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54–937 2010

S. HRG. 111–456 

BALANCING WORK AND FAMILY IN THE 

RECESSION: HOW EMPLOYEES AND 

EMPLOYERS ARE COPING 

HEARING 

BEFORE THE

JOINT ECONOMIC COMMITTEE 

CONGRESS OF THE UNITED STATES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

JULY 23, 2009 

Printed for the use of the Joint Economic Committee 

( 

(II) 

JOINT ECONOMIC COMMITTEE 

Created pursuant to Sec. 5(a) of Public Law 304, 79th Congress] 

HOUSE OF REPRESENTATIVES 

CAROLYN B. MALONEY, New York, Chair 

MAURICE D. HINCHEY, New York 

BARON P. HILL, Indiana 

LORETTA SANCHEZ, California 

ELIJAH E. CUMMINGS, Maryland 

VIC SNYDER, Arkansas 

KEVIN BRADY, Texas 

RON PAUL, Texas 

MICHAEL C. BURGESS, M.D., Texas 

JOHN CAMPBELL, California 

SENATE 

CHARLES E. SCHUMER, New York, Vice 

Chairman 

EDWARD M. KENNEDY, Massachusetts 

JEFF BINGAMAN, New Mexico 

AMY KLOBUCHAR, Minnesota 

ROBERT P. CASEY, JR., Pennsylvania 

JIM WEBB, Virginia 

SAM BROWNBACK, Kansas, Ranking Minority 

JIM DEMINT, South Carolina 

JAMES E. RISCH, Idaho 

ROBERT F. BENNETT, Utah 

NAN GIBSON, Executive Director 

JEFF SCHLAGENHAUF, Minority Staff Director 

CHRISTOPHER FRENZE, House Republican Staff Director 

(III) 

C O N T E N T S 

MEMBERS

Hon. Carolyn B. Maloney, Chair, a U.S. Representative from New York .......... 1 

Hon. Kevin Brady, a U.S. Representative from Texas ......................................... 2 

WITNESSES

Ellen Galinsky, President, Families and Work Institute, New York, NY .......... 5 

Cynthia Thomas Calvert, Deputy Director, The Center for Worklife Law, 

San Francisco, CA ................................................................................................ 7 

Karen Nussbaum, Executive Director, Working America, Washington, DC ...... 8 

SUBMISSIONS FOR THE RECORD

Prepared statement of Representative Carolyn B. Maloney ................................ 30 

Prepared statement of Representative Kevin Brady ............................................ 30 

Chart titled ‘‘Organizational Chart of the House Democrats’ Health Plan’’ 32 

Prepared statement of Ellen Galinsky ................................................................... 33 

Prepared statement of Cynthia Thomas Calvert .................................................. 64 

Prepared statement of Karen Nussbaum .............................................................. 69 

Prepared statement of Representative Elijah E. Cummings ............................... 74 

(1) 

BALANCING WORK AND FAMILY IN THE 

RECESSION: HOW EMPLOYEES AND 

EMPLOYERS ARE COPING 

THURSDAY, JULY 23, 2009 

CONGRESS OF THE UNITED STATES, 

JOINT ECONOMIC COMMITTEE, 

Washington, DC. 

The committee met, pursuant to call, at 10 a.m., in Room 210, 

Cannon House Office Building, The Honorable Carolyn B. Maloney 

(Chair) presiding. 

Representatives present: Maloney, Hinchey, Cummings, 

Brady, and Snyder. 

Staff present: Nan Gibson, Colleen Healy, Elisabeth Jacobs, Andrew Wilson, Robert Drago, Rachel Greszler, Chris Frenze, and 

Dan Miller. 

OPENING STATEMENT OF THE HONORABLE CAROLYN B. 

MALONEY, CHAIR, A U.S. REPRESENTATIVE FROM NEW YORK 

Chair Maloney. The committee will come to order. And the 

Chair welcomes the panel of witnesses, our distinguished panel, 

and thanks you for your testimony. 

The American workplace has not kept up with the changing 

needs of workers and families. Both Ozzie and Harriet go to work 

now, so most families no longer have a stay-at-home parent to care 

for a new child, a sick spouse or an aging person. Businesses that 

offer policies that help employees meet the competing demands of 

work and family have seen the benefits to their bottom lines with 

increased productivity and a more committed workforce. 

This is a timely hearing because employees and their families, as 

well as employers, need flexibility more than ever. 

The value of flexibility to employers has increased because the 

recession has pressed all sectors of business and government to 

find ways to improve performance. Workplace flexibility is an inexpensive and effective way to motivate employees by humanizing 

jobs at times when so many aspects of our economy are so harsh. 

Some businesses do understand the value of flexibility for workers. A 2007 survey conducted by this committee found that, among 

America’s largest and most successful employers, 79 percent provide paid leave for new parents, and 45 percent provide unpaid 

leave beyond the 12 weeks mandated under the Family and Medical Leave Act. 

Businesses that rigidly cling to policies created when employees 

had fewer family responsibilities have fallen behind the times. 

2 

Managers who believe there is one best way to get the job done and 

do not listen to their employees are missing out on valuable innovations. A lack of flexibility gives demoralized employees even less 

reason to help their businesses survive and thrive. 

Perhaps most important in today’s economic climate is that flexibility can help save jobs. Employees understand this. A survey conducted this March found that a solid majority of employees are 

willing to take on additional and unpaid leave or vacation or to 

switch to a 4-day workweek in order to prevent layoffs. Many employees are ready to share their job with another individual or to 

take on reduced hours with reduced pay. Employees stand ready to 

work with employers to use flexible workplace options to control 

costs and preserve jobs. 

Flexibility is also crucial to the future of our economy. Employers 

who do not support flexible work arrangements will find valued 

employees fleeing at the first sign of recovery in the labor market, 

in addition to losing out now on the benefits of having a committed 

workforce. 

The Working Families Flexibility Act, H.R. 1274, can help. Our 

best employers are already using flexibility as a strategy to weather the recession, and I hope we hear more about these employers 

today. The Working Families Flexibility Act, which I have sponsored in the House, will ultimately benefit all American employees, 

businesses, and our economy by making the strategy used by our 

most successful businesses into public policy. It will generate the 

productivity we need to propel our economy forward in these tough 

economic times and to sustain our competitive position as the economy recovers. 

I have long championed policies to support working families, 

such as the Family and Medical Leave Act. That was one of the 

first bills that I passed in 1993. I saw President Clinton this past 

Monday, and he told me of all the legislation, of all the things that 

he worked on, to balance the budget, to bring down and control the 

budget and invest in education and health care, of all the initiatives in his administration, the one that the most people would 

walk up to him on the street and thank him for was the Family 

and Medical Leave Act. 

But more must be done to help families, which is why I have also 

sponsored the Federal Employees Paid Parental Leave Act, which 

recently passed the House of Representatives and provides new 

parents with 4 weeks of paid time off. 

If we as a nation truly value families, then we need new workplace policies that support our working families and set our children on a path for success early in life. 

I look forward to the testimony of our distinguished witnesses 

today. I welcome the public. And I allow my colleague and Ranking 

Member Mr. Brady as much time as he may desire. 

[The prepared statement of Representative Maloney appears in 

the Submissions for the Record on page 30.] 

OPENING STATEMENT OF THE HONORABLE KEVIN BRADY, A 

U.S. REPRESENTATIVE FROM TEXAS 

Representative Brady. Thank you, Madam Chairman. I join 

with you in welcoming our witnesses before us today, and I recogVerDate Nov 24 2008 09:07 Jun 03, 2010 Jkt 054937 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 C:\DOCS\54937.TXT SHAUN PsN: DPROCT
3 

nize this is an issue near and dear to your heart that you worked 

on for a long time and commend you for it. 

The recession continues to destroy jobs and force the unemployment rate ever higher, posing great hardships on millions of families. Unfortunately, the stimulus legislation has not yet been effective in boosting the economy. Last January two top administration 

economists projected the unemployment rate would not exceed 8 

percent if the stimulus were enacted, but as you know, the unemployment rate has risen to 91⁄2 percent and appears likely to climb 

significantly higher. 

Almost all businesses are under stiff pressure, and many small 

businesses are struggling to survive in this very challenging economic environment. They are unable to afford the costs of expanded employer-provided benefits. An effort to force small businesses to offer specific benefits would raise costs, especially of employment, and undermine their financial position. 

Before coming to Congress I worked with small businesses, ran 

one myself, and was director of three local Chambers of Commerce. 

I know how hard small businesses struggle. The recession in the 

’80s in Texas was particularly difficult; how they struggled to provide benefits, keep workers on the payroll, help them with their 

health-care costs, and it is a tough fight. Small businesses historically account for much of the job creation in the United States, 

about 70 percent, and undermining their ability to create new jobs 

and opportunities in a weak economy just isn’t good economic policy. And over the longer run, an effort to mandate employee benefits will tend to reduce other forms of employee compensation, including wages. Oftentimes there is only so much money to go 

around, and those choices tend to offset each other in a negative 

way. 

I remain concerned that the administration’s policies to increase 

Federal deficits and debt will burden the economy for years to come 

and undermine job growth. Higher taxes, mandates, and Federal 

spending could lead to a future with high unemployment and lower 

living standards. Every new mandate or tax Congress adopts now 

will only make the situation worse. 

It is not too late to reconsider our economic policies and avoid 

piling more costly mandates on an already overburdened economy. 

And what really concerns workers and small businesses back 

home in Texas is the new Democrat health-care proposal and what 

it would do to the quality and availability of their health care. This 

1,018-page proposal doesn’t control costs, according to the Congressional Budget Office, and will drive the budget deficits even higher, 

and it would leave 17 million people uninsured. A population approaching the size of Florida will continue to come into our emergency rooms and to other health-care providers without coverage. 

A maze of bureaucracy would be created standing between patients 

and medical services. 

According to the chart that the Minority staff of the Joint Economic Committee—our economists and health-care staff went 

through the provisions of the tricommittee bill line by line, and 

what this new bill establishes is 31 new commissions, agencies, and 

mandates that would decide what doctors you can see, what treatments you deserve, and what medicines you can receive. Medical 

4 

care would be rationed, and the wait times for even routine medical 

procedures would be extended. More taxes would be levied, further 

damaging the economy. This is an issue, Madam Chairman, that 

is of great concern. 

Thank you. 

[The prepared statement of Representative Kevin Brady appears 

in the Submissions for the Record on page 30.] 

[The chart titled ‘‘Organizational Chart of the House Democrats’ 

Health Plan’’ appears in the Submissions for the Record on page 

32.] 

Chair Maloney. That is an issue that is being debated on the 

floor. I would welcome doing a Special Order with you on it, but 

the focus of this hearing is on flextime, work-family balance. I appreciate your kind comments on my work in that area and request 

that you look at the bill that I put in. It mirrors legislation that 

was passed in London that would allow workers to request flextime 

without being fired, would not be a cost to the companies or to government, but would help working families better balance work and 

family life. So I request you to look at it and get back to me. 

Representative Brady. I would be glad to, absolutely, Madam 

Chairman. 

Chair Maloney. I hope you can help me pass it in this Congress 

and move forward to help working families. 

Representative Brady. Thank you. 

Chair Maloney. I would like to now introduce our panel of very 

distinguished witnesses today. Ellen Galinsky is president and cofounder of Families and Work Institute. She directs or codirects the 

National Study of the Changing Workforce, the most comprehensive nationally representative study of the U.S. workforce; the National Study of Employers, a nationally represented study tracking 

trends in employment benefits, policies and practices; When Work 

Works, a project on workplace effectiveness and flexibility now in 

30 communities and three States, funded by the Alfred P. Sloan 

Foundation; and the Supporting Work Project, a Ford Foundation 

project that is funding communities across the country to connect 

lower- and midwage employees to publicly funded work support 

through their employers. 

Cynthia Thomas Calvert is an employment attorney and deputy 

director of the Center for Worklife Law, a nonprofit program located at the University of California, Hastings College of the Law. 

Ms. Calvert is coauthor with Joan Williams of Worklife Law’s 

Guide to Family Responsibilities Discrimination and of Solving the 

Part-Time Puzzle: The Law Firm’s Guide to Balanced Hours. A 

graduate of Georgetown University Law Center, Ms. Calvert 

clerked for the Honorable Thomas Penfield Jackson and had a 

practice focused on counseling employers about compliance with 

employment laws. 

