Last week we published Part 1 of How the FLSA Hurts Women which discussed what women want from the workplace, and some reasons why they are leaving the workforce when it does not accommodate their work-life balance needs. In this part, we will be discussing business trends and business needs in general. Part 3 will discuss how the FLSA works against businesses’ being able to provide women with attractive work options, thus hurting women and businesses.

Business Trends9 to 5

I remember attending the annual conference for the Society for Human Resources Management a few years ago. The consistent message of the keynote and featured speakers really struck me: the 9:00 to 5:00 jobs are passing into history. Future employees will not be able to punch out before dinner, leave work behind, and lead a financially comfortable life. Instead, for business and employees to succeed — indeed for them to survive by meeting the 24/7 demands of the global marketplace — the whole concept of the work day needs to change. The tools we use for business and communication now, such as the internet and email are not limited to Monday through Friday, 9-to-5 Eastern Standard Time, not to mention our local, national, or overseas customers. As I listened to the speakers, I remember wondering how businesses in the United States could adapt to these changes when the FLSA, and similar state laws, demand that employees stop working after a certain number of hours no matter how much or how little they accomplished; stop reading, stop sending or receiving emails, stop thinking about new markets or product ideas or talking to co-workers or customers after clocking out. (Technically, the wage and hour laws don’t require that, but employers who let non-exempt employees work at all hours face the potential for astronomical overtime costs, as well as the nightmare of having to accurately record every minute worked).

50% Rise in Two Working Parents
      50 Percent Rise in Two Working Parents

These questions continue to arise after news reports of the disappearance of middle-class jobs, artificial intelligence replacing hourly employees, and articles like Forbes, Why Millennials are Ending the 9 To 5, by Kate Taylor, and Bloomberg’s It’s Time to Kill the 9-to-5, And the 8-to-6, Too, by Rebecca Greenfield. Greenfield’s article highlights the negatives of our U.S. culture which is “rooted” in an “hours mentality,” which no longer conforms to most people’s lives or their workflows. Employees who have flexibility and control over their schedule rather than 8 hours in a cubicle, have improved productivity, health, and retention rates. Greenfield also noted the 50 percent rise in two working parent households since 1970, yet there has been no structural change to the workplace to adapt to the new reality.

Continue Reading How the FLSA Hurts Women (Part 2)

What?!  Blasphemy!

What do you mean do away with the FLSA?!
     What do you mean do away with the FLSA?!

Our politicians regularly debate how high the minimum wage should be, and which workers should earn overtime pay, but in my 30+ working years, I cannot recall any significant push to rid ourselves of the nearly untouchable dinosaur known as the Fair Labor Standards Act (FLSA). Women in particular, however, should take a fresh look at the FLSA and how it is hurting them from achieving what they want from their workplaces and pursuing work of choice, and consider whether it is time for a complete overhaul of this archaic law. Real foundational change could also have multiple other benefits including employer growth and success, benefits for minorities and children, and the lives of male workers.

This blog will be the first in a three part series taking a fresh look at the FLSA, with a particular focus on its negative impact on working women, and how real change could be a real boon for women. This “Part 1” will examine the history of working women, address why women are leaving the workplace, and what women want from their employers to attract them to stay.

Part 2 will discuss relevant business needs and trends in general in today’s world marketplace.

Finally, Part 3 will bring everything together and explore how the FLSA works against women in achieving their professional goals as well as better work-life balance. It will also consider alternatives to the current structure of the FLSA and the positive impact real change could have on U.S. businesses and women alike.

History of Change for Working Women

Women's work?
Women’s work?

Next year, 2018, will mark the 80th anniversary of the Fair Labor Standards Act (FLSA). Following the great depression, it was passed in 1938 with the good intention of encouraging business to hire more workers (by paying a penalty for working employees over 40 hours), establishing a minimum wage for workers with low bargaining power, and protecting children from horrendous child labor and working conditions. In 1938, these goals were important for helping one parent obtain gainful employment and allowing children to get an education and be kids.

