Today’s reader question is a toughie. And probably more common than we care to admit:
I feel discriminated against because I have a young child. I’m an exempt level employee and work every day from 9a – 5p with no lunch break. My manager wants me to start working more than 50 hours a week. She makes statements like “I don’t care if you have to pick up your kid- you have to stay late and can’t leave early (even if you arrive early). She deliberately schedules meetings after 5:30p and before 8:30a.
I think this just isn’t right, especially when I have received ‘exceeds expectations’ in my performance review. Is this discrimination or just an unfavorable work environment? What should I do?
I always struggle with questions about parenting (because I’m not a parent). So I decided to reach out to Jay Shepherd, employment law expert and author of the book “Firing at Will”. His experience as a lawyer, business owner and more importantly, father of two daughters, offers perfect insight.
Is parenthood covered under federal law?
[Jay] Typically, parenthood is not a protected class under state employment-discrimination statutes. (And it’s not a protected class under federal law.) But mothers have had some success in bringing parental-discrimination-ish claims under the umbrella of gender discrimination, which is protected by federal law and by antidiscrimination statutes in every state. Of course, since the reader’s manager is also a woman, it’s going to be hard to argue anti-woman bias.
Either way, the reader doesn’t state a case for discrimination based on what she wrote. She could have a claim if her coworkers don’t have to work 50-hour workweeks and aren’t inconvenienced by the early and later meeting times. That’s because the key element of any discrimination case is that the employee is being treated differently because of her membership in a protected class. That the manager doesn’t care about the reader’s childcare schedule isn’t itself discriminatory (it’s just seriously toolish). On the other hand, if the manager routinely allowed a male nonparent to miss meetings to go play squash or something, that could give rise to a discrimination claim.
Bottom line: The reader’s workplace is a terrible place to work. Any company that would have a manager who is as uncaring about employees’ family commitments as this one should be avoided like the plague.
This reader question also deals with being an exempt level employee. Can you briefly share with readers what being exempt means?
[Jay] ‘Exempt’ status means that the employee is exempt from getting paid overtime under the federal Fair Labor Standards Act (or the state-law analogues). In a nutshell, employees are entitled to time-and-a-half pay for every hour beyond 40 that they work in a single workweek. Some salaried employees are exempt from this requirement: professionals (like doctors and lawyers), executives (which means most managers), certain administrative employees (like HR professionals — squee!), some salespeople, and some computer employees (meaning employees who work with computers, not employees who are computers).
Outside the overtime context, exempt status is meaningless.
Let’s say there’s no law to protect parents. As a business owner, you’ve dealt with exempt level staff. How do you set expectations where working hours are concerned? And what happens if those expectations change?
[Jay] When I ran my law firm, I held to the belief that the quality of the work was what mattered — not how much time was spent generating it. That’s why we got rid of hourly billing and timesheets in 2006. If the work got done (and done well), I couldn’t care less if one of my employees left at 3 to go spend time with her kids, or go play golf, or whatever. Our office was essentially open from nine to six every day, but we had no punch-clock. Some people worked better in the morning; others (including myself) worked better late at night. I always tell employers to focus on results, not hours.
Questions surrounding parenting can be tricky. Especially if you don’t have kids. Regardless of how you answer the question, a frequent response is “You don’t understand because you don’t have kids.” Jay, you have kids. What would you tell a boss who wanted you to work more hours and you needed flexibility for your parenting responsibilities?
[Jay] I do have kids, but I haven’t had a boss in 14 years. In my firm, our number-one rule was ‘Family comes first.’ We work to provide for our families; how ridiculous it would be then to ignore our family responsibilities.
But if I were in that situation, I would tell the boss, ‘Lookit: I am committed to getting my work done, getting it done well, and getting it done on time. My schedule might end up being unorthodox, but you will be able to count on my results.’ And if the boss had a problem with that, I would find a better place to work. Life’s too short to work for morons who care more about face time than about results.
Is there anything else you can think of to share with this reader?
[Jay] Yes: ‘Get the hell out of there. No one deserves to be disrespected the way that manager is disrespecting you. If she’s going to make comments like that despite your fine performance, than there’s no way you’re going to end up pleasing her. Get to work on your résumé, and find a better place to work.’
Also, a minor point: most states require employers to give a lunch break when employees work a certain number of hours a day. Your employer is almost certainly violating state law.
Many thanks to Jay for sharing his expertise. If you want to read more of Jay’s insights, please check out his blog. And be sure to pick up a copy of his book – I just finished reading it and it’s worth your time.
My two-cents: there continues to be challenges for business when creating family-friendly workplaces. Jay shared with me a video of him on MSNBC talking about parental rights – you can check it out here. While it’s a few years old, the message holds true today. Organizations need to recognize that the definition of family is changing. This will be especially true as more families have to care for an aging parent. Everyone has someone they care about and at some point will need to provide care for.3