In 2016, the U.S. placed dead last in a Pew Research study list of 41 countries that compared parental leave laws, where it was the only country that does not mandate any paid leave for new parents.
Nationally, it seems like maternity leave laws are clear—but the rules for fathers are not set in stone. The lack of clarity surrounding parental leave for male employees has created uncertainty at home and in the workplace—causing employers from both the private and public sectors to realize the importance of accommodating the needs of working families.
Under current federal law, most employees can take up to 12 weeks of unpaid leave under the Family and Medical Leave Act (FMLA) when they become new parents. However, to be eligible for leave under FMLA, employees must have worked at least 1,250 hours over 12 months, and their employer must employ more than 50 people. These requirements leave 95% of low-wage workers with no option to take paid family leave for a new child, according to Tim Shand, global co-coordinator of the MenCare Campaign.
Recently, both Democrats and Republicans have addressed the issue of paid parental leave at the federal level. During President Trump’s presidential campaign and first State of the Union speech, he referenced the need for a national law on the topic. Sen. Marco Rubio (R-Florida) proposed a plan to allow parents to use their Social Security funds to pay for their parental leave. Similarly, Sen. Kirsten Gillibrand (D-New York) and Rep. Rosa DeLauro (D-Connecticut) suggested a family leave bill to be funded by small employee or employer payroll contributions.
But while FMLA provides a baseline for unpaid parental leave for both mothers and fathers, federal law does not yet comprehensively address paid parental leave—leaving individual states and employers to take matters into their own hands.
California, New Jersey, Rhode Island, New York, Washington, D.C. and Washington, for example, have all mandated paid parental leave laws for female and male employees, enabling employees to receive 55-90% of their wages for up to six weeks for parental leave.
Earlier this month, Washington, D.C. started collecting increased taxes from employers to help fund the implementation of the Universal Paid Leave Act, also known as “paid FMLA.” This law provides full-time and part-time employees, including those at nonprofit associations, up to 90% of their wages and up to eight weeks of paid leave for the birth or adoption of a child. To qualify for paid FMLA, an employee needs to be actively employed in Washington, D.C., even if they reside in a different city or state. This program will be funded by a payroll tax increase of 0.62%.
Many major companies have also taken the burden upon themselves to get ahead on parental leave trends. For example, Johnson & Johnson increased parental leave time to up to eight weeks of paid leave during the first year after a child’s birth or adoption. Additionally, the Gates Foundation is now offering new mothers and fathers 24 weeks of paid parental leave and a $20,000 stipend when they return to work—unprecedented in the U.S.
When companies fail to keep their policies up to date or apply their policies consistently, they may expose themselves to liability. Consider JPMorgan Chase, which in July 2017 faced a first-of-its-kind class action lawsuit initiated by a male employee who claimed fathers were being denied full parental leave benefits because of their gender. JPMorgan had been allowing mothers to take up to 16 weeks as primary caregivers and fathers up to two weeks as non-primary caregivers. The class action stated that fathers who attempted to take up to 16 weeks off for parental leave were prevented from doing so because, unlike mothers, JPMorgan did not consider fathers “primary caregivers.”
In May, JPMorgan agreed to pay fathers who were denied the full paid parental leave between 2011 and 2017 in a settlement of $5 million. Since then, the company has changed its policy so that both men and women may designate themselves as a child’s primary caregiver and be equally granted full paid parental leave.
Last year, in another parental leave case, Estee Lauder agreed to a $1.1 million settlement with a class of fathers. As part of the settlement, the company agreed to treat fathers in a non-discriminatory manner in its paid parental leave policy.
Given the changing landscape of parental leave in state laws and courtrooms, now may be a good time for your agency to review how you address parental leave and make changes to your policies you deem necessary.
Zahra Syed is former Big “I” legal counsel intern.