Best Practices in Higher Education - Introduction

 

Introduction to Best Practices in Employment


Best practices in work-life policies recognize the reality that few employees spend their entire careers as “ideal workers” (Williams, 2000) – i.e., individuals who work full-time, plus overtime and who take little or no time off for childbearing, caregiving or other non-work activities.

Time demands from sources outside of work are experienced by women who become mothers during their graduate education or in subsequent academic employment.  In reality, non-work time demands are experienced by many others in academia – also reducing their productivity at work.  Professors with stay-at-home wives caring for their children do sometimes suffer illnesses that limit their ability to work.  The spouses/partners of professors sometimes become ill – necessitating that the professor reduce his/her workload to perform caregiving tasks.  Unmarried post-docs with no children sometimes need to reduce their workloads temporarily to care for a seriously ill parent.  Although divorce, custody disputes, and death of family members are the substance beyond many an undergraduate student’s request for an extension on assigned coursework – these events all happen to graduate students, post-docs, and faculty as well – and do pose real impediments to completing work.

Colleges and universities make enormous investments in developing the human capital of their graduate students, post-docs, and faculty.  While graduate students and post-docs are busy learning more about their disciplines they are also typically teaching undergraduate students and performing work that enhances the productivity of the school’s faculty.  While, graduate students and post-docs are temporary employees of the university, both their short-run and long-run success generate benefits for the university.  Faculty also contribute the results of their productivity to their employer in the form of enhancing the reputation of the institution, enabling recruitment of top students, acquiring grant money, etc.

Academic institutions recognize the importance of their human capital assets and have long sought to enhance the productivity of their academic employees by investing in libraries, computer technology, improved laboratories, providing funds for travel to professional conferences, etc.  Few dispute that these types of investments in the institution’s human capital generate long-run returns.

Adopting best practices in work-life policy are also an investment in an institution’s human capital.  Dismissing a graduate student, post-doc, or faculty member isn’t costless.

  There are search costs, in time and money, to finding a replacement, reduced productivity due to the fact that replacements are typically lacking in “firm-specific” training, and the lost stream of work successes that would have accrued to the university – if the dismissed individual were aided in managing times of temporarily reduced productivity.

Initiatives for developing best practices in work-life policy require imaginative thinking – rather than just an examination of what one’s peer (and/or aspirant) institutions are doing.  While one positive outcome of adopting best practices work-life policies may be an edge in recruiting top graduate students, post-docs, and faculty away from institutions that have not adopted best practices  – a more important goal is to maximize an employee’s life-cycle career productivity – thus maximizing the return to the institution on its investment in that person.   

With a few exceptions (pregnancy and breastfeeding), caregiving activities are not dictated by biology.  However, sociological norms have caused a large share of  caregiving responsibilities to be carried out by women.  In the nineteenth and first half of the twentieth century, women’s caregiving responsibilities were cited as justification for workplace legislation[1] and employer policies[2] that marginalized women workers.  As part of the civil rights movement, in the later half of the twentieth century,  many statutes were adopted at the federal, state and local level to prohibit discrimination based on sex.

Thus, best practices must comply with federal, state, and local laws. (Although state and local law will not be discussed here.)   Several federal statutes govern employment and educational in order to prevent discrimination based on sex.  Federal laws also stipulate how employers should treat employees who might become pregnant, do become pregnant, experience a miscarriage, go through childbirth, or have an abortion.  The federal employment laws most directly applicable to adoption of best practices in work-life policy are:

·        Title VII of the 1964 Civil Rights Act, as amended by the Pregnancy Discrimination Act of 1978;

·        The 1993 Family and Medical Leave Act (FMLA);

·        The 1990 Americans with Disabilities Act (ADA); and

·        Title IX of the Education Amendments of 1972.

 

Title VII prohibitions against sex-based employment discrimination and ADA prohibitions against disability-based employment discrimination apply to all employers, public or private, who have at least 15 employees.  Employees working for covered employers are protected whether they work part-time or full-time and there is no waiting period to be covered.[3]  Thus, employees at virtually all U.S. colleges and universities are covered by these two laws.

The FMLA also applies to public[4] and private colleges and universities.  But, to be covered by the FMLA, employers must have at least 50 employees working at a site, or sites, within 75 miles of each other. (Title 29 §825.110 & 825.111)  For example, a university with 1000 employees on a main campus and 25 employees at an off-campus site is required to provide FMLA benefits to qualified employees at both campuses, if the two campuses are within 75 miles of each other.  To obtain FMLA benefits a professor, post-doc, or graduate student  must work for a covered employer  and  must be a FMLA-eligible  employee.  Eligible employees are those who have worked for their employer for at least 12 months (which need not be continuous) and have worked at least 1250 hours for their employer in the 12 months prior to the start of their FMLA leave. The 1250 hours are computed using all hours that the employee works for the college or university – not just those spent in the classroom or on teaching-related activities.  Finally, the employee must be taking FMLA leave for one of the following reasons: recovery from a serious health condition (including childbirth and certain pregnancy-related complications); to care for a spouse, parent, or child with a serious health condition; or to care for a newly born or adopted child or a child in a foster care placement. (Title 29 §825.112)   For more specific information on the FMLA see the AAUP publication “The Family and Medical Leave Act: Questions and Answers for Faculty”. 

In the case of pregnancy and pregnancy-related conditions there will often be an overlap in the benefits mandated by the Pregnancy Discrimination Act and the Family and Medical Leave Act.  Less frequently there will also be an overlap in the benefits mandated by the PDA, FMLA, and the ADA.  In circumstances where two more of these laws apply and call for different levels of benefits, employees are entitled to the more generous level of benefits.

Title IX of the Education Amendments of 1972 prohibits discrimination based on sex in education programs and activities that receive federal financial assistance.  Therefore any college or university that receives federal funding, either directly through grants, or indirectly through federally funded student financial aid is covered by Title IX.  Examples of the types of discrimination against students that are prohibited under Title IX include sexual harassment, discrimination in recruitment, admissions, financial aid, housing, access to course offerings, employment assistance, health insurance benefits and services, and discrimination based on pregnancy or marital status.   Discrimination against employees that are prohibited under Title IX include sexual harassment, employment criteria,  pre-employment inquiries, recruitment, compensation (including salary and fringe benefits),  marital or parental status, and  whether an employee or applicant for employment is the head of household or principal wage earner in his/her household. (Title 34 § 106.)  Because both Title VII and Title IX apply to sex-based discrimination in the terms and conditions of employment, there will be some overlap between the two statutes.



[1]   Muller v. State of Oregon, 208 U.S. 412, 1908.

[2]   General Electric Co. v. Gilbert, 429 U.S. 125, 1976.

[3]   However, faculty at state colleges and universities cannot sue their employers in federal court, when they experience illegal disability discrimination.  (University of Alabama v. Garrett, 531 U.S. 356, 2001).

[4] Nevada Department of Human Resources v. Hibbs, 123 S. Ct. 1972,  2003.