Work-life balance is increasingly an issue for burned-out lawyers of both genders, parents in particular. Law students interviewing at firms increasingly ask whether they’ll have a life once they have a job. Our roundup keeps track of this hot topic for you.
For example, sometimes employees re-veal family situations accidentally, such as when they are habitually late to work. The employee apologizes each time, and even-tually explains to her manager that the de-lays are due to unavoidable circumstances at the child’s day care. Should the manager, consistent with the company’s progressive discipline policy, issue a written warning, she needs to carefully reiterate the company’s lateness policy and simply cite lateness as the basis for the warning. If the manager writes the employee up for “showing a lack of commitment to her work by putting her parenting responsibilities before her responsibilities to the company,” the company faces a serious liability issue.
By focusing on the reason for the tardiness rather than the fact that the employee was late, this employer has fallen into yet another parent trap. In the event that the company treats other employees who are late for reasons unrelated to child care responsibilities more favorably than this employee, the company’s in-house counsel may find herself defending the company in a discrimination claim, likely predicated on the employee’s sex.
And it’s not just about lateness. Some 74 percent of employers offer alternative work arrangements, according to a Hewitt Asso-ciates 2005 survey of major U.S. employ-ers. However, offering flexible work options without a flexible workplace policy creates the risk that the opportunity will be granted inconsistently. Employers without flexible workplace policies sometimes give increased flexibility to women with young children but deny this opportunity to other employees (often men).
Employers should avoid granting flexibility according to the reason for the request, and focus on objective eligibility criteria – for example, department or position, duration of employment, discipline history, performance record and/or history with regard to accuracy and timely reporting of hours worked that are clearly explained in a flexible workplace policy.
A flexible workplace policy should also make clear that not all eligible employees will be permitted to work a flexible sched-ule. Rather, this decision will be made solely by the company on the basis of a variety of factors, including the requirements of the job, the amount of interaction with other employees/customers/clients/vendors required by the job, the amount of day-to-day supervision required, the type of arrangement requested, the business needs of the company, and the availability of others when the employee is not available.
Decisions regarding flexible work ar-rangements should not be left to managers alone. Consistency can be assured only if higher-level management, in-house counsel, and/or human resources are also involved. To maximize consistent treatment and minimize legal risk, managers should be trained on the flexible workplace policy, including how to manage employees working flexible schedules. For example, evaluations of employees working flexible work schedules should focus on the employees’ performance rather than on their presence – or lack thereof – in the workplace.
With employees increasingly sensitive to signs of favoritism, in a society highly fo-cused on families and children, the balancing act for corporations is complex and fraught with peril. When employers give inferior – or even preferential – treatment to parents, they fall into the increasingly dangerous parent trap and create the risk of a discrimination claim based on sex or other protected status. In-house counsel increasingly must help minimize this risk for their companies by implementing policies and practices that make it more likely that all employees will be treated the same regardless of their parenting obligations.
Jennifer Blum Feldman is a partner at Wolf, Block, Schorr and Solis-Cohen specializing in employment law compliance, particularly with regard to EEO and wage-and-hour issues. This article originally appeared in Corporate Counsel magazine, a Recorder affiliate based in New York City.
Practice Center articles inform readers on developments in substantive law, practice issues or law firm management. Contact Sheela Kamath with submissions or questions at [email protected] or www.callaw.com/submissions.
