Unanimous Consent Request--S. 247

Floor Speech

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Mr. LEE. Mr. President, women make invaluable contributions to our families, communities, and workplaces. Thankfully, the opportunities for women in the workplace have grown tremendously over time and in recent decades, and there is no doubt that, without exception or qualification, they should always be treated equally and receive equal pay for the same work as their male counterparts.

This week, the Senate considered proceeding to a bill called the Paycheck Fairness Act--one that was directed at achieving this goal by addressing the gender pay gap. But if we truly care about supporting and empowering women in the workplace, it is important that we understand exactly what the pay gap is and what exactly it can tell us about women's experiences.

So what is the pay gap? Well, first, there is a crucial distinction that we have to make between the unadjusted pay gap and the adjusted pay gap.

When most people refer to the gender pay gap, they mean the unadjusted pay gap, or the comparison between the median man's pay and the median woman's pay, based only on sex. According to this measure, the median earnings of women are 18 percent lower than men. But the unadjusted pay gap leaves out key pieces of the puzzle. In reality, there are many other factors that influence pay for individual men and women, such as industry, occupation, experience, education, performance, and in particular, family decisions.

The adjusted pay gap does take these factors into account and turns out to be a much smaller number--a very different number--than the unadjusted pay gap. When controlling for these factors, and thus comparing men and women with the same jobs and qualifications, the pay gap falls to just 2 percent, which can arguably be explained by nondiscriminatory factors like performance that other studies have not yet addressed.

The pay gap before and after parenthood tells us something else that is key too. This measure suggests that women are paid less not simply because they are women but because of the family decisions they make typically after having children. Women are far more likely to take on more of the caretaker responsibilities within their families and thus make work-related tradeoffs that allow them to do so.

One study in Denmark found that average women's earnings are comparable to men's earnings before parenthood but drop after the birth of their first child, when hours worked and participation rates tend to fall for women.

Another study by the Harvard Business Review found that women are more likely to make decisions to limit work-related travel, choose a more flexible job, slow down career pace, make a lateral move, or leave a job in order to accommodate family responsibilities.

Ultimately, the pay gap seems to show in large part the particular choices and preferences of women in their career and family paths.

So in light of this information, what would the Paycheck Fairness Act do? This bill would allow employees to sue businesses that pay workers different wages even if the differences have nothing to do with the sex of the employee at issue. As a result, businesses would be forced to ignore the rest of the factors that influence pay, including merit, which is and should be the main determinant of earnings. It would instead enforce rigid, collective pay scales that would reduce flexibility in benefits or hours--the very thing that employees want in the workplace.

If this legislation were to become law, instead of receiving higher pay, women would likely find it harder to get their foot in the door. Employers could be more reticent to hire women in some circumstances, especially those reentering the workforce, since they automatically would be included in future gender- or race- based class action lawsuits, and it would raise costs for businesses and hurt wages across the board.

In short, it is a federally mandated, one-size-fits-all approach to pay that would only take away choice, opportunity, and flexibility for women--the very things that Congress ought to ensure are allowed. Indeed, surveys show that workplace flexibility is incredibly valuable to women. One survey estimates that 60 percent of female jobseekers say that greater work-life balance and personal well-being are very important to them when considering a job, and 46 percent of female employees say flextime is the most important benefit a company can offer employees. Further research shows that productivity can be improved by as much as 50 percent when flexible options are available to workers.

If we are to empower women and make it easier for them to increase their earnings, we should not be getting in the way of flexible options that can help.

Thankfully, the rejection of the Paycheck Fairness Act this week proved that it is not the right approach. There is, indeed, a better path forward. The bill I am proposing, the Working Families Flexibility Act, would help provide it.

For decades, Federal labor laws have unfairly restricted private sector employees from choosing either traditional overtime pay or paid time off as compensation for overtime hours worked, while granting a special exemption for government employees. This legal disparity between private sector employees and public sector employees unfairly discriminates against working men and women in the private sector, and it is long overdue that it be addressed. There is no reason that these working moms and dads in the private sector should be prevented from receiving the flexibility that employees in the government are able to receive.

My bill would simply amend the Fair Labor Standards Act to allow private sector employers to give their employees the option to choose either traditional overtime pay or paid time off, both accrued at 1.5 times the overtime hours worked. It is a totally voluntary proposal for both employers and employees. Employers are not forced to offer it, and employees are not forced to take it.

In addition to offering safeguards to ensure that the choice to use comp time is voluntary, it retains all existing labor law protections for employees, including the 40-hour workweek and overtime accrual protections.

If we truly seek to empower women in the workplace, we ought to give them the freedom and flexibility to pursue their careers and the families they desire. The Working Families Flexibility Act would do just that, and I urge my colleagues to support it.

This is something that we ought to adopt right now. This is something that Federal law already allows for, for government employees, and we ought to end the discrimination against private sector employees.

247 and that the Senate proceed to its immediate consideration. Mr. President.

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Mr. LEE. Mr. President, it is unfortunate that the Senate won't choose to make available to private sector workers options that are already available to government employees.

Just to reiterate here, under this legislation, employers are not required to offer it; employees are not required to take it. This just eliminates the vestigial remains of labor laws passed decades ago that denied workers and employers this option. They keep that open for government workers. That is discriminatory. It is unfair, and it ought to end.

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