Thank you for being here and send our good wishes to Joan Williams. 

Karen Nussbaum has been at the AFL–CIO for over a dozen 

years and is now the executive director of Working America, a community affiliate of the AFL–CIO. Working America has 2.5 million 

members and is the fastest-growing organization for working people in the country. Ms. Nussbaum was a founder and director of 

5 

9 to 5, National Association of Working Women; president of District 925 of SEIU; and the Director of the U.S. Department of 

Labor Women’s Bureau, the highest seat in the Federal Government devoted to women’s issues, during the Clinton administration. 

I want to thank you for your life’s work and for being here today 

with your testimony. 

Ms. Galinsky, you are recognized for 5 minutes. 

STATEMENT OF ELLEN GALINSKY, PRESIDENT, FAMILIES AND 

WORK INSTITUTE, NEW YORK, NY 

Ms. Galinsky. Thank you, and thank you so much for having me 

here to talk about a new study that we are releasing today. 

The impact of the recession on employers and on their human resource policy has been widely debated and discussed in the media 

and in the public, but the information to date has been largely anecdotal, or it has come from consultants surveying their client base. 

What we wanted to know is what is really happening to employers 

and the way that they are dealing with people. So the purpose of 

this study is to provide national data. It is a nationally representative sample of U.S. employers with 50 or more employees, and the 

population of employers we surveyed is 400. We wanted to understand what percentage of employers have taken steps to reduce 

labor and operational costs in the past 12 months, and what specific cost-reduction strategies they have used; what are they doing 

to help their employees manage during the recession; and what is 

happening to workplace flexibility and other worklife policies at the 

same time. And then we wondered whether these strategies or 

steps differ from employers with different characteristics. 

We found overall that the recession has taken a very severe toll 

on employers. The most obvious indication of the recession’s impact 

on employers is the fact that two-thirds of them report that their 

revenues have declined in the last 12 months; 28 percent, or just 

more than a quarter, say that their revenues stayed about the 

same; and only 6 percent of employers—I think this is important 

in a nationally representative sample—say that their revenues 

have increased or there is growth. 

Most employers have made some effort to cut costs or to control 

costs during the recession, 77 percent, but among those employers 

that have seen revenues decline, it is 9 of 10. We found that layoffs 

have been pervasive. For example, we found that 64 percent of employers have cut back employees. We know that, but this confirms 

what we read about with the unemployment figures and what we 

experience. 

The main strategy that employers have used is to decrease or 

eliminate bonuses and salary increases, 69 percent; 61 percent 

have imposed hiring freezes; 57 percent have eliminated all travel 

that is not essential to business. Other strategies are less frequent, 

but, for example, we found that 29 percent—and this is relevant to 

the health-care debate—29 percent have reduced health-care benefits, or they have increased employees’ copay. Among those companies that have had reductions in hours, 29 percent have had voluntary reductions in hours, and 28 percent have had involuntary 

reductions in hours. 

6 

We also wondered whether employers are helping employees 

manage during the recession, and we found that between 34 and 

44 percent of employers report helping their employees manage 

during the recession, doing such things as helping those that they 

have had to lay off find jobs. Forty-three percent have done so. We 

asked how often they communicate about the financial situation of 

their companies, and 34 percent said that they do so very often. We 

asked whether they are helping them manage their own financial 

situation during the recession; 34 percent say yes. And we also 

wondered whether employers are connecting employees to publicly 

funded services or supports, both Federal or State or in their communities, and we found that 44 percent of employers are doing 

that. 

We also wondered about workplace flexibility. There have been 

lots of articles in the media saying it is over; other people saying 

they are using it, but they are using it in not necessarily good 

ways. Perhaps one of the most surprising findings of this study is 

that 81 percent of employers have—are maintaining the flexibility 

that they offer, 13 percent are increasing it during the recession, 

and only 6 percent have reduced the flexibility that they offer. Perhaps that is because employers recognize that flexibility is connected to engagement, retention, health and wellness. Our studies 

certainly show that. 

We looked to see whether employers are differing in the 

amount—if their composition of their workforce affects what they 

do. We already know that men are disproportionately affected by 

the recession, that the unemployment rate among men is 9.8 percent and among women 7.5 percent. And we found similarly that 

employers that have more than 50 percent women tend to be more 

supportive during the recession. For example, they are less likely 

to do layoffs. They are less likely to reduce working hours. They 

are less likely to change the scheduling of work. They are less likely to reduce salaries. We also found that employers that have more 

women are also more likely to communicate with their employees 

about what is happening with their financial situation and more 

likely to connect them to publicly funded benefits. 

When we look at those who employ 50 percent or more of hourly 

workers versus fewer than 50 percent, we find that employers with 

more hourly workers are more likely to reduce health-care coverage 

or to require larger copays. We also find that, by a large margin, 

salaried employees who have been laid off are more likely than 

hourly workers to get help in finding new jobs, 55 percent versus 

36 percent. 

When we look at employers that have more unionized workers, 

we find that they are more likely, for example, to cut back flexibility, 11 percent, versus employers with fewer unionized employees, 6 percent. 

When we compare for-profit and nonprofit organizations, we find 

that the recession has affected for-profit employers more. That was 

a bit surprising to us, given that we hear so much about donations, 

and it is true, being down in the nonprofit sector. But we found 

that for-profits are more likely to report lower revenues, 71 percent 

to 54 percent, and they are more likely to have reduced or decreased bonuses or salary increases, to lay off employees, to reduce 

7 

contributions to retirement funds; and to—or they are less likely, 

to help employees manage their own financial situation. 

Finally, we look at the difference between large employers, those 

with 1,000 or more employees, and small employers, those between 

50 and 99 employees, and we find that larger employers are more 

likely to eliminate travel. They are more likely to increase telecommuting. They are more likely to offer buyouts or other inducements 

for early retirement, and they are more likely to provide support 

to employees to manage the recession. 

So, in conclusion, I think our study makes it clear that employers 

are reducing labor and operational costs, but it also makes it clear 

that many employers are keeping flexibility, and they are doing 

things to continue to engage and motivate the talent, the people 

who are most important to their success now and in their future. 

Thank you. 

Chair Maloney. Thank you. Thank you very much. 

[The prepared statement of Ellen Galinsky appears in the Submissions for the Record on page 33.] 

Chair Maloney. Ms. Calvert. 

STATEMENT OF CYNTHIA THOMAS CALVERT, DEPUTY DIRECTOR, THE CENTER FOR WORKLIFE LAW, SAN FRANCISCO, CA 

Ms. Calvert. Thank you. This morning I would like to share 

some stories from the Worklife Law hotline. These stories from the 

past 18 months show how some caregivers and flexible workers are 

faring in the recession. 

Although I will be discussing the employee’s perspective, I would 

like to note that Worklife Law includes the perspective of the employer. We have a six stakeholder model that brings together employees, employers, plaintiffs’ lawyers, management-side lawyers, 

unions, and public policymakers around the issue of family responsibilities discrimination. 

These stories involve two types of bias: caregiver bias and flexible work bias. Caregiver bias is assumptions about employees with 

family caregiving responsibilities, such as a the assumption that a 

man with a dying father will miss deadlines regardless of his actual performance. Caregiver bias includes maternal wall bias, bias 

against mothers, such as a pregnant woman will miss too much, or 

she will not be committed to her job once she has had her baby, 

again without regard to actual performance. 

Flexible work bias mirrors and overlaps with caregiver bias. Employees who work flexibly often encounter assumptions about their 

commitment, dependability, ambition and competence. 

The volume of calls to our hotline has more than doubled since 

the economic downturn began. Many calls suggest that employers 

are targeting caregivers and flexible workers for termination. Some 

of this has been blatant, such as part-timers telling us that they 

have been chosen for layoffs ahead of employees who are working 

standard schedules. Some of it has been more circumspect, such as 

the situation involving a scientist Tobi who worked full time from 

home because she had a daughter who was born with a disease 

that requires her to be breast fed frequently, and Tobi is unable 

to pump milk. The arrangement worked very well. Tobi was very 

productive. She had happy clients. She won awards. She later reVerDate Nov 24 2008 09:07 Jun 03, 2010 Jkt 054937 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 C:\DOCS\54937.TXT SHAUN PsN: DPROCT
8 

ceived a new supervisor, who allegedly referred to her telecommuting arrangement as a mess she would have to fix. The supervisor moved Tobi to a new team and reportedly told her to be in 

the office 30 hours a week or to work part time, even though she 

allegedly knew that these schedules would not allow Tobi to feed 

her child. When they could not agree on a schedule, the company 

terminated Tobi, and the supervisor had indeed fixed the mess. 

Another case in which a supervisor allegedly created a difficult 

situation for a caregiver involved a single mother who had been 

working successfully for nearly a year before she was placed on a 

schedule of rotating nighttime shifts by her new supervisor, making it impossible for her to find child care. Other callers have had 

their flexible work arrangements terminated, including several who 

were working part time when they were told they needed to return 

to full-time work or be terminated. The economic rationale for this 

is questionable. Requiring employees to return to full-time work at 

greater pay and with benefits costs employers money unless the 

employers are banking on reducing the payroll by forcing the employees to quit. 

We have also received many calls from women who were terminated shortly after their maternity leaves. One of these calls was 

from an employee I will call Ann, who had performed well at a 

large company for more than 6 years. Ann had a baby. Her manager worked with her on setting her schedule, and he was happy 

with her performance. And there is a lesson here. A little flexibility 

on the part of the manager allowed the company to retain a good 

worker. 

Ann became pregnant again. A new manager changed her schedule, putting her on late-night and very early morning hours, and 

that is a second lesson. There is a pattern in which flexibility 

works fine until a new manager arrives on the scene. The manager 

may have a mandate to reorganize the department. The manager 

may not be aware of the employee’s value. Regardless, the pattern 

typically involves termination of flexibility and then action to terminate the employee if she won’t quit. 

As the sole breadwinner, Ann had to stay employed. She returned from maternity leave, and she asked for flexibility. Instead 

she was laid off in a companywide RIF. She was the only person 

in her department who was laid off despite her seniority. And that 

is lesson three here: Having a child and asking for flexibility are 

two key trigger points for bias and discrimination. 

In conclusion, research and experience show that, in the absence 

of bias, employees will resolve work-family conflicts through flexible schedules. Where the bias is strong, they cannot. For this reason, we would encourage any policymaker who is considering legislation to address the issue of bias. Thank you. 

[The prepared statement of Cynthia Thomas Calvert appears in 

the Submissions for the Record on page 64.] 

Chair Maloney. Ms. Nussbaum. 

STATEMENT OF KAREN NUSSBAUM, EXECUTIVE DIRECTOR, 

WORKING AMERICA, WASHINGTON, DC 

Ms. Nussbaum. Thank you, Chair Maloney and Congressman 

Brady. I am privileged to be here today in the company of Ellen 

9 

Galinsky and Cynthia Calvert to discuss the important issue of 

work-family balance. 

For generations, the problem of work and family was solved simply by paying a family wage to a single breadwinner. Accepted 

norms governed employer-employee relationships, strengthened by 

unions. This solution was not available to everyone, especially African Americans. But the post-World War II economic boom saw a 

common increase in the standard of living across all income groups. 

Families were tended to, and communities benefited from the volunteer activities of their members. 

However, a 1974 Business Week editorial signaled a shift in the 

employers’ strategy. They advised cutting wages and benefits and 

warned, quote, ‘‘it will be a bitter pill for most Americans to swallow, the idea of doing with less so that banks and big businesses 

can have more.’’ And indeed over the next 35 years, most Americans did end up doing with less. Median family incomes stagnated 

and actually dropped in recent years. Twenty-five years ago more 

than 80 percent of firms offered defined benefit pensions; today less 

than a third do. Today nearly half of private-sector workers have 

no paid sick leave, and nearly a quarter of workers have no paid 

vacation or holidays. And working swing shifts has become the 

cruel response to the need for flexible work hours. Nearly half of 

all women work different schedules than their spouses or partners. 

The second part of the Business Week strategy also came true. 

