The Florida Bar has taken steps to recognize parental leave as a valid reason for a continuance of trials and significant court activity for lead attorneys in cases—including both women and men attorneys. Recently, the Florida Bar Board of Governors voted unanimously to recommend a new Rule of Judicial Procedure to allow lead attorneys to obtain a three-month continuance for parental leave, provided the continuance does not cause “substantial prejudice” to opposing parties. If this rule is approved by the Florida Supreme Court, it will be the first of its kind in the United States.

Getting to this point hasn’t been easy. The vote marks the third time the Florida Bar has attempted to get such a rule passed. Some members of the Bar who opposed the proposed rule in the past believed it to be unnecessary and that continuance decisions should remain at the discretion of the judge.

Why can't you be in trial then?
Why can’t you be in trial then?

But recent incidents of judges denying continuances for maternity leave—and even failing to permit short breaks for breastfeeding mothers to pump milk—continue to abound,  as suggested hereherehere and here. Admittedly, many great judges do reasonably accommodate expectant mothers, but overall, there’s evidence that the discretion of judges has not worked well. In fact, often the system puts women attorneys in the difficult position of having to justify the “favor” of a continuance, or even filing bar complaints against judges who are hostile towards their pregnancies (when the women may very well have to appear before those judges again). Florida Special Committee on Gender Bias member, Paul SanGiovanni got it right when he said he’s not so much concerned with judges abusing their discretion, but

my position is, a woman should not be put in the position of having to argue that in the first place. The same for men who have to go home and take care of their wives and families.

Continue Reading Florida May Make History For Attorneys and Parental Leave

Mark and Michelle are hired at the same time, by the same law firm in the same city, to do the same job. They are both third-year associate attorneys; they went to the same law school; they graduated with the same GPA; and they have the same skill set and job experience. Now, let’s assume the law firm, their new employer, offers them two different salaries. Mark is offered $10,000 a year more than Michelle.

What is your first reaction to this set of facts? Let me just tell you. I read that paragraph and immediately got hot and bothered. How can it ever be ok to pay a woman less than a man – to do the same job, with the same education, skill set, and experience?

Well, interestingly enough – there are a few circumstances where it is ok, under federal law, to pay women and men different pay rates for the same work.

Equal Pay Act of 1963

The federal law that governs equal pay is fittingly called the Equal Pay Act. The EPA makes it illegal for an employer to pay different wages to to employees of the opposite sex for equal work on jobs that require equal skill, effort and responsibility and are performed under similar working conditions. Although the EPA was enacted to redress wage discrimination against women, the act protects men as well as women from wage discrimination based on sex.

Kennedy signs EPA into Law
Kennedy signs EPA into Law

That being said, the EPA provides four exceptions to the general rule. Employers can pay men and women different rates for substantially equal work if the disparity is justified by:

  1. a seniority system;
  2. a merit pay system;
  3. a system that measures earnings by quantity or quality of production; or
  4. a differential based on any factor other than sex.

Can Employers Use Prior Salary to Justify Wage Disparity?

Continue Reading This Week’s Dinner Conversation, brought to you by the Ninth Circuit Court of Appeals

May is Mental Health Awareness Month. This annual campaign aims to raise awareness for mental illnesses and break the stigma associated with mental health issues. According to the National Alliance on Mental Illness, 1 in 5 Americans will be affected by a mental illness in their lifetime, and every American is affected through friends and family who have mental illnesses.

Thus, it is likely that one of us has a mental illness of some kind, and a sure thing that we know someone with a mental illness.green ribbon

Many professionals deal with depression.  We work in fast-paced, highly demanding environments that can take a toll on our mental health. According to the Dave Nee Foundation, lawyers in the United States are the occupational group with the highest incidence of depression and fifth in suicides.  Further, chronic stress can trigger the onset of clinical depression.

Those are some startling statistics! But what does this have to do with women specifically? According to NAMI, women are prone to certain mental health conditions:

  • Premenstrual Dysphoric Disorder (a severe form of PMS)
  • Perinatal Depression (depression during or after pregnancy)
  • Perimenopausal Depression (depression during menopause)

sad-girl-1382940_960_720A 2014 study on depression in professional women found that women in positions of authority have more depressive symptoms than men in positions of authority (although apparently female lawyers are less depressed than male lawyers). According to the linked article, this can be attributed to women’s traditional assumption of most of the domestic responsibilities, as well as pay inequity, and the scarcity of other women at top levels. The article recommends that professional women

  • Choose a family-friendly employer
  • Find like-minded women and create a network
  • Don’t strive for perfection

unhappy manNotably, female professionals do not own the market on depression and mental health disorders. Male professionals have their own struggles.  A recent American Bar Association article on depression in attorneys cited a study by National Institute for Safety and Health which found that male lawyers age 20 to 64 are more than twice as likely to die from suicide than are men the same age in a different occupation. A study done in 2016 by the Journal of Addiction Medicine shows that male attorneys are also susceptible to problem drinking.  The rate of drinking problems among all attorneys is three times that of the general population, as 1 in 5 attorneys are problem drinkers. In a survey done on 12,000 lawyers, 25 percent of the male lawyers tested positive for hazardous and potentially alcohol-dependent drinking.  According to the study, men under age 30 are most at-risk.

