Executive Women's Networking Blog

Executive Women's Networking Blog

Promotions and Progress: Three Women Join EBG’s Equity Partnership Ranks

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Maxine NeuhauserAre we going two steps forward and one step back? Two steps back and one step forward?  The anecdotes reported in an article by Staci Zaretsky, “Stop Treating Women Lawyers Like Crap,” published in Abovethelaw.com last week, are wince-inducing and suggest that there has been no progress for women lawyers at all.  I question the notion, as well as Zaretsky’s assertion, that “women lawyers aren’t taken seriously, and they certainly aren’t treated with respect by their fellow lawyers in this profession.” 

There are few of us, if any, who do not have stories of coming up against subtle and not-so-subtle sexism. At least some of incidents reported in Zaretsky’s article, none of which are dated, however, may be of a later rather than recent vintage. On the flip side, many of us also have stories of being supported, mentored, and provided with opportunities.

Plainly, there’s a lot of progress yet to be made. (In its Report of the Eighth Annual NAWL National Survey on Retention and Promotion of Women in Law Firms, published in February 2014, NAWL reported that 17% of the equity partners in the 200 largest U.S. law firms are women.) I am, however, delighted to report that at our shareholder’s meeting on October 18, 2014, Epstein Becker Green elected three new equity partners—all women.  This lifts our percentage of women shareholders to 21%.  So, while calling out sexism when we see it, let’s also give a shout out to progress and advancement.  Today, we  at EBG have three great steps forward to celebrate.  Congratulations to our new equity partners: Amy Dow, Susan Gross Sholinsky, and Linda Tiano!

Benchmarking Progress Part 2: Remember to Raise Your Hand a Little Higher

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Maxine NeuhauserI had not intended my post concerning women speakers being featured at EBG’s Client Briefing to be the first of a two-part series. But, after my post appeared, I was hit with two reminders about just how unusual our business-as-usual lineup of speakers actually was. They are both worth sharing.

First, I found Denise Graveline (@NoWomenSpeakers), who follows tweets about conferences with no or few women speakers—and also, apparently, conferences where women speakers are included. Denise retweeted my post about the three influential women featured at the briefing. (Thanks again, Denise!)

Then, on October 8, 2014, ProPublica and The New York Times’ The Upshot co-published an article by Charles Ornstein reporting on new federal data, which shows that men account for more than 90 percent of the 300 doctors who received the most money from drug and medical device companies as speakers and consultants. The article, “Dollars for Dudes: Almost No Women Among Medical Industry’s Top-Paid Speakers, Consultants,” cites data that, in 2012, men comprised 68% of physicians in the United States. The article notes that the reasons for the discrepancy are not clear, and Ornstein offers several possible explanations:

It’s possible that men are more willing to accept payments from drug companies than women. It’s possible that drug companies are more likely to make offers to male doctors. Or it’s possible that male doctors are simply much more likely to be in the senior positions or medical specialties that appeal to drug companies.

Yet, the data suggests that subtle bias and stereotyping may also be a factor.  In Ornstein’s article, Alison Tendler, an ophthalmologist who was among the top-paid women because she serves as the TV advertising spokesperson for the eye drug Restasis, observes, “I do feel that we can be potentially overlooked and not perceived as leaders and innovators.”  We’ve heard the advice she gives before, but it bears repeating: “In general, you have to raise your hand a little higher.”

Benchmarking Progress: EBG’s Client Briefing Features Three Women Speakers

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Maxine NeuhauserThis post is not only a little bit about tooting a horn, but also an appreciative nod toward how much has changed over the years for women in the workplace (acknowledging that there is still a lot to be done).

On October 2, 2014, Epstein Becker Green presented its 33rd Annual Labor & Employment Client Briefing. This year’s program featured two high-ranking speakers from federal agencies of key importance to employers:  M. Patricia Smith, Solicitor General, U.S. Department of Labor (“DOL”), and Victoria Lipnic, Commissioner, U.S. Equal Employment Opportunity Commission (“EEOC”).  The program’s luncheon featured remarks by Maria Bartiromo, Anchor and Global Markets Editor at FOX Business Network – FOX News Channel.

