policy http://www.shrm.org/Advocacy/
Issues/WorkplaceFlexibility/Documents/
051209%20FINAL%20WF%20Principles.pdf.

    Shared Needs--SHRM envisions a ``safe harbor'' standard where
employers voluntarily provide a specified number of paid leave days for
employees to use for any purpose, consistent with the employer's
---------------------------------------------------------------------------
policies or collective bargaining agreements. A Federal policy should:

     Provide certainty, predictability and accountability for
employees and employers.
     Encourage employers to offer paid leave under a uniform
and coordinated set of rules that would replace and simplify the
confusing--and often conflicting--existing patchwork of regulations.
     Create administrative and compliance incentives for
employers who offer paid leave by offering them a safe-harbor standard
that would facilitate compliance and save on administrative costs.
     Allow for different work environments, union
representation, industries and organizational size.
     Permit employers that voluntarily meet safe harbor leave
standards to satisfy Federal, State and local leave requirements.

    Employee Leave--Employers should be encouraged to voluntarily
provide paid leave to help employees meet work and personal life
obligations through the safe harbor leave standard. A Federal policy
should:

     Encourage employers to offer employees with some level of
paid leave that meets minimum eligibility requirements as allowed under
the employer's safe harbor plan.
     Allow the employee to use the leave for illness, vacation,
personal and family needs.
     Require employers to create a plan document, made
available to all eligible employees, that fulfills the requirements of
the safe harbor.
     Require the employer to attest to the U.S. Department of
Labor that the plan meets the safe harbor requirements.

    Flexibility--A Federal workplace leave policy should encourage
maximum flexibility for both employees and employers. A Federal policy
should:

     Permit the leave requirement to be satisfied by following
the policies and parameters of an employer plan or collective
bargaining agreement, where applicable, consistent with the safe harbor
provisions.
     Provide employers with predictability and stability in
workforce operations.
     Provide employees with the predictability and stability
necessary to meet personal needs.

    Scalability--A Federal workplace leave policy must avoid a mandated
one-size-fits-all approach and instead recognize that paid leave
offerings should accommodate the increasing diversity in workforce
needs and environments. A Federal policy should:

     Allow leave benefits to be scaled to the number of
employees at an organization; the organization's type of operations;
talent and staffing availability; market and competitive forces; and
collective bargaining arrangements.
     Provide pro-rated leave benefits to full- and part-time
employees as applicable under the employer plan, which is tailored to
the specific workforce needs and consistent with the safe harbor.

    Flexible Work Options--Employees and employers can benefit from a
public policy that meets the diverse needs of the workplace in
supporting and encouraging flexible work options such as telecommuting,
flexible work arrangements, job sharing and compressed or reduced
schedules. Federal statutes that impede these offerings should be
updated to provide employers and employees with maximum flexibility to
balance work and personal needs. A Federal policy should:

     Amend Federal law to allow employees to manage work and
family needs through flexible work options such as telecommuting,
flextime, part-time, job sharing and compressed or reduced schedules.
     Permit employees to choose either earning compensatory
time off for work hours beyond the established work week, or overtime
wages.
     Clarify Federal law to strengthen existing leave statutes
to ensure they work for both employees and employers.
               workplace flexibility educational efforts
    As explained earlier in my testimony, in addition to advocating for
a new approach to workplace flexibility public policy, in February 2010
SHRM has also formed a multi-year partnership with the Families and
Work Institute (FWI).
    The primary goal of this partnership is to transform the way
employers view and adopt workplace flexibility by combining the
research and expertise of a widely respected organization specializing
in workplace effectiveness with the influence and reach of the world's
largest association devoted to human resource management.
    By highlighting strategies that enable people to do their best
work, the partnership promotes practical, research-based knowledge that
helps employers create effective and flexible workplaces that fit the
21st century workforce and ensures a new competitive advantage for
organizations.
    Although FWI is an independent non-advocacy organization that does
not take positions on these matters, and the position of SHRM should
not be considered reflective of any position or opinion of FWI, I'd
like to briefly mention one of the key elements of the SHRM/FWI
partnership, the When Work Works program. It seeks to educate and
showcase employers who are meeting the needs of our 21st century
workforce.
    When Work Works is a nationwide initiative to bring research on
workplace effectiveness and flexibility into community and business
practice. Since its inception in 2005, When Work Works has partnered
with an ever-expanding cohort of communities from around the country
to:

     Share rigorous research and employer best practices on
workplace effectiveness and flexibility.
     Recognize exemplary employers through the Alfred P. Sloan
Awards for Business Excellence in Workplace Flexibility.
     Inspire positive change so that increasing numbers of
employers understand how flexibility can benefit both business and
employees, and use it as a tool to create more effective workplaces.
                               conclusion
    In the global, 21st century economy, workplace flexibility policies
help multinational corporations, non-profit organizations and small
businesses meet the needs of their employees. At its core, workplace
flexibility is about improving business results by employers giving
people more control over their work time and schedules. My company,
INTUITIVE, in Huntsville, AL, and employers across the country, know
best how to compete for talent by providing benefits that can help
employees succeed in their specific industries and manage their lives
away from the workplace.
    My company is uncommon in the magnitude of its success. But we are
not alone. There are many, many wonderful places to work out there in
this country, and we should not let efforts here in Washington take
away their ability to continue to create good jobs and great places to
work.
    SHRM remains committed to working with the committee and other
Members of Congress to ensure employers can continue to provide
flexible paid leave to employees in a manner that does not threaten
existing benefits or create unnecessary and counterproductive
regulations. We believe it's time to pursue a new approach to this
issue absent of rigid, unworkable mandates that result in unfavorable
and unintended consequences. It's time to give employees greater
flexibility and to give employers more predictability. It's time to
encourage paid leave--without stifling existing innovative benefits or
hindering job creation.
    Thank you. I am happy to answer any questions you may have.

    The Chairman. Thank you very much, Ms. Phillips.
    And now we will begin a round of 5 minute questions. I will
start with Ms. O'Leary. In your testimony, you talked about how
the number of benefits under the Pregnancy Discrimination Act,
how the number increased,

          ``From 1961 to 1965, only 14 percent of college-
        educated women workers received paid leave through,
        before or after, the birth of the first child. This
        number dramatically increased to 59 percent in the
        immediate period after passage of the PDA, and holds at
        66 percent of professional workers in 2008.''

    OK, but the next sentence is what is important,

          ``For less educated workers, the law has made little
        difference with regard to employee benefits because
        these workers are less likely to have access to any
        paid leave. For workers with less than a high school
        degree, the access to paid leave after childbirth
        remains nearly constant from 1961 to 2008, fluctuating
        between 18 and 19 percent.''

