The Legal Case for Work-Life Balance

Many of today’s employers recognize the value of work-life balance programs. Research conducted by the Families and Work Institute has shown that work-life balance programs can help employers:

  • Attract and retain top talent.
  • Enhance corporate reputation.
  • Increase job satisfaction, commitment, and loyalty.
  • Reduce absenteeism and turnover.

It should be no surprise that many employers are increasingly offering work-life balance programs such as flexible work options, dependent care supports, legal and financial assistance, EAP services, and health and wellness referrals. On the surface, it appears employers are meeting the work-life balance needs of their workforce through supportive programs. However, many employees are reluctant to use these programs for fear they will experience negative career consequences such as lower performance evaluations, fewer opportunities for promotions, decreased opportunities for rewards and recognition, less supervisory support, and harassment by supervisors. Today’s employees are less tolerant of negative career consequences traditionally associated with work-life balance and are more likely to view these consequences as discriminatory as well as file lawsuits against their employers. Employees with family responsibilities tend to be at the forefront of this movement.

According to Hastings College of Law at the University of California, employment discrimination based on family responsibility is a fast-developing trend in employment law. The number of successful lawsuits brought by employees with family responsibilities has doubled since 2000, with court settlements in favor of employees as high as $11.65 million. In the past decade, there has been a 419% increase in the number of lawsuits brought by family caregivers against their employers. Lawsuits have been filed against city and state government, universities, Fortune 500 companies, and a variety of private and nonprofit organizations.

Many employers find themselves unprepared for the lawsuits brought by their employees and even more unprepared for the large court settlements in favor of employees. You might be wondering how this could happen, especially to employers who seem to have good intentions. The best way to answer this question is with a story.

David was a top performer at his prior company and decided to accept a new position with XYZ Inc., a tractor equipment company with 1,000 employees. David was hired as an assistant manager and was very impressed with XYZ’s extensive compensation package, which included work-life balance programs. David got off to a great start in his new position and was initially very satisfied with his decision to join XYZ Inc. However, after settling into his new job and learning how things really worked at XYZ, he discovered something that made him uncomfortable.

XYZ’s corporate culture supported innovation, integrity, customer service, and quality, which David also highly valued. But what bothered David was XYZ’s “unwritten rules” that guided management decisions about his effectiveness, advancement potential, and commitment to the company. These “unwritten rules” suggested that all employees should:

  • prioritize work over personal life.
  • keep personal problems at home.
  • limit time off for personal matters.
  • provide 24/7 availability.
  • work long hours in the office to achieve advancement.

Even though these “unwritten rules” were not based on any existing business need, employees were encouraged to follow these rules because “that’s the way XYZ has always done things.” David felt uncomfortable with XYZ’s “unwritten rules” but reminded himself that he did not have any personal issues that could interfere with his job.

After one year, David was still with XYZ and received an outstanding performance evaluation. However, several months later David received news that his mother had been diagnosed with terminal cancer and only had four weeks left to live. David knew immediately that he needed to spend time with his mother. He initially considered a flexible work option outlined in his work-life balance program, but decided against it after hearing stories that using a flexible work option was “career suicide.” As a result, David decided to take his three-week paid vacation to spend with his mother. David’s manager approved his time off. David’s mother passed away three weeks later, and David requested five days’ bereavement leave. David’s manager also authorized this leave.

After David returned to work, he quickly got back into the swing of things, working long hours and outperforming his colleagues. However, when an important assignment became available, it was assigned to a less-qualified colleague. In addition, he discovered that his manager scrutinized his work more closely, continually questioned his commitment to the company, and was less willing to offer him support, which was readily provided prior to taking time off. Two months later, the promotional opportunity David had been waiting for became available. David interviewed for the position but discovered he was not selected. David learned that his less-qualified colleague Brian had received the promotion. David was upset with this decision and talked with his manager who said, “we decided on Brian because he seems more committed to the company than you and has never taken time off for personal problems.” What David did not know at the time was that he might have been the victim of an illegal form of employment discrimination called “family responsibilities discrimination.”

According to Hastings College of Law at the University of California, over 600 employees in the past 10 years have brought lawsuits against their employers for family responsibilities discrimination. In 67 of these cases, employees have been awarded court settlements over $100,000. In a court case not unlike David’s, a well- performing male maintenance worker with 25 years’ experience took intermittent unpaid federal family medical leave to care for his father with Alzheimer’s disease and his ill mother, who later died. The employer authorized the leave, but fired the employee while he was out because he rated poorly on a new performance-review program designed to create grounds to terminate him. A jury decided that the employer illegally retaliated against him for taking time off and awarded him $11.65 million in damages (Schultz v. Advocate Health & Hospitals Corp., No. 01C0702 [N.D. 111. 2002].

In the case of XYZ Inc., it appears David was retaliated against for taking time-off by increasing scrutiny of work and harassing him after he returned from leave (see Walsh v. National Computer System, Inc. No. 00-CV-82 [2002]. XYZ also based promotional decisions on the assumption David was more committed to his family than to his career, which is considered illegal (see Back v. Hastings on Hudson Union Free School District, 365 F.3d 107 [2d Cir 2004].

So how does a company like XYZ prevent future allegations of family responsibilities discrimination and protect itself from potential litigation? There are five research-tested solutions every employer should implement to prevent family responsibilities discrimination.

