By Kirsten Mickelwait
Countries throughout the industrialized world recognize that a key factor contributing to economic security is paid family leave—a legal right that gives workers the chance to take paid leave from their jobs to care for a newborn baby, a dying parent, or a sick relative. Among those nations with the most generous laws are the United Kingdom, Russia, and Italy. But there are four countries that are so far behind the curve they have no federal family-leave laws at all: Lesotho, Swaziland, and Papua New Guinea. And the United States.
State legislation in this country is finally beginning to catch up, with new or proposed laws in New Jersey, Rhode Island, New York and California. Even federal legislation has been proposed. But recent research by UC Berkeley Professor of Law and Sociology Catherine Albiston indicates that the focus of current legislation is misdirected. In Just Leave, an article in the spring 2016 Harvard Journal of Law and Gender (co-authored with Lindsey Trimble O’Connor), she argues that, in addition to providing wage replacement, offering job protection is essential to enabling workers to take advantage of paid family leave. Only New York’s law does that.
Slow on the uptake
Albiston’s empirical research examines the relationship between law, policy, and social change. She specializes in looking at how statutes—the law on the books—actually work on the ground. For the family-leave study, which is the first of its kind, she conducted in-depth quantitative and qualitative interviews with a representative sample of California residents. Their responses provided new data on why many chose not to use the leave and a window into their workplace cultures, workplace reactions to workers who use leave, and consequences for those who did take leaves.
The results of Albiston’s research show that while some Californians didn’t take advantage of family leave because they didn’t know it was available or worried that they couldn’t afford the reduced pay while on leave, many also feared retaliation in the workplace. They had seen others lose their jobs or have their hours drastically reduced after returning from leave, or be passed over for promotions. And there was a disproportionate lack of “uptake” among low-wage earners, including those in part-time or contingent jobs with variable hours.
Consistent with gendered ideas about caregiving, women were expected to take leave, whereas men were discouraged from using it. Both men and women lost hours, promotions, or jobs, however, for using leave.
Not just a women’s issue
The study revealed that both American family policy and workplace culture is still based on a traditional model that most families no longer fit. “Gone are the days of breadwinner-homemaker families, yet our workplace culture is still structured around this concept,” says Albiston. “Most women with children work outside the home, and many are single mothers—they aren’t just working for ‘pin money’ anymore. Family leave can no longer be framed as a women’s issue—that disadvantages everyone.”
Even conservative Supreme Court Justice William Rehnquist agreed with this idea. In Nevada Department of Human Resources v. Hibbs (2003), he wrote, “Because employers continue to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver.”
Moving in the right direction
Several cities and states are leading the way in updating policies around paid family leave. On March 29, San Francisco became the first U.S. city to grant six weeks of fully paid leave for new parents, including same-sex couples and adoptive parents. California’s statewide parental leave had granted workers 55 percent of their pay for six weeks. The new law in San Francisco, which will go into effect on January 1, 2017, mandates full pay with the 45 percent difference being paid by employers.
On April 4, 2016, New York Governor Andrew Cuomo signed into law a bill establishing a statewide paid family-leave program, the nation’s strongest and most comprehensive bill to date. And on April 12, California Governor Jerry Brown signed legislation (AB 908) to raise the level of family leave wage replacement from 55 percent to either 60 or 70 percent, depending on the applicant’s income.
All of these measures are moving us in the right direction, says Albiston, but only New York provides job protection. Without such protection, the laws are not enough. Even the improved California law does not ensure that workers will get their jobs back when they return from family leave, and they’re not entitled to keep their health benefits while on leave unless they’re among the 60 percent of employees covered by other unpaid family leave laws.
“At this critical moment when family-leave policy is moving forward on several fronts, we really need to get it right,” Albiston says. “The focus has been solely on pay, but we should shine more light on job security, especially for low-wage workers. The current policy solution misunderstands the problem.“
The most meaningful moments
In Just Leave, Albiston advocates making family-leave laws gender-neutral and more robust to protect all working families—particularly those supported by part-time and contingent jobs. It proposes job protection and anti-retaliation measures, and it promotes change in the workplace culture with both normative and punitive measures. In short, it argues that job-protected family leave is crucial, enabling workers to be present for the most important and meaningful moments in their families’ lives.
A working mother of two, Albiston’s passion on the subject of family leave is personal. “UC Berkeley offers generous benefits when it comes to these issues, and I can’t imagine how people do it otherwise,” she explains. “We’re not talking about luxury here. We’re talking about basic survival.”