Member Groups

The Catalyst
The newsletter of the ISBA’s Standing Committee on Women and the Law

November 2015, vol. 21, no. 3

Maternity leave in the media: How revised parental leave policies measure up

The issue of maternity leave is something that has affected women in the United States for decades. More recently, we, as a country, have begun to view parental leave as an issue that affects men in addition to women. Perhaps that is part of the reason why maternity leave and paternity leave have taken the spotlight in major headlines lately, as it has transgressed from a “women’s issue” to a joint gender issue. Even in heterosexual family structures, we as a country are seeing more and more “stay-at-home” fathers than ever before. It is a welcome change, and it appears that many large corporations agree, causing them to re-vamp their paternity and maternity leave policies to afford their employees much more than what is required under current law in the United States.

This past summer, numerous large companies unveiled modified maternity and paternity leave policies, some of which have been so generous and liberal that they have attracted media attention. Netflix was one of the larger companies to jump on board the family leave bandwagon, offering employees “unlimited” maternity or paternity leave for the first year after adopting or birthing a child. The employees have the option of returning to work part-time, or not at all, or returning, and then taking additional time off, all during the first year of their child’s life. The employee’s full benefits and salaries will be paid during their leave time.

A lot of employers and others in the business world might wonder what the benefit is to Netflix for offering such a liberal family leave policy. It appears from multiple media outlets that Netflix has always had an “unlimited” time-off for sick days and paid vacations, so this was an expansion to that policy, which evidently must work for the company. They are used to such a policy being in place and must assume that their employees will not abuse it. It also benefits the company indirectly, and the reasons for same are two-fold. First and foremost, Netflix hires whom they believe to be the most talented individuals in their field, and they have an interest in retaining these talented individuals even after their addition of a new family member. The company operates under the belief that allowing a liberal paternity and maternity policy will help them to retain their already talented staff. Secondly, it goes without saying that employees will perform much better when they don’t have to worry about what is happening at home. Being able to have peace of mind regarding returning home at their leisure to spend time with their child almost could be used to “ween” them back to work, at their own pace.

While Netflix’s policy may sound like a dream for any new parent, there are certainly some concerns. Having a set number of days for a paternity or maternity leave period gives the employee definition. When a company says that an employee has twelve (12) weeks of paid leave, the employee knows exactly what is expected of them, and they are entitled to take what is granted to them, usually, guilt-free. When you have a policy that is open-ended, such as “unlimited” leave for a year, there is a fine line between what is allowed and what is expected. Will employees then take less time than they would be entitled to under a “fixed” amount of time policy, due to fear of repercussions? Will employees look at how long other employees are taking and feel a need to “measure up”? Some companies look at sick days and personal days taken when they are evaluating whether or not an employee will be afforded a certain promotion or pay increase. While it is not necessarily the legal or ethical thing to do, the prospect of an employer considering how much time was taken for maternity or paternity leave versus how much time off other employees have taken may hinder employees from taking the amount of time they may have enjoyed, for fear of direct or indirect repercussions. The “unlimited” parental leave policy sounds amazing on paper, but when it comes to reality, many employees may be afraid to exercise it to the full extent allowed.

In addition to Netflix, other companies have announced modified maternity and paternity policies with in the past few years. Specifically, Google has announced that they will offer eighteen (18) weeks of parental leave rather than the former twelve (12) weeks, and that mothers are leaving after maternity leave at half the rate they used to, upon belief, as a result of the new policy. The United States Navy has bumped up their maternity leave policy to eighteen (18) weeks as well. President Obama recently expanded parental leave for federal employees in January of 2015, granting them six (6) weeks of paid leave.

Hearing about all of these private companies’ maternity and paternity leave policies may lead one to wonder what is actually required under the Family Medical Leave Act (or “FMLA”), 29 U.S.C. § 28, in terms of a “maternity” or “paternity” leave. The FMLA applies to the following: all public agencies, all public and private elementary and secondary schools, and companies with fifty (50) or more employees must provide an “eligible” employee with at least twelve (12) unpaid weeks of time off each year for the birth of a new child, placement of an adopted child, to care for an immediate family member (spouse, child or parent) with a serious health condition or to take medical leave when the employee is unable to work because of a serious health condition. None of this time off is required to be paid leave. Additionally, employees are eligible for leave if:

(1) They have worked for the company for at least twelve (12) months

(2) Have worked at least 1,250 hours in the past twelve (12) months and

(3) Work at a location where the company employs 50 or more employees within 75 miles.

In the event that a pregnant woman has pregnancy complications prior to delivery that require time off, that time frame is counted against the twelve (12) weeks she is otherwise entitled under FMLA.

While some argue that maternity and/or paternity leave under the FMLA is “unfair” since it does not require paid time off, it is a double-edged sword, just as it is with the technology companies that have expanded their maternity and paternity leave policies in the recent past. First and foremost, we must ask, as employees, does the rolling out of new and improved family leave policies put men (and perhaps more often, women) at risk of not being hired when they are at a “child –bearing age”? This is a serious concern for people who plan to have families that are currently in the work force or that are interviewing for employment opportunities. We have to question what would happen if the government forced companies to pay for paternity and maternity leave time. Employers would probably be a lot more cautious about whom they hire, for fear that they would have to pay time off at some point for family leave, regardless of the legality of same. As a female in the workforce, this is a frightening thought. In the event that the government does choose to revise the current FMLA policy, it would need to go hand in hand with putting in place protections to ensure that we are not in fact opening the door to another form of age (or gender) discrimination in its wake.

There are definitely good arguments to be made on both sides of the equation regarding revision of the FMLA and paternity and maternity policies in our country. Many other countries have had revised maternity and paternity leave policies that have worked out very well for the families and employers involved. While it is discouraging that the United States is behind the curve on implementing such policies, the bright side of it is that we can look at how other countries have addressed this issue, what has worked for them, and what has not, and treat it as a learning experience. The bottom line in this situation is that children in our country deserve to have the best parents possible, which includes adequate family bonding time after placement or birth. This is an issue that definitely needs to be examined in the near future, but only after careful consideration of the implications of revising it, so as to protect from harm or other discrimination the same parties that the revision would intend to help.

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Jessica C. Marshall is the Senior Associate Attorney at the law firm of Anderson & Boback in Chicago, Illinois.  Jessica practices family law and is a member of the ISBA Women and the Law Committee.