Excerpted from Virginia Employment Law Letter and written by an attorney at the law firm of DiMuroGinsberg, P.C.
Over the past two decades, the American workforce has enjoyed a significant increase in family-friendly policies in the workplace. Yet are those "family-friendly" benefits fair to all employees? Employees without children wonder whether they receive less valuable corporate benefits than their counterparts with children. Employers are prohibited from providing unequal benefits packages to employees based on race or gender. Why then should they be allowed to provide unequal benefits to employees without dependents?
A fair share
Employers that pay a portion or all of the premium for health, dental, vision, and other insurance for employees with families are actually paying them more in indirect compensation than their employees who are single and/or childless.
In addition, oftentimes, single employees are expected to assume or are assigned more work than their parental colleagues, especially the last-minute assignments. Perceived as having fewer nonwork responsibilities, single employees are expected to focus more on their jobs, work longer hours and on holidays, travel for work, and be willing to relocate.
Employers and fellow colleagues often rationalize those expectations by believing that an employee's single lifestyle was chosen specifically to permit complete dedication to a career.
Short end of the stick?
Discrimination against single and/or childless employees ranges from providing benefits from which they're automatically excluded to having more lenient formal or informal workplace policies for employees who are married and/or have children. Examples of those benefits include:
" subsidized or fully paid insurance coverage for dependents;
" flexible schedules that permit parents to leave work at irregular times, with no loss of pay, to attend children's activities or appointments or tend to their sicknesses;
" maternity and paternity leave;
" exemption from working overtime, weekends, or holidays; and
" on-site daycare or assistance with child-care expenses.
A potential legal backlash to family-friendly policies is growing as more and more singles speak out. Organizations such as Unmarried America and No Kidding! have sprung up around the country to unite "child-free" adults. Websites such as www.child-free.com and books such as Baby Boom: How Family-Friendly America Cheats the Childless rally greater attention to the subject.
What the law requires
The challenge for employers is to devise policies that are responsive to family needs and respectful of their unmarried and/or childless employees. The first step is to understand what the law specifically requires.
Marital status isn't a condition protected by federal law as race, gender, age, national origin, religion, and disability are. Accordingly, it's perfectly legal for a private employer to hire or reject a job applicant based on marital status. Furthermore, no federal laws preclude an employer from structuring its benefit plans to favor employees with families.
While marital status isn't protected, about 20 states have passed legislation prohibiting marital status discrimination in employment, and at least one state, California, is striving to extend all of its antidiscrimination laws to cover marital status.
Despite the current legal protection, employers shouldn't ignore the rights of their single, childless employees. Demographic trends indicate that fewer Americans are getting married and having families. According to 2003 census figures, single-person households accounted for 26.4 percent of the American population, up from 17.1 percent in 1970.
According to Unmarried America (formerly known as the American Association of Single People), single adults make up 40 percent of the American workforce. While policies favoring employees with children might not be illegal under federal law, such policies can fuel resentment among the workforce.
Equalized benefits
Companies are adopting an employee-friendly approach to work-life benefits, policies, and activities in an attempt to mitigate the disparity in benefits. That approach provides perks or benefits to all employees regardless of marriage or parental status either under a cafeteria-style menu of benefits or a flat-rate approach. Under a cafeteria-style benefit plan, all employees are given an equal number of "credits" they can apply to a menu of options.
Employees with dependents likely will apply their credits to health and medical coverage for dependents. Single, childless employees may apply their credits to or be reimbursed for health club memberships or extra vacation time. All employees, with and without dependents, may apply their credits to any benefit options or may cash in unused credits for additional taxable income.
Under a flat-rate approach, employers provide a flat dollar amount of benefits and allow employees to allocate their benefits to the areas where they most need them. Married employees might choose to increase medical care and drop dental, whereas a childless employee might prefer increased dental and vision.
Another approach to providing equivalent benefits packages is for employers to calculate medical insurance as part of an employee's total compensation. For employees who don't enroll in dependent coverage, the employer provides an offsetting benefit such as cash or an additional contribution to their 401(k) plan. Those types of flexible benefit plans allow employers to make sure everyone is getting their fair share of benefits.
How you can get started
Given the changing demographics in America, the issue of equitable benefits and policies for employees with children versus those without is unlikely to go away any time soon. What then can you do as an employer? If you haven't adopted a deliberate employee-friendly benefits program, we suggest the following steps:
" Determine if your workforce actually needs one. Review the demographics of your employees. If the vast majority is married with children, you may not have a pressing need to alter your benefits plan.
" Talk with your employees, both those with and without children. Discuss the benefits that you currently offer, how effective the benefits are, and how happy your employees are with them. Determine if they harbor any perception of inequality, and seek their suggestions on how to adapt the benefits plan.
" Evaluate your company's benefits programs to identify real inequities. Examine your benefits package to make sure perks, benefits, and accommodations are being offered to all qualified employees regardless of marital or parental status.
" Implement work-life benefits that will appeal to employees regardless of marital or family status.
Copyright 2007 M. Lee Smith Publishers LLC. This article is an excerpt from VIRGINIA EMPLOYMENT LAW LETTER. VIRGINIA EMPLOYMENT LAW LETTER is a monthly publication provided as an educational service only to assist lay persons in recognizing potential problems in their labor and employment matters. It is not meant to be construed as legal advice. Readers in need of legal assistance should retain the services of competent counsel.