    I was just listening to Ms. Phillips. I do not know about
INTUITIVE, I do not know the nature of the workforce, but it
sounds like a highly educated workforce. I do not know, but it
sounds like it just from the kind of work you do.
    But I am interested in this dichotomy between highly
educated workers that have professional jobs and people like
Ms. Ortiz. I do not know Ms. Ortiz--but I guess you are trying
to get further education, but you are working. People have one
or two children, but they may or may not have just a high
school education.
    What about that dichotomy? Please address that.
    Ms. O'Leary. Thank you so much, Senator Harkin.
    I think it is really critical to understand what the
Pregnancy Discrimination Act does. The Pregnancy Discrimination
Act is something that requires employers not to discriminate
against women who are having a child in the sense that it makes
sure that they have equal benefits to the benefits that are
already provided to all employees.
    For example, if an employer provides paid sick days or they
provide short-term disability, then women should be able to
access that for the purposes of giving birth to a child or
anything related to pregnancy and childbirth.
    The fact of the matter is that when this statute passed,
many professionals already had--professional men and women--
already had access to these types of work because it is a way
of retaining professional employees. We want to make sure to
keep them. However, low-wage workers generally had them only if
their unions were bargaining for them. So we had about, as I
said, 18 percent more lower wage workers at the time, 1969, had
access to this than college educated.
    What happened is the moment this passed, then that meant
that professional workers immediately got access to these
short-term disability or the paid sick days, but it provided no
affirmative rights, and no affirmative rights to make sure that
you could take leave. So this story has not changed really for
low-wage workers.
    I think if you just take a personal story here on this
panel and contrast me with Kimberly in terms of the situations
we have. My parents were in the middle class. They put a second
mortgage on their home in order to put me through college.
    I was very lucky and was able to get very highly educated.
I have two young children, 5 and 2. My 2-year-old has some
health issues. He has really struggled in the first couple of
years. I have had to take him to physical therapy and
occupational therapy. My boss, who is here today, has been
incredibly flexible with me and I feel so lucky for that. I
sometimes will call in the morning and say, ``I cannot come in
until 11 o'clock.'' Or, ``I am going to have to take 2 hours
off in the middle of the day today to deal with this.''
    What a contrast we have right here at our very table
between my situation and the situation of Kimberly. This is
what is wrong with what has happened with our laws, which is
that we have not actually made sure that not only am I
protected, but all workers are protected, including the
Kimberly's of the world.
    The Chairman. I think that is a very important point, and I
think it is also important to point out that people talk about
the Family and Medical Leave Act, which is now 20 years old.
The workforce today is different than it was 20 years ago, but
even FMLA only covers about half of the workforce.
    Ms. Lichtman, compare the United States with--what is our
neighbor like in Canada? I do not even know. I am asking a
question. They always say a good lawyer does not ask a question
unless he knows the answer. I do not know the answer to that. I
mean other countries, do they provide paid leave?
    Ms. Lichtman. Most other industrialized countries do. Very
few countries in this world--hardly any, 2, 3, sometimes 5,
depending on how you count, but not 10, not 2 hands, less than
1--are in our position of providing no paid leave.
    What I said earlier in my testimony, Family and Medical
Leave is only as good as far as it goes. First, it is not paid.
Second, as you point out, only about half of our American
workers are covered. And the fact that it has been used 100
million times in these 20 years is maybe good news, but it is
also terrible news in that it shows how American families,
working families, are struggling to balance their work and
family responsibilities. And needing national public policies
in place that allow them to flourish as family members, as Ann
and Kimberly just talked about, and be responsible workers.
    I thought Kimberly's very poignant story, she was working
very hard to work hard, and still was failing because of her
family responsibilities in the eyes of some manager, who could
not see beyond her or his nose that investing in Kimberly was
investing in an extraordinary employee, for productivity, for
morale. The cost of turnover is replete in our statistics.
    I think we stand amongst very few Nations of the world that
do not provide good national policies to allow our families to
both flourish as workers and employees.
    The Chairman. I think the answer to my question is that
Canada does provide paid leave.
    Ms. Lichtman. It does, along with almost every other
country.
    The Chairman. I understand that. We are 4 out of 178.
    Ms. Lichtman. Right.
    The Chairman. Thank you very much.
    Senator Enzi.
    Senator Enzi. Thank you, Mr. Chairman.
    And I want to thank Ms. Phillips for the precise
suggestions that she gave in her speech, and also the
explanation of why, even though her company provides all of
these, she would not suggest that they be made a mandate for
all of the other businesses. I thought that was a very
important statement.
    Now, your company clearly has a well thought out and
generous leave program, since you provide a flexible paid time
off program for your employees for holidays, for vacation, for
illness, for tending to personal matters, I take it that you
are not frequently in a position of having to verify employees'
medical claims. In contrast to the Healthy Families Act, which
would impose detailed medical certification procedures, and as
you well know, the employers face fines and litigation
liability when they obtain too much medical information and run
afoul of the Health Information Privacy Protection Act, or
HIPPA, or the Genetic Information on Discrimination Act.
    Can you describe how this Catch-22 would put employers and
HR professionals in a bind?
    Ms. Phillips. Well, we find ourselves in that role a lot of
times when various regulations kind of overlap or step on each
other. We are trying to not break one and we have to complete
what we have to do on the other as well.
    In terms of when our folks have medical issues and are
going to use short-term disability, we are very careful with
all the processes so that they are providing the needed
documentation directly to the carrier that is working with
them, and have a case manager. You know, we do not want to have
information that would not fit well with the regulations in
HIPPA and so on.
    So when you add extra things that have new requirements and
they are going to require us to know something or ask questions
in an arena that causes us a liability somewhere else, that is
always problematic. On the leave side of it, we do PTO and it
does not matter why you are gone. We leave that up to everybody
to manage their own. We do not need doctor's excuses. We do not
get into any of those things.
    But when it comes to helping an employee with an issue they
do have going on, we are involved, but not to the level of
receiving information about them personally on a medical basis
that would cause us a problem elsewhere. So I do not know where
new requirements might put us in terms of that difficulty.
    Senator Enzi. Thank you, and I know that you have a number
of Federal contracts which brings you under the jurisdiction of
the Office of Federal Contract Compliance Program, the OFCCP. I
understand this agency requires a number of annual filings and
is looking at increasing the data that contractors like you are
going to be required to maintain and submit.
    Could you describe the manpower it takes your small company
to comply with this OFCCP rule currently and the value you get
from that effort? And if you have any suggestions to reduce
that burden, we would appreciate it if you would share those.
    Ms. Phillips. Well, we do not pay somebody else to write
it. We write our Affirmative Action Plan. I do. There is a lot
of time involved in gathering the data. Occasionally, I might
have some of my staff help a little with some of the numbers
down in the weeds, but I generally pull all that data together.
    A company like ours that is trying to be the best and get
the best is always pulling data and looking at it anyway. So in
terms of value, we would be looking at all of those categories
and numbers anyway to see how well we are putting ourselves out
there, and making ourselves attractive to all the possible
groups that there are, knowing that only a blending of as much
variety as possible gets us fresh ideas and takes us forward,
and helps us be successful.
    In terms of the suggestions that the OFCCP has around, I
think for example, gathering more numerical data about
veterans, or gathering more numerical data about disability.
From what I have read about the proposed regulations, they are
trying to get people to think, ``Hey, you should have,'' I
think, ``Like 7 percent veterans and 7 percent disability.'' My
perspective is I have 26 percent veterans. I have 16 percent
disabled.
    So rather than my having to spend a lot of hours working on
a process that is meant to get other people up to that level,
it would be nice if somebody were focusing on companies like
mine saying, ``How do you do that? And let's mirror that,''
because what we are doing works so well.
    Senator Enzi. That may be a question I will submit in
writing. I appreciate that. I was impressed when I heard about
your veterans program because it is more important now than
ever to look for the men and women who bravely served in the
military, and you have been at the forefront in that activity,
and I thank you for that.
    Can you talk a little bit more about your Veterans
Information Program and how that benefits your employees?
    Ms. Phillips. I can. We are very proud of our VIP program,
as we call it.
    It includes letting the VIP coordinator know when we are
going to hire somebody that we learned is a vet, and we hook
them up with that person in the first day or two. They
generally take them out to lunch, talk to them a bit. They find
out more about them, and then they connect them to one person
in a list of veteran volunteers that we have within the company
who maybe has something in common with them. Maybe they were
the same rank, or they served in the same location, or they are
from the same home State, or whatever, something that gives
them some commonality. So they know somebody else immediately
in the company that they connect with.
    And then that person plays a role of sponsor, sort of,
answers questions, give you tips about, ``What I learned from
transitioning out of military life into the civilian world,''
or tips about, ``When I moved to Huntsville, I learned this, I
did this.'' Just general information that is very helpful to
that new veteran employee that we have in getting them
assimilated into the company culture and in helping them
transition over into the civilian world, if this is their first
job after military service.
    Our program also includes the 3 days' paid leave that I
mentioned for veterans to visit VA hospitals, or for spouses to
have time off if they have a spouse that is returning during
mid-term tour of duty.
    We also pay the difference between military pay and company
pay for up to 6 months if the reservist is activated. We
recently had a Lunch ``N'' Learn for vets, and brought in
officials from six agencies in the area to talk about services
that are available to them, to talk to our employees about
opportunities to volunteer, to help with veterans' activities.
It is a very robust, very active program within the company.
    Senator Enzi. Thank you. My time is expired. I do have
questions for the rest of you, and if I do not get to ask them,
I will submit them, and would appreciate answers because you
all have vital information that we need.
    Thank you.
    The Chairman. Thank you, Senator Enzi.
    And in order of appearance, Senator Merkley, Senator
Franken, Senator Whitehouse, Senator Blumenthal.
    Senator Merkley.

                      Statement of Senator Merkley

    Senator Merkley. Thank you very much, Mr. Chair, and thank
you all for your testimony.
    Ms. Lichtman, in your written testimony, you mentioned the
back to work breast feeding flexibility provisions in the
Accountable Care Act. And in honor of Mother's Day, how is
implementation of that going?
    Ms. Lichtman. It is just beginning. Admittedly, I do not
have any really hard data. It is a start, and we will have to
do a little bit of research and get back to you on exactly what
is happening in the early stages of implementation.
    In the community that I often work in representing moms and
new moms, the excitement around the program has been really
quite encouraging. And so I am hoping, indeed, that the
employer community embraces the program as much as working moms
who need it.
    I will have to get back to you on specifics. I do not know
them.
    Senator Merkley. Well, thank you. I know when
implementation occurred in Oregon with our State law, it was
amazing how well the employers adopted it. We had a safe harbor
provision or an opt out, if you will, for employers that had a
hardship, and not a single company in Oregon has utilized that
opt out, which is a real tribute.
    Ms. Lichtman. Good.
    Senator Merkley. Thank you.
    Ms. Phillips, thank you for your testimony about the
tremendous benefits that INTUITIVE provides and a prospering
professional company.
    I am very struck by the tale of two worlds, the service
contractor at the Statue of Liberty that employs Ms. Ortiz and
a highly professional firm that you are part of that is seeking
to recruit the best talent, and part of that are good benefits.
    As you heard Ms. Ortiz's story about being an employee of a
service contractor, did you have any thoughts about how
provisions of this bill might help folks like her or other
ideas from your human resource experience? Because here she is
trying to raise a child, her hours have been reduced, her
scheduling is uncertain, her benefits are minimal, and it is a
different world from the world you live in, but yet, you are in
human resources.
    Do you have any thoughts on the different challenges in the
service world and the professional world that you are a part
of?
    Ms. Phillips. Well, I have worked in different areas and my
thought around when you move into a workforce, and you are
trying to look at what the issues are, and work with managers,
and help train them on how to think that there is a lot of room
for improvement there when it comes to areas such as that. In
understanding that what you have is a resource, and that what
you do and how you manage it is going to determine what you
have in the future, and how successful you are.
    In my thoughts around regulation, if we make it so that the
good employers can flourish in what they are doing and we make
it so that others try to do what they are doing, then my hope
would be that a company who looks at it differently would come
to say, ``What are they doing that works so well? '' ``Why do
they get everybody in town working for them and that then
companies such as ours could have an impact in that sense? ''
    If you provide all of these things, do you have safe
harbor? You are going to fit into this category and be fine,
then that would be a real incentive, I would think, to
companies to do better at how they manage all those things, how
they take care of their people, what kind of benefits they
offer.
    Senator Merkley. I suspect that the firm providing the
services at the Statue of Liberty is submitting a contract
proposal, often the low-cost proposal is chosen. So we have
tremendous incentives to strip employees down to the very
minimum of benefits, kind of very different than the incentives
in a professional environment where you are trying to retain
employees. So I am not sure that that would work in that
setting, but I appreciate your thoughts on it.
    Ms. Phillips. The Government could look at choosing best
value rather than lowest cost when they choose a contractor.
    Senator Merkley. Yes, and in some ways that is what this
conversation is about because how do you define ``best value?
'' Does best value include basic guidelines for how people are
treated when they are employed?
    Ms. Phillips. Right.
    Senator Merkley. That is the heart of this discussion,
really.
    There is a growing movement of what is essentially on-
demand scheduling, which is extremely difficult for working
families because you have to be on-call all the time in order
to work even a few hours a week.
    And Ms. Ortiz, as you went to 15 hours, it sounds like that
is close to what you were. You had to be available, because you
got very short notice on when you were scheduled. So you could
not, for example say, ``Well, I have 2 days of work there, so I
can take a second job and have 3 or 4 days of work over here.''
Is that a fair characterization?
    Ms. Ortiz. Yes, the days that I worked there, I never
really knew, so there was really no preparation because I never
knew what days I would be scheduled for.
    Senator Merkley. Any additional thoughts that you have on
kind of the basic outline of what would be very helpful to you,
better requirements on scheduling?
    Ms. Ortiz. I think we definitely need better requirements
on scheduling. Workers do need a few paid sick days, and I
think that the minimum wage should be equivalent with the cost-
of-living, and with the rising cost-of-living at that.
    Senator Merkley. Yes. Looking at the basic math you were
presenting, when you were reduced to 15 hours, you were earning
$135 a week, which is $8,000 or $9,000 a year.
    I do not know that any of us have ever walked in the shoes
of trying to raise a child with medical difficulties earning a
modest amount. And I really appreciate you coming in and
sharing your journey, because it is so reflective of the
challenge that so many working Americans are facing today. And
thank you for sharing that.
    Ms. Ortiz. Thank you for having me.
    The Chairman. Senator Franken.