Banks and big businesses, until they crashed recently, did get 

more. Since World War II, corporate profits grew at twice the rate 

of workers’ salaries. Between 2001 and 2004, while workers’ income 

fell slightly, corporate profits grew 62 percent. The number of 

working Americans without health insurance falls every year, 

while from 2002 to 2005 alone, insurance company profits soared 

by nearly 1,000 percent. 

Former GE CEO Jack Welch, for one, says that there is, quote, 

‘‘no such thing as work-life balance; that working women have no 

choice but to sacrifice either work or family.’’ But Ellen Galinsky’s 

impressive work has demonstrated over time that work-life policies 

are viable and widespread, increase productivity and personal satisfaction. 

However, after 30 years of voluntary adoption of work-family 

measures, we also know that these policies will not become a reality for most workers if they are left up to voluntary action. This 

moment combines the economic crisis, the history of success where 

work-life balance issues have been implemented and the outstanding need. It is the perfect opportunity for us to take the next 

step and to create standards. Two policy recommendations would 

create the foundation for productive workplaces. 

The most effective and flexible way to create customized improvements at the workplace is by enabling working people to talk directly to their employer. This is sometimes known as collective bargaining. The Employee Free Choice Act would restore the right to 

collective bargaining, which would help create ever-evolving worklife balance. 

Uncontrolled health-care costs have crowded out the possibility of 

other workplace improvements, so solving the health-care crisis 

would create a new floor for work-family balance. 

10 

In addition, there are key standards that would help create a 

new framework. 

Congress should support the Healthy Families Act, which would 

provide full-time employees with 7 paid sick days per year. 

The Family and Medical Leave Act that you cited, Chair Maloney, has been a great success; yet half of all private-sector workers 

don’t even have access to it, and four out of five who do have access 

report that they can’t take it because it is unpaid. So we should 

expand it, and we should provide wage replacement. 

I would like to recognize your work, Chair Maloney, for your 

leadership on the issue of flexible work hours—the Working Families Flexibility Act, which seeks to advance that cause. 

The government should correct the misclassification of employees 

as independent contractors, which allows employers to avoid taxes 

and benefits altogether on growing numbers of workers. 

And finally, child care and preschool were successful corporate 

and government policies in World War II and have been sorely 

needed ever since and somehow have just dropped out of the public 

debate. 

In conclusion, it has taken years to achieve basic workplace 

standards, in some cases a century of struggle. Many benefits 

workers took for granted in the 1950s are now seriously eroded. We 

are far behind all other industrial countries in both standards and 

practice, and we have seen that without standards we will not have 

the practice. Now is the time to put the next generation of workplace standards in place. 

Thank you. 

[The prepared statement of Karen Nussbaum appears in the 

Submissions for the Record on page 69.] 

Chair Maloney. Thank you all for your testimony. 

The economic downturn is hurting both employers and employees. The unemployment rate is now at 9.5 percent. Can you each 

elaborate on how flexibility policies can help businesses and workers balance competing demands between work and family? 

Ms. Galinsky. 

Ms. Galinsky. A number of employers have recognized that, if 

they provide flexibility, they can save jobs, and at the same time 

they can help people manage their work and family lives. We found 

in the study when the interviewers asked employers in the interviews how they were managing the recession, that some employers 

had informal ways. They had sort of the proverbial suggestion box 

for how to cut costs. And often those suggestions led to saving jobs 

and led to greater flexibility. Other employers had more formal 

standards, a labor-management committee, for example, to come up 

with these kinds of solutions, and they found that both reducing 

hours or they found that compressed workweek might make a difference. 

I think the important thing and part of our definition of flexibility is that it has to work for both the employer and the employee. If it only works for the employee, in our view, it is not 

right, and if it only works for the employer, it is not right. We 

found in our study that 57 percent of employers give employees 

some or a lot of choice about the flexible schedules that they work, 

and it is critical to me that, if we are going to use flexibility to deal 

11 

with issues of the recession, that employers need to be a part of 

the discussion and a part of the solution. 

Ms. Calvert. I would echo that you have to have a solution that 

meets the needs of both employers and employees. We spend a significant amount of time at Worklife Law and at our Project for Attorney Retention, which is one of our initiatives crafting businessbased solutions to flexibility. And we have come up with a number 

of best practices for employers that will help them to retain valued 

employees, which has been proven to increase client satisfaction or 

customer satisfaction; improve profits; of course, improve productivity, morale, retention, things of that nature. But in crafting 

these best practices, we have worked very closely with the employers to ensure that we are not suggesting things that are unworkable in the workplace. 

One of the best practices that we suggest is that employees be 

allowed to craft individually tailored schedules to meet their 

unique family situations rather than having certain types of flexibility prescribed by the employer or perhaps mandated by legislation. The employers we are aware of who have implemented this 

have done so with great success and have very satisfied employees. 

One of the things we have been exploring recently is the use of 

reduced hours as an alternative to layoffs, and we have heard some 

encouraging reports from some employers who have done that. As 

work levels drop off, the employers can match supply and demand 

by also reducing the hours worked by the employees, reduce the 

salaries, save on payroll without having to lay people off. 

Chair Maloney. Ms. Nussbaum. 

Ms. Nussbaum. I would agree that we need to find solutions 

that work within each individual workplace, and I would echo my 

earlier comments about the most effective way of accomplishing 

that is when employees and employers can meet together to work 

out those solutions in a collective bargaining framework. That provides the greatest flexibility and making sure that we meet the 

needs of the employer and the employee. 

A recent report by the Labor Project for Working Families finds 

that, in fact, workers with unions on the job are far more likely to 

have a whole host of flexible arrangements or leave provisions that 

allow them to meet their family needs. 

But I would also like to say that the problem—the magnitude of 

the problem goes beyond what individual employers and employees 

may be able to work out on their own. We have seen a shift in the 

burden of the cost of achieving work-life balance over the last 35 

or 40 years that has all gone on the shoulders of working families, 

and it is not sustainable. And the costs then accrue to society as 

a whole. As children get less attention, they do less well in school. 

Parents have to leave the workforce to attend to family medical 

needs. These are huge costs that lead to greater losses in productivity in the future. And that is why we need underlying standards. 

Chair Maloney. My time has expired. 

Mr. Brady is recognized for 5 minutes. 

Representative Brady. Thank you, Madam Chairman. 

I agree that I think workforce bias does exist, but not just within 

the business community. There are thousands and thousands of 

complaints against the Federal Government for gender bias, age 

12 

bias, poor supervisory decisions when it relates to families and 

workers. Small businesses, in my experience, want to hire and keep 

good employees. In recessions they find it very difficult to do both. 

What we don’t often hear in hotlines is I know of a 17-worker 

organization in the Eighth Congressional District who one of the 

workers had a second child, a 3-year-old and then a second child, 

and couldn’t afford the health care for the second child. So the employer made arrangements to have the infant in the office for the 

first year until the family could afford to get the day care that they 

needed. It took adjustments. It was good for the office, I think, and 

they kept a very valued employee, and I think there is a lot of that 

flexibility going on. 

The problem is small businesses need to have the flexibility. One 

size doesn’t fit all, and my concern again is what is the cost of this? 

Larry Summers, who is one of the President’s key advisors, said, 

quote, Mandated benefits are like a public program financed by 

benefit taxes. There is no sense in which benefits become free just 

because government mandates that employers offer them to workers. So my belief is that we ought to retain that flexibility for especially our small-business community. 

So I wanted to ask our panelists, that is one of the key concerns 

of the small-business community of mine; so would you tackle that 

head on and give us your thoughts? Why don’t we go back the other 

way. Why don’t we start with Ms. Nussbaum and work our way 

down the panel. 

Ms. Nussbaum. I would appreciate the concerns for small business and the tremendous pressures that they are under, and I do 

think that we need to find solutions that take that into account. 

I do think, though, that as we have brought in generations of 

new policies, there have been at times a concern that was not really in relation to the actual implementation of a new policy, and 

that we may find that by setting some new standards, such as the 

Workplace Flexibility Act, or extending leave, unpaid family leave, 

to far greater numbers of employees will not have a negative effect. 

I think that we have to look at that experience and see how we can 

create a higher floor for most workers, including those in small 

business, and then make exemptions where we need to. 

Representative Brady. Thanks, Ms. Nussbaum. 

Ms. Calvert. 

Ms. Calvert. If I understand your question, you are asking how 

we can tackle the flexibility issue and flexibility bias without a 

mandate on employers; is that correct? 

Representative Brady. Yes. 

Ms. Calvert. One of the key ways is a right-to-request law, and 

I should preface my response by saying Worklife Law does not promote any particular legislation. We provide technical guidance to 

policyholders based on our research. But based on our research, 

based on what we know also from what we are seeing at the hotline, a bill such as H.R. 1274 balances the interests of employers 

and employees and encourages them to engage in a dialogue without mandating certain types of flexibility to be given. The employers remain free to fashion with the employee what will work for 

that particular workplace. Fortunately, we do see in a number of 

13 

best practices workplaces that type of back and forth already going 

on, and we know that it can be very successful. 

In terms of things such as expanding the FMLA, which certainly 

I know certainly a lot of people want to do, I think we need to look 

at whether extending the FMLA benefits to smaller employers 

would substantially increase their costs or their burdens, and it is 

too early at this point for me to give much information on that. But 

I would note that a number of the small employers that I have 

worked with in my private practice already provide FMLA-type 

benefits to their employees. A lot of these are 10-employee organizations, 15, 20. And the reason they do so is it is good for business. 

They want to be able to keep their employees, and they realize that 

it is the right thing to do. So for employers of that sort, there would 

not be any additional cost to them. 

Mr. Brady. Thanks, Ms. Calvert. 

Ms. Galinsky. 

Ms. Galinsky. We have been tracking what employers are doing 

for the last decade. When we began to look at this, our assumption 

was that smaller employers would be less flexible, and that it was 

the large employers, because it was the large employers who were 

getting written about in most of the media reports, and they are 

easier to find and, therefore, obviously easier to write about. 

We found that, in fact, to our surprise, smaller employers were, 

in fact, more flexible when we first started to look at this than 

larger employers. And it is probably because people all knew each 

other, and so it would be harder to say no to the kinds of stories 

that you were telling if—when you probably know that aunt or that 

father or that child or that sort of thing. 

We found that the culture of flexibility, which is what is really 

important—it is how people—despite what the policies are, it is 

how people really treat each other, it is whether there is jeopardy 

for using the flexibility that you have—was more pervasive among 

smaller employers. We are looking at this from an employee perspective; so I am talking about any size. When we do surveys of 

employers, we look at employers with 50 or more. We found the 

last time we looked at this issue, that smaller employers were no 

longer more flexible than larger employers, and the main reason— 

one of the main reasons is that large employers were catching up 

to smaller employers. 

Now, smaller employers are less likely to have programs and 

policies and written procedures. Whether or not you have programs 

or policies in a company, it is whether people talk to each other, 

it is how they talk to each other, it is how they solve their problems that really make the difference, and whether there is jeopardy 

for using what happens. So you can have a wonderful policy, but 

I think, as Ms. Calvert said, if there is jeopardy for using it, it 

doesn’t work. We found that the level of jeopardy in the United 

States for the last two decades that we have been tracking, it has 

not gone down. About two in five employees feel that there is jeopardy for using the flexibility that their employers offer. 

So we need to create a way of having dialogue so that employers 

and employees can work out these issues in the way that this bill 

proposes, for example. But we also need to ensure that there is not 

jeopardy for using it, because then it really doesn’t achieve the 

14 

kind of productivity effects, the kind of loyalty engagement effects 

that most people want. 

Mr. Brady. I have not read your survey in depth, but what you 

are saying, I think, is reflective. Larger corporations have better 

benefits. Small businesses can be a little more flexible. Although as 

you get smaller, you get to 10 employees, 8 employees, 5 employees, providing time off, losing an employee for an extended time 

just either shifts the burden or has a real direct impact on that 

small business. So in some ways there is sort of a middle ground 

on this, and, again, a reason why the one-size-fits-all doesn’t work 

quite as well. But I think your survey results are really interesting. 

Madam Chairman, I apologize. We have a Ways and Means hearing, and I apologize for leaving. 

Chair Maloney. Thank you for being here. We certainly understand. It is very busy at the end of the session here. But this bill 

is very flexible, and the employer and the employee are able to 

work out a flexible time schedule, and the employer can turn down 

the request, but the employee will not be fired for having requested 

it. So I hope you will consider it. Thank you for being here. 

