By Kelly Cardin and Jessica Schild

Law360 (November 2, 2020, 2:02 PM EST) --

Kelly Cardin

Jessica Schild

There used to be a choice: Stay home with the kids or go to work. But the pandemic has changed that, and parents — women in particular — are being forced to walk away from their jobs to deal with child care and home schooling issues.

According to the Bureau of Labor Statistics' September report,[1] women are leaving the workforce at a rate four times higher than men. To say it again: For every man that leaves the workforce, four women leave.

While the reasons for the higher rate of departure are not fully understood and no doubt vary, according to many reports, women are leaving because they are being forced to pick up the bulk of child care responsibilities. Moreover, mothers who have been able and fortunate enough to hold down the caretaking responsibilities while working are, to be blunt, exhausted. How much longer can they keep this pace?

The pandemic hit the workforce on the heels of high-profile movements involving movie and sports stars aimed at curing gender and pay inequity in the workplace. While the long-term effects of the pandemic will not be known for some time, they threaten to set the stage for a future where women are not sufficiently represented in the workforce and where a gender pay gap persists at even larger percentages. This is not good for women, and it is not good for employers. 

Gender equality in the workplace is critical. Junior employees need to see female role models in senior leadership positions, and having mothers in leadership roles is crucial so that young women can see that it is possible to advance in their careers while having kids. Additionally, diversity helps attract talent and create a dynamic workforce, and many employers have invested considerable resources in fostering workplace diversity.

Yet, despite considerable gains, women still were not holding a similar amount of leadership roles prepandemic and the gender pay gap continued to be problematic. Thus, it is imperative that employers take a close look at what is happening and work to find a solution to prevent and correct this problem going forward. 

This article will focus on how to encourage working mothers to stay in the workforce, and the steps employers can take to ensure they are not widening the gender pay gap as a result of the pandemic. While the focus of this article is on the impact of the pandemic on working mothers and gender inequities in the workplace, we recognize that fathers, caregivers and so many others are also facing a difficult time in the present situation.

Preventative Measures

Before taking it as a given that women are going to continue to leave the workforce at a higher rate than men, employers should be thinking about what they can do to support employees while the pandemic persists.

Many companies have been thinking creatively during the COVID-19 crisis, and they need to continue to do so. The steps companies have taken in response to the pandemic seek to benefit all parents, but the September statistics suggest more needs to be done to support working mothers.

Flextime and Remote Work

In some cases, the use of flextime and remote work have shown themselves to be a double-edged sword. While these solutions are helpful — and were tremendously useful as short-term fixes during the early days of the pandemic — the reality is that a lot of workers, and parents in particular, are burning out.

While parents can start typing at the laptop in the early morning while the kids are still sleeping, take a break to feed the kids breakfast, and toggle back and forth between work and parenting throughout the day, the constant double duty is not a viable long-term solution.

Indeed, it can lead to exhaustion, burnout and mistakes. Employers should recognize this for what it is, a short-term fix. Thus, expecting employees to do this double duty indefinitely can result in decreased productivity and morale. 

Job Sharing

Job sharing allows two employees to share the work, as well as the pay, of a single full-time job. It can often provide the needed flexibility while decreasing the amount of work pressure on employees.

In a job sharing situation, an employee familiar with the specific aspects of a job can step in if their job share partner has to deal with a sudden school closure or sick child — because, as we are all finding out, in 2020, even a simple runny nose can result in your child being out of school for a week.

Employers, particularly those who are considering reducing their workforce, might want to consider implementing a job sharing program as a way to help employees through the pandemic and ensure they are retaining talent. 

Job Duties

Employers should also be mindful about whether their expectations for employees are realistic in the current circumstances. Now might be the time to pare back on some nonessential job duties. 

These are not normal times, so expecting it to be business as usual might be idealistic and impractical. Such elective opportunities could have the unintended and counterproductive effect of putting pressure on already strained employees, who are struggling to keep up with myriad additional parenting responsibilities, on top of their normal work duties.

Think in Terms of Parents to Help Mothers

Employers need to ensure that they are offering leave or reduced hours options consistently to men and women. For example, expressly encouraging women to take time off to care for the children can often have an adverse effect and result in women being pushed out of the workplace.

