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The Real War on Families: Why the U.S. Needs Paid Leave Now

Wednesday, August 19th, 2015

sharon-lernerInvestigation reveals the devastating effects of the lack of paid family leave: Our data show nearly 1 in 4 employed mothers return to work within two weeks of childbirth.

Leigh Benrahou began laying plans to have a second child almost as soon as she had her first, a daughter named Johara, in 2011. Benrahou, 32, wanted to time the next birth so that when she returned to work, her mother, who works at an elementary school and has summers off, could babysit. Most importantly, Benrahou wanted to spend as much time as she could with her new baby while also keeping her relatively new job as the registrar at a small college.

While her husband, Rachid, 38, earns enough at a carpet cleaning company to cover their mortgage and food, without her paycheck they’d be forced to live close to the bone. And if she quit her job, Benrahou, who has a masters in nonprofit management, would take a big step backward in what she hoped would be a long career in higher education.

So Benrahou, who has wavy dark blond hair, blue eyes and a tendency to smile even through difficult moments, set about what may be the least romantic aspect of family planning in the United States: figuring out how to maximize time with a newborn while staying solvent, employed and, ideally, sane.

Only in America

Most people are aware that Americans have a raw deal when it comes to maternity leave. Perhaps they’ve heard about Sweden, with its drool-inducing 16 months of paid parental leave, or Finland, where, after about 9 months of paid leave, the mother or father can take—or split—additional paid “child care leave” until the child’s third birthday.

But most Americans don’t realize quite how out of step we are. It’s not just wealthy, social democratic Nordic countries that make us look bad. With the exception of a few small countries like Papua New Guinea and Suriname, every other nation in the world—rich or poor—now requires paid maternity leave.

Paid parental leave frees mothers and fathers from choosing between their careers and time with their infants. For women, still most often the primary caregivers of young children, this results in higher employment rates, which in turn translates to lower poverty rates among mothers and their children.

Research shows that paid leave can also be a matter of life and death for children. By charting the correlation between death rates and paid leave in 16 European countries, Christopher Ruhm, a professor of public policy and economics at the University of Virginia, found that a 50-week extension in paid leave was associated with a 20 percent dip in infant deaths. (The biggest drop was in deaths of babies between 1 month and 1 year old, though mortality of children between 1 and 5 years also decreased as paid leave went up.)

According to the Bureau of Labor Statistics, only about 13 percent of U.S. workers have access to any form of paid family leave, which includes parental leave and other time off to care for a family member. The highest-paid workers are most likely to have it, according to BLS numbers, with more than 1 in 5 of the top 10 percent of earners getting paid family leave, compared to 1 in 20 in the bottom quartile. Unionized workers are more likely to get benefits than nonunionized workers.

What do the rest of American women do without a law that guarantees this basic support? Some new mothers who don’t get paid leave quit their jobs, which can leave them desperate for income and have serious consequences in terms of work opportunities and lifetime earnings. Others may choose not to have children (though it’s impossible to definitively quantify how the difficulty of integrating work and childbirth factors into those decisions). And some try to stitch together their own paid leaves through accumulated vacation time and personal days, or through independently purchased insurance policies.

The best-laid plans

Though her employer doesn’t offer paid leave, Benrahou figured she’d create her own, taking time away from work through the Family and Medical Leave Act, which entitles new parents to up to 12 weeks off, unpaid. She knew all about the law’s loopholes—that, for instance, it only applies to workplaces that have at least 50 employees. Hers did; she wouldn’t have taken the job if it hadn’t. She knew, too, that she had to have worked for her employer for at least 12 months to qualify. That part was trickier.

She had started her job in February 2014, which meant that she wouldn’t qualify until the following February. She counted back nine months from then and got to May, but then, to be safe, tacked on another two months in case the baby came early, so: July. That’s when she and Rachid would start trying for a second.

Then there was money. Reluctant to lose 12 weeks of income, Benrahou decided to opt into her employer’s disability insurance policy, paying roughly $40 a month into the plan so she could receive 60 percent of her salary for up to six weeks of her maternity leave, plus an additional $1,000 toward the cost of her hospital stay. She would also save up her two weeks of annual paid vacation time.

Numbers crunched and policy purchased, Benrahou went off birth control on schedule in July and became pregnant within a month. But her carefully laid plans started to go awry in her 20th week, when she was diagnosed with placenta previa, which can result in early delivery. Despite some bleeding and cramping, and several brief hospital stays that used up her sick days, Benrahou stuck to her plan, working as much as possible after her diagnosis in order to save her precious vacation time. But, in late December, her water broke. Though her due date was April 1, Leigh Benrahou gave birth by C-section on Christmas Eve—too soon to qualify for FMLA leave or any payoff from her disability insurance.

Ramzi Benrahou was born at 26 weeks and just over 2 pounds. Knowing that 20 percent of babies born at his gestational age don’t survive, Leigh spent the first hours after the delivery singularly focused on her tiny son’s survival. He needed oxygen, since his lungs weren’t fully developed. And, when he was whisked away for medical attention, Benrahou had to attend to another crisis: She was the mother of a very sick baby, and her carefully constructed paid maternity leave had disintegrated. So, freshly stitched up and still groggy from anesthesia, she spread out her medical fact sheets, insurance policy papers and lists of phone numbers on her hospital bed and began to grapple with her new reality. Though her college was on winter break, which put off her return by about a week, Benrahou realized she’d have to go back to work when classes resumed on January 6, less than two weeks after giving birth.