Mr. Hinchey—excuse me. Mr. Cummings was here earlier. 

Representative Cummings. Thank you very much. Thank you, 

Madam Chair. 

Chair Maloney. I am used to Mr. Hinchey’s sitting next to me. 

Representative Cummings. No problem. 

To all of you, without adequate protections in place, work-life 

conflicts are potentially more severe for low-wage workers than 

they are for higher-wage workers. An employer may be less likely 

to make accommodations for an employee viewed as less critical to 

the operations. 

Could you describe in greater detail the key obstacles that lowwage workers are challenged with versus middle-wage earners? 

Ms. Calvert. 

Ms. Calvert. A number of obstacles. One is just simply access 

to alternatives for things like child care and elder care, care of a 

sick spouse. Low-wage workers do not have as many resources 

available to them. 

Another is an issue that you just flagged, which is the issue of 

value to the organization. An employer may be a lot less likely to— 

might be a lot less likely to accommodate or to make some provisions for someone who is easily replaced. 

The other is the nature of the work. We like to see employers be 

creative in coming up with ways to do different types of jobs flexibly, but there are some jobs that just require you to be physically 

present for a certain number of hours in a certain place, and that 

does limit the amount of flexibility that is available. That tends to 

fall more in the low-wage category. So a number of these obstacles 

make it a little bit more difficult, certainly not impossible, to provide flexibility to low-wage workers. It is absolutely critical. These 

people need their jobs. Without the flexibility many of them can’t 

work. We hear that on our hotline all the time. 

Representative Cummings. One of the things, very quickly, is 

in talking to some employers in my district, they tell me that with 

this recession, the situation that we have here today, they are more 

likely to let people go; in other words, to fire them and hire someVerDate Nov 24 2008 09:07 Jun 03, 2010 Jkt 054937 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 C:\DOCS\54937.TXT SHAUN PsN: DPROCT
15 

body else that will fit. In other words, if there are people who are 

absent, they are less—the employer is less likely to go along with 

X amount of absentees. In other words, they will reduce those absentees and say, okay, since so many people are not working, I can 

get somebody to do this job, they will come. So that creates a problem, too, because you have got a workforce that is in—particularly 

for a, quote, noncritical-type employee. 

Ms. Galinsky. 

Ms. Galinsky. When we look at both employers that employ lowwage workers or we look at employees and their experiences, because we do studies of both employers and employees, we find what 

you are saying is absolutely true. Lower-wage employees or lowwage employees who live in low-income households tend to have 

much less access to flexibility. 

My own view is that we are living in the 21st century with 20th 

century attitudes, and part of that is the fact that—we have been 

talking about a number of them—that flexibility will only work for 

the employer or the employee. It has to work for both. Or that the 

Congresswoman began with the Ozzie and Harriet story. Eighty 

percent of couples in the workforce are now dual-earner couples, 

and women bring in 44 percent of family income now. We find that 

one in four women, 26 percent, is earning more—at least 10 percent or more than her husband. So that is another outmoded view. 

I think an outmoded view is that low-wage workers are less valuable to their employer. They are the backbone often. They are the 

customer service person who answers the phone, the person who 

takes the reservation, the person at the call center, the person who 

checks you into the hotel. They are the frontline people at most 

businesses. And even though it may be quicker to hire someone 

else and get rid of the person who is not working out, I think that 

in the end that doesn’t serve the employer very well, because employees look around and see how each other is being treated, and 

they are less willing to give their all for an employer who doesn’t 

treat employees well. 

Now, that is not to say that in a tough time that tough decisions 

don’t have to get made, but I think that we need to move to a 21st 

century recognition that our economy very much depends on the diversity of different kinds of people, all different kinds of backgrounds, all different generations, but also all different kinds of 

jobs, and that there are many industries—the industries where 

lower-wage workers are treated well are the industries that tend 

to be more successful—or the companies. I don’t mean the industries. The companies. 

Representative Cummings. Thank you. 

[The prepared statement of Representative Cummings appears in 

the Submissions for the Record on page 74.] 

Chair Maloney. Mr. Hinchey for 5 minutes. Thank you. 

Representative Hinchey. Thank you very much, Madam 

Chairman. 

And thank you very much for being here. I just have a couple 

of questions. 

I wanted to ask Ms. Galinsky, you talked about the fact that 

there were 57 percent of the employers who were engaged in flexibility, and that was having a positive effect to some extent. 

16 

Ms. Galinsky. No. This particular study looks at how the recession is affecting employers. It is a study that we just released earlier this morning. We found in that study that 81 percent of employers had maintained the flexibility that they offered, 13 percent 

had increased it, and 6 percent had reduced it during the recession. 

And my point was that I guess, because we didn’t ask, but I guess 

that they see that there is a value to having flexibility. That is why 

they are not dropping it at this point. 

We have found in many studies that employers that are good employers, and that isn’t just having flexibility, but the employers 

that give people learning opportunities, that help people succeed on 

their jobs and so forth, they are effective employers and they have 

flexibility, tend to be much more—to have more employees who are 

more engaged, who want to stay on the job, who are more loyal, 

those sorts of things. So being an effective and flexible employer 

tends to pay off for the business. 

Representative Hinchey. Thank you. Thanks very much for 

clearing that up. 

The situation that we are dealing with, of course, in the context 

of this economy is something that we have to try to deal with more 

effectively. One of the aspects of that in an interesting way is how 

the number of women in the working force has continued to grow. 

The information we have, for example, is back in ’75 was less than 

half; just 2 years ago it was up above 71 percent, and that number 

is continuing. So—and that 71 percent is 70 percent of mothers in 

the labor force. 

So this is a situation that is having an interesting effect on families and, of course, an interesting effect on women, and I think to 

a large extent the effect it is having on women and to some extent 

at least is positive, because it enables them to be out there in the 

world, doing things that may be creative or in some case maybe 

not, but in any case that is the situation. 

What are we going to do to deal with this more effectively? One 

of the things that is happening now is that the wage increase has 

gone up. Do you think it should go up even more? That wage increase was increased 2 years ago. Now I think it is taking effect. 

I think it takes effect this week, maybe today. Should we be increasing that more? 

Ms. Galinsky. I want to say one thing about women before I 

talk about wages, which is that, interestingly enough, we tend to 

think of work-life or work-family issues as being a women’s issue. 

And yes, women tend to take the majority of responsibility for their 

family, although men are increasingly taking more. According to 

women now, 31 percent of their husbands are taking as much or 

more responsibility for their children as they are. 

Men are feeling more work-life conflict these days than women, 

and I just want to make sure to say that the work-life conflict is 

an equal opportunity problem. And we need to pay attention to 

older people, younger people, women and men, in all of the aspects 

of their work and family life. 

I think the issues of poverty are very pervasive and difficult 

issues in our country, and particularly for women who earn less, 

on average, for many reasons. But we are now in a situation where 

women are about half of the labor force. The recession has brought 

17 

up women’s levels in the labor force undoubtedly. And one in four 

of them are earning at least 10 percent or more than their husbands. So we cannot look at women’s earnings as pin money or second earnings or that sort of thing. 

We have to understand that families wouldn’t be surviving in 

this economy often—if there are two people in the family—if both 

of them weren’t working. And not only do we need to pay attention 

to how much money they are earning, which was your question, 

but I think we need to—and we have a project concerned with 

this—that we need to pay attention to taking advantage of things 

like the Earned Income Tax Credit and other things that the government offers that can help low-income families to have more 

money in their pockets. 

And we need to create a system, particularly in this bad economy 

where middle-income and low-income people are suffering and people are suffering throughout the economy, where people can not 

only earn more money and have some sort of economic stability— 

being worried about losing your job is probably the biggest predictor we see of poor health, poor mental, poor physical health, and 

so it is going to cost us money in health care; but we also need to 

make sure that employees can take advantage of the things the 

government or their communities have provided for them. 

Ms. Nussbaum. Minimum wage, I believe, is going up today. 

More women than men work at the minimum wage. I would recommend that we do increase the minimum wage to make it more 

of a living wage. When the minimum wage is so low that workers 

can’t support themselves or their families, it is unsustainable. And 

I do think that the Congress should index it, and then not have to 

worry about it again in the future, not have to take those votes and 

take their attention away from other really important issues. 

I would like to also comment on the low-wage worker problem, 

where any difficulty encountered in the workforce is devastating for 

a family operating on low wages without the resources that Ms. 

Calvert was referring to to solve a problem. But we found, in practical experience, that there is nothing about low-wage jobs that 

makes them not available to flexible work arrangements or being 

able to take use of leave provisions; that there is nothing endemic 

about the work, it is about whether you have the bargaining power 

to make it happen in your workplace. And that if there were any 

place to concentrate to create greater flexibility and a higher floor, 

it would be among low-wage workers because when they encounter 

a problem, it becomes a spiral where a family requires greater government services, has greater difficulty reentering the workforce, 

and it is much more costly. 

Chair Maloney. Thank you. 

Mr. Snyder. 

Representative Snyder. Thank you, Madam Chairman. I am 

sorry I was late for the beginning of the hearing. 

Mr. Brady has left, but he spent most of his—at least the written 

statement I have—talking about health care. So I wanted to ask 

you all about health care. 

I have to make one comment. In his written statement he says 

that the Democratic plan, I guess Mr. Waxman’s proposal, would 

leave 17 million people uninsured. And he is lamenting that, which 

18 

we all do. I think a significant number of those people are in an 

illegal status, and so they would not be covered by the bill. We will 

always have people be out of it. 

But my guess is that in the final version of the bill that actually 

gets signed into law by President Obama, we will find that we drop 

that number down even further. But I just don’t understand lamenting the fact that 30-plus million people will get health insurance, even by his analysis, which seems like a great victory when 

you have almost 50 million without health insurance, and that 

means for longer than a year without health insurance. 

The question I would ask you is if you all have any comments 

or expertise on the area of small business and their ability to provide health insurance for themselves and their employees; and 

what has the trend been and what direction do you see the trend 

going with regard to the ability of small businesses to provide 

health insurance to their employees, which includes themselves in 

most cases? If you all would comment on that issue. 

Ms. Nussbaum. We can provide information for you. I don’t 

have information directly available at this moment. 

Ms. Galinsky. We have the information, too. And I don’t have 

it memorized, but I think that there are a lot of—I think that it 

is not just small business, but we have an increasing number of 

contract workers, too, who lose their jobs and then come back as 

working for the employer but not covered by any benefits. 

I know that when employees don’t have health insurance and 

when they worry about losing their jobs, that that is so critical to 

family well-being. It is so highly correlated with everything negative that you want to look at—worry, depression, lack of engagement at work, all those sorts of things. So that is kind of, to me, 

a floor of taking care of families is providing for them economically 

and helping them take care of their families and their health. 

Representative Snyder. If you all have that information, I 

think it would be helpful. I agree. 

You know, we talk about the number one thing that Americans 

want is they want a good job and a good economy—which we all 

want, right? In fact, what we want is the money that comes from 

that good job and a good economy. It is what we want to buy. And 

the number one thing we want to buy as best we can with that 

money is good health for our family, good health for our family 

members. And even those with good jobs in small business, a lot 

of them are not able to do that because small businesses are increasingly bailing out on health insurance because their rates go 

up higher, because of small groups and all those things that you 

are familiar with. 

I yield back, Madam Chairman. 

Chair Maloney. Thank you very much for raising that very important issue. And hopefully we will get health care this year. 

I recently reintroduced the Working Families Flexibility Act, 

which would give employees the right to request flexible work arrangements and not face being fired for having asked. 

How does flexible scheduling help businesses succeed? And if you 

have examples of firms that use a right to request process like the 

one my bill proposes, if you could elaborate. And it is based on a 

United Kingdom model that has been successful in Britain. 

19 

And basically, if I could ask, why is legislation that sets guidelines for our right to request important? And Ms. Nussbaum and 

Ms. Calvert and Ms. Galinsky, I am very interested in your response. 

Ms. Nussbaum. I think there is a presumption on the part of 

employers that maintaining control over every aspect of employees 

is to their benefit; that if they concede the right to request—a 

change in schedule, for example—that they lose control and it becomes untenable. In fact, the opposite is true; that if employees 

have greater control over their work life, their working conditions, 

that it creates a more stable work environment. That has been our 

experience over 100 years of collective bargaining. It is certainly 

the case in many countries where we do see similar provisions enacted, that all industrialized countries actually have greater flexibility that is guaranteed. And I think that this is a modest but important first step and could be easily accommodated. 