Though such actions are often done without discriminatory intent — and frequently originate from a place of kindness — they can unintentionally create an uneven playing field. Moreover, providing leave to a father may give a mother the space and opportunity to focus on her job duties and result in a more equitable division of child care labor. Thus, companies should ensure they are offering any leave or reduced hours opportunities to parents, not just mothers. 

Silver Lining? An Opportunity to Bridge the Gender Pay Gap

Some commentators have urged that we should find a silver lining by using the situation created by the COVID-19 pandemic as an opportunity to narrow the pay gap. As employers struggle to find what good they can in the midst of these challenging times, the salary cuts and reinstatements that some companies have implemented might provide employers with the opportunity to review pay rates and narrow any existing pay gaps.

Pay Audits and Analyses

Now might also be the opportune time to conduct a pay audit. While outlining best practices for an audit is its own article, employers will want to make sure to consider at the outset whether they want attorney-client privilege to attach to the audit.

If so, ensure that you work with an attorney and take sufficient steps to ensure the audit is privileged. Additionally, when conducting pay audits, or reviewing any recent salary changes, it is important to review both base and variable compensation.

In attempting to close the pay gap, employers should consider implementing standard pay ranges or guidelines for each position or classification based on objective, quantifiable factors — such as sales figures or experience that can be measured.

Policies and Job Descriptions

Employers need to also consider reviewing their written policies related to pay increases and bonuses, and examine how pay decisions are made. Companies should also keep job descriptions up to date and accurate, given the changes in some employees' job duties during the pandemic. 

While job descriptions are rarely dispositive, they might be used to determine if a worker is comparable to another, so it is important that they are current and as accurate as possible.

Performance Reviews

As we approach year-end, many employers are starting to engage in the performance review process. If ever there was a unique year, it's 2020. Employers are going to have to figure out how, if at all, the curveballs this year has thrown us factor into performance evaluations. 

Performance evaluations are important because they can contribute to pay equity issues, as many salary increases and other types of remuneration are tied to performance. This year more than ever, companies will want to ensure that the review process is conducted in a fair and impartial manner. 

This means that employers should have a strategy and plan in place for how they are going to assess performance and communicate the plan to managers and other reviewers. Employers should also emphasize the importance of unbiased performance reviews.

By training managers on biases and objective review criteria, employers can help guard against performance reviews that lead to unfair or inappropriate pay differences. For employers who are not already doing this, implementing a check on the review process can add a layer of objectivity. 

For example, having human resources or another department review performance evaluations before they are finalized to ensure that the reviews are adhering to an objective criteria can be helpful when an employee's performance over the last seven months could have been affected by a variety of factors.

Guarding Against Future Claims and Moving Forward With Eyes Wide Open to Pay Equity Issues

When the workforce begins to shift back to business as usual, employers should remember the unprecedented position the pandemic put on caregivers and mothers. For so many women, the question will be: How do I get back into the workforce?

As always, the goal should be to eliminate bias in any employment decisions, which, of course, is no easy task. 

Hiring

Ensuring the removal of salary history from applications, or even utilizing blind resumes can be vital in ensuring you are hiring based solely on a candidate's credentials. You may want to consider a hiring committee made up of different individuals with different backgrounds to eliminate any perceived bias in the hiring process.

Because so many pay equity issues start in the hiring process, several states have adopted salary bans, the intent of which is to start all employees on an equal playing field, rather than carrying forward inequities in pay. It's also important to note that, even in jurisdictions where asking about starting pay is permissible, employers will not likely be able to justify a pay disparity simply because they started one employee at a lower pay rate. 

Regular Training on Unconscious Bias

Supervisors must also be careful to check their bias. Your supervisors and managers are your first line of defense against potential discrimination claims. Conduct unconscious bias training. Train supervisors on making compensation and other employment-related decisions solely on objective job-related factors.

Remember, this is not just about monitoring pay — pay equality is about each employee having the opportunity to earn the same and gain access to the same experiences and opportunities in the workplace.

Building a Workforce With Intentionality

Companies should take a hard look at their values, what they stand for and what they want to be, and ensure they are adopting policies and strategies to meet their goals. By keeping their eyes on the goal of equality, employers can work toward building the fair and diverse workforce they strive for, even after weathering this storm.

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Kelly M. Cardin is a shareholder and Jessica R. Schild is an associate at Ogletree Deakins Nash Smoak & Stewart PC.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2020/10/september-jobs-fs1.pdf.

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