Interestingly, the study shows that female attorneys have even higher rates of alcohol abuse than male attorneys (which is the reverse of the general population). So, although female attorneys may be less susceptible to depression than male attorneys, they turn to alcohol more than men.

From an employer’s standpoint, taking care of employees’ mental health can increase productivity and job satisfaction. Employers should review their wellness programs and assess (and, if necessary, beef up) their coverage for mental health issues and include an employee assistance program, or EAP, to provide employees with confidential referrals to mental health professionals.

mental-1389919_960_720It is clear that male and female professionals (especially lawyers) have high-pressure, high conflict jobs that can take a mental and emotional toll, and everyone has different methods for reducing their stressors. The key is to find healthy stress outlets and methods for avoiding or dealing with depression.

Other recommendations for maintaining mental health or helping with depressive symptoms include:

  • Regular exercise
  • Meditation and breathing techniques
  • Making time to do something you enjoy or just for you
  • Set small, achievable goals
  • Make small, positive changes to your diet including increases to folic acid and omega-3 fatty acids
  • Get enough, or at least more sleep
  • Challenge negative thoughts and practice positive ones
  • Avoid withdrawal from friends and activities
  • Find something to make you laugh
  • Participate in your insurer’s Wellness  Program
  • Reach out to your insurer’s Employee Assistance program
  • Honestly talk to your doctor

Obviously, for a lot of professionals following the above advice is easier said than done.  But nobody has to go it alone.  There is no shame in asking for help.

Mental Health Month is a good time for all of us to ask ourselves whether we are doing all right and to seek help if we need it. If your employer doesn’t have a hotline or EAP, please try the following contact information below if you are in need of help of any kind:

NAMI Helpline 800-950-NAMI Suicide prevention

M-F, 10 AM – 6 PM ET

Text “NAMI” to 741741

Mental Health America Helpline

1-800-273-TALK (8255)

24 hours Text “MHA” to 741741

 

Image Credits: From Google Images,  Creative Commons license: Green Ribbon; Blue Woman from Pixabay; Unhappy man from Max Pixel; Mental Health Cloud from Pixabay; Suicide Prevention Hotline from Lifelinelogo.svg-Wikipedia

In the last two weeks, I posted Part 1  and Part 2 of this blog series which discussed what women want from the workplace, why many women are leaving the workforce when it does not accommodate their need for flexibility, the desire for businesses to recruit women, and developing business trends and needs requiring flexibility. This final blog will discuss how the Fair Labor Standards Act (FLSA) works against businesses’ being able to provide women with attractive work options, thus hurting women and businesses.

FLSA Incentives1280px-Time_clock_at_wookey_hole_cave_museum

To begin this discussion, let’s talk about the incentives created by the FLSA. You might initially think the FLSA incentivizes its 1938 goals of hiring more people instead of working employees longer hours, and paying them a reasonable minimum wage for the first 40 hours worked. This, however, is far too simplistic, and no longer very true. Many more behaviors, including unintended behaviors, are incentivized by the FLSA. Before discussing those behaviors, let’s get some reactions and emotions out of the way. Like it or not, both employees and businesses are motivated in large part by money. Employees want to maximize their earnings up to the point they conflict with other priorities. How this is achieved varies significantly from hard work and job choice to “working the system.” Businesses, including non-profits, want to maximize cash flow and profits while minimizing expenses, all within the dictates of their priorities. No matter what some may think of these motivations, they are reality, and we must deal with reality. So here are realities regardless of opinions, emotions and reactions.

Employee Behaviors

  1. Some employees maximize their opportunities for greater income by finding ways (legitimate and not so legitimate) to work over 40 hours to obtain premium overtime pay, including working (or claiming to be working) during break times, not getting work done during scheduled hours, starting work early, leaving work late, and doing work at unapproved times.
  2. Some employees are very dedicated to their work and would rather mis-represent their time records rather than stop working when directed. For example, I hear about nurses all the time who would rather work through lunch because a patient needs them, no matter how many times they are directed to take a full 30 minutes for lunch. (Employers love the dedication of these employees, but their good intentions can cause havoc from a WH perspective).
  3. Some employees will misrepresent the time they work when they think no one can verify their time. For example, a common employer and coworker complaint involves employees disappearing for extended periods of time from their work locations while on the clock without a legitimate reason. (Not surprisingly, these employees cause employers to be reluctant to let these employees work by the hour from their home!)
  4. Many, many employees like the prestige of being “salaried” and not punching a time clock even if they do not receive additional pay for hours over 40. These employees also do not usually get less pay for weeks in which they work less than 40 hours. I have seen countless misclassified employees get very, VERY upset when their employers convert them to non-exempt/hourly status in compliance with the law and make them start recording their time – a very real fact politicians refuse to acknowledge when they advocate for more classes of employees to qualify for overtime.

Continue Reading How the FLSA Hurts Women (Part 3 – Conclusion)

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