                      Statement of Senator Franken

    Senator Franken. I want to thank all the witnesses for
being here today. I am very proud of our chamber of the Senate
today. Here we are, a House of Congress having a hearing on a
subject that unquestionably impacts women disproportionately,
and our witnesses are actually women.
    [Laughter.]
    Very proud, Mr. Chairman and the Ranking Member, for that.
We are talking about Mother's Day, and I would just like to say
something about my mother-in-law, Fran Bryson, who turned 89
yesterday.
    When she was 29-years-old, she was widowed. Her husband, a
World War II decorated veteran, died in a car accident, leaving
her widowed with five kids. And she--I do not think she would
mind me saying this--that she worked in the produce department
of a grocery store.
    All those kids, my brother-in-law Neil went in the Coast
Guard and became an electrical engineer. All my sisters-in-law
and my wife were educated because of Pell Grants and other
scholarships. And my mother-in-law, when the youngest went to
high school, she herself went to college on the GI bill, and
graduated, and became a teacher, and taught title I kids, and
because of that, all her GI loans were forgiven.
    A real testament to what everyone in that family became--a
productive member of society, and it was all because of
government programs. They lived on Social Security Survivor
Benefits.
    Ms. Phillips, it sounds like you work for a great company.
You were named ``No. 2 Best Small Company to Work for in the
United States'' in 2011. That means, presumably, all but one
small company in the country is worse than you, by my math.
    And this begs the question, I would like to ask of either
Ms. O'Leary or Ms. Lichtman. In a sense, what Ms. Phillips is
saying is that she wants to preserve her company's competitive
advantage. But is it really in the best interest of our society
at large, for all the other people who work for all the other
small businesses, except for the one better than INTUITIVE,
that the well-being of millions of workers be compromised to
preserve the competitive advantage of a couple of small
businesses?
    Ms. O'Leary. Senator Franken, if I could address that
question. I appreciate you raising it because I have been
sitting here thinking about this issue of our country's
competitive edge, and how we help not just businesses flourish,
but how we help our children flourish, and how we help our
families flourish.
    To point an example of your own family, your in-laws, I
think is a perfect example where we look at a single mom who
had financial resources because she got aid from the Government
because of Social Security Disability Insurance. And then,
presumably, she had an employer that provided----
    Senator Franken. Survivor benefits.
    Ms. O'Leary. Excuse me, survivor's benefits. So she had
some supplemental income, which I think is so critical and
presumably an employer that supported her in doing the work she
needed to do as a single mother. This is not the case for so
many.
    We, actually, at the Center for the Next Generation, are
about to release a study looking at the competitiveness of how
the United States has been doing in investing in our children
versus how our global competitors are doing: China and India.
It is surprising, I think, when you look at this that actually
China and India have much better pro-family policies than we
do. They have paid maternity leave in those countries. They
support women entering the workforce and they provide resources
when families have----
    Senator Franken. The one child policy in China is kind of
bad.
    Ms. O'Leary. Yes, so there are some problems, obviously,
the one child policy and the inequities in that country. But
the fact of the matter is that they have billions of people
that they are educating and investing increasingly in education
and in pro-family policies.
    So while we certainly do not want to replicate their one
child policy----
    Senator Franken. Yes.
    Ms. O'Leary [continuing]. I think we can learn from our
competitors, and we have to remember that the competitive edge
is about not just businesses, it is about making sure that our
children can compete and can thrive in the world ahead.
    Senator Franken. I was interested in the statistics about
paid family leave. That we are one of just a few countries, the
others are Swaziland, and Papua New Guinea that I can find. And
there are other countries that are doing pretty well that have
it like Germany.
    Ms. O'Leary. Japan.
    Senator Franken. Yes, well Japan is having some problems,
but Germany is doing really well.
    Thank you, Mr. Chairman, and I will have more questions if
we get there.
    The Chairman. We will have another round.
    Ms. Ortiz, I want to return to you because, as I said, this
is real life, what you have been through, and then when you did
this Retail Action Project that you talked about, and you
surveyed all of these people.
    It seemed that the people you surveyed, at least from what
you said in your testimony, they never really knew what their
schedule was going to be. They could be at the whim of a call
in just a couple of days. And you said, ``Out of the workers
surveyed, less than a quarter had ever taken a paid sick day,
and only 17 percent had a set schedule.''
    When you work for a great company like INTUITIVE, you get,
probably, pretty good schedules, and you know what your work is
like. I am thinking of people that, let us face it, the people
that clean our public bathrooms, the people that sweep the
floors, the people that work behind counters at the Statue of
Liberty and places like that, people who are maybe starting out
in the workforce, or perhaps because of education, language
skills, or whatever, they are stuck. I mean, that is their
life's work.
    It seems to me that there ought to be at least some
minimal, some minimal, kind of a Federal law that would say
that you get to take some time off, paid time off, for a sick
child or a sick parent or maternity, some basics like that.
    How would the lives of those people, just in your own
words, how would it be different if we had something like that
for people in your situation?
    Ms. Ortiz. It would be, I think, amazingly different. Like
I said, it was never a matter of not working hard and not
wanting to work, it was just circumstances. So if we had a few,
like I would say, securities definitely people would work hard.
I think productivity would go up. Happy workers mean happy
businesses, I think.
    I definitely think it would improve productivity and it
would better peoples' lives.
    The Chairman. Well, you talked about your own difficulty
when you had your children. Was your boss, he or she,
sympathetic to your need to take time off? They said, ``Sure,
take time off.'' How did that work?
    Ms. Ortiz. They were completely not sympathetic. That was
my first job. I started at 16 and I was very eager to work. I
would come in at 5:30 a.m., stay until 11. If they had an
event, I would stay overnight, and when I had my child, that
changed. So it was not Johnny on the Spot or Kimmy on the Spot
anymore. ``She has to be home at a certain time. She cannot
come in at 5:30.'' So they were not sympathetic at all, like I
was then labeled unreliable.
    The Chairman. Back to what I said starting with Ms.
O'Leary. I think I heard something, ``We do not want a one-
size-fits-all,'' Ms. Phillips said, in terms of law. But it
seems like we do need a one size that puts a basic floor out
there below which we say, ``People are just not going to
fall.'' ``You are going to have some paid time off if you have
a child, if that child gets sick, if you have a parent that
needs attending to.''
    People who are making the kind of income Ms. Ortiz is
making with two children who have medical needs, you just
cannot give up a paycheck, or half a paycheck for even 2, or 3
days, or 4 days of pay. So that is the stress that comes in,
``I want to take care of it, but I cannot give up my income. If
I give that up, then my family will suffer in other ways.''
    That is the bill that I introduced, the Healthy Families
Act. It is geared toward that. Not a one-size-fits-all, but
sort of, ``Here is a floor, folks. We are just not going to let
people go below that.'' And to put America back up as a Nation
that has some basic human rights for people who are working in
jobs that do not provide that basic structure. I do not mind
safe harbor things and stuff like that. That is fine, but as
long as there is some basic thing where they cannot go below.
    If a safe harbor, for example, in California, which has
great leave policies, paid leave policies, I know. My daughter
works out there and she took advantage of it; wonderful. But if
you just had a safe harbor, then would employers be able to go
below that? It would seem to me, we would want to let the
States still have to set floors, if they want to, in their own
States. But there ought to be some national floor that we have
and there is not.
    I just want to correct one other thing too. The Healthy
Families Act does not require employers to collect medical
certification. It gives them the choice to do so if they want
to. That was in response to say, ``Well, maybe people will
cheat,'' or something like that. Well, you give the employer
the option, if they want to require the medical certification,
they can, but the bill does not require it.
    OK, I will turn to Senator Enzi.
    Senator Enzi. Thank you, Mr. Chairman.
    I think we are all upset with Ms. Ortiz's situation. Now,
as I understand it, the Statue of Liberty is a National Park,
and the National Park's contract is with people to run gift
shops, and food services, and all of the different things that
they do there.
    I am not familiar with the Statue of Liberty contracts. I
am a little familiar with the people in Yellowstone Park that
provide different services, and how they have to bid. And it
does seem to me like if we are going to, that maybe we ought to
try out some of these things on the Federal contractors. How
are some Federal contractors doing this? You know, but we have
not tested this in a laboratory yet, so now we are going to
impose it on all the small businessmen, when we are not even
sure how the Federal contractors do it. So that might be a
logical place to start on this and see how it all works out
because that is pretty appalling.
    The Chairman. I am all for that.
    Senator Franken. I like that.
    Ms. Ortiz. Me too.
    Senator Enzi. Moving on to a different question here. For
Ms. O'Leary, the Center for American Progress publicly supports
and advocates for this Healthy Families Act, and I assume that
you support it as well.
    As you know, the paid leave mandated under it could be
applied for, ``Any absence resulting from obtaining
professional medical care.'' As drafted, professional medical
care could apply to numerous cosmetic health procedures, and a
host of other elective options. Do you believe that employers
should be required to offer paid leave for procedures such as
teeth whitening or Botox injections?
    Ms. O'Leary. OK. Senator Enzi, first, I just want to thank
you for your suggestion on Federal contractors. In my role as a
Senior Fellow at the Center for American Progress, I wrote a
paper suggesting that we should start with Federal contractors
in terms of requiring paid sick days and requiring greater
workplace policies. Because, as you say, we should not have our
great Nation's Statue of Liberty or other national parks
offering employees benefits that do not support workers. I just
want to applaud you for that recommendation. I think it is so
critical and I would like to work with you on thinking about
how to move forward with that.
    As to your question about paid sick days, I certainly think
that there is room for having these open and honest dialogs.
Certainly thinking about cosmetic surgery is for purely
cosmetic purposes is not what was intended in terms of this
law.
    What we are talking about is the situations that Kimberly
faced, frankly, that I face other than the fact that I have a
good employer. But we have sick children. We have sick children
who need us to take them to the doctor, and that is a very
challenging situation. It is much more challenging for Kimberly
than it is for me.
    And I want to make sure that as Senator Harkin suggested,
let us have a floor. We are not requiring everybody to have
some cookie cutter suggestion, but we want to make sure that
some basic, decent rights go on here that make sure that we, as
a society, say, ``Children need their moms and their dads to
take them to the doctor.'' And research says that if they do,
their children are healthier, they are doing better, they are
thriving, particularly kids with chronic health conditions.
That is what we are talking about here.
    Senator Enzi. Well, thank you.
    And for Ms. Lichtman, the nonpartisan Congressional Budget
Office has estimated that the Healthy Families Act will cost
private employers $11.4 billion over 5 years, a substantial
amount of that will fall on the smaller employers who are
already struggling to make payroll in these difficult times.
    My actual definition of a small businessman is you have not
been a small businessman unless you have woken up in the middle
of the night and said, ``Payroll is tomorrow. How am I possibly