Solicitor Smith, who was appointed by President Obama, heads the DOL’s Office of the Solicitor. In her position, Solicitor Smith leads the office whose mission is to meet the legal service demands of the DOL, including providing legal advice; representation of the Secretary of Labor and client agencies in enforcement actions and defensive litigation; assistance in the development of regulations, standards, and legislative proposals; legal opinions; and advice concerning DOL activities.

Commissioner Lipnic is one of three presidentially appointed Commissioners, who, along with the Chair and Vice Chair (currently vacant), comprise the EEOC. The Commission develops and approves EEOC policies, issues charges of discrimination, and authorizes the filing of lawsuits.

The three speakers addressed regulatory and policy agendas, litigation, the economy, and other topics of interest to employers. Each of these women has achieved a position of influence and authority, and our audience of executives, in-house counsel, and other professionals at the briefing had the opportunity to gain valuable insights from their candid remarks.

Then after the briefing, Law360 carried articles reporting on the remarks of both Solicitor General Smith (see “DOL’s Smith Says Proposed OT Rule Is Still Months Away“) and Commissioner Lipnic (see “Don’t Expect Wellness Program Guidance: EEOC Commish“). Refreshingly, the articles did not include any mention of the speakers’ gender or what they wore.

Kudos to Our EBG Colleague for Her New Appointment at the Labor and Employment Relations Association

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Congratulations to our Epstein Becker Green colleague, New York office attorney Margaret (“Meg”) Thering on her unanimous election Wednesday evening, May 7, as Secretary of the New York City Chapter of the Labor and Employment Relations Association (“LERA”) for the fiscal year 2014-2015!!

LERA is the singular organization in the country where professionals interested in all aspects of labor and employment relations network to share ideas and learn about new developments, issues, and practices in the field. Founded in 1947 as the Industrial Relations Research Association (IRRA), the national LERA provides a unique forum where the views of representatives of labor, management, government and academics, advocates, and neutrals are welcome.

Today, LERA constituencies include professionals in the areas of academic research and education, compensation and benefits, human resources, labor and employment law, labor and management resources, labor markets and economics, public policy, training and development, and union administration and organizing.

Well done, Meg!!

You Have to Be in It to Win It! Closing the “Confidence Gap”

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Susan Gross Sholinsky

By Susan Gross Sholinsky

Imagine yourself in the following scenario. You’ve just learned that one of your colleagues has been promoted, and now that job—high profile internally and externally—is vacant.  Getting it would be a professional coup, not to mention a significant bump in compensation. When the position is posted, you review the requirements and realize that you have 90% of the skills and qualifications being sought. Your slightly junior male colleague reviews the job posting and believes that he meets about 50% of the requirements. Who applies for the job, and who gets it?

You may have guessed. . . .  If you’re like most women (read on!), you think to yourself, “Oh, well, maybe next time I’ll be fully qualified for the job.” You pass on applying, and resolve to commit yourself to 100 percent professional perfection. Your less qualified but eager junior male colleague applies for the job—and gets it!

This scenario plays out over and over again not just in corporate America but globally. A professor at a business school in England asks her class every year how much they expect to earn five years after graduation. Having repeated this exercise with different students over the course of about seven years, the professor reports “massive” differences between the responses from male and female students, with the women thinking that they deserve about 20% less than the men believe that they deserve. Yes, women have made great strides over the past few decades. But the gap in pay and the number of women in top roles is still not where it should be. Why is this? Well, Katty Kay and Claire Shipman (and the author of this blog post) believe it is due, in significant part, to what Kay and Shipman call the “Confidence Gap.”

