February 23, 2011

II. US Work-Family Supports and Disparate Access

In the United States, laws to support workers with family care obligations are minimal. There is no federal guarantee of paid family leave. Just two states offer such leave, and six jurisdictions offer temporary disability insurance to pregnant women and new mothers. There is no national law establishing minimum standards for paid sick days. While there is some progress in the law when it comes to other work-family supports, such as workplace accommodation for breastfeeding, significant gaps remain. Moreover, explicit legal protections against discrimination on the basis of family care-giving responsibilities are absent in federal law and only slowly emerging in state and local laws.

Many reform proposals are under discussion, and there is considerable public support for change. Opinion polls indicate that most Americans want policy reform to alleviate the conflict between work and family responsibilities. A 2010 survey of registered voters found that 76 percent of respondents endorsed laws to provide paid leave for family care and childbirth, 69 percent endorsed paid sick day laws, and 82 percent said they would support legislators who worked for stronger laws against discrimination and unfair treatment at work. Sixty-four percent of all respondents supported policies to give workers the right to request a flexible schedule, as did 70 percent of women, and 71 percent of parents.[22] Older surveys show similar levels of support: 76 percent of respondents in a 2007 national survey favored expanding the Family and Medical Leave Act (FMLA) to offer paid leave.[23] 

Federal Laws and Bills

The federal Family and Medical Leave Act of 1993 guarantees only unpaid  family leave for the birth and care of a newborn child, for adoption and foster-care placement of a child, to care for an immediate family member (spouse, child, or parent) with a serious health condition, and for an employee to take their own medical leave.[24]  The maximum leave period is 12 weeks per year (recently extended to 26 weeks for military families). It applies to all public agencies, public and private elementary and secondary schools, and companies with 50 or more employees. Employees are eligible if they have worked for their employer for a total of 12 months, at least 1,250 hours over the past year, and at a location where the company employs 50 or more employees within 75 miles. Leave under this act is job-protected and group health insurance benefits must be maintained during leave.

Only about half of the US workforce is eligible for FMLA leave, and some estimates show that only about 20 percent of new mothers work for covered employers and are eligible for FMLA leave.[25] In 2010 the Department of Labor issued an interpretation that clarified that an employee who assumes the role of caring for a child “in loco parentis” has a right to FMLA leave regardless of the legal or biological relationship.[26] This is particularly significant for parents in same-sex relationships, who have often been denied leave to care for their family. However, unmarried same-sex partners (even those in legally recognized civil unions or domestic partnerships) are still not entitled to FMLA leave to care for one another. Moreover, employer compliance with the FMLA is problematic: a 2008 national survey of employers found that between 18 and 21 percent of respondents were not in compliance.[27]

The Pregnancy Discrimination Act of 1978 does not require paid family or maternity leave, and provides no job protection after leave. Instead, it regulates employers who provide disability benefits for workers on leave, including temporary disability insurance.[28] It mandates that if disability insurance is offered for other purposes, it must cover pregnancy, childbirth, and pregnancy-related medical conditions. The act also makes it unlawful for employers to fire, refuse to hire, deny a promotion, or deny fringe benefits to a woman because she is pregnant. An employee or applicant seeking to prove a case of pregnancy discrimination must show that the employer knew of the pregnancy, and, because of the pregnancy, took some adverse employment action or denied some benefit afforded to other employees. Charges must be filed with the Equal Employment Opportunity Commission (EEOC) within a short time limit (generally 180 days).

Federal anti-discrimination law does not explicitly prohibit discrimination on the basis of family responsibilities, though cases have been brought under other legal theories (including discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964).[29] Under an executive order, the federal government does prohibit employment discrimination against federal government employees on the basis of their “status as a parent.”[30] In addition, the EEOC has issued guidance explaining how discrimination against workers on the basis of their family care-giving responsibilities might constitute discrimination based on sex, disability, or other characteristics protected by federal employment discrimination laws.[31]

Federal law does little to promote workplace flexibility for workers with family responsibilities, such as protecting workers from retaliation for requesting flexible schedules or other accommodations.[32] Breastfeeding support made progress in 2010 with the adoption of the national health care act.[33] This requires that employers provide reasonable break time to express breast milk for one year after childbirth and provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public” for expressing milk. Employers with fewer than 50 employees are not subject to the break time requirement if compliance would impose an undue hardship. The law covers only workers who are not exempt from the Fair Labor Standard Act (FLSA) minimum wage and overtime laws, and thus covers mainly hourly workers (e.g. retail workers, factory workers, and restaurant workers). FLSA exempt workers, often managerial level, are not covered.[34] 

From January 2009 to January 2010 the 111th Congress (and many prior sessions) saw bills that would establish important work-family supports, including three (see below) related to paid family leave. The sponsors maintained that these were needed in a recession to protect workers’ incomes during family leaves, and to support family health and competitive business.

