By Jessica Caspe, Esq.
As summer comes to a close and the school year begins, balancing work and personal responsibilities is back on many working parents’ minds. According to a 2015 Workplace Flexibility Study, 67% of employers believe that employees have a good work-life balance, yet 45% of employees felt that they did not have such balance. According to the same study, 75% of employees ranked workplace flexibility as the most important job benefit.1 Another study found that two-thirds of employees feel constantly torn between meeting both the demands of their jobs and their personal lives.2 A recent Washington Post poll revealed that more than 75% of working mothers and 50% of working fathers admitted to passing on work opportunities, changing jobs or even quitting because of their children. What all these studies suggest is that balancing work and personal responsibilities is a struggle for many employees and consequently, for their employers as well.
Netflix sparked further discussion when, on August 4, 2015, it announced its new unlimited paid parental leave policy. According to Netflix’s policy, eligible employees can take up to one year of unlimited paid leave following the birth or adoption of a child. The policy also provides that employees can take a period of leave and then “return part-time, full-time, or return and then go back out as needed.”3 Netflix states the intended goal of the policy is to allow employees to “figure out what’s best for them and their family,” by giving employees “the flexibility and confidence to balance the needs of their growing families without worrying about work or finances.” Netflix further states its policy fosters its culture of giving employees “the freedom to make their own decisions along with the accompanying responsibility.” Many have praised Netflix’s policy for not only being expansive but also giving employees real flexibility to use parental leave in a manner that best accommodates their particular family’s needs.
Shortly after Netflix’s announcement, other companies quickly followed suit. Within 24 hours, Microsoft announced that it too was expanding its parental leave policy, including providing new mothers up to 20 weeks of paid leave following the birth or adoption of a child. Shortly thereafter, Adobe announced that it also was expanding its parental leave policy to allow 16 weeks of paid leave for primary caregivers, among other benefits. While these announcements have garnered much attention, and some other technology companies (and other corporations), including Facebook and Google, offer similar benefits to new parents, this trend does not necessarily reflect the benefits provided in the majority of workplaces.
Indeed, the United States remains the only industrialized country without mandated paid parental leave, and currently, only approximately 12% of employees have access to paid family leave. Further, the average number of paid weeks of parental leave offered by companies is just seven weeks.4 While there is proposed legislation to expand the federal family leave laws, an employee’s options for paid family-related leave are fairly limited, which is part of the reason Netflix’s policy has received so much attention, and spurred so much discussion about workplace flexibilities in general.5
While many are applauding Netflix’s policy as forward thinking, others are critical of it both in its limited application and execution. In reality, the policy only applies to a subset of salaried employees (about 2,000). The policy does not apply to employees in Netflix’s distribution centers (approximately 400 to 500 people in total), who generally are its lower-paid employees.6 Netflix’s policy highlights a disparity that exists in many companies: hourly and part-time employees do not always receive the same benefits as salaried employees, which can lead to tensions in the workplace.
Another concern with Netflix’s policy is that employees simply will not feel comfortable taking any significant leave for various reasons: concerns over being considered a “slacker,” negative effects on their ability to advance within the company or get desirable work assignments, missing out on critical meetings, or resentment from their co-workers for missing so much work. A very small percentage of companies (Netflix included) offer essentially unlimited vacation policies, and some research suggests that employees, when given unlimited time off, will feel pressured to take even less vacation time because of the same concerns. When Virgin announced its unlimited policy, Richard Branson said in a blog post that he assumes employees “are only going to do it [take vacation] when they feel a hundred percent comfortable that they and their team are up to date on every project and that their absence will not in any way damage the business—or, for that matter, their careers!” His message certainly could be interpreted as not encouraging employees to avail themselves of the benefits of the vacation policy.
The question for both employees and employers is, are these concerns valid? Is there a perception that taking time off has a negative impact on an employee’s career or the workplace generally? In the past decade there has been a rise in what are referred to as family responsibility discrimination cases (“FRD”), which allege employees have suffered discrimination because of their caregiver responsibilities (whether it is caring for a child, a spouse, or an aging parent). Although there is no federal law that specifically prohibits discrimination based on family responsibility or caregiver status, employees have been successful in bringing such claims under Title VII of the Civil Rights Act, the FMLA, the Americans with Disabilities Act, and the Equal Pay Act.7
Regardless of whether all of the cases have merit, the rise in numbers does suggest there is a perception at least in some workplaces that taking time off to tend to family responsibilities is looked upon unfavorably.
The challenge for employers is creating a workplace where employees are given needed flexibility (that does not interfere with operation of the business) and also feel comfortable taking advantage of flexibilities offered. According to the same 2015 Workplace Flexibility Study, employers who offer greater workplace flexibilities are seeing positive results, including increased employee satisfaction and productivity, which, in turn, leads to greater employee retention. Here are some tips for helping to create a culture where employees feel like they have the flexibilities they need and feel comfortable taking using them:
1. For starters, review all relevant policies and state and local laws to make sure that policies are up-to-date and compliant. Make certain employees are aware of what flexibilities are available to them under state and local laws, including making sure employees in certain locations are aware that they can take time off for school-related functions.
2. Train supervisors and managers both on recognizing potential gender stereotyping resulting from an employee’s need for time off for caregiver responsibilities, and on the harmful effects it has on the workplace, including potential liability. Make certain supervisors and managers understand that it is not appropriate to take into account an employee’s caregiver responsibilities when making employment decisions (even if the intentions are benign – e.g., I didn’t think she would want to work on this project given the time commitments, since I know she has young children). Company policies should also be clear that such treatment is not tolerated.
3. Determine any ways to increase flexibilities, including paid leave, to allow employees to achieve a better balance, which ultimately leads to better outcomes for everyone. Make flexibilities as widespread as possible to minimize any potential unfairness and resentments. Anticipating ways to manage any coverage or other issues when employees take leave also helps to minimize future resentments and ensure that the policy is enforced fairly.
4. Make it okay to take leave! Work to alleviate any guilt employees may have about taking leave or advantage of workplace flexibilities. Encourage employees to take leave. Lead by example!
It is likely that Netflix’s new parental leave policy is just one step in changing expectations around issues related to parental and other types of family leave in the workplace. Staying abreast of recent policy innovations and understanding the response of employers and employees will help both be better prepared for the inevitable evolution of work-life integration policies.