In a thought provoking article published in The Atlantic, which summarizes the subject of their forthcoming book, The Confidence Code: The Science and Art of Self-Assurance—What Women Should Know, Kay and Shipman provide evidence that, although women have similar abilities as their male colleagues, they unfortunately assume that they don’t. And that assumption has vast repercussions and frequently makes women less successful. Even when they do become successful, women often don’t feel as if they deserve to be where they are. Many fear that someday, someone will “find them out,” and expose them for the fraud they’ve perpetrated.

Kay and Shipman note that confidence is often as important, or even more important, than competence. They cite studies where colleagues with more confidence are better liked than their colleagues who may be more competent.

The confidence shortfall, according to the authors, comes from varied sources, including biology, upbringing, and socialization. In terms of biology, part of the differences between a man’s confidence and a woman’s may stem from the difference in testosterone levels, as well as some differences in the brain chemistry between men and women.

With respect to upbringing and socialization, boys and girls generally have different classroom experiences that ultimately impact on their confidence. According to studies cited by Kay and Shipman, girls are praised for being “good.” And praise is welcomed, so girls are encouraged to be better—they listen well, they behave well, play by the rules, etc.   Boys are often chastised for being “bad.” Further, boys roughhouse with one another, tease each other, and point out one another’s limitations. Such repeated negative evaluations eventually “lose their power,” and the boys become more resilient and let others’ tough remarks slide off their backs. This lack of sensitivity to rejection and failing encourages boys to take more risks in the future—something girls (and eventually women) aren’t as willing to do.

Further, females “internalize” more. In one study, as a college class got more difficult during the semester and the students’ test scores began to decrease, the male students tended to “externalize” the situation: “Wow, this is a hard class!” On the other hand, the female students began to doubt themselves: “I knew I shouldn’t have taken this class; I’m not strong in this subject.”

In another study, a disparity in spatial relations test scores between male and female subjects was so significant the researcher examined the results more closely. Apparently, many of the women had done poorly because they simply hadn’t attempted to answer many of the questions.  The next time test was administered, the researcher told the subjects that they were required to at least try to answer all of the questions. The women’s scores increased sharply, matching the men’s.

The results of this experiment are significant. On the one hand, they’re very frustrating—women simply tend not to believe they can do it, so they don’t even try. On the other hand, though, it is very hopeful. It means that if women just tried, and didn’t assume that they wouldn’t win if they did, there would be a lot more women winners out there. Just like the theme of Sheryl Sandberg’s book Lean In, you have to be in it to win it!

What this article says to me is that, in order to narrow the confidence gap, women don’t need to change the essence of their personalities, or to “fake” self-confidence. And this is good, since, according to the article, studies show that others can tell when someone is faking their confidence level—and they don’t like the fakers. But women still need to be conscious of the confidence gap and understand that their actions (or more likely, inaction) may be negatively affecting their career advancement. As such, we need to change our perception of ourselves—that is, give ourselves a little more credit—and as a result, take more risks, and believe that we just might win the game (get the promotion, win the award, etc.). But to win the game, we need to play!

Narrowing the confidence gap alone is not the end of the conversation about women ascending to the C-suite. It is human nature to want to promote and work with people who are like us. As Sheryl Sandberg notes in Lean In, when men are in charge, there’s a better chance they’ll champion other men. As such, women will have a better chance to rise to the top once more organizations have women who are already in leadership roles.

But for now, in order to speed the process along, it can’t hurt for women to heed the message of the Confidence Gap, and to take more chances based on the fact that, notwithstanding what we may be inclined to believe, we need not wait until we’re 100% sure we’re ready and qualified to take that next step. Instead of asking “why would they want me,” the question should be “who wouldn’t want me in that job!?” Let’s not take ourselves out of the game before we give ourselves a shot to win.

What do you think? Do you agree with the premise of Kay and Shipman’s article? We’d like to hear your thoughts.

Save the Date: April 2 at the Japan Society

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There is an important and interesting lecture and reception at the Japan Society in New York, New York, with former Japanese Minister for Foreign Affairs Yoriko Kawaguchi and Ruth Porat, Executive Vice President and Chief Financial Officer at Morgan Stanley, from 6 pm to 8:30 pm on Wednesday, April 2, 2014, titled "Tapping Potential: Encouraging Women’s Empowerment in the U.S. and Japan." For more information on the program and registration, refer to the Japan Society website. Hope to see you there!