going to meet payroll? '' And you just sweat through it the
rest of the night and you do find a way to pay your employees.
You do not always get to pay yourself, but if this bill is
enacted, employers will be forced to adjust somewhere and that
would either be reducing current benefits or downsizing the
number of employees, which adds to the ranks of the unemployed.
    So could you put yourself in the shoes of a small
businessman faced with these increased costs? What would you
cut?
    Ms. Lichtman. I have a couple of answers for you. The
first, we are not comparing no cost and increased costs. Small
businesses and large businesses today without the floor of a
national law, like the one Chairman Harkin is talking about,
have costs like increased turnover, increased training, lower
morale. There are costs attendant to individual businesses by
not providing the kinds of leave that families need, be it paid
sick days or paid family leave. And I am happy to focus on the
paid sick days' provision.
    It is a sort of false dichotomy to say, ``Oh, my God, there
is going to be these increased costs.'' There are costs. There
are costs to businesses, and for sure, there are costs to
society.
    The second, I think that addressing the requirements of
contractors to that very agency you were talking about a little
while ago, the Office of Contract Compliance, requiring of our
contractors with the Federal Government, that they provide the
kind of basic minimum floor protections for workers like my
colleague here, could not be a better idea, and we will be
talking to you right quick about how to move that as an
important laboratory, if you will.
    My third answer is that the very study done by SHRM pointed
out that new mothers' access to fully paid maternity leave has
declined. Since 2005, leave for new fathers, for adoptive
parents, and for parents of seriously ill family members has
also declined. So we are not in a static situation. Not only do
we not have the floor that Chairman Harkin is talking about, we
are going backward. Workers are hurting more today than they
were before, by the very study you all were talking about. Not
my study, SHRM's study.
    I think when you look at, to tie back to Senator Harkin's
question about competitiveness, certainly world competitiveness
as Ann and Senator Harkin were having a discussion about, but
competitiveness within this country requires that kind of
minimum floor and safety so parents can do the exact kind of
caregiving that Ann talks about to allow our children and our
families to flourish.
    For me, all your questions perform a wonderful, seamless
web of an opportunity for me to tie it all together.
    Senator Enzi. And you have tied it together for quite a
while.
    Ms. Lichtman. I have. I have. Age is on my side.
    Senator Enzi. Which prohibits me from doing some followup
questions, which I will submit in writing. I was scheduled to
leave 15 minutes ago, but I could not pass up the opportunity
to ask some questions, and I do appreciate the answers. There
are some things that can be done, but I think some of the
people have not been in small business before.
    The Chairman. Thank you, Senator Enzi.
    Senator Franken.
    Senator Franken. Well, I do also think that the Ranking
Member's suggestion on applying this to Federal contractors is
a very good idea, interesting idea. I will say, I know this
about the Ranking Member, he is a voracious reader and I
suspect that he may have read your paper, Ms. O'Leary, and
gotten the idea from there. I just suspect that.
    And I also know that he knows Yellowstone very well because
Wyoming shares that with Montana and it is beautiful,
beautiful. But he says he does not know about the Statue of
Liberty. It was given to us by the French.
    [Laughter.]
    Senator Enzi. And the arm was put on upside down the first
time.
    Senator Franken. Was it? And the torch was like down? OK.
Well, I think I am wasting my time now and I am the one to
blame.
    I would like to ask about the Older Americans Act. I think
we ought to reauthorize it. And I was wondering if anybody has
any thoughts about, for example, a National Family Care Giver
Support program, and what role that plays for supporting
mothers and families? We have the situation where we are just
going to have a lot of seniors.
    And the Older Americans Act, for those who are not familiar
with it, was first authorized in 1965 as a way of allowing
seniors to stay in their homes and not go to nursing homes. And
it provides all kinds of great stuff and one of them is respite
care, which is if you are taking care of an older parent, say,
or a husband who maybe has Alzheimer's or something like that,
there are these great volunteers who come in and provide that
kind of care.
    Can you speak to the reauthorization of the Older Americans
Act? I see Ms. Lichtman has her hand up and eagerly wanting to
answer, and then anybody else, obviously.
    Ms. Lichtman. I think Ann as well wanted to respond.
    I think it is very important. It is a vivid example of what
the Government can do to help individual families, frankly,
make it through every day. And the plethora of programs you
outlined are very important in sustaining our families.
    The growth as we age as a population healthy and very often
in place of the ``sandwiched generation,'' of people who are
helping both their children and their parents, and sometimes
their grandchildren, and their parents cries out for just the
extension of programs like the Older Americans Act. I cannot
speak more strongly in favor of those programs and the real
difference that it makes in people's lives. It is a wonderful
example of Government working at its very best, I think.
    Senator Franken. Ms. O'Leary.
    Ms. O'Leary. I was just going to add on to Judy's statement
that one of the things that you mentioned, Alzheimer's, is
something that our country is really facing in great degree;
which is that because people are living longer, Alzheimer's is
the disease that largely impacts people who are 65 and older.
We are expecting to see a tremendous increase in individuals
who are living with Alzheimer's. And, as a result, these
policies that the Government has put in place are so critical
to keep people in their homes and to ensure that we have
families who are able to care for their ailing and elder
relatives.
    It is frankly based on the idea that there is somebody at
home and that we actually have workplace policies that allow
people to be away. We need to have both. We need to make sure
that people can stay in their home, but that there is a family
member there to help, and that they get the respite they need.
    I just want to applaud you for working to reauthorize that.
I think it is incredibly critical, but it also makes--we need
to make sure that, for example, under FMLA, when I did a report
on Alzheimer's and I found that 4 in 10 caregivers of
individuals with Alzheimer's did not qualify for FMLA because
they were taking care of somebody who did not meet the
definition of somebody in the family they could take care of.
    For example, they were taking care of their mother-in-law
or their father-in-law. They were taking care of their aunt or
uncle, and none of those people are people who can actually
qualify for FMLA leave, and that is a problem.
    Senator Franken. Ms. Ortiz, thank you for coming to speak
today. I do think we are talking about two different worlds. I
think INTUITIVE.
    Ms. Phillips. INTUITIVE.
    Senator Franken. Yes, it sounds like a great company and
again, the second best. Again, every other company is worse
except for one.
    You know, hearing about the struggle that you face with a
newborn paints a pretty stark picture of what, I think, a lot
of women working for those other companies are facing.
    We know that childcare is not cheap. My home State of
Minnesota, infant care costs as much as $15,000 per year and a
toddler can cost well over $12,000 a year. As you mentioned in
your testimony, when you cannot find care for your child, you
have to call out of work, and that does not sit kindly with
your employer, obviously.
    Can you tell us a little more about what it was like trying
to find childcare for your two kids and how not having
childcare affected your job?
    Ms. Ortiz. It was especially difficult because my kids are
special needs, so it is not like I can just go to any daycare
and enroll them in there. They do need to have speech
therapists, APA therapists, occupational therapists, so it made
it that much harder to find childcare.
    And, to be honest, like I am grateful that my mom is able
to help me out with childcare, but if she is not available, my
resources are very limited because of their special needs. So
it is just extremely hard, emotionally, financially, I mean, it
was tough.
    Senator Franken. It is interesting, because when we talk, I
know that there is kind of this push-pull. Senator Enzi was
talking about the cost of business.
    Ms. Lichtman, I thought your answer about the costs that we
already have was really important and you talked about the cost
of businesses. But look at the cost to Ms. Ortiz, I mean, look
at that cost. That is hard to measure. Well, you probably can
measure it in terms of lost work, lost income, but think of the
cost, the human cost, and think of the costs of going into
work. I am sorry to take so much time.
    Think of the cost to the children too that, ``OK, I have
got to go in; I have just got to go in, so I am going to leave
my kid who is sick at home. He can handle it. He is sick, but
he is 6 or he is 8. He has got an ear infection.'' What does
that do to the health of our kids? What does that do for
healthcare? What does that do for our educational system? Think
about the other costs. That is what we have to weigh and what
we have seen from Ms. Ortiz is a real cost. I mean, that is a
cost. We know that is a cost.
    So we are paying for not having this right now.
    Thank you, Mr. Chairman.
    The Chairman. Thank you very much, Senator Franken.
    I just want to say that our staff, our committee staff and
Senator Enzi's staff are now engaged in talks on
reauthorization of the Older Americans Act.
    Senator Franken. Great.
    The Chairman. Any thoughts that you might have, or your
staff, please weigh in on it.
    Senator Franken. Absolutely. Thank you.
    The Chairman. Thanks. So we are proceeding on that.
    Again, I want to thank all of our witnesses for being here.
Ms. Ortiz, I might say that you may have sparked a possible
bipartisan piece of legislation. So this may actually move
ahead.
    I thank you all for your enlightening testimony. On the one
hand, I think companies like INTUITIVE, we need to hold up as
an example for other companies to follow. We need to do more to
encourage that and to exemplify companies like that.
    At the same time, I would say--it is obvious I would, since
I introduced the legislation--that we need a Federal floor. And
the Healthy Families Act only says 7 days, 7 days, of paid sick
leave a year. I mean, that is hardly nothing, which women could
use if their job does not even provide for paid maternity
leave. Now, at least they could use that for that. That is only
7 days, for crying out loud. It is just the barest of minimums.
I think it would, at least, begin to move us in the right
direction. So both, holding good companies up, but put some
kind of a national floor there below which we will not go.
    I thank you all very much for your leadership, all of you,
and for being here today. Mother's Day is this weekend. I am
going to throw out a thought that has kind of beguiled me for
some time now. We have a Mother's Day now and then we have a
Father's Day in June, right. Why do we not have a Mother's and
Father's Day? It just seems to me that we are kind of all in
this together.
    But I will say that the reason we wanted to have this
hearing today was to highlight the fact that most of the people
in this country who are stressed out, who find this big tug
between work and family, work and kids, work and elderly are
women; the vast majority are women. They work in the kind of
jobs Ms. Ortiz is talking about, and many times they are the
caregiver of the children.
    We would like fathers to be more involved than they are,
but let us be truthful about it. In most cases, it is the
women, it is the mother who is the basic caregiver, and it is
the mother who is working, and trying to provide for her
children and her family.
    I think it is important with Mother's Day coming up to
recognize that the women and the mothers in this country need
better support. They need a better deal in terms of their work
life and their family life. And that is what I think we need to
do: to provide at least a basic minimum of paid sick leave
every year. It covers everyone, but I do know from the data and
the statistics that the largest beneficiaries of this would be
the women of this country and the mothers of this country.
    That is why we wanted to have this before Mother's Day, to
let the public know that if we really love our mothers, it is
not enough just to give flowers and a card. I think we have to
do more than that.
    The record will remain open for 10 days.
    The Chairman. The committee will stand adjourned. Thank
you.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