1. Policy Vs. Practice

XYZ’s “unwritten rules” or daily practices overruled their official work-life balance policy, making it impossible for employees to balance work and personal life. The “unwritten rules” XYZ supported have been shown to significantly increase employee perceptions of family responsibilities discrimination (Dickson, 2003). In addition, research findings suggest informal workplace practices are more important than official policies in reducing employee perceptions of family responsibilities discrimination. For example, employers that create supportive workplace cultures that value work-life balance significantly reduce employee perceptions of family responsibilities discrimination.

Suggestions for HR and OD Professionals

Partner with employers to develop their work-life strategy. Well-designed work-life strategies are the foundation of an effective work-life balance policy.

  • Conduct a SWOT analysis of their current work-life balance program.Carefully analyze its strengths, weaknesses, opportunities, and threats. A SWOT analysis will provide key information that will help employers design effective work-life balance policies.
  • Conduct a work-life culture assessment to identify how informal practices may conflict with formal policies. For example, are there “unwritten rules” that prevent work-life balance, such as expecting employees to prioritize work over personal life? If so, develop action plans to manage these “unwritten rules” or informal policies.
  • Make managers and employees accountable for the successful implementation of the work-life balance policy. Tie managers’ evaluations to effective implementation of policies, and use continuous process improvement (CPI) teams to empower employees to evaluate the practicality of the policy and to provide continuous feedback to management.

2. Flexible, Responsive Managers Needed

In the case of XYZ, David’s manager did not promote the work-life balance programs offered by the company, but instead supported the “unwritten rules” that conflicted with work-life balance. Although David’s manager allowed him to take time off, David was penalized upon his return. Supervisors and managers play a key role in reducing employee perceptions of family responsibilities discrimination. For example, employees who work for flexible, responsive managers perceive significantly less family responsibilities discrimination.

Suggestions for HR and OD Professionals

  • Provide individual coaching and training sessions for managers to address their underlying beliefs about work-life balance that may interfere with their ability to effectively manage their employees’ work-life issues.
  • In addition, coach and train managers to behave in a more flexible and responsive manner toward their employees’ work-life issues. Make sure to coach and train managers to set appropriate limits and boundaries with their employees. This will help managers more effectively balance the needs of the employer with the needs of the employee, preventing managers from becoming overly flexible or rigid in their decision-making.

3. Work-Life Balance Program Use

Ensure positive experiences using or requesting work-life balance programs. Employees who report positive experiences using work-life balance programs perceive significantly less family responsibilities discrimination. (Dickson, 2003). In the case of XYZ, David had a negative experience taking time-off for family responsibilities due to his manager’s behavior and to the career consequences he experienced.

Suggestions for HR and OD Professionals

  • Create tip sheets for managers which include a list of dos and don’ts for effective communication for when employees return from leave as well as tip sheets for managers on how to effectively communicate with employees who request flexible work options and/or federal or state family medical leave.

4. Employee Assistance Program (EAP) Services Make a Difference

In the case of XYZ, EAP services were not utilized. As a result, David did not have an opportunity to confidentially discuss his concerns or receive support. Research reveals that the availability of EAP services can significantly reduce employee perceptions of family responsibilities discrimination, especially for employees with family caregiving responsibilities (Dickson, 2003).

Suggestions for HR and OD Professionals

  • Improve the marketing, delivery, and evaluation of EAP services. For example, HR and OD professionals should seek to market EAP services more effectively. In addition, HR and OD professionals should evaluate EAP services biannually to ensure they are meeting the needs of the workforce.

5. Flexible Work Options Work!

In the case of XYZ, David learned that using a flexible work option was “career suicide.” XYZ’s “unwritten rules” created significant career consequences for employees who used a flexible work option. The availability and use of flexible work options such as flexible scheduling, telecommunting, job sharing, part-time work, and compressed workweek can reduce employee perceptions of family responsibilities discrimination, especially if employees have a positive experience using these programs (Dickson, 2003).

Suggestions for HR and OD Professionals

  • Promote the employers’ flexible work options in training sessions and in direct client services. In addition, employers should make flexible work options available to all employees to avoid “family-friendly backlash” in which single employees are not given the same rights as parents or other family caregivers in the workplace.

SUMMARY

By understanding the legal case for work-life balance policies, HR and OD professionals have a unique opportunity to partner with employers to develop innovative training programs, to get involved in strategy development and implementation, and to showcase their unique talents that can protect employers from family responsibilities discrimination lawsuits while creating a healthier, more effective and efficient workplace.

ABOUT THE AUTHOR

Dr. Christine E. Dickson is an international speaker and published author on worklife balance. She holds a Dual PhD in Clinical Psychology and Industrial-Organizational Psychology. Besides working in private practice as a clinical psychologist in the San Francisco Bay Area, she has worked as a consultant and trainer for companies such as Wells Fargo, Johnson & Johnson, Dupont, Prudential, Chevron, BASF Corporation, Sandia National Laboratory, Novartis Consumer Health, State of Michigan, State of Kentucky, Corporate Counseling Associates, Health Net, Partners Health Care, Edgewood Center, and Florida Power and Light. Dr. Dickson’s corporate work has focused exclusively on the business and legal case for workplace flexibility.

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