Chair Maloney. Thank you very much. 

Ms. Calvert. 

Ms. Calvert. The right to request law would, by providing guidance to employers and by stimulating conversation in the public 

and in the workplace about flexibility, would have, in my view, a 

very good effect on the overall state of flexibility in the workplace. 

One of the things in the bill that I think is very important is the 

anti-retaliation provision. A lot of conversation right now is not 

happening in workplaces because of the bias against flexible workers. Workers often feel that if they even bring up the topic, it is 

the professional kiss of death. We certainly have seen that in our 

work with law firms. 

In terms of employers who are already engaging in this type of 

process, there are a number of best practices law firms that have 

good, flexible work policies in their handbooks. And they have procedures whereby any lawyer, for any reason—not limited to child 

care, not limited to mothers—can request flexibility upon a showing of how the flexibility will benefit the employer and how it will 

work in practice. 

If it sounds a little bit familiar, it does track some of the language in the bill. We have seen this play out for months, and in 

some cases years now, in these law firms. They are retaining very 

good workers, they are retaining women, they are advancing their 

women. 

Importantly, they are also retaining men. A lot of men want 

flexibility. And the stigma against them requesting flexibility is 

even greater than against women because they have the double 

whammy. Not only are they now putting themselves in this flexible 

worker category, but they are now working against their sexual 

stereotype. 

And so having a provision by which they feel free to be able to 

request flexibility without retaliation would have a very good effect. 

Chair Maloney. Ms. Galinsky. 

Ms. Galinsky. When the law was passed in the U.K. and when 

the law was passed in New Zealand, it interested me greatly that 

employers began to copy the law; it is usually the other way 

around. But in this case, employers began to use the provisions of 

those laws to create their own flexibility policies. 

20 

When the Family and Medical Leave Act was passed in 1993, 

there was a huge amount of business opposition to it. You can remember that and I can remember that—you can all remember 

that—it was seen as the ‘‘camel’s nose under the tent’’ and so forth. 

What is very different today than in 1993 is that businesses are 

using flexibility. They are using it for their own purposes. And 

there are groups here in this room today that bring in a business 

constituency to talk about how to create policy that works for business and works for employers. 

World of Work is here, and that has been their stance. As a representative of businesses, Corporate Voices is here in this room, 

and that has been their stance: to have a corporate voice in the 

public policies that affect families. And WF 2010 from Georgetown 

Law Center is here, and they have brought together both employer 

representatives and employee representatives to come up with 

their platform. 

So I think it is a different time. And keep introducing the bill 

because I think there should be a different debate because business 

groups and business and employee groups are now saying that they 

want to have a voice and be a part of the public policy discussion. 

Thank you for having me. 

Chair Maloney. Thank you very much. My time has expired. 

Mr. Cummings. 

Representative Cummings. Ms. Nussbaum, you wrote in your 

testimony—and I am just piggybacking on what Ms. Galinsky was 

just talking about—you wrote that more of the private sector 

should be subject to the Family and Medical Leave Act. Tell us in 

more detail how you suggest going about that sort of expansion; 

and, other than widening the scope of businesses subject to the act, 

the additional changes that you think we need to make. 

Ms. Nussbaum. My written testimony provides detail on what 

kinds of changes, but they include expanding to smaller companies, 

lowering the amount of time a worker needs to be in the company 

in order to be eligible for family medical leave, and the reasons for 

which you can take family medical leave. All of those things would 

be important expansions, and I think easily accommodated, not disruptive, and incredibly important to the workers, who would then 

have access to it. 

Additionally, I think that in order to make family medical leave 

really effective, we have to provide wage replacement. As I testified 

earlier, 80 percent of workers say that they could not take the 

leave because they had no wage replacement. And so unpaid leave 

becomes a nice sounding benefit, but not one that is really of practical use for most people. 

Representative Cummings. And Ms. Calvert, legal action or 

the threat of legal action is an obvious recourse that employees 

have against a company’s violation of internal policy or Federal/ 

State labor laws. It is reasonable to assume that lower-income 

workers may have less access to legal representation in these 

cases. Are resources available for low-income workers to address 

discrimination or other complaints? And what role can unions play 

in all of that? 

Ms. Calvert. You are right, there is definitely a problem of access to legal representation for lower-wage workers. On our hotline 

21 

we do our best, if someone has a claim, to find resources for them. 

Sometimes lawyers will take their cases on a contingency basis, depending upon the strength of the case. There are a number of pro 

bono services, women’s law centers and the like, around the country to which we can refer these people. We also have some resources available that anyone can use to try to resolve their problems within their workplace on their own. 

The role of unions is very, very important. We have resources 

available for unions to make sure that they understand the legal 

scope of family responsibilities, discrimination, how it plays out, 

what the remedies are that are available. And, very clearly, unions 

have a strong role to play. 

Representative Cummings. Ms. Galinsky, I am just going to 

go back to some of the things that you were saying earlier. You referred back to the Ozzie and Harriet statement, and then you 

talked about how more folks are coming to the table, businesses 

and whatever. And I think that is why broad-based diversity in 

making decisions and policy is so important. 

I have often said in my district and other places that I would 

hate to even imagine the Congress without women. And I am serious. Because I think it is so important—and I can say that about 

African-Americans and others, too. Because it is so important that 

if you are going to set policy for a diverse group of people, then you 

need diverse people setting the policy. 

And so I say that to say that, you know, I was trying to figure, 

as you were talking earlier about how do we bring—you said we 

had a 21st century situation and acting like we are in the 20th century—but how can we bring ourselves up to date because things 

have changed tremendously, but it just seems like we just haven’t 

caught up as a society? Do you have any suggestions? 

Ms. Galinsky. That feels like my life’s work. I think that what 

we try to do at the Families and Work Institute is to look at the 

assumptions, and then look at the realities. And we collect data on 

employers and employees on an ongoing basis so that we can look 

at the trends to see what is real and what is happening. 

So I think that having data both of what the trends are in the 

demographics of the workforce and in the realities of people’s lives, 

but also what best practices are. 

Next week we will be releasing a report. We have an award program called When Work Works, which we are in 30 communities 

and three States, where we have a process for giving awards to employers that are more flexible and effective. And the employer selfnominates. If they are in the top 20 percent of employers nationally, then they give the survey to employees. Two-thirds of the winning vote comes from employees. 

We then produce a book that has some of the best practices of 

what employers are doing around the country. We can instantly 

produce reports for what employers are doing for the recession—I 

have one with me today, for example, if you want to see it. 

We started out with less than 100 winners, we now have 260 

winners. Next year we are going to have more than 440 winners. 

There are really good things happening all over the country. 

But we do find, to go back to your first point, that when companies have more diverse leadership, they tend to be more effective 

22 

and flexible workplaces. And that has been a consistent finding of 

our National Study of Employers. If you look at who is making the 

decisions, when there is more diversity there, they tend to be more 

supportive of both succeeding as employers—obviously they have to 

succeed as employers—but also helping their employees at the 

same time, and helping their employees have a good personal and 

family life as well as be effective at work. 

I think the big change is coming among younger employees. 

Among younger employees, for example, we find that women are 

just as ambitious as men. Women with children are just as ambitious as women without children. All these are firsts. We find that 

the attitudes toward work and family life have changed. We find 

that the composition of that younger population is much more diverse, but they still want the same things that all of us want. Their 

values for what they want at work aren’t that different than other 

generations. 

Representative Cummings. Thank you. 

Chair Maloney. Mr. Hinchey. 

Representative Hinchey. Thank you very much, Madam 

Chairman. This has been very interesting, frankly, and I thank you 

very much. 

We are struggling with this economy here, this Congress, and 

trying to figure out what to do. One of the most significant things 

that we are dealing with right now is the health-care issue. And 

there is a possibility that that bill could pass the House of Representatives next week. But nevertheless, that is only a possibility; 

it is also possible it may be extended out for some time because of 

the controversy associated with it. 

I wonder if you might have any suggestions or recommendations 

about that, how much you think it is effective. 

Also, with regard to unionization, we know that people who work 

in unions make more money. We also have some recent information 

that says—something that came out by the Labor Project for Working Families—showing that 46 percent of unionized workers receive 

pay while on leave compared with only 29 percent of nonunionized 

workers. I wonder if you have any comment on that or any suggestions. 

And then finally, with regard to this economic development program, the so-called stimulus bill, what is your attitude about that? 

How effective do you think it is? And what additionally might we 

be focusing on in order to generate an improvement in this economy? If you wouldn’t mind, the three of you, I would appreciate it. 

Ms. Nussbaum. Thank you. 

This also refers back to Congressman Snyder’s question earlier 

on health care. I think the most important element in health care 

and making it affordable for small businesses is the public option, 

that unless we can control costs, we will not have effective healthcare reform. That is the absolute essential element to it, and it is 

what makes it available for small businesses. 

And if we don’t solve the health-care crisis, we will never be able 

to resolve the rest of these problems because it will continue to sap 

our economy. It is the absolute fundamental. It removes the burden 

from employers. It takes it out of collective bargaining and restores 

23 

health to American families. I don’t think it could be more important. 

On unionization, certainly the work and family benefits, clearly 

there is a differential with regard to work and family benefits; 

unionized workers are far more likely to enjoy them, as well as 

have higher pay. And what we find is that workers who don’t have 

a union know that. A majority of workers say that they would join 

a union tomorrow if they had the chance. Our 2.5 million members 

in Working America who do not have a union on the job are looking 

for just these kinds of improvements in their lives. And they know 

that they will achieve that when they achieve strength in numbers; 

that is what they are looking for. And we have got majority support 

in the public to try to allow labor law reform to take place. 

Passing the Employee Free Choice Act will make that more 

available as the most flexible, most effective way to improve worklife balance and working conditions for all workers. 

Finally, on the stimulus, we believe that the stimulus has not 

gone far enough, that we need a greater stimulus; that the problem 

here requires the greatest possible action on the part of the government; that we have got to get money into job creation and get it 

in fast. 

So we applaud the work that has gone on so far, but we believe 

that actually what we need is more. 

Ms. Calvert. Certainly, paid family leave is a goal of many, and 

unions have been very effective in obtaining benefits. One area 

where we would like to help unions is exploring the ways in which 

bias can be addressed in the bargaining process, ways that bias in 

the workplace can be addressed through the collective bargaining. 

With regard to health care and the stimulus, I am sorry, but that 

is beyond my area of expertise. 

Ms. Galinsky. We have a report that we are going to release 

around Labor Day on the health of American workers, the mental 

and physical health, because our National Study of the Changing 

Workforce for the first time includes items on physical health. So 

I will have a lot more to say about health at that time. But it is, 

as you can imagine, a pretty mixed picture. 

Representative Hinchey. Thank you very much. 

Chair Maloney. Thank you, Mr. Hinchey. 

And Ms. Galinsky, you seem to have a report a month. You are 

very busy. 

I would just like to ask finally, for my part, what role do you 

think work-life balance policies can play in promoting women’s success in the workplace? It used to be very rare to have women in 

the workplace. Now it is commonplace, and work balance issues 

and work-life balance issues are becoming more important. 

Could you comment on that, Ms. Galinsky, and all the panelists 

if you so wish? 

Ms. Galinsky. One of the wonderful changes that I have seen 

in the three decades that I have done research on this subject is 

that we used to think we had to live this as part of the 21st century versus the 20th century, you had to have an either/or world. 

And I know that that dragon, as Karen Nussbaum mentioned, was 

raised with Jack Welch in his comments a few days ago. 

24 

I don’t think we live in an either/or world. I think we live in a 

both/and world. And I don’t think that women can succeed without 

having a supportive workplace, but neither do I think men can succeed without having a supportive workplace. And for the first time 

this has become a much more legitimate area of conversation. So 

I am hopeful that all of us working collectively can help make that 

a reality for more families because it is not just those families with 

children. We find that 43 percent of employees have had elder-care 

responsibilities in the past 5 years, and more than 50 percent of 

us expect to in the next 5 years. So this is an issue. 