      Response to Questions of Senator Harkin by Ann O'Leary, J.D.
    Question 1. During the hearing, you mentioned your previous work on
improving work-life policies for Federal contractors. Please describe
this work and your recommendations.
    Answer 1. In July 2009, the Center for American Progress released a
report that I authored entitled, ``Making Government Work for Families:
The Federal Government's Role as Employer and Contractor in Improving
Family Friendly Policies.'' \1\ The following is an excerpt from the
report in which I lay out the argument for why the Federal Government
should encourage Federal contractors to offer family-friendly workplace
policies for their workers and how the Government can and should do so:

          Historically, the Federal Government has provided a standard
        for employment benefits and equity in employment, and
        government contracting has often been used as a powerful tool
        to improve employment benefits and equity in the private
        sector.\2\ Specifically, Presidential Executive Order 11246--
        signed by President Lyndon B. Johnson in 1965, which built on
        similar presidential orders going back to 1941--prohibits
        discrimination and insists on affirmative action to assure
        representation of women and underrepresented minorities in the
        Federal contracting workforce. And decades-old laws such as the
        Davis-Bacon Act, Walsh-Healy Public Contracts Act, and the
        McNamara-O'Hara Service Contracts Act all require that Federal
        contractors pay prevailing wages and benefits.
          The reach of these laws is dramatic. The prohibition against
        discrimination applies to all employers that receive Federal
        contract dollars. It reaches nearly a quarter of the entire
        private-sector workforce in the United States.\3\ The
        requirement for prevailing wages and benefits applies only to
        those workers directly supported by the Federal Government, but
        the numbers are still quite dramatic and have an outsized
        influence on purely private-sector wages and benefits.
          Unfortunately, these laws do not adequately address the needs
        of today's workers, who are older than ever before, often needs
        to take time off to care for themselves or an elderly spouse or
        partner, and desire greater flexibility to enjoy life as they
        get older. Today's workers also face greater family
        responsibilities than ever before. Most workers are in families
        where both adults work or in single-headed households. Problem
        is, most jobs today don't include flexible, family-friendly
        policies to match the needs of today's workers.

    This report documents how existing laws that protect against
inequitable pay and set prevailing wages and benefits in the Federal
contractor workforce have failed to fully assist workers contracted by
the Federal Government in meeting the dual demands of work and family
responsibilities. The report then recommends how to more fully enforce
existing laws, and encourages the Government to consider new ways of
rewarding contractors offering family-friendly benefits at least as
good as those offered by the Federal Government to its own workers.
    How important is this to American workers? It's huge. Scholars, the
media, and watchdog groups have focused attention on the problems
associated with the dramatic rise in contracting, including the lack of
public accountability and transparency and the question of whether
certain services are inherently governmental and therefore must be
performed by government employees.\4\ But less attention has been paid
to the inefficiencies and inequities associated with the lack of
enforcement and gaps in the laws requiring equitable pay and a standard
level of benefits for Federal contract employees.\5\
    What's more, there has been limited examination of whether Federal
contractors should be required or incentivized to provide work-family
benefits.\6\ Should the single mom who works in a cafeteria for a major
Federal agency be able to take a day off from work without losing pay
or risking her job when her child is sick or when she needs to
accompany her mother to the doctor? What about the older man who still
comes in at night to clean Federal offices because he can't afford to
retire--should he get more flexibility to work part-time or adjust his
work schedule? How about the married parent of a newborn who is working
a desk job processing reimbursement forms for the Federal Government,
shouldn't that parent get the protection of paid family leave just
after the baby is born?
    President Obama has committed to undertake a comprehensive review
of Federal contracting as well as to explore ways the Federal
Government can better address challenges faced by women.\7\ These
efforts should be linked. They should include a review of how the
Federal Government can increase its enforcement and oversight of
Federal contractors with regard to workplace policies supporting
caregivers, a disproportionate number of whom are women.
                            recommendations
    The Obama administration should take a number of immediate steps to
ensure the inclusion of flexible, family-friendly benefits under
existing laws requiring equitable pay and a standard level of benefits
in the Federal contractor workforce. The Administration should also
ensure that the Federal requirement to do business with ``responsible''
contractors includes rewarding contractors for offering flexible,
family-friendly benefits at least as good as those offered to Federal
employees.
    Finally, the Administration can prepare for the future by investing
in research on flexible, family-friendly benefits currently offered by
Federal contractors and by designing a standard benefit requirement for
all Federal contract employees that meets the needs of the new
workforce. Specifically, this can all be accomplished by enforcing
existing Federal contractor equity and benefits laws, doing more with
existing executive authority, and preparing for the Federal contract
workforce of the future.
Enforce Existing Federal Contractor Equity and Benefit Laws
    Enforce Executive Order 11246 to prevent pregnancy and caregiver
Discrimination. Executive Order 11246 prohibits sex and race
discrimination in the Federal contractor workforce, but it has not been
rigorously enforced to protect Federal contract employees from sex
discrimination on the basis of pregnancy or caregiving
responsibilities. The U.S. Department of Labor should update its
Executive Order 11246 compliance manual and train its enforcement
officers to ensure that pregnant workers are provided with a reasonable
period of leave to recover from childbirth and are reinstated upon
return to work. And the Department should help employers and
enforcement officers understand how to prevent sex discrimination
related to gender stereotyping about caregiving responsibilities by
publishing guidance modeled on the Equal Employment Opportunity
Commission's guidance on the unlawful treatment of workers with
caregiving responsibilities.
    Educate the Federal contractor workforce about their duties under
the Family and Medical Leave Act. The Secretary of Labor should do more
to ensure that Federal contract employers and employees know their FMLA
responsibilities and rights when successor employers win Federal
contracts. This can be accomplished by providing guidance to Federal
contract employers and by including information about rights to FMLA
eligibility and leave on the FMLA workplace poster.
    Include family-friendly workplace benefits in existing Federal
contractor prevailing wage and benefit laws. Federal contractors,
covered by the Service Contract Act, are required to provide prevailing
fringe benefits to their service employees performing work under the
contract. This Act covers approximately one-quarter of all Federal
contract workers.\8\ Required benefits include vacation and holiday
pay, health benefits, retirement benefits, disability benefits, and
sick pay. But the Service Contract Act has not been interpreted to
include family leave. Yet unpaid, job-protected family and medical
leave is prevalent in the United States, even in small businesses,
which are not covered by the Family and Medical Leave Act. Indeed, more
than one-third of all small businesses provide family- and medical-
leave benefits at least as good as those required under FMLA.
Enforcement of the Service Contract Act should ensure access to such
leave.
    Moreover, under current policies, the calculation of prevailing
benefits only examines benefits prevailing in the private sector; it
does not include benefits prevailing in the Federal workforce, even
though many Federal contract employees work side-by-side with Federal
employees. And the calculation of prevailing benefits provided by
Federal contractors working under a collective bargaining agreement may
not capture the range of robust family-friendly policies offered under
such agreements. The Secretary of Labor should update the fringe-
benefit regulations covering the Service Contract Act to ensure that
family-friendly benefits are included to the greatest extent possible
under the law.
               do more with existing executive authority
    Reward responsible Federal contractors offering work-family
benefits. Federal procurement laws require the Government to purchase
goods and services only from responsible contractors. The Center for
American Progress and the National Employment Law Project have urged
the Government to ensure that responsible contracting includes
complying with existing labor laws, as well as rewarding contractors
that offer workplace benefits that provide workers with decent wages,
health care benefits and paid sick days. These recommendations are a
critical first step, but the Government should not stop there. The
development of contracting guidelines to benefit all Federal contract
workers--particularly low-wage workers--should reward contractors that
offer a set of work-family benefits at least as good as the Federal
Government offers its own employees or better, including:

     Job-protected unpaid family leave.
     Paid sick days to be used for one's own illness or to care
for a sick child or other family member.
     Workplace schedules that are predictable and offer options
for flexibility.
     Child and elder care subsidies.
     Paid family leave (a benefit that is better than the
Federal Government's current policy).

    Improve information available about work-family benefits offered by
Federal contracts. There is a lack of information on the availability
of family-friendly policies offered by Federal contractors. The
Administration should work to reinstate the Equal Opportunity Survey to
help the Government know which contractors are struggling with women
entering and advancing in the workforce. But research on family-
friendly policies should go beyond the EO survey to examine Federal
contractor family-friendly policies offered by company size and by type
and number of employees within these companies. The Federal Government
should also incorporate the use and availability of family-friendly
benefits into its regularly conducted workforce surveys, such as the
Current Population Survey, as well as conduct regular in-depth surveys
of the implementation family-friendly benefit laws.
Prepare for the Federal Contractor Workforce of the Future
    Require all Federal contractors to provide work-family benefits at
least as good as those offered to Federal employees. In the future,
when the Government is armed with greater information about the
availability of such policies, Congress and the Administration should
consider requiring all Federal contractors to offer family-friendly
benefits at least as good as those offered by the Federal Government to
its own employees. As an interim step, the Government should follow the
recent recommendation made by Workplace Flexibility 2010 to adopt a
pilot project requiring Federal contractors that have hourly workers
working on Federal contracts to provide at least two types of flexible,
family-friendly work arrangements.\9\

          These sets of recommendations make good economic sense for
        families, for businesses and for our Nation's economic
        recovery. Women make up nearly half the private-sector
        workforce and contribute significantly to their family incomes.
        A job loss resulting in a loss of nearly half of the household
        income is devastating to family economic security and to the
        country's economic recovery. The same can be said for older
        workers, who are staying in the workforce longer but have a
        growing need for flexible, family-friendly policies in order to
        maintain their foothold and continue to support their families.
          Poor treatment of workers with family responsibilities will
        produce an unstable and inefficient workforce. But when Federal
        contractors train and retain the best employees, they help
        drive the economy forward and provide good returns on taxpayer
        dollars.