In 1960, only 25% of married households with children under 18 had both parents working. By 2012, that number more than doubled to 60%, and the number of     households with only a married mother working tripled. In 2015, 64% of women with children under age 6 were working (compared to 74% of working-age women with children between 6 to 17 years old), and 29% of working women with children under 6 were single parents.[1] While women are breaking glass ceilings, are more valued by companies who recognize that diversity contributes to higher financial outcomes, and more women than men have college degrees, women are still choosing to leave the workforce. The Bureau of Labor Statistics show that between 2000 and 2015, the percentage of women in the workforce decreased from 59.9 to 56.7, with the highest decreases in the prime age range of 25-54. So why is this happening?

What Women Want

While every woman who has decided not to work has their own individual reason, according to the 2016 Gallup study, “Women in America: Work and Life Well-Lived,” companies’ biggest competitors for talented women are their children. Whether a working mother decides to accept a particular job is often less about a paycheck, and more about having the ability to do what they do best, having a job they can depend on, and having greater flexibility, including flexible hours, schedules, and time out of the office. According to Gallup, female millennials are surprisingly aligned with female Gen X and baby boomers in these considerations. For working mothers, jobs with rigid schedules are rarely attractive or practical.

happy womanWhile pay is not the highest priority for the majority of working women, to better analyze what women want, it is important to discuss the “gender pay gap.” Personally, I have a major pet peeve when people discuss the gender pay gap with the sound-bite, “women earn $.83 for every $1.00 a man earns,” because this is way too simplistic, and often intentionally ignores numerous factors of personal choice that explain at least part of the disparity. That being said, there is plenty of evidence that the gap is not fully explained by personal choice. In addition, the greater disparity for African-American and Latina women compared to men ($.64 and $.56 respectively) leaves more room for question well beyond personal choices. Nevertheless, one underlying factor cited by Gallup as accounting for these disparities has a very real significance for working women, especially given the flexibility they value in the workplace: hours worked and perception of hours worked. To better balance their workplace and family needs, women often decide to cut down, or change their work hours, pursue less time-intensive jobs, or leave the workplace altogether. In 2015, 25% of employed women worked part-time compared to 12% of employed men. These decisions affect the perceptions of how hard women are working and their dedication to their employer, reduce women’s up-to-date work experience, and thus reduce women’s pay and chances of getting promoted.

heather graph 3Statistically, salaried men report working more hours than women. But does this mean men are working harder or getting more done? Anecdotally, I have seen professional women allegedly “cut down” their hours – that is they cut time working in the office – which really translated into working just about as much time or getting as much done, but at odd times working harder and faster, and whenever they had a few minutes here and there. They often got more done in less time than people clocking more hours at the office. Indeed, studies like this and this are providing scientific evidence that women’s brains are better at multi-tasking then men’s brains – working moms probably don’t need science to prove that! So, continuing to value face-time in the office instead of productivity, which can favor men over women, doesn’t make much sense.  And this will lead to next week’s installment of our blog – what businesses really want.

1] U.S. Bureau of Labor Statistics, Employment Characteristics of Families Summary, April 22, 2016.

Image Credits: From Google,  Creative Commons license. The Happy Land Illustration by D.H. Friston for the Illustrated London News of 22 March 1873; From Flickr, Women Sewing, Successful Woman on Laptop; Table from the Gallup Report, “Women in America: Work and Life Well-Lived,”   

What do the following have in common?

  • Americans who can drive a stick shift;
  • Female equity partners in AmLaw 200;
  • Projected sales growth for smartwatches in 2017;
  • Americans who have seen a ghost.

ComboAnswer: 18%

In 2016, women made up 18% of the female equity partners in the AmLaw 200. Am I happy with that statistic? Eh, no. (But I’m pretty excited that 18% of Americans claim to have seen a ghost).

Ok, so, we’re at 18%. Disheartening – maybe, but let’s step back for a minute and put that number in perspective. Where have we been, and where are we going? It is Women’s History Month after all, and I’ve been running down a rabbit hole for some hours now – researching women who charged into the legal profession long before smartwatches.

Belva Ann Lockwood; First woman allowed to practice before the United States Supreme Court in 1879
Belva Ann Lockwood; First woman “allowed” to practice before the United States Supreme Court in 1879

Did you know that in 1890, women lawyers made up less than one half of one percent of the profession (208 women out of 89,422 total lawyers)? We’ve come a long way – thanks to plenty of women and men who fought the good fight. Take Lelia Robinson for example.