The issue of work and family life affects us all when we are 

young, when we are older, when we are in the middle, and whatever our family circumstances. So I think all of us can’t succeed 

without having supportive and effective workplaces, flexible and effective workplaces. 

Chair Maloney. Ms. Calvert. 

Ms. Calvert. I would certainly echo that and the earlier comments about work-life balance not being a women’s issue. We certainly see a lot of men who are striving for that. We hear from a 

lot of people that they prefer the term ‘‘work-life integration’’ because they don’t view things as necessarily needing to be in balance, but something that one is always striving to achieve, realizing that sometimes work takes priority, sometimes family takes 

priority. 

In terms of women’s advancement, I see a direct correlation—and 

I think most researchers do—and that is because, although it is not 

a women’s issue, women still do the bulk of the caregiving in this 

country. And to the extent that they are burdened by that, the 

playing field in the workplace is certainly not level. 

There was a study done a couple of years ago, and MIT did another study last year on New Jersey women lawyers, in which they 

looked at law firms and women being promoted in the law firms. 

They found that most of the men had stay-at-home spouses, and 

most of the women did not. And the women were pointing to that 

as a key reason why they were not being promoted within their 

firms. They were not able to devote the same sort of level of attention and time and effort to their work, given that disparity. 

So when work life is viewed as an issue for both genders and 

when everyone is working to integrate their work and their lives, 

I think we are going to see even more promotability of women. 

Chair Maloney. Ms. Nussbaum. 

Ms. Nussbaum. My generation was part of demanding equality 

for women, and what we got was equal employment opportunities 

and a bad workplace. We ended up getting those jobs just like they 

always were, which just doesn’t work. 

We do indeed have it all. We have the responsibility for providing 

wages in our families; we have the responsibility for providing 

health care in our families; for elder care in our families; for raising our children; for dealing with our community responsibilities. 

I don’t know that is really what we intended. 

I think what we want is to have it all in a way that recognizes 

that we cannot string out women and men and their families to the 

last ragged edge by not providing any supports. 

Chair Maloney. Thank you, and very well said by all of you. 

25 

Representative Cummings. 

Representative Cummings. Ms. Nussbaum, I wasn’t going to 

ask any other questions, but based on what you just said, I was 

just curious. I would imagine—and Ms. Calvert and Ms. Galinsky, 

you might want to comment on this. I was just thinking that when 

you talk to a lot of young people, they get married and they think 

they are going to have this rosy, rosy life—and I am sure they will. 

And then they have all the stuff that you just talked about, I mean, 

this balancing act. You see them rushing here and rushing there. 

I mean, this has to have an impact on our divorce rates, and that 

is that quality of life—I can’t think of a better statement than 

that—that people experience. You know, we can’t always measure 

quality of life, but it is so significant. And so many people are striving for it, and they have an image of what it is supposed to feel 

like, look like, and when they see that they can’t get it, because of 

the very things that you just talked about, then they throw up 

their hands and say, you know what, I am going to get a divorce, 

or I am just going to go another route. 

I mean, I was just wondering, have you all looked at divorce 

quality-of-life issues with regard to the things that you are talking 

about today? 

Ms. Nussbaum. One of the very saddest consequences, I think, 

of a workplace that really doesn’t meet the needs of women and 

families—or men—is that so many people, especially young people, 

feel like they have no one to count on, that the only person I can 

count on is myself. There is a fractured sense of community. There 

is no sense that you can change things; that all you can do is try 

to struggle through on your own. 

That is a sad, sad comment. I don’t think it is the America that 

we want to live in, but it is an accurate reflection of the lives of 

most people, especially young people. And I think it is one of the 

many reasons that we need to rebuild a social fabric that tends to 

our families. 

Ms. Calvert. Well, while we haven’t studied divorce per se, there 

certainly have been a lot of studies of lawyers that have concluded 

they have very high rates of divorce. Of course the legal profession 

is known for having very high demanding hours, very high stress, 

low flexibility, although our project for attorney retention is certainly trying to change that. 

But one thing that I would note is we probably have some lessons to learn from this younger generation, which is taking much 

more of an approach of work where you want to, when you want 

to. It is a very healthy attitude. We see people who are finding that 

quality of life that you are talking about, while still being very productive at work by putting in a lot of effort because they are able 

to integrate their work and their life outside the office. 

Ms. Galinsky. I would agree with what Ms. Calvert said. We 

find that young people still want it all, but they are realistic about 

what that means. They don’t expect to have it all and do it all. 

They don’t necessarily want it sequentially. We have asked these 

sorts of questions. 

This generation of young people is much more family-centric 

than boomers were. They see the generations before them who gave 

26 

their all to employers and then got downsized, so that they are 

more realistic. 

But I don’t think that the notion of change is over for younger 

people. I think that they do expect to try to make it work in different ways, particularly since they have grown up with technology 

and they are used to working in different ways. And so they are 

ushering in a change that I think we can help support and be hopeful about. 

They are more realistic than we were, but they still want to try 

to make it work. And they don’t necessarily like the word ‘‘balance’’ 

either, because they see it as a choice word, either/or, if this side 

is up, that side is down. Some use integration. We use the words 

‘‘work-life fit’’ because it is what works for you is what is important. And each of us has different priorities on different days of the 

week and different hours of the week. 

But I do think there is some hope toward your having this hearing, we are discussing this, it is in the media. And I think we can 

continue to try to work to make it work. 

Representative Cummings. Thank you. 

Chair Maloney. Thank you. 

Mr. Hinchey, for the last word. 

Representative Hinchey. Well, this isn’t the last word, but 

again, thank you. Thank you very much for everything that you 

have done. 

One of the things that interests me is the contribution that 

women are making to the betterment of this economy. And I think 

that that has been very, very substantial. The more women become 

involved in economic circumstances, the better the circumstances 

improve, the stronger they become, the more insight we get, the 

more creativity. And I think that that is based upon something— 

which I can’t help but laugh a little bit as I think about it—that 

women generally are more insightful, and maybe even smarter 

than men on an average basis. So the contribution that they are 

making—and I don’t mind saying that because I think it is true— 

but the contribution that women are making to the economy is very 

substantial. 

One of the problems with women and the economic conditions 

and maintaining those circumstances and improving them is maternity leave. There are a lot of things that happen with regard to 

women working and then needing to go off on maternity leave that 

jeopardizes their working future. 

So I wonder if you might have some ideas about that situation 

and anything that we might be able to do to make sure that there 

is sufficient maternity leave, and that the maternity leave isn’t 

jeopardizing women’s jobs; that they can continue to have those 

jobs and also continue to advance in the context of that employment. 

Ms. Galinsky. We used to think of flexibility as simply the—and 

I am talking in the seventies or so—as the hours that people 

worked. And now I think there is a much broader understanding 

that flexibility isn’t just—and this started in the 1990s or so when 

the definition expanded—but flexibility isn’t just the hours that you 

work during any one week, full-time versus what was seen as alterVerDate Nov 24 2008 09:07 Jun 03, 2010 Jkt 054937 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 C:\DOCS\54937.TXT SHAUN PsN: DPROCT
27 

native part-time, or it was seen as abnormal—alternative work 

schedules is what it was called. And no longer is that true. 

I think we need to think about flexibility, about when we work, 

about where we work, and about how we work throughout our 

lives. We look very strongly at flex careers, which is the fact that 

it may be having time off when you have a baby, whether you are 

a father or a mother, or it may be when you have elder care and 

you are older. So we need to think about flexibility in careers or 

in the lifecycle of work. 

People are going to work longer in retirement because they 

can’t—into their retirement years. We now in our study are going 

to do a whole report on working in retirement, which is what a lot 

of people call their post-retirement jobs, that we need to support 

people. And there have been a lot of models for how to do that. 

The reason that women fall behind when they have babies is because their salaries decline for the amount of time that they stay 

out. And so we need to keep people connected to the workforce 

when they are leaving; initiatives like Personal Pursuits or extended leave, where you are connected to your employer, you continue to get training, you come in and substitute for people while 

you are away—that solves some of the small business issues. 

We need to think of those kinds of creative solutions that don’t 

jeopardize people economically, because the reality of life today is 

that people move in and out of the workforce, whether they are unfortunately downsized and have to move out, not by choice, or 

whether it is because they are having a family issue, like a wonderful thing like having a baby or a difficult thing like having an 

elder-care crisis. 

Ms. Calvert. I am very glad that you raised the issue of maternity leave, because we get so many calls to our hotline involving 

maternity leave, women who are fired just before they go on leave 

so that they won’t get paid leave; women who are fired during their 

leave or shortly thereafter. 

There is a tremendous amount of bias around maternity leave, 

a lot of discrimination. And one of the things that we look to is an 

increase in paternity leave use so that employers do not look at a 

young woman that they just hired and make an automatic assumption that down the road she is going to be lost to them for a few 

months for maternity leave. 

It would be much more equitable if an employer were able to look 

at any young person that he or she just hired and say that person 

is likely to need some time off for child-bearing or child-rearing, 

whatever, at some point in their careers. It would be even better 

if the employer then went one step further and said, you know 

what? All of us are going to need some time off at some point during our careers to recover from a heart attack, a car accident, take 

care of a sick spouse or parent. 

And so, really, we are very focused on this issue of maternity 

leave as being something that is damaging to women and their careers. And certainly it absolutely is right now, but that is not something that is a given. And that is one of the nice things about the 

FMLA; it doesn’t limit the leave just to women. 

28 

And so if we can make full use of the FMLA’s provision and then 

encourage employers to get rid of the caregiver bias, it will go a 

long way. 

Ms. Nussbaum. And I would also like to suggest that expanding 

and providing wage replacement for family medical leave is the obvious next step for providing maternity leave. We are the only industrialized nation that doesn’t have it. 

Recently, I met with a woman in government, from Malaysia. 

And I was prepared to condescend to her, frankly, about their bad 

working conditions. But when I told her that we didn’t have maternity leave here, she chastised me for having failed our nation’s 

women. How could we possibly have done such a poor job in failing 

to provide such a basic benefit? I do believe that taking this next 

step on FMLA would be the way to resolve that. 

Representative Hinchey. Thank you. 

Chair Maloney. Thank you. And I do want to note that we did 

pass paid maternity leave for Federal employees. It was a bill of 

mine that has gotten through the House. Senator Webb is sponsoring it in the Senate. And Congressman Stark has a bill in that 

would expand paid family leave to the private sector, which I am 

obviously supporting and hope we will be able to pass in this session. 

I would like to thank all of you for your life’s work and for being 

here today to talk about work-family fit in the recession and how 

workers and employers are coping. And as I said, if we as a nation 

truly value families, then we have to have policies that are in place 

that speak to valuing the families. And we need to have workplace 

policies that support not only the working families, but their children also. This is important for a path to success not only for working men and women, but for their families and their children. 

I thank you very much for being here. Congratulations on the report you issued today, Ms. Galinsky. And thank you all for your 

testimony. Thank you. 

[Whereupon, at 11:35 p.m., the committee was adjourned.] 

(29) 

SUBMISSIONS FOR THE RECORD 

30 

PREPARED STATEMENT OF REPRESENTATIVE CAROLYN B. MALONEY, CHAIR, JOINT

ECONOMIC COMMITTEE

Good morning. I want to welcome our distinguished panel of witnesses and thank 

you all for your testimony today. 

The American workplace has not kept pace with the changing needs of workers 

and families. Both Ozzie and Harriet go to work now, so most families no longer 

have a stay-at-home parent to care for a new child, a sick spouse, or an aging parent. 

Businesses that offer policies that help employees meet the competing demands 

of work and family have seen the benefits to their bottom lines with increased productivity and a more committed workforce. 

This is a timely hearing because employees and their families, as well as employers, need flexibility more than ever. 

The value of flexibility to employers has increased because the recession has 

pressed all sectors of business and government to find ways to improve performance. 

Workplace flexibility is an inexpensive and effective way to motivate employees by 

humanizing jobs at a time when so many aspects of our economy are harsh. 

Some businesses do understand the value of flexibility for workers. A 2007 survey 

conducted by this committee found that among America’s largest and most successful employers, 79 percent provide paid leave for new parents, and 45 percent provide 

unpaid leave beyond the 12 weeks mandated under the Family and Medical Leave 

Act. 