    The recommendations in the ``Making Government Work for Families''
report focused largely on steps the incoming Administration could take
to improve family-friendly workplace policies, but there is much
Congress could do to encourage Federal contractors to offer more pro-
family workplace policies. For example, Congress could introduce
legislation that requires or incentivizes Federal contractors to
provide paid sick days and other family-friendly policies. Congress
could also encourage the Administration to issue an Executive order
that requires the Federal Government to offer additional points during
the bidding process to prospective Federal contractors that offered a
minimum floor of paid sick days and other family-friendly policies.
And, of course, Congress can use its oversight authority to ensure that
the U.S. Department of Labor is using its authority to fully enforce EO
11246 with regard to pregnancy and caregiving discrimination.

    Question 2. During her testimony, we learned from Ms. Ortiz about
her poor wages and benefits in her previous employment. However, Ms.
Ortiz was employed by a company that provides services at the Statue of
Liberty under contract with the Federal Government. Why did Ms. Ortiz
not benefit from the protections of the Service Contract Act, which is
intended to ensure prevailing wages and benefits to employees of
service contractors?
    Answer 2. Ms. Kimberly Ortiz was employed by a Federal contractor
providing concessionary services to visitors at the Statue of Liberty.
Concession contracts entered into by the National Park Service are
exempted under the Service Contract Act. However, even if Ms. Ortiz had
been employed by a Federal contractor not exempted under the Service
Contract Act, the benefits provided by the Service Contract Act do not
fully account for the family-friendly benefits needed by today's
workforce.
    There are two essential weaknesses in the Service Contract Act: (1)
Unpaid, job-protected family leave is not considering to be a
prevailing benefit; (2) Even though paid sick days and other paid leave
is included in the prevailing fringe benefit determination amount,
Federal contractors are only required to offer fringe benefits up to a
prevailing dollar amount and not required to offer specific fringe
benefits, such as paid sick days. Therefore, employees of Federal
service contractors are not guaranteed any minimum floor of paid sick
days under the Service Contract Act. In reality, as long as contractors
are offering fringe benefits in the amount that is prevailing they can
pick and choose which of these benefits to offer.
    For more information and background on the weaknesses of the
Service Contract Act, I've included an additional excerpt from the
``Making Government Work for Families'' report:
  the role of the federal government in ensuring prevailing benefits
                  for employees of federal contractors
    In addition to the antidiscrimination principles set forth in EO
11246 and the FMLA requirements by which certain private sector
employers must comply, the Federal Government has long set a standard
for pay and benefits in the Federal contracting workforce. In response
to concerns that Federal funds spent during the Great Depression were
not adequately refueling the economy because of low wages offered to
construction workers, Congress passed the Davis-Bacon Act of 1931
requiring that the local prevailing wage be paid to construction
workers supported by Federal contracts.\10\ The Walsh-Healy Public
Contracts Act of 1936 extended the concept of prevailing wages to
public contracts.\11\
    In 1964, the Davis-Bacon Act was amended to require the payment of
not only prevailing wages, but also fringe benefits. And in 1965 the
McNamara-O'Hara Service Contract Act (SCA) was enacted to require
Federal contractors primarily performing services for the Federal
Government through service employees to pay prevailing wages and fringe
benefits.
    Because of the dramatic increase in service contracts, a sector
dominated by women, the guarantee of prevailing fringe benefits under
the SCA deserves close attention. The SCA applies to every Federal
contract in excess of $2,500 in which the principal purpose of the
contract is to furnish services to the United States through the use of
service employees.\12\ SCA covers approximately one-quarter of all
Federal contract workers.\13\
    The requirement to provide prevailing fringe benefits adopted under
Davis-Bacon and then mirrored in the SCA was based on the male-
breadwinner model of workplace benefits and, as such, does not
explicitly provide for the inclusion of family leave or maternity-leave
benefits in the calculation of prevailing fringe benefits. Instead,
both laws require the calculation of prevailing fringe benefits based
on:

     Medical or hospital care.
     Pensions on retirement or death.
     Compensation for injuries resulting from occupational
activity.
     Insurance to provide any of the foregoing--unemployment
benefits, life insurance, disability and sickness insurance, accident
insurance, vacation and holiday pay, costs of apprenticeship or other
similar programs.
     Other bona fide fringe benefits not otherwise required by
Federal, State, or local law.\14\

    The determination of prevailing fringe benefits depends on whether
the contractor is a successor to a contract previously covered by a
collective bargaining agreement. If the contracting company is not a
successor contractor, then it must pay or provide fringe benefits equal
to a standard benefit level set by the Secretary of Labor.
    Because data regarding prevailing fringe benefits is not available
separately for classes of employees and localities, the Secretary of
Labor issues a prevailing benefit determination on a nationwide
level.\15\ This standard fringe-benefit determination is based on the
sum of the benefits contained in the U.S. Bureau of Labor Statistics'
National Compensation Survey.\16\ The benefits included in this
determination are:

     Life insurance.
     Health insurance.
     Disability insurance.
     Sick leave.
     Personal leave.
     Retirement benefits.\17\

    Vacation and holiday pay are not included in the nationwide
determination, but are required to be provided by prevailing benefits
in the locality.\18\ If the contracting company is a successor
contractor, then it must provide fringe benefits at a rate at least
equal to the fringe benefits offered under the collective bargaining
agreement.\19\
 availability and use of the service contract act to ensure provision
                  of prevailing family-leave benefits
    While the fringe benefits listed in SCA are traditional benefits
developed with the male breadwinner in mind, the statute is flexible
enough to allow for the inclusion of prevailing paid-leave benefits in
the calculation of the standard nationwide fringe benefit level.
Currently, the paid leave captured in the standard nationwide fringe
benefit determination includes paid sick leave and personal leave, and
as mentioned above, vacation and holiday leave are also required based
on locality.
    Prior to June 2008, the nationwide fringe-benefit determination
also included paid family leave, but the Department of Labor stopped
collecting information on the costs of paid family leave because the
average cost per hour worked was too low to justify the collection
burden on the respondents. In other words, paid family leave is not
prevalent enough nationally to add much to the standard benefit.\20\ If
paid leave were to become more prevalent in the private sector, then it
could be captured by the current standard benefit, as could other paid
family-friendly benefits, such as child or elder care subsidies.
    But there is an overarching weakness in the calculation of this
national prevailing-fringe benefit determination: it captures the
prevailing fringe benefits only in the private sector. In many
instances, Federal contractors work side-by-side with Federal employees
who have much more robust family-friendly benefits. Because the
prevailing benefit calculation only includes the private sector,
Federal contract employees working in Federal agencies alongside
Federal employees do not truly receive the benefit level that prevails
in their workplace.
    In 1996, the last time SCA fringe-benefit regulations were amended,
a number of labor unions recommended that the SCA standard fringe-
benefit calculation capture the prevailing fringe benefits offered to
Federal employees.\21\ The Labor Department rejected the inclusion of
Federal employee fringe benefit data, concluding that it did not have
cost data of Federal employee benefits comparable to the private
industry data.\22\ The Labor Department's rejection stated that
including such benefits would likely have little impact, noting that
Federal health insurance would only add a few cents more per hour.\23\
    This exclusion of Federal employees from the fringe-benefits
calculation should be revisited. The Labor Department did not take into
consideration the trajectory of the ever-widening gap between benefits
provided to Federal employees versus those offered to private sector
employees. For instance, employer-provided health benefits,
historically a mainstay in the benefits package offered in the private
sector, dropped by more than 5 percent from 2000 to 2007.\24\ The Labor
Department also did not consider the role the Federal Government plays
in modeling fringe benefits needed by today's workers.
    The Federal Government has always been at the forefront of offering
family-friendly benefits, where the private sector still lags behind.
Capturing these Federal employee benefits in a prevailing-benefit
calculation could help Federal contractors understand why it's
important to offer the same fringe benefits to their employees who work
alongside Federal employees. Indeed, it would help Federal contractors
maintain greater job stability and economic security as a result.
    The enforcement of the prevailing fringe-benefit provision under
the SCA also falls short in ensuring that Federal contractors are
providing the one family-friendly benefit that does prevail in our
country: unpaid, job-protected family and medical leave. Nationally, 83
percent of all private-sector workers have access to unpaid family
leave.\25\ Even at companies with fewer than 50 employees, which are
not covered by the FMLA, 71 percent of these companies provide their
workers access to unpaid, job-protected family leave.\26\
    In fact, more than one-third of all small businesses offer family-
and medical-leave benefits at least as good as those required by the
FMLA, and approximately two-thirds of non-covered establishments
provide leave for mothers' maternity-relatedreasons and for an
employee's own serious health condition.\27\ Fringe benefits required
under the SCA do not include benefits otherwise required by Federal,
State, or local law to be provided by the contractor.\28\ This means
that those companies that must comply with the FMLA cannot count such
compliance toward the provision of prevailing fringe benefits.
    For the Federal service contractors that are not covered by FMLA--
companies with fewer than 50 employees--there should be a way of
capturing the prevailing benefit of unpaid, job-protected family leave
and ensuring that Federal contract workers have access to it. The Labor
Department could do so by treating unpaid family leave in the same way
that it treats vacation and holiday pay. When making wage and benefit
determinations, the Secretary of Labor singles out vacation and holiday
pay and determines the amount of such paid leave that is prevailing in
the locality.\29\
    The rationale for doing so is that many Federal contracts are
performed at Federal facilities using the same employees employed by
prior contractors. The SCA regulations state:

          If prospective contractors were not required to furnish these
        employees with the same prevailing vacation benefits, it would
        place the incumbent contractor at a distinct competitive
        disadvantage as well as denying such employees entitlement to
        prevailing vacation benefits.\30\

