How Workplace Laws Can Hurt Women More Than Men

In an attempt to improve the working conditions for employees or protect the general public, federal and state legislatures have passed a number of laws. Most of these were created with the best of intentions, but that doesn’t mean they’re immune from paving roads to unpleasant places.

The following is a list, in no particular order, of five mostly positive employment laws that have resulted in some unfortunate negative effects on many working mothers.

1. The Family and Medical Leave Act 

The Family and Medical Leave Act (FMLA) serves as the primary legal basis for employees to take time away from work for certain medical and family reasons. Under the FMLA, eligible employees can take as much as 12 weeks of protected leave during a one year period. Employees may take this leave for a host of reasons, including pregnancy, family illness and adoption.

One notable benefit not provided by the FMLA is paid maternity/parental leave. There is plenty of evidence showing the benefits of paid parental leave for not just the parents, but employers, children and society as a whole. Yet the United States is the only industrialized nation without mandated paid maternity leave and just one of two countries (out of 185) that does not provide any form of cash benefits to mothers during maternity leave.

On the one hand, you could argue that the FMLA is good enough and helps working mothers by providing at least a little bit of legal protections when taking time away from work to take care of family obligations. In other words, “be grateful for what you have.”

On the other hand, someone else could argue that the existence of the FMLA makes it harder for Congress to pass a federal law mandating paid parental leave. By providing a right to some unpaid time away from work, it makes it easier to shoot down any proposal for paid leave. Put another way, it’s easier to tell a mouse it can’t have any milk (paid family leave) because it already has a cookie (unpaid leave).

There are certainly other reasons as to why the United States has no federal level paid parental leave law in place, so blaming the FMLA would be a gross over-simplification. At least some states have gone above and beyond the FMLA and created their own laws that provide paid parental leave.

2. Religious Freedom Restoration Act

Signed into law in 1993, the Religious Freedom Restoration Act (RFRA) was intended to restrict religiously neutral laws that might infringe on the religious beliefs of individuals. However, this law was used as the basis for the US Supreme Court in Burwell v. Hobby Lobby Stores to justify the inapplicability of the Patient Protection and Affordable Care Act’s (ACA) contraception mandate.

Before the Burwell case, the ACA allowed non-profit religious institutions and religious employers to be exempt from the requirement that employer-provided health insurance coverage had to include FDA-approved forms of contraception. However, in applying the RFRA, the US Supreme Court effectively added an additional exception for for-profit religious corporations.

Even though the Burwell decision only applies to closely held for-profit organizations, since an estimated 90% of all American businesses are closely held corporations, it has created the legal basis for millions of women to potentially lose health insurance coverage for contraceptives.

3. Fair Labor Standards Act

One of the most significant components of Franklin D. Roosevelt’s New Deal was the enactment of the Fair Labor Standards Act (FLSA). This law is most well-known for establishing a federal minimum wage and mandating overtime pay for employees who work more than 40 hours per week. The FLSA was later amended in 1963 to make it illegal for an employer to compensate employees differently on the basis of sex.

Considering what the FLSA does for the American worker, it’s a bit surprising to learn that the FLSA can sometimes hurt the working mother. How is this so? There are two ways in which this can happen.

First, not every employee is eligible for overtime pay. The FLSA only requires that non-exempt employees receive overtime pay when they work more than 40 hours per week. Exempt employees are not eligible for overtime pay and typically include professional, administrative and executive, i.e. “white collar” positions. The thinking behind these exemptions is that they tend to be positions that require additional skills and expertise. Therefore, these workers should have the bargaining power to negotiate for higher compensation.

Determining who is exempt and non-exempt is sometimes an intricate and complicated process. In addition to job duties, one of the most important factors when determining if an employee is exempt or non-exempt is how much money the individual earns. Currently, the compensation threshold is $455 per week, or $23,660 per year. This threshold will change at the end of this year. If they earn more than this, it’s more likely the employee will be considered exempt and ineligible for overtime pay.

Research indicates that women are more likely than men to hold managerial and professional positions that pay just enough to prevent them from becoming non-exempt workers under the FLSA and therefore ineligible for overtime pay. So, the FLSA is currently drafted in a way that disproportionately suppresses the wages of women.

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Second, the FLSA can sometimes impose burdensome record keeping requirements on employees and employers. On occasion, these reporting requirements can make it less likely that an employer will agree to allow a non-exempt employee to work from home or outside the office. This is a benefit that many working mothers (and parents in general) greatly appreciate.

One reason for employers’ reluctance to allow employees to work outside the office is the fear that employees will under-report or over-report the time they actually work. This could then result in unwarranted overtime compensation or employer liability for not properly compensating employees or providing requisite breaks.

4. Occupational licensing laws

Occupational licensing laws are laws (usually at the state level) that regulate certain professions. The primary purpose of these laws is to ensure that the general public receives safe and competent professional services, whether it’s getting their hair cut, their house remodeled or receiving medical care.

But these laws have started to become so prevalent that many are beginning to believe it’s creating unreasonable burdens on the labor market. According to a 2015 White House report, roughly 25% of the workforce in the United States must possess a license to do their jobs, which is a 500% increase since the 1950s. This has led to some unintended consequences, including higher consumer prices, increased unemployment, and lower wages for certain workers.

Occupational licensing laws have also disproportionately affected women. In 2015, 27.1 % of women held a certification or license required for a job that required licensing compared to only 21.4% of men. While most would agree that occupational licensing laws are necessary, they are having the unintended consequences of disproportionately restricting working women.

5. Break time for nursing mothers law

The passage of the ACA is most well-known for making access to healthcare insurance coverage more readily available. But one sometimes overlooked provision in the ACA is the Break Time for Nursing Mothers provision.

This provision requires certain employers to allow covered employees a reasonable place and break time to express breast milk. It also made it illegal for employers to retaliate against employees who complain if these rights are denied. This sounds great, so how does this hurt working mothers? Because of a nuance in how the law was created.

Similar to some other federal laws, the ACA was a hodgepodge of provisions that modified many existing laws. One existing law was the FLSA. In particular, the nursing break time requirement provision was placed in the same part of the FLSA that mandates overtime pay and specifies which employees are exempt from the FLSA’s overtime requirements.

Basically, this placement in the FLSA meant that FLSA’s exceptions for overtime pay also applied to nursing mothers. In essence, if an employee was ineligible for overtime pay under the FLSA, they were also ineligible for nursing break time protections as provided for by the ACA.

This gap was not intended by the original drafters of the ACA, but it resulted in almost 25% of female employees of childbearing age to be excluded from nursing break time protections under federal law.

Tom Spiggle is author of the book “You’re Pregnant? You’re Fired: Protecting Mothers, Fathers, and Other Caregivers in the Workplace.” He is founder of the Spiggle Law Firm, which has offices in Arlington, Va., Washington, D.C., and Bethesda, Md., where he focuses on workplace law helping protect the rights of clients facing pregnancy and caregiver discrimination, sexual harassment and wrongful termination in the workplace. To learn more, visit: https://www.spigglelaw.com.

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