Lelia Robinson was the first woman to graduate from Boston University Law School. Go Lelia! But, when she tried to sit for the state bar she was turned away. The trial court and the appellate court denied her petition for admission. The court’s reasoning? Women’s bar admission would lead to suffrage. Lelia J. Robinson’s Case, 131 Mass. 376 (1881).

Lelia wouldn’t take no for an answer. When the courts shut her out, she turned to the legislature – and lobbied for a women’s lawyer bill, which passed unanimously. Lelia then became the first female admitted to the Massachusetts bar!

Continue Reading Celebrating Women’s History Month

EDITOR’S NOTE: This is the third and final post in the blog series Diary of a Pregnant Lawyer – Pregnancy in the Professional Workplace. The first blogmester is here, and the second is here. Mallory wrote all three installments before she had her baby on December 22.

pregnant woman and high heel shoes
“Uh, I don’t think so!”

Welcome to the Third Blogmester! This blogmester feels very near and dear to my heart, because as I am writing this one I am about as preggo as a preggo can be. I am very uncomfortable, owing to the giant baby mushing all of my innards, and writing in between contractions. Don’t worry – they are not timeable (I don’t think?).

But remember at the very beginning of my blog series when I said practicing law while being pregnant is hard? Well, that sentiment stems mostly from the third trimester, during which the difficulty of working in a professional atmosphere correlates with the growing of the baby bump. Heels, suits, pantyhose – HECK NO to all of these things, I say! I am now proudly rocking the “frumpy” professional look because it is truly the best I can do short of showing up in my pajamas.

Continue Reading Diary of a pregnant lawyer: Third blogmester

EDITOR’S NOTE: This is the second in the three-trimester blog series Diary of a Pregnant Lawyer – Pregnancy in the Professional Workplace. The first blogmester is here. On December 22 (after she wrote her last “blogmester” post, which we’ll publish later this month), Mallory gave birth to Margot Eleanor Ricci. Congratulations, Mallory!

You have survived the first trimester! Many consider the first trimester to be the hardest of the three (I respectfully disagree and will elaborate more in the upcoming Third Blogmester post).

"Honey, I made it to my second trimester!"
“Honey, I made it to my second trimester!”

If you spent the first trimester escaping to your office for 30-minute power naps, escaping to the bathroom for vomit sessions, or escaping to the fridge for some craving-satisfying snacks, things may be looking a little better for you now.

Unless you’re like me, and the fun times are rolling for a little while longer.

In any event, this second 12-week period is considered to be the easiest. But that doesn’t mean the second trimester doesn’t come without issues, some of which involve the place where professional women spend the majority of their time – work!

Let’s read about some other practicing attorneys’ experiences during the middle of their pregnancy and see if this trimester is as uneventful as it seems . . .

“I was six months pregnant with my first child, and huge. I was at a hearing in the judge’s chambers. Opposing counsel asked when I was due, and I said in three months. The male judge looked at me in amazement and said ‘are you expecting twins?’ I said ‘no,’ and he was hugely embarrassed. Needless to say, I won the hearing.”

“I may be one of the only women who HATED being pregnant. (Or at least one of the only ones to admit it.) I was grouchy, to say the least. However, with that grouchiness came a positive. For approximately 25 weeks (after I went public in the office), I reveled in the fact that the men completely left me alone. I got more work done those 25 weeks because our male dominated office at the time treated me like I had the plague. It wasn’t mean–it was for their own safety and self-preservation. I was spared the hour-long football story distractions and petty arguments that come along with practicing law with an office full of brilliant A-type personalities. My partners also took advantage of my ‘grouchiness.’ I was the one who was always picked to have the controversial phone calls with opposing counsel (also men). It was a great way for me to vent my irritation–and useful, too, because we were preparing for trial all that summer with a very difficult opposing counsel. Needless to say–I usually got my way, and my husband enjoyed the fact that I was a little nicer at home!”

“While I was pregnant, opposing counsel was pregnant, too. Under the state rule, the duration of a deposition is severely limited, and I ended up having to ask the Court for additional time because of the number of bathroom breaks that my opponent took. She opposed the motion, but I was granted the additional time.”

Continue Reading Diary of a pregnant lawyer: Second blogmester

Being pregnant can be hard. Working while pregnant can be really hard. Practicing law while pregnant can be hard, really hard, and more.