Businesses that rigidly cling to policies created when employees had fewer family 

responsibilities have fallen behind the times. Managers who believe there is ‘‘one 

best way’’ to get the job done, and do not listen to their employees, are missing out 

on valuable innovations. A lack of flexibility gives demoralized employees even less 

reason to help their businesses survive and thrive. 

Perhaps most important in today’s economic climate is that flexibility can help 

save jobs. Employees understand this—a survey conducted this March found that 

a solid majority of employees are willing to take on additional and unpaid leave or 

vacation, or to switch to a four-day workweek in order to prevent layoffs. Many employees are ready to share their job with another individual, or to take on reduced 

hours with reduced pay. Employees stand ready to work with employers to use flexible workplace options to control costs and preserve jobs. 

Flexibility is also crucial to the future of our economy. Employers who do not support flexible work arrangements will find valued employees fleeing at the first sign 

of recovery in the labor market, in addition to losing out now on the benefits of having a committed workforce. 

The Working Families Flexibility Act can help. Our best employers are already 

using flexibility as a strategy to weather the recession, and I hope we hear more 

about these employers today. The Working Families Flexibility Act, which I have 

sponsored in the House, will ultimately benefit all American employees, businesses, 

and our economy by making the strategy used by our most successful businesses 

into public policy. 

It will generate the productivity we need to propel our economy forward in these 

tough times and to sustain our competitive position as the economy recovers. 

I have long championed policies to support working families, such as the Family 

and Medical Leave Act of 1993. But more must be done to help families, which is 

why I have also sponsored the Federal Employees Paid Parental Leave Act, which 

recently passed the House of Representatives and provides new parents with four 

weeks of paid time off. 

If we as a nation truly value families, then we need new workplace policies that 

support our working families and set our children on a path for success early in life. 

I look forward to the testimony of our witnesses today. 

PREPARED STATEMENT OF REPRESENTATIVE KEVIN BRADY, SENIOR HOUSE

REPUBLICAN

I am pleased to join in welcoming the witnesses before us today. 

The recession continues to destroy jobs and force the unemployment rate ever 

higher, imposing great hardship on millions of families. Unfortunately, the stimulus 

legislation has not been effective in boosting the economy. Last January, two top 

Administration economists projected that the unemployment rate would not exceed 

8.0 percent if the stimulus were enacted, but the unemployment rate has risen to 

9.5 percent and appears likely to climb significantly higher. 

Almost all businesses are under pressure, and many small businesses struggling 

to survive in this very challenging economic environment are unable to afford the 

31 

costs of expanded employer-provided benefits. An effort to force small businesses to 

offer specific benefits would raise costs, especially of employment, and undermine 

their financial position. 

Small businesses historically account for much of the job creation in the United 

States and undermining their ability to create new jobs and opportunities in a weak 

economy is not good economic policy. Over the longer run an effort to mandate employee benefits will tend to reduce other forms of employee compensation, including 

wages. 

I remain concerned that Administration policies to increase federal deficits and 

debt will burden the economy for years to come and undermine job growth. Higher 

taxes, mandates, and federal spending could lead to a future with high unemployment and lower living standards. Every new mandate or tax Congress adopts now 

would only make the situation worse. It is not too late to reconsider our economic 

policies and avoid piling more costly mandates on an already overburdened economy. 

What really concerns workers is what the Democrats’ health care proposal would 

do to the quality and availability of their health care. This 1018 page proposal 

doesn’t control costs and will drive the budget deficits even higher, according to the 

Congressional Budget Office (CBO). It would leave 17 million people uninsured, a 

population approaching that of Florida. 

A maze of bureaucracy would be created standing between patients and medical 

service providers. It would establish at least 31 new commissions, agencies and 

mandates that would decide what doctors you can see, what treatments you deserve, 

and what medicines you can receive. Medical care would be rationed and wait times 

for even routine medical procedures would be extended. More taxes would be levied, 

further damaging the economy. 

The bottom line is that if the Democrats plan were adopted, a person needing 

medical care will be much more likely to encounter delays in treatment and their 

choice of insurance plans and doctors will be more limited. It is not too late to stop 

this misguided and poorly conceived health care proposal. Congress should not rush 

through a deeply flawed proposal on a party line vote, but instead carefully consider 

the interests of patients in assuring the availability of quality health care without 

unnecessary bureaucratic mandates and controls. 

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1 E.g., Williams, Joan and Cynthia Thomas Calvert, WorkLife Law’s Guide to Family Responsibilities Discrimination (WLL Press 2006 & updates); Joan C. Williams & Stephanie Bornstein, 

The Evolution of ‘‘FReD’’: Family Responsibilities Discrimination and Developments in the Law 

of Stereotyping and Implicit Bias, 59(6) Hastings Law Journal 1311 (2008). 2See Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, Equal Employment Opportunity Commission (2006), available at http:// 

www.eeoc.gov/policy/docs/caregiving.html. 

PREPARED STATEMENT OF CYNTHIA THOMAS CALVERT, DEPUTY DIRECTOR, THE

CENTER FOR WORKLIFE LAW

INTRODUCTION

Chairman Maloney, Vice Chairman Schumer, Ranking Members Brady and 

Brownback, and Members of the Joint Economic Committee, thank you for inviting 

me to speak about work/family balance in the current economy. My name is Cynthia 

Thomas Calvert, and I am the Deputy Director of the Center for WorkLife Law at 

the University of California Hastings College of the Law. I have been researching 

work/life and flexible work issues for more than twenty years, the last ten of which 

have been with WorkLife Law’s Director, Distinguished Professor of Law Joan Williams. I am the co-author, with Professor Williams, of the only legal treatise on family responsibilities discrimination, WorkLife Law’s Guide to Family Responsibilities 

Discrimination, and of Solving the Part-Time Puzzle: The Law Firm’s Guide to Balanced Hours. As part of my work at WorkLife Law, I manage a hotline for employees who believe they are facing FRD. My testimony today will be based largely on 

information learned from the hotline. 

Although I will be speaking today primarily about the employee’s perspective, it 

is important to note that WorkLife Law also includes the perspective of the employer. WorkLife Law is a nonprofit research and advocacy group with a unique ‘‘six 

stakeholder’’ model that brings together employees, employers, plaintiffs’ employment lawyers, management-side employment lawyers, unions, and public policymakers. WorkLife Law works with these groups to educate them about FRD and 

flexible work bias, and to craft business-based solutions. 

In addition to maintaining the hotline, WorkLife Law has pioneered the research 

of family responsibilities discrimination (‘‘FRD’’).1 We maintain a database of nearly 

2000 FRD cases and track trends in FRD litigation. We publish an email alert for 

employers about recent developments in FRD and provide resources and training 

materials for employers and their lawyers to use to prevent FRD in the workplace. 

We educate plaintiffs’ and employers’ lawyers about FRD case law, and provide 

technical assistance to policymakers who seek to address FRD and flexible work 

bias through public policy. We are currently developing a database of union arbitration decisions that involve FRD, and we provide training and information to unions 

as well. By working with all stakeholders, we obtain and present nuanced and balanced viewpoints that enable us to create usable and effective strategies for preventing and addressing discrimination against caregivers and flexible workers. 

FRD lawsuits can be brought as sex discrimination cases, family and medical 

leave retaliation, breach of contract, and other types of lawsuits. FRD can arise at 

any level of an organization, from hourly shift workers to top management. The 

number of FRD cases has increased rapidly. In 2006, WorkLife Law reported a nearly 400% increase in the number of FRD lawsuits filed between 1996 and 2005 as 

compared to the prior decade, 1986 to 1995. WLL is in the process of updating this 

data. Preliminary results indicate a sharp increase in the number of FRD cases in 

2007 (316 cases) and 2008 (348 cases) as compared to 2006 (176 cases). Plaintiffs 

prevail on motions, resulting in settlements, or win verdicts in approximately 50% 

of the cases. Settlements and verdicts average $100,000, and WorkLife Law has a 

database of over 125 verdicts that exceed $100,000; several are multi-million dollar 

verdicts. 

BIAS AGAINST EMPLOYEES WITH FAMILY RESPONSIBILITIES

FRD, also known as caregiver discrimination,2 is employment discrimination 

based on family caregiving responsibilities. It manifests itself in many ways, including: 

• refusing to hire pregnant women; 

• not promoting mothers of young children; 

• punishing male employees for taking time off to care for their children; and 

• giving unwarranted negative evaluations to employees who take leave to care 

for aging parents. 

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3Williams, Joan and Nancy Segal, ‘‘Beyond the Maternal Wall: Relief for Family Caregivers 

who are Discriminated Against on the Job,’’ 26 Harv. Women’s L.J. 77 (2003). 4Galinsky, Ellen, James T. Bond, and Kelly Sakai, 2008 National Study of Employers, Families and Work Institute. 

FRD is typically caused by unexamined bias about how employees with family 

caregiving responsibilities will or should act. For example, a supervisor may assume 

that a man who is taking care of his dying father will be distracted, and therefore 

not promote him, even though the man continues to perform at the same high level 

he always has. Although FRD is certainly not confined to women, a large segment 

of the unexamined biases that cause FRD is maternal wall bias: bias against women 

because they are or one day may be mothers.3 A common bias is that a pregnant 

woman will not be a good employee because she will have poor attendance or will 

not be as committed to her job once she is a mother, which can lead a supervisor 

to terminate her. An illustration of a bias based on beliefs about how caregivers 

should act comes from an employee who contacted WorkLife Law’s hotline: her supervisor apparently believed that mothers should be at home with their children, 

so the supervisor cut her hours to less than half of full-time, telling her that this 

would allow her to see more of her kids. 

FLEXIBLE WORK BIAS

We are very encouraged by the findings of the Families and Work Institute showing that many work/family programs provided by employers are relatively unchanged by the recession.4 These findings are consistent with what WorkLife Law 

has learned from the employers with whom it works: the business reasons for offering flexibility, such as retention of good workers and increased productivity and morale, have not changed. 

Unfortunately, what also has remained unchanged is the prevalence of flexible 

work bias. Flexible work bias mirrors and often overlaps with family responsibilities 

bias. Employees who work flexibly often encounter unspoken and often unrecognized 

assumptions on the part of supervisors and co-workers about their commitment, dependability, worth, ambition, competence, availability, and suitability for promotion. 

These assumptions affect how supervisors perceive flexible workers and their performance, which in turn affects the assignments they receive, and how their work 

is evaluated and rewarded. While employers may not be changing their work/family 

programs, employees may engage in ‘‘bias avoidance’’ by not taking advantage of 

such programs for fear of being marginalized or penalized at work—behavior that 

may be exacerbated by today’s economic climate in which most employees have at 

least some fear of losing their jobs. 

Here is an example of how flexible work bias commonly plays out in the workplace, which is drawn from calls to our hotline: Tonya is a hard worker who regularly receives raises and is given training opportunities to enable her to be prepared 

for a promotion. Once Tonya begins to work reduced hours and to work some of the 

hours from home, attitudes toward her change. She doesn’t get the challenging assignments anymore, because supervisors reserve those for the ‘‘go-getters’’ in the department who are more committed to their work and can be counted on to complete 

assignments on time. Tonya no longer receives training opportunities, because her 

employer assumes that she does not want a promotion and, even if she does, those 

opportunities should be reserved for employees who are the ‘‘future’’ of the company. 

Tonya, who used to be able to arrive at and leave the office as desired, now finds 

that her hours are scrutinized. When she is out of the office, everyone assumes it 

is for schedule-related reasons, even if the real reason is a visit to a customer. 

Tonya’s work product is reviewed more closely now, as if it may contain more errors 

due to inattention or incompetence. She receives a more critical performance review, 

and, consequently, a proportionately lesser raise than when working standard 

hours. She begins to understand that her future with the company has become 

cloudy, or perhaps has vanished completely. Interestingly, supervisors in other departments, who work with Tonya but are unaware of her change in schedule, think 

she is doing the same great job as ever, as do her customers. 

This example shows how subtle, often unrecognized assumptions can add up to 

create a significant flexible work bias that sets up a lesser ‘‘flex track,’’ much like 

maternal wall or caregiver bias sets up a ‘‘mommy track’’ in the workplace. Other 

common examples of flexible work bias include hostile situations in which supervisors actively try to get rid of workers on flexible schedules, either by creating situations that justify termination or by making work so unpleasant that the employees 

will quit. 