Less than a month

Like Benrahou, most U.S. women end up returning to work sooner than they’d like—sometimes just weeks or days after having a baby. Just how soon they’re going back is difficult to determine. We know that most employers don’t offer paid leave, but no federal agency collects regular statistics on how much post-childbirth time off, paid or unpaid, women are actually taking.

Census data on employment patterns among first-time mothers show that between 2005 and 2007, more than half who worked during their pregnancy were back on the job within three months of giving birth. A 2008 study by the Department of Health and Human Services’ Maternal and Child Health Bureau, meanwhile, found that the average length of maternity leave, when taken, was 10 weeks. But more recent data is scarce, even though the recession left many women living on razorthin margins, ratcheting up the pressure to rush back to work after giving birth.

How are new mothers faring in today’s age of austerity? Data analyzed for In These Times by Abt Associates, a research and evaluation company, provides a window into these experiences. Abt went back to a 2012 survey it conducted for the Department of Labor of 2,852 employees who had taken family or medical leave in the last year, looking specifically at the 93 women who took time off work to care for a new baby.

Nearly 12 percent of those women took off only a week or less. Another 11 percent took between one and two weeks off. That means that about 23 percent—nearly 1 in 4—of the women interviewed were back at work within two weeks of having a child.

The educational divide between those who took shorter and relatively longer leaves is striking: 80 percent of college graduates took at least six weeks off to care for a new baby, but only 54 percent of women without college degrees did so.

Pumping in the parking lot

What’s it like to be back on the job in the first weeks after having a baby?

For Natasha Long, who was back three weeks after her third child, Jayden, was born in 2012, the worst part was missing out on bonding time with her son.

Long, who was 29 at the time, was determined to make sure Jayden got breast milk. But the factory where she worked, ACCO Office Supplies in Booneville, Mississippi, didn’t have a lactation room. So when she was on breaks, she had to run out to her truck. She sat in the cab, worried that someone might see her, and pumped, while tears rolled down her face and over the plastic suction cups attached to her breasts.

Long cried because she wanted to be holding her baby rather than sitting in the parking lot of a factory in her old Yukon Denali. But exhaustion clearly also played a role in her emotional state. Her job was simple—to place stickers with the company logo on the bottom right-hand corner of plastic binders and then box up the binders. But the shifts were long—from 6 a.m. to 6 p.m.—and she put in four or five a week. Because the factory was an hour’s drive from her home in Okalona, Mississippi, Long had only 10 hours left in the day to do everything else, including tend to her three children, spend time with Jayden’s father, and sleep. By the time she got back in the evening, her children, who were being looked after by her father during the day, were on their way to bed. To pump breast milk before leaving for work, she had to get up at 4 a.m.

After just a few days of this crazed schedule, Long began to develop strange symptoms, including a headache that never seemed to go away and a choking sensation that left her feeling breathless. She started biting her fingernails to the quick—something she’d never done before—and crying a lot. “I felt like I was alone,” says Long. “I wanted to fall off the face of the earth.” Long had never been depressed. But when she went to the doctor, he surmised that her physical symptoms were rooted in her mental state, which was itself rooted in her schedule. When her doctor said he thought she was depressed, Long worried that if child welfare authorities found out, they might take her children away. She had seen other people’s children put in foster care. But when her doctor prescribed her antidepressants, she took them.

Long is not the only one to suffer emotionally from a quick return to work. Research has shown that longer maternity leaves, whether paid or unpaid, are associated with a decline in depressive symptoms, a reduction in the likelihood of severe depression, and an improvement in overall maternal health, according to a working paper issued by the National Bureau of Economic Research. One national study of 1,762 mothers found that a one-week increase in maternity leave was associated with a 5 to 6 percent reduction in depressive symptoms from six to 24 months after birth. Another found that women who took less than eight weeks of paid leave experienced more depression than those who had longer leaves and were in worse health overall. Mothers who work more than 40 hours a week, as Long was, were more likely to be depressed than those who worked 40 hours or less, according to a study by Child Trends, a research center.

Women who go back sooner also tend to breastfeed less, which cuts into the benefits breast milk confers, including better immunity and lower rates of childhood obesity, allergies and sudden infant death syndrome. It was only through heroic efforts that Long was able to breastfeed Jayden until he was 1.

Shorter maternity leaves may also have a negative effect on the development of early motor and social skills and even, later, on vocabulary, according to several studies. So far, Jayden, 3, hasn’t shown signs of missing any developmental milestones. What nags at Long is the thought that her absence in those first few months might have affected their relationship. He refuses to call her “mama,” and although there’s no research to indicate this would be a result of failed early bonding, she still fears that’s the reason.

Too busy to fight

For low-income women, the lack of paid maternity leave is just one of many missing supports to help them stay afloat while bringing new life into the world. By the time Jayden was born, pregnancy had already put Long in a perilous financial situation. She was on bed rest for the last four and a half months of her pregnancy. Big Dollar, where she worked at the time, didn’t fire her for not coming in—but it didn’t pay her, either. So Long filed for public assistance, which required her to attend classes. Though Mississippi is supposed to exempt people who are physically unable to take such classes, and Long’s doctor had warned her to stay off her feet, she says she was denied benefits when she didn’t attend.

Family members pitched in to pay for her groceries and rent while she was unable to work, but by the time Jayden was born (healthy, at 37 weeks), Long knew she had reached the limit of their generosity. When she went back to work at the dollar store, they offered her only reduced hours. It wasn’t enough to repay her debts, so she went to an employment agency, made no mention of her days-old baby, and got her job at ACCO.