    The same theory holds true for holiday pay and should hold true
with regard to the prevailing benefit of unpaid, job-protected family
leave. The Secretary could calculate prevailing unpaid, job-protected
family leave, and require that all Federal service contractors provide
it, in the same way that a minimum number of days are now provided for
vacations and holidays.
                               References
    1. The Center for American Progress report is available here:
http://www.americanprogress.org/issues/2009/07/pdf/
Federal_contracting.pdf.
    2. James E. Jones, `The Genesis and Present Status of Affirmative
Action in Employment: Economic, Legal and Political Realities,'' Iowa
Law Review 70 (1985): 901, 905-07.
    3. U.S. Department of Labor, Facts on Executive Order 11246,
Revised January 4, 2002, available at: http://www.dol.gov/esa/ofccp/
regs/compliance/aa.htm (last accessed June 2009).
    4. Jody Freeman and Martha Minow, eds., Government by Contract:
Outsourcing and American Democracy (Cambridge: Harvard University
Press, 2009). See, e.g., U.S. Public Interest Research Group,
``Forgiving Fraud and Failure: Profiles in Federal Contracting'' (2007)
available at http://www.uspirg.org/home/reports/report-archives/
campaign-finance-reform/campaign-finance-reform/forgiving-fraud-and-
failure-profiles-in-federal-contracting (last accessed June 2009);
Scott Shane and Ron Nixon, ``In Washington, Contractors Take On Biggest
Role Ever,'' The New York Times, February 4, 2007, p. A1.
    5. Paul K. Sonn and Tsedeye Gebreselassie, ``The Road to
Responsible Contracting: Lessons from States and Cities for Ensuring
That Federal Contracting Delivers Good Jobs and Quality Services'' (New
York: National Employment Law Project, forthcoming). See generally
Madland and Paarlberg, ``Making Contracting Work for the United
States;'' Kathryn Edwards and Kai Filion, ``Outsourcing Poverty:
Federal Contracting Pushes Down Wages and Benefits'' (Washington:
Economic Policy Institute, 2009).
    6. National Women's Law Center, ``Platform for Progress: Building a
Better Future for Women and Their Families'' (2008), p. 8 (recommending
that the President issue an Executive order requiring Federal
contractors to offer paid sick leave); Heidi Hartmann, Ariane
Hegewisch, and Vicky Lovell, ``An Economy that Puts People First:
Expanding the Social Contract to Include Family Care'' (Washington:
Economic Policy Institute, 2007), p. 8 (recommending an Executive order
requiring Federal contractors to provide family-friendly accommodations
and to report annually on the usage of these accommodations by
different types of workers at various levels of responsibility).
    7. The White House, ``President Obama Announces White House Council
on Women and Girls,'' March 11, 2009; Executive Order 13506,
Establishing A White House Council on Women and Girls, March 11, 2009;
The White House, ``Memorandum for the Heads of Executive Departments
and Agencies, Subject: Government Contracting,'' March 4, 2009.
    8. Chauna Brocht, ``The Forgotten Workforce: More than One in 10
Federal Contract Workers Earn Less Than a Living Wage'' (Washington:
Economic Policy Institute, 2000), p. 9 (Table 8).
    9. Workplace Flexibility 2010, ``Public Policy Platform on Flexible
Work Arrangements'' (Washington: Georgetown Law, 2009).
    10. William G. Whittaker, ``Davis-Bacon Suspension and Its
Legislative Aftermath'' (Washington: Congressional Research Service,
2005).
    11. The Walsh-Healy Public Contracts Act does not require
prevailing fringe benefits and while it was intended to provide
prevailing wages, the wage determination under this Act has been tied
to the minimum wage, leaving workers without real prevailing wage
coverage. See Sonn and Gebreselassie, ``Road to Responsible
Contracting,'' fn 34 (citing Wirtz v. Baldor Electric Co., 337 F.2d 518
(D.C. Cir. 1963)).
    12. 41 U.S.C.  351.
    13. Brocht, ``The Forgotten Workforce'' at p. 9 (Table 8).
    14. Service Contract Act, 41 U.S.C.  351(a)(2); Davis-Bacon Act,
40 U.S.C. 267(a).
    15. 61 FR 68647 (December 30, 1996).
    16. 29 CFR  4.52.
    17. U.S. Bureau of Labor Statistics, ``Employer Cost for Employee
Compensation Survey'' (Washington, June 2009) available at: http://
www.bls.gov/news.release/ecec.nr0.htm.
    18. 29 CFR  4.52.
    19. 29 CFR  4.163(a).
    20. The BLS continues to collect information on the incidence of
paid family leave, but not the costs of these programs. Personal e-mail
correspondence with BLS.
    21. 61 FR 68649-68650 (December 30, 1996).
    22. 61 FR 69655 (December 30, 1996).
    23. Ibid. at FN8.
    24. Lawrence Mishel, Jared Bernstein, and Heidi Shierholz, ``The
State of Working America, 2008-2009,'' (Washington: Economic Policy
Institute, 2008), Chapter 7.
    25. Bureau of Labor Statistics, National Compensation Survey
(Department of Labor, March 2008), Table 21, ``Leave Benefits: Access,
Private Industry Workers.''
    26. Ibid.
    27. 65.7 percent of non-covered establishments provide leave for
mothers' maternity-related reasons and 66.4 percent for the employee's
own serious health condition. Ibid. at 7-3.
    28. 41 CFR  4.162.
    29. 29 CFR  4.52.
    30. 29 CFR  4.173(a).
          Response to Question of Senator Harkin by Kim Ortiz
    Question. In your testimony you discussed some of the problems you
had with your schedule, including the number of hours assigned and the
timing of when you were notified of your assigned shifts. What would
you ask of government, in establishing public policies, or of employers
to improve scheduling practices?
    Answer. It is time for government policy to regulate abusive
scheduling practices that negatively affect service workers like me. I
have seen the declining quality in retail jobs firsthand. Far too many
retail workers like myself are struggling to get by on low-wages and
unpredictable schedules--it is nearly impossible to find full-time work
in this rapidly growing industry. My employers' just-in-time scheduling
practices determine how much pay I take home at the end of the week,
whether or not I am eligible for benefits, and my upward mobility in
the company. Part-time workers should be paid the same wages as full-
time workers and offered proportionate benefits and paid time off.
Without part-time worker protections we're only going to see more
companies hire part-time workers instead of full-time workers.
    Working with an unpredictable scheduling made it extremely
challenging for me as a mother to balance my work responsibilities with
my childcare needs. More and more national retailers are giving workers
last-minute notice of their shifts and granting ``on call'' shifts
instead of stable hours. An ``on call'' shift is a workday when
employees are not guaranteed work but must call their manager,
typically 2 hours before their shift starts, to see if their employer
needs them. This too common last minute scheduling practice is fueling
underemployment in the retail industry. My friends and neighbors cannot
take on second jobs to supplement their income because they have to be
available to work even on the days when they aren't called in to the
store. While some States require minimum ``shift pay'' or ``call-in
pay,'' even if an employee doesn't work the entire shift, we need a
Federal standard to halt the growing problem of underemployment. We
need policies that promote advanced notice in schedules--most retail
companies can predict the amount of workers they'll need a month ahead
of time--yet workers are increasingly getting shorter notice.
    I would ask that government policy create structures to make it
possible for moms in hourly jobs to fully participate in the workplace.
The retail industry has long been where many women and caregivers find
employment. The Retail Action Project study I referenced at the hearing
found that women working in retail jobs are less likely to be offered a
promotion or basic health benefits. We also found a significant wage
gap which puts women, particularly women of color, at a permanent
disadvantage. This opportunity gap can't be explained by a personal
lack of ambition or professional ability. If my job at the Statue of
Liberty provided sick leave and paid family leave, I would never have
had to make the tough choice between my job and my kids. The Federal
Government has already worked to outlaw mistreatment on the basis of
gender or race in the workplace, we need additional protections so that
caregivers aren't sidelined or given fewer opportunities for
advancement. I urge the Government to take action to implement national
paid sick days and family leave legislation.
    The Rebuild America Act in the U.S. Senate would push more retail
hourly jobs in the direction of sustainability and make those into
family-sustaining jobs. Sustainable scheduling policies would also help
make work more rewarding for working parents. Beyond advanced notice of
schedules, the Federal Government can make ``reporting pay'' a part of
the Federal Labor Standards Act (FLSA)--it already exists in several
States. Requiring employers to pay a minimum of 4 hours when a worker
reports to a scheduled shift would ensure a stable weekly paycheck even
if workers are ``sent home early.'' Reducing the number of annual
worked hours to qualify for FMLA and ERISA would extend these essential
protections to the growing part-time workforce.
      Response to Questions of Senator Harkin by Juanita Phillips
    Question 1. In your testimony, you discussed the concept of ``safe
harbor,'' the Society for Human Resource Management's (SHRM's) proposal
for leave policy in the United States. Please explain safe harbor in
more detail. What rights to leave would this confer on workers, in
terms of amount of time, allowable reasons to use leave, protections
against discipline or retaliation, and access to paid leave? How would
these rights compare to or interact with current and future Federal,
State, and local leave policies? Would a safe harbor policy result in
additional workers, including low-wage and hourly workers, attaining
access to paid leave allowable in a variety of circumstances?
    Answer 1. SHRM believes the United States must have a 21st century
workplace flexibility policy that meets the needs of both employees and
employers. The policy should enable employees to balance their work and
personal needs while providing predictability and stability to
employers.
    Rather than a one-size-fits-all policy, SHRM supports a
comprehensive workplace flexibility policy that responds to the diverse
needs of employees and employers and reflects the wide range of work
environments, union representation, industries, and organizational
size.
    Under the proposal, SHRM believes that all employers should be
encouraged to provide paid leave for illness, vacation and personal
days for employees to use for any purpose, consistent with the
employer's policies or collective bargaining agreements. In return for
meeting a minimum eligibility requirement, employers who choose to
provide paid leave would be considered to have satisfied Federal, State
and local leave requirements and would qualify for a statutorily
defined ``safe harbor.'' This approach would:

     Provide certainty, predictability and accountability for
employees and employers.
     Encourage employers to offer paid leave under a uniform
and coordinated set of rules that would replace and simplify the
confusing--and often conflicting--existing patchwork of regulations.
     Create administrative and compliance incentives for
employers who offer paid leave by offering them a safe-harbor standard
that would facilitate compliance and save on administrative costs.
     Allow for differing paid leave requirements that would
reflect different work environments, union representation, industries
and organizational size.
     Permit employers that voluntarily meet safe harbor leave
standards to satisfy Federal, State and local leave requirements.

    The safe harbor leave would operate much like a Paid Time Off (PTO)
plan, with an employer providing a guaranteed standard block of
flexible paid leave to the employee that can be used for any leave
purpose as determined by the employee. Under this proposal, leave would
be subject to the notice requirements and parameters of the employer's
policy including requirements for employees to use their annual leave.
Employers would be required to create a plan document, made available
to all eligible employees, that fulfills the requirements of the safe
harbor.
    In addition, employers would be required to attest to the U.S.
Department of Labor that the plan meets the safe harbor requirements.
    In return for meeting the eligibility requirements, employers who
choose to provide paid leave would be considered to have satisfied
Federal, State and local leave requirements and would qualify for a
statutorily defined ``safe harbor.''
    SHRM believes the Federal Government should encourage paid leave--
without creating new mandates on employers and employees. From our
perspective, a government-mandated approach to providing leave is a
clear example of what won't work. A program that provides incentives to
employers voluntarily to provide paid leave will create innovative and
more flexible ways for employers to meet the needs of their employees.
We believe the safe harbor approach will encourage employers to offer
more paid leave under a uniform and coordinated set of rules that would
replace and simplify the confusing--and often conflicting--existing
patchwork of Federal, State and local laws.