Getting to the Top: Jumping the Hurdles or Creating Them?

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On February 24, the National Association of Women Lawyers (“NAWL”) published the results of its eighth annual survey regarding the retention and promotion of women into senior and equity positions within the law firms surveyed—200 of the top national firms. The survey results were disappointing in terms of the ascension of women into equity partnership ranks and compensation when compared to male counterparts and the ability of these women to “make rain”—i.e., to convert their contacts into clients.

While the results of the NAWL survey raise unfortunate and unanswered questions regarding law firm career development for women, Sheryl Sandberg, COO of Facebook and author of the blockbuster book Lean In, provides her observations regarding the dearth of women “at the top”—in corporations, law firms, not for profits, and as global political leaders. “No judgments,” as Sandberg says, but beware of “the messages we tell ourselves!” Self-defeating messages become professional liabilities that can hinder our advancement. The message of Sandberg’s video presentation “Why we have too few women leaders” addresses her insights, borne of her own successful career, concerning self-made, defeating obstacles to reaching the top. Enjoy the video’s thoughtful content and share your thoughts with us.


What Employees May Now Expect While Expecting: Reasonable Accommodation of Pregnancy

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Maxine NeuhauserSince enactment of the federal Pregnancy Discrimination Act, it has been illegal for most employers to discriminate against women because of pregnancy.  Employers have, however, generally been excused from providing reasonable accommodation to pregnant employees, unless the women’s condition qualifies as a disability under federal or state law. Thus, although a woman having a normal pregnancy may, for example, be advised by her doctors to avoid heavy lifting, for the most part, employers have not been required to adjust an employee’s job duties to accommodate the restriction.  The trend—and the law—however, is changing.

On January 21, 2014, New Jersey joined Alaska, California, Connecticut, Hawaii, Illinois, Louisiana, and Texas, as well as cities like New York, in prohibiting discrimination against pregnant workers and requiring employers to provide pregnant employees with reasonable accommodation.  Under these laws, “pregnancy” is generally defined as including “childbirth, or medical conditions related to pregnancy or childbirth, including recovery from childbirth.”

My law firm, Epstein Becker Green, has prepared Act Now Advisories summarizing two of the most recently enacted laws that extend the requirement of providing reasonable accommodation to women having a normal pregnancy: New Jersey’s amendment to the state’s Law Against Discrimination and New York City’s amendment to the city’s Human Rights Law.

An employer need not provide accommodation where doing so will create an undue hardship.  How the balance between a pregnant employee’s need for accommodation and an employer’s business needs gets struck will, no doubt, lead to further evolution in employment law. It will be a trend that employers will need to watch.

Congratulations on Your Same-Sex Marriage! Don’t Forget to Review Your Employee Benefits

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By Michelle Capezza

In 2013, the U.S. Supreme Court held in United States v. Windsor that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional and that the federal interpretation of “marriage” and “spouse” should not apply solely to heterosexual unions. To date, same-sex marriage has been legalized in 17 states and the District of Columbia, and the number of states recognizing the validity of same-sex marriage continues to grow and be subject to court proceedings. As a result, employers continue to navigate the nuances of their domestic partner, civil union, and same-sex spouse policies as they relate to employment issues and benefits. If you previously attained employee benefits pursuant to these domestic partner policies or recently entered into a legally recognized same-sex marriage, revisit your employee benefits and consider the following issues.

1.      What were the employee benefits exclusions for same-sex spouses prior to the Windsor decision, and what types of employee benefits are now available to employees with legally married same-sex spouses?