Other social supports are glaringly absent for U.S. mothers, especially poor ones, who fill waiting lists for scarce subsidized childcare spots and underfunded early education classes. In comparison, Sweden and Denmark spend roughly 10 times what we do on childcare per person.

Without adequate options or support, low-income workers, who are more likely to live paycheck to paycheck and less likely to have access to any type of leave, often have little choice but to power through. As our data confirm—and as finances dictate—less educated women, who tend to have lower-paying jobs, are likely to take less time off after having children. Often, that means not just going back to work early, but going back to very long work hours, very early.

Raven Osborne, for instance, a 22-year-old single mother in Tupelo, Mississippi, went back to work just one week after her first child, Kylan, now 2, was born in August 2013. In addition to being a full-time college student, Osborne was waitressing full-time at IHOP, but her earnings—tips plus a base salary of $2.13 an hour—weren’t enough to cover her rent, car payments and daycare costs. Perhaps ironically, her tips were much higher—sometimes more than $100 a shift—when she was visibly pregnant. But once she had the child, they went down again, so Osborne added a few overnight shifts at Texaco when Kylan was four weeks old, leaving the baby with his grandmother. Working upwards of 60 hours each week, the new mother barely saw her son, except when she got home from work, when she often fell asleep holding him. She could have taken unpaid leave from IHOP but chose not to because she needed the pay.

This winter, Osborne returned to work four weeks after her second child, Anthony, was born. Now she’s working full-time at a debt collection agency on top of several shifts at the nearby Coles supermarket.

“I don’t like asking for help” is how Osborne explains the frantic pace she’s kept up during her first year-and-a-half of motherhood. Her mother pitches in by watching the kids when she can, though she, too, has two full-time jobs—one at Walmart and another as an aide at a retirement community.

Clearly, women with low earnings are the least likely to have a financial cushion that allows them to forgo a paycheck. But it’s not only those on the bottom of the pay scale who can’t afford to take unpaid leave. More than 2.5 million employees need time off from work to care for themselves or another but can’t afford to take it, according to a 2012 study from the Center for Economic and Policy Research.

Tracy Malloy-Curtis, a fundraiser at a nonprofit in New York City, could have taken more time off, unpaid but with job security, after she had a baby a few years back. (“It’s a civil rights organization,” she explains, though she doesn’t want to name it because she still works in the field.) Instead, Malloy-Curtis, who is 43, married, and the primary breadwinner in her family, went back five and a half weeks after having a son—and a complicated C-section—for fear she otherwise could not afford to pay her mortgage and cover the other basic costs of her life.

“Physically, I was a wreck,” she says. An infection around her C-section wound hadn’t yet healed when she went back to work. “I was still bleeding, my incision wasn’t closed.” Pus dripped down her leg under her work clothes.

Those who do take leave may find themselves penalized afterward. Jackie Wheeler took six weeks of paid maternity leave after her son, Enzo, was born in 2011. Wheeler, who lives in Westminster, Colo., was working at the front desk of a local branch of Chase Bank. Though her son had severe medical problems as a result of being born early, Wheeler had intended to go back to her job. Before giving birth, she says, she had even been talking with her boss about interviewing for an assistant manager position. “I saw myself as moving along in the company,” she says.

But after she returned to work and Enzo was released from the hospital, she took another six weeks of leave. At that point, her boss told her he thought it was best that she resign—if he didn’t fill her position right away, he said, corporate headquarters would eliminate it. And Wheeler was too overwhelmed at the time to challenge him.

The birth of hope

While, in the United States, the lack of time off can too often turn new motherhood into a distressing ordeal, most other cultures treat this immediate post-natal period as a sacred time, when both the new mother and baby receive help and special attention. Throughout history and all over the world, people have tended to carve out a minimum of at least six weeks in which women are exempt from responsibilities other than child care, according to Malin Eberhard-Gran, a Norwegian public health scholar who has compiled a cross-cultural comparison of post-natal practices.

In some Muslim traditions, new mothers spend the first 40 days after birth in their mothers’ homes, for instance. Many Latin American cultures also bracket during the same period, known as la cuarantena (from the Spanish word for “forty”), and exempt women from work responsibilities. In some other countries, women are granted special treatment for even longer. Traditionally, women in Japan and India go to their mothers’ homes for several months after giving birth. And today, by law, the 30 countries in the Organization for Economic Co-operation and Development (OECD)—democracies with market economies—provide an average of more than a year of paid leave.

Here in the United States, advocates have been fighting for a century to get new parents just a few weeks off with pay. But the tide may be turning. In 2002, California became the first state to pass a paid family leave law, which provides workers who need to care for a new baby with 55 percent of their usual weekly pay, to a limit of $1,104 for up to six weeks. New Jersey passed a similar law in 2008. And in 2013, Rhode Island granted workers up to four weeks off with pay for “family care,” including care of a new baby. Despite dire warnings from business interests, most employers in New Jersey and California (where programs have been in effect long enough to be studied) haven’t found that paid leave has hurt productivity, profitability or turnover. (Full disclosure: I was a co-author of the New Jersey study).

The Obama administration is attempting to build momentum for paid sick leave, one of the main ways women piece together paid maternity leave. In the 2015 State of the Union address, President Obama called on Congress to send him a bill guaranteeing U.S. workers seven days of paid sick leave—but in early August, Senate Republicans blocked a Democrat-sponsored bill to do so. In the meantime, Obama has an executive order in the works that will extend a week of paid sick leave to all federal contractors, and his adminstration has issued $1.25 million in grants to study how paid leave programs can be developed in states. Labor Secretary Tom Perez, who has been outspoken on the issue, has spearheaded a #leadonleave campaign, in which he and White House aide Valerie Jarrett travel the country to boost local paid leave policies.

