Democrats, liberals, progressives, and the White House Summit on Working Families don’t think the Family and Medical Leave Act goes far enough.
The Family and Medical Leave Act (FMLA) was passed in 1993 by the 103rd Congress — the only Congress with a Democratic majority that Bill Clinton had. The legislation (H.R.1) did, however, have some Republican support, including that from Sen. John McCain.
According to the U.S. Department of Labor, the FMLA “entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.” Covered employers include private companies with fifty or more employees and government agencies and public schools regardless of the number of employees.
Eligible employees are entitled to twelve workweeks of leave in a twelve-month period for:
- the birth of a child and to care for the newborn child within one year of birth;
- the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
- to care for the employee’s spouse, child, or parent who has a serious health condition;
- a serious health condition that makes the employee unable to perform the essential functions of his or her job;
- any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.”
The leave is increased to twenty-six workweeks if necessary to care for a family member who is in the military and has a serious injury or illness. In light of the recent U.S. Supreme Court decision in the case of United States v. Windsor, which found unconstitutional Section 3 of the Defense of Marriage Act, the Labor Department’s Wage and Hour Division has proposed to revise the definition of “spouse” in the FMLA to include “eligible employees in legal same-sex marriages.”
The key thing to note about the FMLA is that the leave is unpaid.
Convened on June 23 in Washington, D.C., the White House Summit on Working Families was hosted jointly by the Center for American Progress (a progressive think tank), the U.S. Department of Labor, and the White House Council on Women and Girls. The summit convened “businesses, economists, labor leaders, legislators, advocates, the media, and ordinary citizens for a discussion on issues facing the entire spectrum of working families — from low-wage workers to corporate executives; from young parents to baby boomers caring for their own aging parents.”
In addition to the subjects of the minimum wage, equal pay, job quality, job access, workplace flexibility, child care, and workplace discrimination, one of the topics addressed at the summit was paid leave:
Many workers are unable to take the time they need to care for their families or themselves because they lack any form of paid time off. Strategies to provide different forms of paid leave — paid family and medical leave or paid sick days — can help both women and men, particularly those in low-wage jobs, take time off when necessary without leaving their jobs and putting their economic stability at risk.
The subject of paid leave was brought up by Barack Obama in a speech he delivered at the summit:
The same goes with paid family leave. A lot of jobs do not offer it. So when a new baby arrives or an aging parent gets sick, workers have to make painful decisions about whether they can afford to be there when their families need them the most. Many women can’t even get a paid day off to give birth. Now, that’s a pretty low bar. You would think — that we should be able to take care of.
For many hourly workers, taking just a few days off can mean losing their job. And even though unpaid family leave is available, if you can’t pay the bills already the idea of taking a couple days off unpaid may mean you can’t make the mortgage payment or the rent payment at the end of the month.
For several years now, Democrats, liberals, and progressives have been calling for the unpaid leave in the FMLA to be changed to paid leave. Since the passage of the FMLA, some states have enacted similar statutes that broaden its scope, including mandating that employers offer paid maternity and paternity leave. But according to the Labor Department’s Bureau of Labor Statistics, only about 13 percent of full-time workers receive paid family leave.
Victoria Budson, a speaker at the summit who runs the Women and Public Policy Program at Harvard University, maintains that one of the dubious distinctions of the United States is that it is “the only industrialized nation in the world that has no mandatory paid leave.” And, “You know, this is a real black eye for the United States,” says Pamela Stone, a sociologist at Hunter College. Former House Speaker Rep. Nancy Pelosi (D-Calif.) recently wrote that California’s mandatory paid family leave should be extended to the nation:
Expanding paid family leave to all Americans is a central pillar of House Democrats’ economic agenda for women and families.
Paid leave is a keystone of an agenda built to empower all of America’s women, along with raising the minimum wage, insisting on equal pay for equal work and providing affordable, quality child care.
“It’s time to upgrade the Family and Medical Leave Act,” says Nancy Kaufman, CEO of the National Council of Jewish Women. Like Nancy Pelosi, she is pushing the Family and Medical Insurance Leave Act, or FAMILY Act (H.R.3712), which was introduced in the U.S. House late last year. It mandates that employers provide qualified employees with a maximum of 12 weeks of paid leave at two-thirds of their salary. The FAMILY Act would be paid for by a 0.2 percent increase in both the employer and employee share of the FICA tax. The money would go into an independent trust fund within the Social Security Administration.
So, should family leave be paid or unpaid?
Democrats would generally say that family leave should be paid. They always oppose market solutions while favoring a paternalistic nanny state, government mandates, and government regulation of business. Republicans would generally say that family leave should be unpaid. However, that does not mean that they always favor market solutions and oppose a paternalistic nanny state, government mandates, or government regulation of business.
Although Republicans may say they are against government-mandated paid leave, they generally have no problem with government-mandated unpaid leave. They also generally don’t have a problem with the Fair Labor Standards Act that instituted a minimum wage. But once it is accepted as a legitimate function of government to establish a minimum wage that employers must pay, no reasonable and logical argument can be made against the government’s mandating that employers provide family leave or any other fringe benefit. Both the Family and Medical Leave Act and the Fair Labor Standards Act could have been repealed when the Republicans had a majority in the House and Senate for more than four years under the Republican president George W. Bush. That is, if the Republicans had any real philosophical objection to them.
Contrary to Democrats, Republicans, and most of their liberal and conservative cousins, libertarians say that the question of whether family leave should be paid or unpaid is one that has no answer. It is a question no different from asking whether Ford should offer Mustangs in lime green or whether Target should change the color of its logo from red to blue. The question of whether family leave should be paid or unpaid is one that only companies, businesses, and employers should be considering. Just like the questions of vacation pay, holiday pay, sick leave, jury-duty pay, paid time off, and any other fringe benefit.
What advocates of both paid and unpaid family leave are saying is that the federal government should be dictating the type and nature of fringe benefits that employers provide their employees.
But since when does the federal government have the authority to dictate those things? It is certainly an unconstitutional and illegitimate function of government to have anything to do with fringe benefits or employer-employee relations.
And what the governments of other countries do should have no bearing on U.S. government policies. After all, in some countries it is illegal for women to drive, it is illegal for anyone to be a homosexual, and blasphemy is punishable by death. Some countries have socialized medicine, and workweeks shorter than 40 hours, or are full-blown cradle-to-grave welfare states. Some countries have state-owned television and radio stations, speech restrictions, and press censorship.
To say that employers providing some form of family leave is a good and important thing for families is not saying anything. From the perspective of employees, of course it is. It is always good, from the perspective of employees, if they can be paid to not work or to stay home. Just like they think it is always good for them if they can be paid $50 an hour, have three months’ paid vacation a year, and unlimited sick leave. But family leave, whether paid or unpaid, is not necessarily good for employers. Like any other fringe benefit they choose to offer, it comes with a price.
Leave should be left to the market.
To acquire and retain quality employees, most employers offer employees a variety of fringe benefits — vacation pay, sick leave, paid time off, holiday pay, jury-duty pay, child care, and discounts on food, merchandise, or services — none of which is mandated by the government. It should be no different with family leave. Whether an employer offers it, whether it is paid or unpaid, and what the length of it is, is a matter to be settled by agreement between the employer and employee.
There should be no government-mandated family leave any more than there should be any other government-mandated fringe benefits.
And of course, there should not be any White House Council on Women and Girls, Family and Medical Leave Act, Family and Medical Insurance Leave Act, Fair Labor Standards Act, Bureau of Labor Statistics, or even a Department of Labor in the first place.