Prior to the Windsor decision, the federal definition of “spouse” under DOMA was applied to hundreds of federal statutes, including those that govern benefits, such as ERISA and the Internal Revenue Code. Therefore, a same-sex partner was not recognized under federal law as a legal spouse who could be entitled to certain spousal rights in benefit plans or favorable tax treatment. Some examples of how employee benefits were impacted include:

For health and welfare plans before the Windsor decision:

  1. Health coverage might not have been extended to same-sex partners under an employer plan unless the plan was self-insured and the employer chose to do so or unless the plan was fully insured and the insurance was issued in a state that required such coverage (for example, the New York Marriage Equality Act, which passed in July 2011, required insured plans issued under NY contracts to extend coverage to same-sex partners).
  2. The value of any employer-provided health coverage for a same-sex partner of an employee who was not otherwise a dependent had to be included in the employee’s income.
  3. Employees could not pay for premiums for same-sex partner coverage on a pre-tax basis through a cafeteria plan or obtain reimbursements from flexible spending accounts for same-sex partners unless the partner qualified as a dependent.
  4. Employees would not be able to make mid-year election changes based on a change in marital status in cafeteria plans.
  5. Same-sex partners would not have qualified as spouses for continuation of health coverage under COBRA.

If you are now in a legally recognized same-sex marriage, check with your employer as to coverage options for your new spouse and inquire about special enrollment rights or making a midyear election change on the basis of change in legal marital status for health coverage and flexible spending or similar accounts within required time frames pursuant to your employer’s cafeteria plan. The value of coverage for your same-sex spouse should no longer be imputed as income if it was previously, and you should be able to pay for coverage on a pre-tax basis if your employer offers a cafeteria plan; additionally, you can obtain reimbursements from flexible spending accounts for same-sex spouse medical expenses. Your same-sex spouse can also qualify as a “spouse” for purposes of COBRA continuation coverage in case of a qualifying event.

For retirement plans before the Windsor decision:

  1. Same-sex partners would not qualify as spouses for purposes of qualified joint and survivor annuities, qualified preretirement survivor annuities, or survivor benefits under pension plans or 401k plans.
  2. Spousal consent rules would not apply for purposes of naming beneficiaries or taking distributions.
  3. Benefits could not be assigned to a same-sex partner who was not a spouse under a qualified domestic relations order.
  4. Hardship distributions could not be taken on account of same-sex spouse expenses.

If you are now in a legally recognized same-sex marriage, a same-sex spouse is a spouse for purposes of any qualified joint and survivor or similar annuities, same-sex spouse expenses are recognized for hardship withdrawals, spousal consent of a same-sex spouse is required before an employee names another beneficiary under a retirement plan, same-sex spouses are spouses for survivor benefits and qualified domestic relations orders, a same- sex spouse may now roll over a plan distribution to his or her own IRA rather than to an inherited IRA, a same-sex spouse must be taken into account for plan testing purposes where family attribution rules come into play, and a same-sex spouse is factored into any required minimum distribution calculations.

The rules do not change, however, for domestic partners or members of a civil union who are still not treated as spouses under the law.

2.      What can employees do to recover federal income tax paid on the value of same- sex spouse health coverage that was imputed as income to the employee?

There was a series of guidance issued last year after the Windsor decision that addressed refunds of income tax as well as FICA (Social Security and Medicare taxes) that would have been overpaid if the value of health coverage was imputed. Employees can claim a refund by completing amended 1040s for overpayments of federal income tax on the value of health coverage that may have been imputed as income or for coverage that was purchased on an after-tax basis rather than a pre-tax basis for prior tax years—going back up to the later of three years from the date the return was filed or two years from the date the tax was paid. Employees should speak to their employers to request amended W-2Cs. This will be important to ensure proper filings are completed for the 2013 tax year.

With regard to FICA taxes, there were different procedures available to correct 2013 errors if completed in 2013. An employer could have corrected its quarterly tax filings in 2013 and reimbursed the employee for any overpayments of FICA. If this was not done, an employer can file a Form 941X to correct 2013 and prior tax years that are eligible for correction if the employee consents to the employer reimbursing him or her and doing the filing. Otherwise, if it is not practical for an employer to do the filing for various reasons, an employee can seek a refund of his or her own overpayments of FICA taxes by filing a Form 843.