But, so far, even a Democratic administration committed to the issue hasn’t been enough to overcome resistance to it. When bills have been debated in states, Republicans have been so vehement that paid leave is bad for business and a “job killer” that legislation at a federal level has been assumed to be a no-go. And, at least until very recently, congressional Republicans have mostly scoffed at Democratic efforts. But for the first time, a bill proposed by Sens. Kirsten Gillibrand (D-N.Y.) and Rosa DeLauro (D-Conn.) this spring that would provide benefits for workers who take time off to care for a new baby or sick family member was met with a counterproposal from Republicans, which would allow hourly workers to put overtime toward paid leave.

The issue is also clearly gaining ground in certain states, where at least ten family leave proposals have been introduced since March. Though Republican presidential candidates have had little to say about the issue, Democratic contenders Hillary Clinton and Bernie Sanders have both come out as strong proponents of paid leave. While Sanders has been more specific about his plan, calling for 12 weeks off, with pay, both are making a moral case to which there is no politically sound retort: Families need paid time off to take care of their new babies. Men, women and children will gain from this basic human dignity.

Barreling ahead

After three months, Leigh Benrahou only has a blurry recollection of her first weeks back at work just days after her premature son was born. “I remember walking really slow and wearing stretch pants and just making it happen,” she says hazily. She spent those early days cutting a path between the college; the hospital’s neonatal intensive care unit (NICU), where Ramzi spent four months and underwent two stomach surgeries; her 3-year-old daughter’s daycare center; and her home, where, despite her exhaustion, she found it difficult to sleep.

At work, Benrahou tended to the needs of her students, whose questions about enrollment requirements and course changes occasionally provided distraction from her own, far graver problems. But mostly it was surreal—and painful—to be there. Climbing stairs was difficult because of her recent surgery. And pretty much every time she closed the door to pump breast milk, she wound up crying. Harder still was being away from her tiny baby, whose health was still so uncertain. Every time she got a call from the hospital when she was at work—and there were many—her stomach clutched.

“They say it’s like being on a roller coaster, [having a child] in the NICU,” says Benrahou. “But a roller coaster is fun. I wanted to throw up all the time.”

Benrahou didn’t throw up, though. Instead, like so many other American women, she barreled ahead, doing her best to both take care of her newborn and remain employed. Though she never got to take leave when and how she had planned, she was recently able to take 12 weeks off through the FMLA under the category of caring for a sick relative—in this case, her infant son. And now the woman who so painstakingly planned her family’s future doesn’t know what’s ahead. Ramzi’s long-term prognosis is unclear; he’s still on oxygen and has a feeding tube. About a quarter of babies born at 26 weeks go on to have lasting disabilities.

Benrahou’s hope is to keep working. And mostly she remains upbeat. But sometimes she can’t help but wonder whether Ramzi’s early birth was preventable; and whether continuing to work after her diagnosis so she could make the best of her miniscule amount of time off brought about Ramzi’s early delivery. It certainly wasn’t the way she planned it.

This article was supported by the Leonard C. Goodman Institute for Investigative Reporting.

This blog originally appeared on InTheseTimes.com on August 18, 2015. Reprinted with permission

Sharon Lerner is an award-winning investigative journalist living in Brooklyn. She is the author of “The War on Moms: On Life in a Family-Unfriendly Nation” and covers health, the environment and other issues affecting children and families.

How Does the Fall of DOMA Impact the FMLA and Other Employee Benefits?

Friday, June 28th, 2013

Jeff NowakUnless you’ve been securely wedged under a rock over the past 24 hours, you know that the U.S. Supreme Court has declared unconstitutional the Defense of Marriage Act (DOMA), which had established a federal definition of marriage as a legal union only between one man and one woman.

Yesterday, as Justice Anthony Kennedy read the opinion of the Court in U.S. v. Windsor, I can only imagine that his thoughts were consumed completely by the manner in which the extinction of DOMA would impact the future of the Family and Medical Leave Act. Right?

But let’s not leave this to chance.  In the unlikely event that Justice Kennedy (and the rest of the Court’s majority) didn’t fully appreciate how the FMLA might be impacted, we’ve got the Court’s back, as we discuss the issue more fully below:

How FMLA is Impacted after the Fall of DOMA

As we know, the FMLA allows otherwise eligible employees to take leave to care for a family member with a serious health condition.  “Family member” includes the employee’s spouse which, under the FMLA regulations, is defined as:

a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.  29 C.F.R. 825.102

Initially, this seems to suggest that the DOL would look to state law to define “spouse.”  Not so fast. According to a 1998 Department of Labor opinion letter, the DOL acknowledged that the FMLA was bound by DOMA’s definition that “spouse” could only be a person of the opposite sex who is a husband or wife.  Thus, the DOL has taken the position that only DOMA’s definitions could be recognized for FMLA leave purposes.  As result, FMLA leave has not been made available to same-sex spouses.

That changed yesterday, at least in part.

What’s Clear about FMLA After the Court’s Ruling

In striking down a significant part of DOMA, the Supreme Court cleared the way for each state to decide its own definition of “spouse.”  Thus, if an employee is married to a same-sex partner and also lives in a state that recognizes same-sex marriage, the employee will be entitled to take FMLA leave to care for his/her spouse who is suffering from a serious health condition, for military caregiver leave, or to take leave for a qualifying exigency when a same-sex spouse called to active duty in a foreign country in the military.