As I sit here I am well into the third trimester of my first pregnancy. While typing this introduction, I have had to “go” three times, and I have my feet propped up on two unused computer bags under my desk because by the end of the day my feet look like wonky balloon animals. Looking back at my pregnancy journey, I am aware of how fortunate I am to not have a physically demanding job and to have had a relatively healthy pregnancy – though not without its bumps (in addition to my one big bump) along the way.  I am also aware, however, of the unique challenges pregnancy poses to professional women. Women and their employers should be equipped to handle these challenges. That is what this post is for.

Much like pregnancy, this diary is going to be divided into three “blogmesters”:

First blogmester: family planning and the first trimester;

Second blogmester: the seemingly uneventful second trimester; and

Third blogmester: working while getting ready to deliver, maternity leave, and post-partum issues.

Continue Reading Diary of a Pregnant Lawyer First Blogmester – Planning for Pregnancy and First Trimester

Our sister blog, Employment & Labor Insider has once again been named by the American Bar Association as one of the top 100 Blawgs out of 4000. Robin Shea is the Blawg Editor and primary author who entertains, informs and provides common sense employment law insight every Friday without fail. She has also been a great mentor to me – a more novice blogger – and our great team of FOCUS bloggers. And she does all this while also being an excellent attorney.

Robin embodies what this blog is all about – great women in leadership who are ready to help others be the best we can be – and we are proud to call her our partner. Congratulations Robin and Employment & Labor Insider.

 

I do not consider myself to be a confrontational person.  Maybe that sounds like a paradox cowomen argueming from a lawyer, but I suspect I may not be the only one in my profession who feels this way. To me, making persuasive legal arguments is fun, but getting yelled at or antagonized by a not-so-nice opposing counsel really stresses me out.
I get that this is often the goal of these sorts of tactics: challenge everything, send copious nasty emails, drive up costs, and make litigation so unbearable and expensive that my client is eager to settle. I know that these bullies are trying to get under my skin, and I know that I should “not let it get to me.” But I sometimes struggle with figuring out how to get from wanting to let it go to actually letting it go.

let it goI would love to walk out of the office in the evening and not give another thought to any of the nastiness I may have encountered during my day. I do not want to be at home playing with my toddler while thinking about how to respond to an email about some petty slight. I do not want to lose sleep anticipating what ridiculous misrepresentations opposing counsel is going to make about our conversations in a discovery motion. I do not want facing these types of opponents to make me feel burned out on being a lawyer. All of these reactions might mean the bully is winning, and we can’t have that.

I recognize that I have no control over how opposing counsel acts or who I get as opposing counsel in a case.  But what I can control is how I react to and internalize difficult situations that may arise at work.  I am still working on getting better at this, but wanted to reflect on some techniques and strategies that I have come across. I work with some wonderful, wise, and kind attorneys who have given me lots of helpful advice on this subject. Here are some things that I have found to be helpful for dealing with difficult opposing counsel or other difficult individuals and confrontational situations in the workplace:

  • woman handshakeKill them with kindness. Maybe politeness is the better word here, but I have found that if I focus on maintaining my own sense of civility in my interactions with opposing counsel it distracts me from worrying as much about what they are saying. Being polite does not mean caving into unreasonable demands. It just means taking the high ground and remaining professional as you assert your position. Bullies often want a fight, so if you refuse to stoop to their level, it sometimes has the added effect of unnerving or calming them down. Smile, ignore their behavior, and act like you are not bothered by it.
  • Document everything. If opposing counsel has a tendency to misrepresent your conversations, make a habit of following up any phone conversations with an email or a letter summarizing the discussion and the positions taken by each party. Assume that this document might eventually find its way to the court so keep it professional and focused on the issues. Do not ever put anything in writing that you would be embarrassed for the court to see. If opposing counsel repeatedly becomes heated or abusive over the phone, or if he or she continues to misrepresent discussions, let the attorney know that all future discussions will need to be in writing. If an attorney is acting up during a deposition, make a statement on the record to document the behavior, but do not get pulled into an argument. If the deposition is being videotaped, let the lawyer’s behavior speak for itself.
  • Know how to end the conversation. Sometimes it becomes clear that an opposing attorney is not actually willing to agree on anything. Allow the attorney to state his or her position. Reiterate where you stand, say you have heard, and either say that you will take it under consideration or suggest allowing the court to decide the dispute. In other words, agree to disagree and move on.