    Question 2. Does the concept of safe harbor envision oversight by a
government agency to ensure workers' rights to leave are upheld and to
investigate complaints? How would disputes between employers and
employees be resolved? What recourse or remedies would be available to
employees if they believe their rights to leave have been violated?
    Answer 2. As noted above, under the SHRM safe harbor concept
employers would be required to create a plan document, made available
to all eligible employees, that fulfills the requirements of the safe
harbor. In addition, employers would be required to attest to the U.S.
Department of Labor that the plan meets the safe harbor requirements
and those attestations would be subject to audit by the Department of
Labor.
    In addition to providing paid leave, an employer that wanted to be
afforded the benefits of the safe harbor would also be required to
offer certain flexible work arrangements.
                                 ______

         National Partnership for Women & Families,
                                      Washington, DC 20009,
                                                      June 5, 2012.
Hon. Tom Harkin, Chairman,
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC 20510.

    Dear Chairman Harkin: On behalf of the National Partnership for
Women & Families, I thank you for inviting me to testify at the Senate
Health, Education, Labor, and Pensions Committee hearing, ``Beyond
Mother's Day: Helping the Middle Class Balance Work and Family,'' on
May 10, 2012. At your request, I am providing the National
Partnership's view on the ``safe harbor'' proposed by the Society for
Human Resource Management (SHRM), as discussed by Ms. Juanita Phillips
in her hearing testimony.
    The National Partnership shares SHRM's belief that employers invest
wisely in their workers when they provide paid time off so that workers
can care for themselves and their family members when illness strikes
or medical needs arise. Research shows that paid sick days policies
promote retention and loyalty, reduce turnover, save costs, and
contribute to workers' well-being. We applaud employers who make paid
leave policies available to their employees and encourage more
employers to do so.
    Unfortunately, not all employers understand the value of offering
workers paid sick days. Nearly 40 percent of private-sector workers in
the United States do not have access to even a single paid sick day.\1\
Among the lowest-wage workers, barely 20 percent have access to paid
sick days.\2\ Even those who do have some form of paid time off for
themselves too often cannot use it to care for an ill child or family
member, or fear discipline on the job for using accrued time off.\3\
---------------------------------------------------------------------------
    \1\ U.S. Bureau of Labor Statistics. (2011, March). Employee
Benefits Survey Table 33. Leave benefits: Access, private industry
workers, National Compensation Survey. Retrieved 26 April 2012, from
http://www.bls.gov/ncs/ebs/benefits/2011/ownership/private/
table21a.pdf.
    \2\ Ibid.
    \3\ Smith, K. & Schaefer, A. (2012). Working Parents' Access to
Paid Sick Days to Care for their Children. Forthcoming publication.
University of New Hampshire Carsey Institute; Miller, K., Drago, R. &
Williams, C. (2011, July). Paid Sick Days and Employer Penalties for
Absence. Institute for Women's Policy Research publication. Retrieved
30 May 2012, from http://www.iwpr.org/publications/pubs/paid-sick-days-
and-employer-penalties-for-absence.
---------------------------------------------------------------------------
    Workers' inability to access paid sick days comes at a high price:
Nearly one quarter of adults in the United States have lost a job or
been threatened with job loss for taking time off work to recover from
illness or care for an ill family member.\4\ And for workers without
paid sick days who are lucky enough to keep their jobs when illness
strikes, just 3\1/2\ days off work in a month without pay jeopardizes
the average worker's ability to afford their family's groceries.\5\
Workers' lack of access to paid sick time also results in costs to our
health care system and the economy, in the form of unnecessary
emergency room costs,\6\ higher rates of workplace contagion\7\ and
reduced productivity.\8\
---------------------------------------------------------------------------
    \4\ Smith, T. & Kim, J. (2010, June). Paid Sick Days: Attitudes and
Experiences. National Opinion Research Center at the University of
Chicago Publication. Retrieved 26 April 2012, from http://
www.publicwelfare.org/resources/DocFiles/psd2010final.pdf.
    \5\ Gould, E., Filion, K., & Green, A. (2011, June 29). The Need
for Paid Sick Days: The lack of a federal policy further erodes family
economic security. Economic Policy Institute publication. Retrieved 29
May 2012, from http://www.epi.org/page/-/BriefingPaper319.pdf?nocdn=1.
    \6\ Miller, K., Williams, C., & Yi, Y. (2011, October 31). Paid
Sick Days and Health: Cost Savings from Reduced Emergency Department
Visits. Institute for Women's Policy Research publication. Retrieved 29
May 2012, from http://www.iwpr.org/publications/pubs/paid-sick-days-
and-health-cost-savings-from-reduced-emergency-department-visits.
    \7\ Kumar, S., Quinn, S.C., Kim, K., ET al. (2011, November 17).
The Impact of Workplace Policies and Other Social Factors on Self-
Reported Influenza-Like Illness Incidence During the 2009 H1N1
Pandemic. American Journal of Public Health, 102(1), 134-40. Retrieved
17 April 2012, from http://www.cdc.gov/phpr/documents/science/
AJPH_2011_300307v1.pdf.
    \8\ Stewart, W., ET al. (2003, December). Lost Productive Health
Time Costs from Health Conditions in the United States: Results from
the American Productivity Audit. Journal of Occupational and
Environmental Medicine, 45(12), 1234-46. Retrieved 22 November 2011,
from http://www.workhealth.org/whatsnew/whnewrap/
Stewart%20etal_lost%20productive%20work%20
time%20costs%20from%20health%20conditions%20in%20the%20US_%20Results%20f
rom%20
the%20American%20Productivity%20Audit%202003.pdf.
---------------------------------------------------------------------------
    These sobering statistics tell us that SHRM's ``safe harbor''
proposal is not enough to meet the needs of U.S. workers and their
families. SHRM's proposal merely encourages employers to voluntarily
adopt policies that provide workers an unspecified, minimum number of
paid leave days that can be used for any reason. Employers with leave
policies would be deemed to satisfy any Federal, State or local leave
laws regardless of what those laws or the employers' policies say or
provide. SHRM's proposed ``safe harbor'' is not a substitute for
putting a minimum paid sick days standard in place. There is nothing in
SHRM's ``safe harbor'' proposal that guarantees that time off may be
used for personal or family illnesses or to attend medical appointments
on short notice; there is nothing that guarantees that workers will not
be disciplined or punished for using paid sick time; and there is
nothing that provides workers a right to hold their employers
accountable for violations of a voluntary policy. These are all
critically important shortcomings and underscore the need for a basic
minimum labor standard that provides workers the right to earn paid
sick days.
    U.S. workers--and particularly those in low-wage, high-turnover
industries where employees have little bargaining power--need a minimum
paid sick days standard. To be sure, we believe proposed laws like the
Healthy Families Act (S. 984/H.R. 1876) can and should recognize that
some employers are already providing paid time off to their workers.
For this reason, the Healthy Families Act includes a paid time off
equivalence provision so that employers who meet the Act's minimum
requirements by providing paid time off that can be used for the same
purposes and under the same conditions as specified in the Act do not
have to provide additional time off. This is the only form of ``safe
harbor'' that we can support.
    As I noted in my testimony, public policies are critically
important in setting our Nation's course. Minimum wage and overtime
laws, laws regulating working conditions and other standards that we
now take for granted helped build our middle class. In the 21st
century, national standards are needed so that workers in every corner
of this Nation can maintain their short-term financial stability and
protect their long-term economic security when illness strikes or
medical needs arise. SHRM's ``safe harbor'' does not fill this need.
    Thank you again for the insightful dialog at the May 10 hearing. We
look forward to working with you to ensure that American families are
able to meet their responsibilities on the job and to their families.
If you have any further questions, please do not hesitate to contact
me.
            Sincerely,
                                        Judith L. Lichtman.
         National Partnership for Women & Families,
                                            Washington, DC,
                                                      June 5, 2012.
Hon. Michael Enzi, Ranking Member,
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC 20510.

    Dear Ranking Member Enzi: On behalf of the National Partnership for
Women & Families, I appreciated the opportunity to testify at the
Senate Health, Education, Labor, and Pensions Committee hearing,
``Beyond Mother's Day: Helping the Middle Class Balance Work and
Family,'' on May 10, 2012. At your request, I am providing further
information on the statistic I referenced in my testimony that the
Family and Medical Leave Act (FMLA) has been used more than 100 million
times by employees since 1993.
    The National Partnership calculated the estimate that the FMLA has
been used more than 100 million times by multiplying the number of FMLA
leaves taken annually by U.S. workers (6.1 million, based on a 2007
U.S. Department of Labor estimate derived from its last employer-based
survey, the most recent estimate available) \1\ by the number of full
years since 1993 (18 years), for a result of 109.8 million leaves. We
use the more general statement ``more than 100 million times'' to
reflect that (1) take-up of FMLA leave was lower in the first years
after the law's enactment, (2) labor force participation has
fluctuated, and (3) there is a lack of current data to provide an exact
calculation.
---------------------------------------------------------------------------
    \1\ Family and Medical Leave Act Regulations: A Report on the
Department of Labor's Request for Information. 2007 Update, 72 Fed.
Reg. 35550 (2007) (codified at 29 CFR pt. 825). Retrieved 25 May 2012,
from http://www.dol.gov/whd/FMLA2007FederalRegisterNotice/073102.pdf at
35622. DOL's estimate of 6.1 million FMLA leaves annually is based on
employees' FMLA utilization as reported by employers in DOL's 2000 FMLA
employer survey, multiplied by the size of the 2005 workforce.
---------------------------------------------------------------------------
    We look forward to new survey data that the U.S. Department of
Labor has commissioned on employer and employee experiences with the
FMLA. This data, which we expect will be released in late 2012 or early
2013, will enable us to calculate an updated estimate of FMLA
utilization.\2\ The survey results will also provide policymakers and
groups like ours with a better understanding of the updates that are
needed to ensure that the FMLA works well for employers and workers.
---------------------------------------------------------------------------
    \2\ For more information on the new FMLA surveys that the
Department of Labor has commissioned, see U.S. Department of Labor Wage
and Hour Division. FMLA Surveys. Retrieved 29 May 2012, from http://
www.dol.gov/whd/fmla/survey/.
---------------------------------------------------------------------------
    Thank you again for the thoughtful and serious dialog at the May 10
hearing. If you have any further questions, please do not hesitate to
contact me.
            Sincerely,
                                        Judith L. Lichtman.

    [Whereupon, at 11:36 a.m., the hearing was adjourned.]

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```