What’s Unclear about FMLA After the Court’s Ruling

But what about employees who live in a state that does not recognize same-sex marriage?  Are they entitled to FMLA leave to care for their spouse?

As an initial matter, the regulations look to the employee’s “place of domicile” (state of primary residence) to determine whether a person is a spouse for purposes of FMLA.  Therefore, even if the employee formerly lived or was married in a state that recognized the same-sex marriage, he/she is unlikely to be considered a spouse in the “new” state for purposes of FMLA if the state does not recognize the marriage.  This is no small issue, since 30+ states currently do not recognize same-sex marriage and some don’t go all the way (e.g., Illinois, which recognizes same-sex unions, not marriages).

Surely, some might argue that the United States Constitution requires other states to recognize the marriage; however, this issue is far from settled.  My friend and Indiana University Maurer School of Law professor Steve Sanders writes a compelling article for SCOTUSblog contending that an individual married in one state maintains a “significant liberty interest” under the 14th Amendment’s Due Process Clause as to the ongoing existence of the marriage.

Here, employers clearly need some help from the DOL.  Might the DOL draft regulations on how employers administer the FMLA in situations where the employee’s spouse is not recognized under state law?  If so, we could see the DOL give life to concepts such as a “State of Celebration” rule, in which a spousal status is determined based on the law of the State where the employee got married.

Without more guidance, it still is too early to tell where this question is heading.  Nevertheless, the employer community looks forward to helping shape these rules.

Other Key Benefits Affected by the DOMA Decision

FMLA is not the only federal law impacted by the fall of DOMA.  If federal regulations follow through, some of the notable federal laws and benefits impacted may include:

  • Taxes: Same-sex spouses likely will share many federal benefits and be able to manage tax liability in a way that opposite sex spouses typically do.  For instance, an inheritance, which was taxed under DOMA, will no longer be taxed for a same sex spouse (this was the factual scenario at issue in the decision). Income taxes, payroll taxes, health insurance benefits, and tax reporting may also be impacted.
  • Affordable Care Act and COBRANPR reports that the Court’s decision will impact how the Affordable Care Act (affectionately referred to as Obamacare) is carried out, though many details remain unclear. Moreover, same-sex spouses may be eligible for continuation of health insurance benefits (COBRA) even though the spouse may lose his/her job.
  • Employee benefits: Same-sex spouses likely will be treated equally when it comes to employee benefits, including a 401(k) plan.
  • Social security benefits: The Court’s decision also paves the way for social security survivor benefits to continue onto a legally married same-sex partner.
  • Citizenship:  According to NBC News, some 28,000 same-sex spouses who are American citizens will now be able to sponsor their non-citizen spouses for U.S. visas and can qualify for immigration measures toward citizenship.

For future updates on the impact of DOMA on FMLA and employee benefits generally, feel free to follow me on Twitter or Linkedin.  I’ll be posting more there.  You also can subscribe to this FMLA Insights blog on the right hand side of this page.  Just enter your address and I’ll email you my updates directly.

This article was originally printed on FMLA Insights on June 27, 2013.  Reprinted with permission.

About the Author:  Jeff Nowak is a management side attorney at Franczek Radelet P.C. and author of the FMLA Insights blog.

New Jersey Domestic Violence Leave Bill Receives Final Legislative Approval

Tuesday, June 11th, 2013

Sabrina_Sandhu_webLast week the full New Jersey General Assembly granted final legislative approval for bill A-2919/S-2177, known as the “New Jersey Security and Financial Empowerment Act” or “NJ SAFE Act”.  If signed into law by the Governor, the Act would allow eligible employees who are victims or whose family members are victims of domestic abuse or sexual assault to take up to 20 days of job protected leave per year to handle issues related to the abuse or assault. Specifically, the Act provides that leave may be taken to seek medical attention for injuries, obtain services from a victim services organization, obtain counseling, participate in safety planning, relocate or engage in other activities to ensure the safety of the employee or employee’s family member, seek legal assistance, and participate in legal proceedings.

Eligible employees under the Act would be required to take their leave within 1 year of the incident.  Eligible employees are defined as those employees who have been employed for at least 12 months, and for at least 1,000 hours during the immediately preceding 12 month period.  Prior to approving the leave of an eligible employee, an employer would be permitted to request documentation of the basis for the leave.  Additionally, employers may request that eligible employees first exhaust any accrued paid leave provided by the employer, or leave afforded by the Family Leave Act and federal Family and Medical Leave Act.  Employers with less than 25 employees are exempt from this proposed legislation.

Importantly, the Act provides for a civil cause of action against employers in alleged violation of its provisions.  Should this legislation become law, the effective date will be the first day of the third month following enactment, and employers will be required to display a conspicuous notice of employee rights and obligations under the Act. Please check back periodically for updates about this legislation.

This article was originally printed on NJ Labor and Employment Law on May 28, 2013.  Reprinted with permission.

About the Author: Sabrina Sandhu is an associate at Giordano, Halleran & Ciesla.  She counsels employers with regard to workplace policies and manuals, and general litigation avoidance.

FMLA Anniversary: Celebrating 20 Years of Strengthening Families

Saturday, February 9th, 2013

Anyone with common sense would agree that healthy families are essential to a robust economy. That’s why it’s worth celebrating the 20th anniversary of the Family Medical Leave Act on February 5; one of the most significant advances for working families in our nation’s history. In 1993, FMLA transformed the workplace and strengthened the American family by helping millions of workers secure job-protected leave to recuperate from a serious illness, give birth or adopt a new child, or take care of a seriously ill family member. Prior to FMLA, many people lost their jobs when these types of life events occurred. Workers have used FMLA more than 100 million times since its enactment during the Clinton administration.