These suggestions have been great in helping guide the ways that I communicate with disagreeable attorneys, but as far as figuring out how to maintain a sense of emotional well-being and actually let things go, I’ve had to dig a little bit deeper. This is where mindfulness comes in. Yes, “mindfulness” is pretty trendy right now.  Amazon has about a million books on the subject, including a variety of children’s books.  The app store on my phone contains an assortment of apps containing mindfulness exercises. You can even buy “mindful” mayonnaise and dog shampoo! Many companies, sports teams, and schools have begun offering or requiring mindfulness training for employees and students, sometimes with impressive results for participants such as improved performance, stress relief, better quality sleep, fuller enjoyment of life, and even alleviation of certain health issues.

So what exactly is mindfulness (other than a clever way to market mayonnaise)? Mindfulness is a practice that involves focusing on the present moment, observing and accepting any feelings, thoughts, and sensations that are present without judging them. It’s a form of meditation that is supposed to be carried into our everyday life. For example, there are exercises about mindful eating, which focus on enjoying the sensations of food rather than rushing through a meal. There are mindful sitting exercises, mindful walking exercises, and even exercises for mindful internet use. The goal of these exercises is not to completely clear the mind of any thoughts, but to adopt a more accepting and less judgmental way of interacting with our own thoughts and feelings. From my experiences in my pre-lawyer life as an actor, I know that focusing awareness on physical sensations and breath is an excellent way to remain present in the moment instead of judging your own performance or trying to force yourself to have feelings you think you should have, so I am definitely intrigued by the idea of incorporating mindfulness into my daily life as a lawyer.woman at desk

I have only just started to explore mindfulness to see whether it is something that works for me, but I’m going to give it a try, along with continuing to use the techniques I described above. During an unpleasant conversation with opposing counsel, practicing mindfulness might mean pausing to notice feelings of anger and the physical sensations that accompany those feelings, and focusing on taking some deep breaths. If thoughts about a confrontation with opposing counsel creep into my mind while I am trying to relax at home, a “mindful” reaction would be to notice and acknowledge the thoughts as sort of an interesting phenomenon and then focus on the physical sensations I am feeling to gently bring my mind back to the present. With time, I hope to get better at these techniques and at seeing whether I can make mindfulness practices part of my daily routine.

If you are curious about mindfulness, there are numerous resources to help you get started. I’ve even seen continuing legal education courses and books offering mindfulness courses geared specifically toward lawyers. It seems like there is a mindfulness option out there for everyone, even the mayonnaise addicts with dogs! I don’t know whether mindfulness is the magic potion for living a stress-free life, but for anyone else who has trouble taking a break from worrying about work, I recommend at least giving it a try.

During college, law school and the first few years of my practice, I never gave much (ok, any) thought to taking a break from work.  I was too focused on developing a career. Planning to not work – apart from the very distant notion of retiring someday – never really dawned on me.  In the abstract, I had formed a belief that being a professional woman would somehow provide me with options if and when I ever wanted to exercise them.  So, sure, if I could afford to take a few years off after maternity leave and return to work once my future children reached elementary school age, I could do that.  But, what I didn’t appreciate was how difficult it could be to exit and then return to my profession once I had my own clients and was responsible for my own workload.  Where would my value lie if all of my clients were transitioned to other attorneys during my absence?  What would I come back to? Realistically, could I ever really take extended time off from work and return to the career that I was working so hard to build?

Fast forward a few years (ok, maybe more than a few) and this has become a very familiar topic of discussion among my friends who work in a variety of fields.  It seemed, somehow, to catch many of us off guard that professional success and tenure made it difficult to take a prolonged break from work and return to our careers.  Sure, we would expect to find employment, but could we ever return to roles that were comparable to the ones that we had before?

Regardless of the personal decisions ultimately reached or paths taken, questions about whether it would be possible to successfully return to the workforce after a significant break are important – and I think that women especially should be asking these questions and considering these issues much earlier in our careers – before our 30s.

sabbatical

It is a fact that more women than men leave the workforce to care for a parent, spouse or child, and there are many other reasons professionals take extended leaves like military service, extended volunteer work, personal illness, sabbatical, or extended once-in-a-lifetime opportunities. So, whether planned or not, the possibility of a leave of absence exists for many women. It seems prudent, then, that our arsenal of career development tools and plans includes doing what is necessary to ensure a successful return from an extended leave should we ever need or want to take one.