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5 E.g., L.M. Sixel, Women’s Group to Honor Winner with a Difference, Houston Chronicle, 

Houston Chronicle, Jan. 17, 2004, at B1 (Shell’s compressed work schedule, flexible work arrangements, and maternity leave programs as among the reasons they received an award from 

Catalyst for diversity and inclusivity); see also Shell Oil’s website, http://www.shell.us/home/content/usa/a boutshel I/careers/professions Is/rewardslbenefits/professionallrewardsbenefits.html#work-lifelbalancel5 (listing Shell’s work/family programs). 

WORKLIFE LAW HOTLINE

The flexible work bias and caregiver bias largely explain why FRD and related 

claims come to our WorkLife Law hotline. Many of the employees who contact us 

are facing personnel actions based on biased assumptions, not on their actual performance. 

WorkLife Law has been running the hotline since 2003. In the first five years of 

our hotline’s operation, we received a total of approximately 315 inquiries. The volume of calls to our hotline then increased dramatically. In 2008, we received approximately 125 inquiries, double our previous annual average, with the bulk of the 

calls coming in the last quarter. This year, in the six-month period between January 

and July 15 alone, we have had approximately 92 inquiries, which suggests that we 

will receive more than 175 inquiries for this calendar year. 

The inquiries come mostly from women, but also from some men. Men can face 

caregiver bias and flexible work bias, and it is important to note that they also often 

face hostile gender bias: if they are somewhat involved with their families, such as 

coaching soccer, they are ‘‘great guys’’; if they engage in regular caregiving, they are 

‘‘wimps,’’ no longer viewed as team players, and seen as lacking the drive necessary 

to get ahead. 

Calls and emails to the hotline come from all types of workers. We have heard, 

for example, from workers in retail, manufacturing, public safety, education, corporate management, and law firms. We hear from hourly workers, department managers, and vice presidents. We hear primarily from pregnant women and parents 

of young children, and we also hear from adult children of aging parents, employees 

with sick or disabled spouses, and grandparents who are guardians of their grandchildren. 

HOTLINE INQUIRIES IN THE RECESSIONARY PERIOD

Many of the hotline calls suggest that employers are targeting family caregivers 

and flexible workers for termination. Some of this appears to be attributable to hostile forms of bias, such as in the case of one caller who reported that when she was 

pregnant, her supervisor told her that he had doubts she could get her work done 

once she had children and she was really inconveniencing him and her department. 

When she asked after returning from maternity leave if she could work a flexible 

schedule, he told her no, that she could quit if she couldn’t hack it. In the ensuing 

weeks, he acted abusively toward her and she did in fact quit. 

Another example that suggests hostility involves a scientist who worked for Shell 

Oil. Shell Oil has a reputation for having very effective flexible work policies,5 but 

as this example suggests, a terrific policy can quickly be undone by a single supervisor. 

This call came into our hotline in January of this year, from Tobi Kosanke. Tobi 

now has a lawyer, and has filed a complaint with the EEOC. The following allegations are from that complaint. Tobi worked from home, examining thin sections of 

rock through a microscope. This arrangement was created because her daughter was 

born with a medication-resistant disease that requires her to be breastfed frequently 

and Tobi has health issues that prevent her from pumping milk at work. The arrangement worked well, Tobi was very productive, had happy clients, and won special recognition awards. After a couple of years, she got a new supervisor who referred to her telecommuting arrangement as ‘‘a mess’’ she would have to fix. The 

new supervisor moved Tobi to a new team and told her to return her microscope 

to the company. The supervisor then told Tobi to be in the office 30 hours per week 

or work part-time and take a pay cut, even though the supervisor was aware that 

these schedules would not allow Tobi to feed her child. Tobi took FMLA leave and 

tried to wean her child, but was not successful. Faced with a choice between a paycheck and her daughter’s health, she says she asked to work part-time or take a 

sabbatical, but the company terminated her instead. 

It should be noted, however, that many terminations that are not based on hostile 

bias may involve bias nonetheless. An equally likely, although untested, reason for 

termination of family caregivers and flexible workers in the current economy may 

be the pressure supervisors feel to show good results with fewer resources as their 

budgets shrink. They may feel that they have to weed out underperformers and trim 

67 

6 Hotline calls are confidential. In the examples in this section, unless otherwise indicated, 

facts that would identify the caller have been removed or altered. 

personnel costs to maintain their bottom line. The problem arises when supervisors 

assume that those employees with caregiving responsibilities or who telecommute 

or work flexible schedules are the ‘‘underperformers.’’ Thus, the supervisors’ response to this pressure is no less based on bias: when they take personnel actions 

based not on actual employee performance but on assumptions of how caregivers 

and flexible workers should or will perform, they are engaging in discrimination. 

We have received other inquiries from employees in the past eighteen months who 

have had their flexible work arrangements eliminated, some of whom were told the 

elimination was for economic reasons. Some reported that their employers eliminated the company’s flex time policy and telecommuting policy. These callers unanimously expressed their needs for flexibility and feelings of near desperation at facing unemployment because of their inability to work a standard schedule. Several 

were working part-time for caregiving reasons, but were told that they must return 

to full-time work or be terminated. The economic rationale for this is hard to understand. Requiring employees to return to full-time work, at greater pay and with benefits, costs employers money unless the employers are banking on reducing number 

of employees on the payroll by forcing the employees to quit. 

In another indication that employers may be using the recession as an excuse to 

terminate family caregivers, since January 2008, we have received 45 inquiries from 

women who were terminated shortly before, during, or shortly after their pregnancies. Several of these terminations were carried out by supervisors who expressly questioned the new mothers’ ability to combine work and family, but most 

were more circumspect. Several women were told there was not enough work, but 

these women told us that it was because their work had been given to others. Several were told their positions were eliminated for budgetary reasons, but the circumstances raise questions: one was not given the option of applying for other open 

positions, one said there was enough funding to move another employee to full-time 

hours and provide him benefits, and two reported that their employer hired other 

employees in their department after terminating them. 

One example from this group is particularly instructive.6 An employee had performed well at a large company for more than six years. She had a child, and everything was fine. Her manager worked with her on her schedule, and was happy as 

long as she was getting her work done. That is lesson one: a little flexibility on the 

manager’s part allowed the company to retain a good worker. She became pregnant 

again, and soon before she left on leave, she had a new manager. The new manager 

changed her schedule, putting her on late night and very early morning shifts that 

she could not work because of the lack of public transportation at those hours. That 

is lesson two: WorkLife Law has noticed a pattern in court cases and calls to the 

hotline in which flexibility works fine for everyone until a new manager arrives. The 

manager may feel a mandate to reorganize the department or may lack a personal 

relationship with the employees and an understanding of their value to the organization. But whatever the reason, the pattern typically includes the termination of 

flexibility and action to terminate the employee. 

This employee was the sole breadwinner for her family, however, so she did her 

best to make it work with her new manager. When she went out on leave, others 

were hired to do her work. She returned to work as planned, and asked if she could 

take one day a week off or work from home one day a week. She didn’t receive an 

answer. Instead, she was laid off at the end of last year as part of a recession-based, 

company-wide RIF. She was the only person in her department who was let go, despite her seniority and record of satisfactory performance. This is lesson three: having a child and asking for flexibility are two key trigger points for bias and discrimination. 

Almost a third of the inquiries in the past eighteen months have come from employees who feel squeezed between job and family demands. Some of the most heartwrenching stories come from this group, involving employees who literally weigh the 

need to put food on the table against the need to provide for the safety and care 

of dependents. Three recent callers told of being fired because they missed work because their children were hospitalized, even though they had alerted their employer 

to the reason for their absences. Another caller missed one day of work because her 

childcare failed and she could not leave her toddler unattended; she was fired even 

though others in her company missed days of work for other reasons and were not 

fired. In some of these instances, it appears that the employer has created the situation to force the employees to quit so the employer can avoid paying unemployment 

and perhaps reduce the likelihood of a lawsuit. In one such situation, a single mother who had been working successfully for nearly a year was placed on a schedule 

68 

7 In another example of flexible work bias, an employee who recently returned from her second 

maternity leave was denied a promotion after she said she wanted to cut back her hours to take 

care of her baby’s medical conditions. Another who cut back her hours for childcare reasons was 

not given any work to do. 8See, e.g., WFC Resources, Making the business case for flexibility, available at http:// 

www.workfamily.com/Work-IifeClearinghouse/UpDates/ud0043.htm (collecting studies). 

of rotating shifts by a new supervisor, making it impossible for her find childcare. 

Another with special needs children was told she would have to work large amounts 

of overtime, although others in her department were not required to. Another caller, 

a brand new mother, worked overtime for weeks on end, and when she finally asked 

for a break—which just meant a return to standard hours for a period of time— 

she was fired. 

While flexible work options would resolve most of these situations, the hotline 

callers state that their supervisors have refused their requests for flexibility, or that 

they have received a message that their use of such options would impact their careers negatively. Another way to state this is that in workplaces where flexible work 

bias is weak or nonexistent, employees will resolve work/family conflict through 

flexible work schedules. Where the bias is too great, they feel they cannot. In one 

of the strongest examples of bias, some part-time employees reported the belief that 

they were being targeted for layoffs before employees working standard schedules.7

In today’s economy, employees simply cannot afford to do anything that would 

threaten their jobs. 

In conclusion, bias against family caregivers and flexible workers is a pressing 

problem in the workforce. Its effect on employees is clear, but we also need to remember that these biases damage employers’ bottom lines. They cost employers not 

just in terms of legal liability, but also in terms of unscheduled absenteeism, worker 

attrition, smaller available talent pool, lowered productivity and morale, higher 

health costs, and poorer customer service.8 Employers and employees will both benefit from bias prevention programs and from effective systems to address bias as it 

occurs. 

We appreciate the Committee holding this hearing and we stand ready to assist 

in any way in your efforts going forward. 

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PREPARED STATEMENT OF REPRESENTATIVE ELIJAH E. CUMMINGS

Thank you, Madam Chair, for holding this critical hearing on employees’ ability 

to balance work and family. 

I also want to thank you for your tireless leadership to improve the strength and 

health of all American working families. 

I look forward to the testimony of all our witnesses. Along with the macroeconomic assessment of our economy that we hear each month from the Bureau of 

Labor Statistics, hearings such as this that focus on individual firms and employees 

remind us of the real impact of the recession. 

During our economy’s more sunny days, the emergence of workplace benefits like 

flex-time, telecommuting, compressed work schedules, and paid sick leave were an 

attractive benefit to recruit and retain employees. 

However, the economic forecast today is still cloudy, and so many of the businesses in our districts, small and large, have been forced to make hard choices and 

take decisive cost-cutting action to stay afloat. 

Often, this means letting employees go; regrettably in some cases, lay-offs have 

taken the form of discrimination against pregnant women, parents of young children, and caretakers of elderly family members. 

Further, we know from a 2008 study from Ms. Galinsky’s Families and Work Institute, that women, including those with children, increasingly aspire to move into 

jobs with more responsibility. 

Also, at the Committee’s hearing in April on the gender pay gap, we heard that 

discrimination still exists against women in the form of lower pay for equal work. 

Now, with people losing their jobs (not to mention their homes and their savings), 

it infuriates me that a termination may not be a business decision, rather the pretext for further discrimination against women and families. 

However, I am encouraged to see that, as Ms. Galinsky has written, that many 

firms have responded to the economic crisis by maintaining, and in some cases, expanding policies to facilitate a strong work-and-life balance for their employees. 

This not only displays compassion for employees in a woeful economy, but also 

smart business sense. 

By continuing to offer flexible schedules, paid sick leave, and other work-life benefits, companies are engendering loyalty and longevity in their workforce, and reducing long-term turnover-related expenses. 

As the sun begins to re-emerge over our economy, businesses will grow, new businesses will spring up, and the markets will recover. 

But right now, we have to keep people in their jobs and their homes, and provide 

them the ability to care for their families. 

This means not only enforcing and strengthening the protections that exist, like 

the Family Medical Leave Act, but also helping the business community realize that 

helping employees care for their families is an investment in a firm’s long-term success. 

Again, I applaud the Chair for her determined leadership on this front. I look forward to the testimony of our witnesses and a productive discussion. With that, I 

yield back. 

Thank you. 

Æ