Diane, a Denver teacher for ten years, was able to keep her job while battling cancer, thanks to the FMLA. The mother of a young son at the time, Diane said “I was able to take time off because I qualified for FMLA.  Because I [also] had access to paid sick days, and a paid sick leave bank, I was able to get some wage replacement while I was out for three months.”  Diane was one of the fortunate ones, because she had access to FMLA and a paid sick leave bank that helped keep her financially afloat.

As critical as FMLA continues to be in protecting jobs and families, there are major gaps in the law. FMLA’s biggest weakness is that it’s unpaid.  Seventy-eight percent of covered employees who need FMLA, don’t take it because they can’t afford to.  And almost half of all workers lack job protection under FMLA because they haven’t worked for their employer long enough, they’re not scheduled for enough hours, or the size of their company is too small to make them eligible. The definition of “family” also needs to be expanded beyond spouses, children and parents so that the law is more relevant to real peoples’ lives and caregiving responsibilities. Moreover, the reasons someone can take leave are severely limited in the law.  In addition to improving FMLA, paid sick days need to be expanded to cover more routine illnesses and preventive care that aren’t covered by FMLA.

Women in low-wage jobs are least likely to have any paid sick, personal, or vacation time at all, leaving one of the most vulnerable segments of our workforce unprotected. Ten percent of women who did take FMLA ended up on public assistance.

Sonya worked full-time as a medical interviewer for 11 years at a large hospital in Atlanta.  During her pregnancy, she saved up money totaling two months of expenses to help her pay her bills while she was on FMLA. But when Sonya’s son was born prematurely and placed in intensive care and she needed to take additional time off to care for her medically-fragile son, she used up her leave and savings pretty quickly. Even though Sonya had access to FMLA, she ended up on public assistance and struggled to make ends meet.

Unfortunately, many people are still forced to go to work when they need to be at home caring for themselves or their families. Americans agree that there’s nothing more important than taking responsibility and caring for your family members.  After 20 years, it’s time to make FMLA more affordable and accessible. Our country needs healthy and economically secure families to help fuel a strong, thriving economy.

To read additional stories from hardworking Americans who have benefited from FMLA, as well as those unable to do so because of a lack of accessibility or affordability, click here. Their voices make a strong case for strengthening and improving FMLA so that more of us are able to balance responsibilities at home and on the job.

This article was submitted by the new website 9to5.

About the Author: Linda Meric is the National Public Relations Coordinator at 9to5.

Why You Should Know Your Rights Under FMLA

Tuesday, August 14th, 2012

lizabethThere is a common misconception that the Family and Medical Leave Act only include provisions that apply to pregnancy and childbirth. In fact, there are many scenarios that working people face which could benefit from leave guaranteed under FMLA laws. It is important for all workers to be aware of FMLA and what it covers, because this 12 week allotment of unpaid leave may be of great assistance in many situations.

FMLA does cover issues pertaining to pregnancy and childbirth. But, what about other parenting situations? For example, what if an employee adopts a child? Or, what if a parent has a sick child? FMLA can be applied in these situations as long as the situation qualifies. Furthermore, FMLA does not have to be used as a single extended period of leave. If, for example, a parent has a child who must be taken to the doctor regularly for treatment, that parent may take leave in small increments to do this. Even if the time needed is only an hour, FMLA can be used. All an employee has to do is provide the employer with sufficient information to explain why the leave is needed and when it will be taken.

What if there is a family member other than a child who is having significant health issues? Can an employee have leave under FMLA to care for them? Unequivocally yes as long as the employee qualifies. To qualify the employee must work for a qualifying organization, have worked at least 1,250 hours in a year, give an explanation of why and when the leave is needed, and provide medical certification to prove the need for leave. When an employee needs time to care for the needs of a child, spouse, or parent, FMLA provides it. Leave may be used to take a family member for medical treatments, such as chemotherapy and dialysis. It may also be used to care for a family member with a chronic condition such as Alzheimer’s.

There are other situations where FMLA may be applied that are less well-known. For example, many people don’t realize that FMLA makes special provisions that apply to military personnel, including those in the Reserves or National Guard. If an employee has a spouse, child, or parent who is in the military, they may take FMLA leave to cover the needs that arise if that person is called to duty. These could include financial preparations, handling legal arrangements, and attending military functions. FMLA can also be used for the purpose of spending time with a serviceperson who is on short-term, temporary leave during deployment.

Lastly, people should remember that FMLA can be used in order to care for an employee’s own serious health issues. This doesn’t mean that you can use FMLA to recuperate from a cold. But, if you have a significant health situation arise, or if you have a chronic issue like asthma or arthritis, FMLA can help you. Employees will need to provide a medical certification form completed by a physician to document the need for leave.

If you need to take time off for a significant health reason, for a parenting issue, or for something relating to active military duty, you need to examine FMLA leave. The requirements to be eligible for the leave are surprisingly few.  They are:

• An employee must work for a covered employer
• An employee have worked for the employer for a total of 12 months
• An employee must have worked at least 1,250 hours over the previous 12 months
• An employee must work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles.

FMLA is an extremely helpful protection for all employees. Those who are not completely familiar with the laws should make an attempt to familiarize themselves with its contents. The Department of Labor provides employees with resources that explain FMLA. A small investment of time learning about the rules could be a lifesaver if the need for leave arises.