A while back I was forwarded this video link to a November 2015 TED Talk given by career reentry expert Carol Fishman Cohen:

Continue Reading Plan Ahead for Extended Leaves of Absence – Even If You Never Intend to Take Them

According to an article in bizwomen, for the last two years Wells Fargo has been building an external business strategy, known as the “women’s initiative.” Wells Fargo has been marketing specifically to women by educating their teams on why they should focus on women and how to market to women based on the differences in the ways that men and women do business.

It is clear that Wells Fargo wants women’s business. And for good reason. According to the bizwomen article, women-owned businesses are expected to make up 39 percent of all businesses by 2017.

I am reminded of the 2000 movie What Women Want. Mel Gibson plays a marketing executive who can hear women’s thoughts. He uses this tool to, among other things, better market toward women by working closely with his new boss in order to steal her thoughts and develop a marketing pitch to Nike Women. Before he got the “gift” (if you want to call it that) of hearing women’s thoughts, Mr. Gibson’s character was known to be a bit of a scoundrel.  Most of the movie consists of Mr. Gibson getting in touch with his feminine side in order to determine – wait for it – what women want. At the end of the movie, the final pitch to Nike Women is geared toward women runners. It shows a quiet, lonely road, occupied by a single woman running. The ad focuses on the woman’s desire to simply run on the pavement without superficial judgment or expectations. The women love it, Mr. Gibson’s company wins the pitch, Mr. Gibson’s character gets the girl, and everybody lives happily ever after.

But do men and women really need to be marketed to separately? Judging from Super Bowl commercials, it appears that the ad industry has already decided “yes.” You’ll get an eyeful of burgers, fast cars, beer, and babes (and I don’t mean infants). To keep the women interested, occasionally you’ll get Ryan Reynolds, puppies, wine, or babies (now, I do mean infants).

Every now and then, you may have a standout commercial that is clearly geared to women, like the 2015 Always “Like a Girl” commercial.

An article about the ad noted, “[T]he ad may be the first time a feminine care product was advertised during the Super Bowl and is a prominent example of how companies are trying to woo women customers are shifting advertising tactics.”

Should women be offended that we are being marketed to differently? Does this mean that we are really being reduced to wine, cuddly animals, and cute babies? (Not that there’s anything wrong with those things.) But a lot of women like burgers, fast cars, and beer, too. And a lot of men like wine, cuddly animals, and cute babies.

OLYMPUS DIGITAL CAMERA
Just because you like me . . .

The “Like a Girl” campaign teaches us that society has applied different norms and expectations to young men and women, some of which persist, but it also teaches us that women are rewriting the rules.

According to a 2015 report by First Round Capital, tech startup companies founded by women performed better than those founded by men. Yet, there are only 24 female CEOs in the S&P 500. Is this because of the glass ceiling, or are smaller tech companies – as opposed to the more traditional companies included in the top 500 – providing women leaders with more attractive opportunities? Possibly, both.

HotRodGirl.flickrCC.InsomniaCuredHere
. . . doesn’t mean you can’t like me, too.

The “Like a Girl” campaign and the Wells Fargo women’s initiative are run by women. Given the growing number of women-owned businesses, the success of tech startups founded by women, and the stark reality that women are still not running very many S&P 500 companies, programs like the “women’s initiative” and the “Like a Girl” campaign are less about differentiating women from men and more about responding to real changes and providing women leaders with the tools to be successful in their own way, whether as a small business owners or as CEOs.

It is a recognition of differences in how women and men succeed, and how they define success. Recognizing these differences must not be demeaning to women. Companies should recognize that women leaders are here, important, and growing in number, and that their different styles, needs, interests, and goals are contributing to positive change in business. Companies like Wells Fargo, who help women-owned businesses to grow, will reap the benefits of their success. More companies should follow that example, not by singling women customers out for their femininity, but by recognizing that women have something to offer to the success of a business. All will benefit in the long run.

Still image credits: From flickr, Creative Commons license. Kitten by Orest Schvadchak, still from Hot Rod Girl (1956) by Insomnia Cured Here.