On August 9, 2022, Serena Williams, the undeniable G.O.A.T., said “Farewell to Tennis On Her Own Terms—And in Her Own Words,” in an emotionally riveting article for Vogue magazine. In the article, Serena recounts a precious story of her five-year old daughter, Olympia, being asked what she wanted to be when she grew up. Olympia, unaware of her mother’s listening ears, said that she wanted to be a big sister. Apparently, Olympia is not shy about her very specific requests for a baby sister (little brothers need not apply), even when her parents are listening. Serena, the youngest of five sisters gets it. Olympia’s persistence has finally paid off. Serena has decided that she wants to grow her family. In doing so, she realized that this choice means that, she is “evolving away from tennis.”
Serena’s next words are brutally honest and ring true for too many working mothers today:
Believe me, I never wanted to have to choose between tennis and a family, I don’t think it’s fair. If I were a guy, I wouldn’t be writing this because I’d be out there playing and winning while my wife was doing the physical labor of expanding our family. Maybe I’d be more of a Tom Brady if I had the opportunity.
Even one of the greatest athletes in the world (who won the 2017 Australian Open while two months pregnant), could not escape birth complications (including a pulmonary embolism that nearly killed her and postpartum depression). Through it all, she never gave up the game. Serena now finds herself at a crossroads between continuing to grow the accomplishments section of her Wikipedia page or her family. She is choosing her family.
Serena is not the only mother choosing to leave the workforce and it is having a profound impact on the labor market. In fact, according to the U.S. Bureau of Labor Statistics, women’s participation in the labor market is the lowest it has been in 30 years. According to a 2020 study by McKinsey & Company and LeanIn.Org, one in three working mothers, particularly those with young children, said that they were considering downshifting their careers or dropping out of the workforce entirely. The COVID-19 Pandemic has exacerbated the exodus. Studies show that during the Pandemic mothers have been 3 times as likely as fathers to be responsible for most of the caregiving and housework. Mothers of color have been disproportionately affected. Latina mothers are 1.6 times more likely than their white counterparts to be responsible for all housework and childcare. Black mothers are twice as likely to be solely responsible for these duties.
Supporting working mothers goes beyond doing the right thing. It makes business sense. A 2019 McKinsey & Company study found that companies that were in the top quartile for gender diversity on executive teams were 25 percent more likely to have above-average profitability than companies in the fourth quartile. So, what can employers do to support and retain working mothers?
Employers must first ensure that they comply with federal, state, and local law.
First, employers with 15 or more employees are covered by Title VII of the Civil Rights Act of 1964 (“Title VII”). The Pregnancy Discrimination Act (“PDA”) amended Title VII to prohibit discrimination against applicants and employees on the basis of pregnancy, childbirth, and related medical conditions. The PDA prohibits employer discrimination based on pregnancy in all aspects of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits (e.g. leave and health insurance), and any other term or condition of employment.
Second, if an employee is temporarily unable to perform their job due to a medical condition related to pregnancy or childbirth, the PDA requires the employer to treat the employee the same way it would treat any other temporarily disabled employee. Pregnancy will generally not qualify as a disability under the Americans with Disabilities Act (“ADA”), but impairments related to pregnancy lasting longer than six months may qualify and require reasonable accommodation.
Third, under the Family and Medical Leave Act (“FMLA”) employers who have 50 or more employees on their payroll for 20 or more calendar work weeks must provide eligible new parents (including foster and adoptive parents) up to 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) to care for the new child.
Fourth, under the Patient Protection and Affordable Care Act, employers must provide the following: 1) reasonable break time to express breast milk for period of 1 year from the birth of the child; and 2) a location (other than a restroom) shielded from view and free from coworker and public intrusion where an employee can express breast milk. However, employers with fewer than 50 employees are not required to comply with the lactation break time rule if doing so would impose an undue hardship by causing significant difficulty or expense (considering the business’s size, financial resources, nature, or structure).
Employers should also be aware that there may be state and local laws that provide additional requirements.
Finally, employers who want to attract and retain working mothers can offer paid parental leave, supplement childcare costs, and most importantly provide flexibility wherever feasible (including schedules and remote work).
Under the Fair Labor Standards Act (FLSA), the current federal minimum wage is $7.25 per hour, but the FLSA does not supersede any state or local laws that are more favorable to employees. Therefore, if a state or municipality has a minimum wage that is higher than the federal minimum, employers subject to the state or local minimum wage law are obligated to pay the higher rate to employees working there. The minimum wage for federal contractors in 2022 is $11.25 per hour.
The map below shows the states that are increasing their minimum wages, including the new rates and amounts of the increases as of the date of publication of this article. We also provide a listing of the states increasing their minimum wages and the effective dates of the changes below the map.
Future increases for the entire state will be annual, increasing up to $15.00.
State Minimum Wage Changes Effective December 31, 2021
New York state: $13.20 per hour. Annual indexing to continue increasing up to $15.00.
•Fast food employees (in fast food establishments): $15.00 per hour.
•New York City, Long Island, and Westchester counties: $15.00 per hour and annual indexing.
State Minimum Wage Changes Effective January 1, 2022
Arizona: $12.80 per hour. Adjusted annually on January 1.
California: $15.00 per hour with 26 employees or more; $14.00 per hour with fewer than 26 employees. Scheduled wage increases for 25 employees or fewer: $15.00 on 1/1/23 and then adjusted annually.
Colorado: $12.56 per hour. Adjusted annually on January 1.
Delaware: $10.50 per hour. Increasing to $11.75 on 1/1/23; $13.25 on 1/1/24; and $15.00 on 1/1/25.