About the Author: Lizabeth C. S. Bell has a background in English and library science. Currently, she does research, analysis and writing for EmploymentLaw HQ, a site dedicated to providing employees with free information about their legal rights. Insatiably curious, Lizabeth is interested in pursuing further intellectual challenges and loves sharing new knowledge with others.

Employee Rights Short Takes: Hostile Work Environment, GINA, FMLA And More

Thursday, June 3rd, 2010

Here are a few Short Takes worth sharing:

Sex Bias Case Ends With Huge Punitive Damages Award

The drug maker Novartis was hit with $250 million in punitive damages last week because of discrimination against thousands of female sales representatives. Issues involved discrimination in pay, promotion and pregnancy. The punitive damages award represented 2.6 of the company’s 2009 $9.5 billion revenue. Earlier in the week, the jury awarded $3.3 million dollars in compensatory damages to 12 of the women who testified. The case is reported to be the largest discrimination verdict ever.

Genetics Discrimination

Complaints were filed against MX Energy, a Connecticut natural gas retailer, under Title II of  Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits genetic information discrimination in employment. The new federal law took effect on November 21, 2009.

GINA prohibits discrimination against employees or applicants because of genetic information. GINA also restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information.

The charging party Pamela Fink, claims that her employer fired her, despite years of glowing evaluations, after learning she tested positive for the breast cancer gene. Fink filed complaints against her employer with the Connecticut Commission on Human Rights and Opportunities and the federal Equal Employment Opportunity Commission. About 90 GINA-related complaints have been filed nationwide since the law went into effect. This should be an interesting case to follow. For more about genetic discrimination, read here.

Rights Of Undocumented Workers

With all the talk about illegal immigration, one might wonder what the rights are of the over eight million undocumented workers in this country. Carolina Nunez, a law professor at Brigham Young University’s Reuben Clark Law School, wrote an interesting article about the topic which you can read here. The piece appeared in the Spring 2010 issue  of the Clark Memorandum, a publication of BYU’s J. Reuben Clark Law School.

Should undocumented workers enjoy the same workplace protections that authorized workers enjoy? When and how much should immigration status matter? Does being here count for anything? It is no surprise that the answers are less than clear.

Recent Cases Of Interest From The Circuits

Plaintiff Wins FMLA Appeal: In Goelzer v. Sheboygan County, Wisconsin Dorothy Goelzer was fired from her administrative job with the county government after 20 years. Her supervisor told her about the termination decision two weeks before she was scheduled to begin two months of leave under the Family and Medical Leave Act.

Goelzer had taken a significant amount of authorized FMLA during the four preceding years to deal with her own health issues as well as those of her husband and mother. The defendants claimed she was fired because they wanted to hire someone with a “greater skill set.” The district court granted judgment against Goelzer.

The Seventh Circuit Court of Appeals reversed this month stating that comments suggesting frustration with her use of leave, Goelzer’s favorable performance reviews, and the timing of her termination could lead a jury to conclude that Goelzer was fired because she exercised her right to take FMLA. This is a very good case for those who are claiming an interference or retaliation claim under the FMLA.

Employers Liable For Third Party Harassment: In Beckford v. Department of Corrections, Melanie Beckford, and thirteen other female employees, claimed that the Florida Department of Corrections failed to remedy the sexually offensive conduct of inmates  — including the frequent use of gender-specific abusive language and pervasive gunning, the notorious practice of inmates openly masturbating toward female staff. The jury found in favor the plaintiffs and awarded each $45,000 in damages.

The Department appealed and contended that it could not be liable under Title VII unless its staff actively encouraged or participated in the harassment. The Eleventh Circuit affirmed the verdict and concluded that the jury was entitled to find the Department liable because it unreasonably failed to remedy the sexual harassment by its inmates. The Court said:

It is well established that employers may be liable for failing to remedy the harassment of employees by third parties who create a hostile environment. …It makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer.

Employees are often harassed at work by individuals who are not employees. This case, which holds that employers are liable for harassment by third parties, is an important affirmation of this particular aspect of employer liability under Title VII.

images: www.hivplusmag.com charityrisk.squarespace.com

*This post originally appeared in Employee Rights Post on May 24, 2010. Reprinted with permission from the author.

About the Author: Ellen Simon: is recognized as one of the leading  employment and civil rights lawyers in the United States.She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

FMLA Retaliation Victim Wins Appeal In Sixth Circuit

Tuesday, February 16th, 2010

Kmart Employee Fired For Taking Medical Leave Wins Family and Medical Leave Act Appeal

You would think most employers know that you’re not supposed to fire someone because they take a medical leave of absence – but it looks like K-Mart may have missed the boat.

A sales clerk at one of its Michigan stores who lost her job for taking time off after surgery will get her jury trial on a Family and Medical Leave Act retaliation claim according to the Sixth Circuit Court of Appeals opinion last week in Cutcher v Kmart Corporation.

Here’s what happened in the case.

The Facts

Susan Cutcher worked as a full-time hourly sales clerk at Kmart for many years. (Kmart calls these employees “associates”)  Her performance evaluations were good to excellent.

In 2002, she received an overall rating of “exceptional,” the second highest rating available that year.  In 2003, she again received a rating of “exceptional,” the highest possible rating in that year’s appraisal.

In 2004, her rating dropped from “exceptional” to “exceeds expectations,” the second highest rating possible. In 2005, she again received an overall rating of “exceeds expectations.”

The 2005 review  noted: “Susan usually is able to provide good, friendly, customer service, her work is usually very well done—and accurate.”