So, there is some level of coordination here that needs to occur. Employees who have these issues should approach their employer and inquire as to how this is being handled, request a revised Form W-2C for the employees’ own 2013 Form 1040 filing and prior years’ amended returns, and inquire how any overpayments of FICA tax will be recouped or whether the employee should seek their own refund from the government by filing a Form 843.

3.      What should employers do to ensure benefit plan compliance with the new legal landscape, and what open issues still remain?

  1. Employers should definitely assess where they are in terms of employee demographics and, if operating in different states, determine if there are state payroll tax issues that differ from state to state and whether same-sex spouse, domestic partner, and civil union benefits are being offered consistently.
  2. If the value of health coverage had been imputed for same-sex spouses, that process needs to cease for federal tax purposes—however, local state laws may differ on the tax treatment, so that still needs to be considered.
  3. Review all benefit plans, summary descriptions, communications, and domestic partner packages—all of these documents need to be reviewed to confirm how “spouse” is defined and determine if anything needs to be updated to be consistent with the new law, and confirm where any plan amendments may be required.
  4. Update any COBRA procedures and paperwork to include same-sex spouses, and revise beneficiary forms and all processes and procedures to include same-sex spouses as spouses for all purposes.
  5. Allow midyear election changes in cafeteria plans that pertain to same-sex spouses as spouses.
  6. Ensure that reimbursements for flexible spending and similar accounts are properly being made for same-sex spouses.
  7. Request updated beneficiary elections, and determine if you need to obtain consents for someone other than the same-sex spouse to be named a beneficiary.
  8. Develop a communications plan for employees on these issues, and determine your strategy with regard to any claims for refunds of FICA taxes.

We are still awaiting guidance, however, on the retroactive effect of the Windsor decision for purposes of plan qualification. It is unclear if retirement plans will be required to comply with the Windsor decision retroactively in order to maintain their qualified status. This is significant because if it is ruled that the Windsor decision must be applied retroactively for plan qualification purposes, pensions would need to be recalculated; beneficiary issues would need to be revisited; rights to death benefits would need to be reviewed; required minimum distributions would need to be recalculated; plan rollover, hardship, and loan consent issues would need to be addressed; and plan testing issues could arise. We are awaiting guidance from the IRS and Treasury Department on these issues.

And, of course, the number of states that recognize same-sex marriage as valid continues to grow and be subject to controversy. Until all 50 states recognize same-sex marriages, the nuances in tax treatment and benefits will need to be administered properly as there isn’t one uniform set of rules.

Employers should consult with qualified benefits counsel to review their same-sex spouse, domestic partner, and civil union policies and prepare appropriate amendments to benefit plans, materials, and processes. Individuals in legally recognized same-sex marriages should review their employee benefit plans and compensation arrangements and make appropriate inquiries to their employers. It will also be necessary to review any personal income tax and estate planning considerations as well with the appropriate advisors. As they say, marriage is a lot of work, but it can be fun, too!

Joan Disler Featured as Female Powerbroker

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Joan DislerJoan Disler, chair of Epstein Becker Green’s employee benefits steering committee, co-founder of the firm’s Women’s Initiative, and a co-editor of this blog, is featured in a recent Law360 Female Powerbrokers Q&A.

Joan, whose career included a period of working a reduced hour schedule when her children were young, points out how family and work priorities shift over time. She strongly suggests that women, “find a way to make that work without giving up your commitment to your career.”

Joan also advocates the importance of cultivating one’s own professional network. As she explains:

By cultivating my own network, which included professional women, I found that women love to help other women. I also began to recognize that my professional network, which could help me advance in my practice (and my firm), was not limited to those whom I met through my practice, but also could include those whom I knew through my personal life. Previously, I believed that my personal and professional lives were separate, but when I recognized that they were related and that my personal life could help my professional life, my practice expanded and blossomed.

Download the entire interview here (PDF).