Illinois: $12.00 per hour. Increasing to $13.00 on 1/1/23; $14.00 on 1/1/24; and $15.00 on 1/1/25.
Maine: $12.75 per hour. Adjusted annually on January 1.
Maryland: $12.50 for businesses with 15 or more employees and $12.20 for businesses with fewer than 15 employees.
•For businesses with 15 or more employees, the rate will increase to $13.25 on 1/1/23; $14.00 on 1/1/24; and $15.00 on 1/1/25.
•For businesses with fewer than 15 employees, the rate will increase to $12.80 on 1/1/23; $13.40 on 1/1/24; $14.00 on 1/1/25; $14.60 on 1/1/26; and $15.00 on 7/1/26.
Massachusetts: $14.25 per hour. Increasing to $15.00 on 1/1/23.
Minnesota: $10.33 per hour for large employers (annual gross revenue of $500,000 or more) and $8.42 per hour for small employers (annual gross revenue of less than $500,000). Adjusted annually on January 1.
Missouri: $11.15 per hour. Increasing to $12.00 on 1/1/23. Adjusted annually on January 1.
Montana: $9.20 per hour. Adjusted annually on January 1.
New Jersey: $13.00 per hour for employers with more than 5 employees; $11.90 per hour for seasonal employers and/or small employers with 5 or fewer workers; and $10.90 per hour for agricultural employers.
•For employers with more than 5 employees, the rate will increase to $14.00 on 1/1/23.
•For seasonal and small employers, the rate will increase to $12.70 on 1/1/23.
•For agricultural employers, the rate will increase to $11.70 on 1/1/23.
•Adjusted annually on January 1.
New Mexico: $11.50 per hour. Increasing to $12.00 on 1/1/23.
Ohio: $9.30 per hour for gross receipts of $342,000 or more; $7.25 per hour for gross receipts under $342,000. Adjusted annually on January 1.
Rhode Island: $12.25 per hour. Increasing to $13.00 on 1/1/23; $14.00 on 1/1/24; and $15.00 on 1/1/25.
South Dakota: $9.95 per hour. Adjusted annually on January 1.
Vermont: $12.55 per hour. Adjusted annually on January 1.
Virginia: $11.00 per hour. Increasing to $12.00 on 1/1/23.
Washington: $14.49 per hour. Adjusted annually on January 1.
State Minimum Wage Changes Going into Effect After January 1, 2022
Connecticut: $13.00 per hour, effective 8/1/21. Increasing to $14.00 on 7/1/22; $15.00 on 6/1/23; and then adjusted annually on January 1.
Florida: $10.00 per hour. Increasing to $11.00 on 9/30/22; $12.00 on 9/30/23; $13.00 on 9/30/24; $14.00 on 9/30/25; and $15.00 on 9/30/26.
Nevada: $10.50 per hour for employees without healthcare benefits; $9.50 per hour for employees with healthcare benefits. Effective on 7/1/22.
Oregon: An employer’s location affects the minimum wage rate:
•Within Portland’s urban growth boundary (metro area, including portions of Clackamas, Multnomah, and Washington counties): $14.75 per hour, effective on 7/1/22.
•Areas not in Portland’s urban growth boundary or one of the listed nonurban counties (urban counties, Benton, Clackamas, Clatsop, Columbia, Deschutes, Hood River, Jackson, Josephine, Lane, Lincoln, Linn, Marion, Multnomah, Polk, Tillamook, Wasco, Washington, and Yamhill counties): $13.50 per hour, effective on 7/1/22.
•The nonurban counties (rural counties, Baker, Coos, Crook, Curry, Douglas, Gilliam, Grant, Harney, Jefferson, Klamath, Lake, Malheur, Morrow, Sherman, Umatilla, Union, Wallowa, and Wheeler counties): $12.50per hour, effective on 7/1/22.
Minimum Wage Basics
The federal FLSA requires that a minimum wage be paid for all hours an employee is “suffered or permitted” to work for the employer (29 U.S.C. §203(g)) and that an overtime wage be paid for all hours “worked” over 40 in a week. The FLSA does not specifically define “hours worked” or place a limit on the number of hours an employee may work; it requires only that overtime be paid for any hours worked over 40.
Determining exactly what constitutes hours worked is essential in determining an employee’s compensation and compliance with both minimum wage and overtime requirements of the act.
Hours worked includes time during which an employee is “necessarily required to be on the employer’s premises, on duty or at a prescribed work place” (29 C.F.R. §785.7). This broad definition of hours worked may require that an employee be compensated for time the employer does not otherwise consider working time, such as travel time; waiting time; certain meal, rest, and sleep periods; and time the employee is required to spend in training, at seminars, or in meetings.
The courts and the U.S. Department of Labor, however, have developed a de minimis rule whereby employers may disregard insubstantial or insignificant periods of time beyond the scheduled working hours if, as a practical administrative matter, such time cannot be precisely recorded.
If employees are checking e-mails for 2 or 3 minutes, employers will likely not have to pay for this time. But if employees are spending 10 to 15 minutes after work hours, employers will have to pay employees for this work time. Also, the FLSA explicitly permits the rounding of an employee’s start and stop times.
Hours worked for purposes of the FLSA does not include time spent on call, time spent waiting to work, or time when an employee is required to carry a pager or cellphone, provided the employee is otherwise free to effectively use the time for his or her own personal purposes. The FLSA does not obligate employers to pay employees for holidays, vacation, or sick days.
The rules are strict, but the penalties are stricter. Paying employees properly now will help you avoid expensive fines, claims, and lawsuits down the line.