In early November 2005, Cutcher learned that she needed surgery. Her doctor indicated that she required six weeks off work after surgery and signed the necessary forms which Cutcher then submitted.

In December of 2005, while Cutcher was on leave, Kmart announced a nationwide reduction in force (“RIF”).  The Port Huron Michigan store, like others, was required to cut a number of associate positions.

Each store received guidelines as to how it would go about making the cuts. The guidelines included an “Associate Performance Recap Form” which included :

• the same four performance categories as the annual evaluations: customer service, teamwork, demonstrated work habits, and effectiveness in position
• consideration of  the employee’s most recent annual appraisal rating in calculating an employee’s score
• a requirement that the stores provide an explanation in the comments section — along with documentation — of a significant change in the employee’s score when compared to their annual appraisals
• a statement  that those on a LOA (leave of absence) should be included in the selection process but that the fact of a LOA should not be considered as a rating factor

When Cutcher was evaluated for the RIF, she received lower ratings than she received in the last performance appraisal for the same categories. In addition, the following comment appeared next to her name: “Poor customer and associate relations. LOA.”

The last evaluation was just twenty days earlier, and no performance issue occurred in the interim, nor was there any documentation to substantiate a lower rating. The only employment event regarding Cutcher was her leave of absence.

The negative evaluation and low scores caused Cutcher to be selected for termination. Had she been evaluated consistently with her last evaluation of November 15, 2005 –just twenty days earlier — her ranking would have been high enough to avoid the RIF.

When Cutcher returned from medical leave to active status on January 23, 2006, she was greeted with a pink slip. Her position was not eliminated. It was given to another employee.
Cutcher filed a lawsuit in federal court against Kmart claiming that Kmart violated the FMLA by interfering with her FMLA leave and retaliating against her for taking FMLA leave.

The District Court Finds For Kmart

Under the FMLA, an eligible employee:

• may take twelve week s of unpaid leave in certain situations, including a serious medical condition
• is entitled to return to his or her position or to an equivalent position held by the employee when the leave commenced
An employer may not:
•  interfere with, retrain or deny the exercise of or attempt to exercise any FMLA right  29 U.S.C.  S.2615(a)(1)
•  retaliate against an employee for invoking his or her right to take FMLA 29 U.S.C. S.2615 (a)(2)

Kmart argued that it would have fired Cutcher even if she had not been on FMLA leave. The district court agreed and threw out the case on summary judgment. Cutcher appealed.

The Sixth Circuit Court Of Appeals Reverses

The FMLA Interference Claim

Cutcher argued both in the district and the Court of Appeals  that a jury question was created as to whether she would have been fired had she not take FMLA leave because of:

• Kmart’s post-hoc rationalization of their lower RIF appraisal score, in light of the fact that there had been no prior documented complaints against her, and
• the  “LOA” notation written n the comment section of the Asssociate Performance Recap Form

The Sixth Circuit agreed:

Given Cutcher’s prior annual appraisal score, the minimal amount of time that passed between her most recent annual appraisal and the RIF appraisal, Kmart’s admission that Cutcher’s performance did not change during that short period of time, the inclusion of the ‘LOA” notation on the Associate performance Recap Form, and the lack of any documented evidence demonstrating a prior concern with her job performance, a jury could infer that her leave status impacted her RIF appraisal ratings, thus leading to her termination.

The FMLA Retaliation Claim
A FMLA retaliation claim requires a plaintiff to establish that:

• she was engaged in an activity protected by the FMLA
• she suffered an adverse employment action
• there was a causal connection between her protected FMLA activity and the adverse employment action

If this showing is made, the burden shifts to the employer to establish a legitimate, non-discriminatory reason for the adverse employment action. If the employer does this, the burden  shifts back to the plaintiff to prove that the employer’s reason is pretextual – in other words, not true or not worthy of belief.

Cutcher argued, and the Sixth Circuit agreed, that the same evidence which supported the connection between her FMLA leave and the termination demonstrated that Kmart’s proffered legitimate reason for firing her was pretextual.

It stated:

Specifically, the following facts show pretext: the temporal proximity between her leave and the termination; the lack of documentation to corroborate her lower RIF appraisal scores; the lack of temporal proximity between the events that Kmart alleges justified her lower RIF appraisal scores and her termination; her documented favorable work history; the discrepancy between her prior annual appraisal an her RIF appraisal, and the “LOA” notation next to Cutcher’s name in the Impacted Associates Form.

The district court rejected these proffered reasons, but Cutcher has produced sufficient evidence – listed above – from which a jury could conclude that Kmart used the RIF as a means of terminating her. ……

Although she has not presented direct evidence to support that argument, the circumstantial evidence creates a question of material fact for the jury.

For the reasons stated above, we REVERSE the judgment of the district court ….


There are two things that strike me about this case.

For one, it is hard for me to imagine that someone at Kmart who had some understanding of employment law didn’t realize that firing someone on medical leave — who consistently had very good employment evaluation — might create a legal problem (or perhaps they just didn’t care for one reason or another).

Two, although I have seen this so many times I couldn’t begin to count, it still angers me when a district court embraces the employers version of the evidence,  completely discounts the employees evidence including any inferences which may be drawn from it, and grants judgment in favor of the company.

Even though the Supreme Court sent a crystal clear message in the Reeves v Sanderson Plumbing case (10 years ago ) that weighing of evidence by the district court is wrong  and juries are supposed to decide these cases — not the federal judges or their law clerks — this pernicious anti-employee summary judgment practice stubbornly persists.

image: 4.bp.blogspot.com

*This post originally appeared in Employee Rights Post on February 8, 2010. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome

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