  • The Family Leave Insurance Act would guarantee workers up to 12 weeks of paid leave for time off under the FMLA.[35] The bill calls for wage replacement on a sliding scale funded by employer and employee contributions of 0.1 to 0.2 percent of the employee’s income. It would cover all non-federal employers with two or more workers.
  • The Family Income to Respond to Significant Transitions (FIRST) Act would provide up to $1.5 billion for grants to states to develop and implement paid family and medical leave programs.[36] The grants would fund paid family leave of at least six weeks.
  • The Federal Employees Paid Parental Leave Act would guarantee federal employees four weeks of full pay while on FMLA leave for the birth or adoption of a child.[37]

These bills garnered few Republican co-sponsors, and after the 2010 congressional elections, prospects for enactment appear bleak.

Bills to promote workplace flexibility in recognition of work-family conflicts, and to protect workers requesting flexible work conditions, were also introduced in the 111th Congress. These include the Working Families Flexibility Act, which would establish a right to request flexible work terms and conditions, including hours, times, and locations for work, for some employees working for establishments with at least 15 employees. The law would govern processes for employers to consider such requests, and would prohibit discharge or discrimination against employees making a flexibility request.[38]

Other bills were tabled that would help mitigate work-family conflicts and related gender inequality. One was the Breastfeeding Promotion Act, which would establish that breastfeeding and expressing breast milk at work are protected conduct under anti-discrimination laws and provide tax incentives to employers providing appropriate conditions for breastfeeding or pumping.[39] Another is the Healthy Families Act, which would enable workers to earn up to seven paid sick days per year to recover from short-term illness, to care for a sick family member, to pursue routine medical care, or to seek assistance related to gender-based violence.[40] A third bill, which passed the House but failed in the Senate, was the Paycheck Fairness Act, which would have allowed victims of gender-based wage discrimination to receive compensatory and punitive damages, ensured that women can access the same remedies available for other forms of wage discrimination, and increased transparency about salary information.[41] 

The Obama administration supports many of these bills and has stated that promotion of workplace flexibility is a priority.[42] The White House Council on Women and Girls hosted a forum on workplace flexibility with business owners, corporate leaders, workers, policy experts, and labor leaders in 2010, and the Department of Labor is hosting a national dialog on workplace flexibility throughout the country in 2011.[43] The White House Middle Class Task Force includes improving work-family balance as one of its top five priorities.[44] The Department of Labor will also update its surveys on the FMLA in 2011.

State Laws and Bills

National reforms would offer more coherent work-family supports, but in the current political environment, state reforms are more realistic. Several important work-family reforms have occurred at the state level and other proposals are gaining momentum, yet state law is far from providing comprehensive or equitable work-family supports.

In terms of paid leave for new parents, a handful of states offer some form of wage replacement through state programs. Temporary disability insurance (TDI) programs in California, New Jersey, New York, Rhode Island, Hawaii, and Puerto Rico allow biological mothers to draw on public insurance for pregnancy and childbirth. Since TDI programs cover the “disability” of pregnancy-related complications, giving birth, and recovering from childbirth, fathers and adoptive mothers are generally not eligible for this insurance to care for a new baby. The programs are funded through payroll tax contributions, and benefits are typically calculated as a capped percentage of weekly wages. The maximum weekly benefits ranged from just over $100 in Puerto Rico to almost $1,000 in California in 2010. Benefit duration for pregnancy or childbirth is generally about six weeks or slightly longer depending on the medical circumstances.

In addition, California and New Jersey offer state paid family leave insurance. These programs are major innovations in the United States. Washington State also adopted a paid parental leave program, but has not yet implemented it.[45] California enacted paid family leave in 2002 and implemented its program in 2004.[46]  Workers covered by California disability insurance can get up to six weeks of pay during leaves to care for a seriously ill child, spouse, parent, or registered domestic partner, or to bond with a new child. The act covers part-time workers and small business employees. The weekly benefit amount is approximately 55 percent of earnings, up to a cap of $987 per week (as of 2010). The program is financed together with California’s broader short-term disability insurance through a 1.1 percent withholding tax on employees (not employers). All employees who pay into the short-term disability fund also pay into the family leave fund.

New Jersey’s paid family leave insurance program was enacted in 2008 and became operational in 2009. Workers there are entitled to six weeks of paid leave to care for a new baby or seriously ill family member. They can receive two-thirds of their weekly pay, up to $561 (as of 2010). This program is funded by employee payroll taxes of .0012 percent of the taxable wage base, capped at $35.64 per year in 2010. The New Jersey program also covers part-time workers and small business employees.[47]

In both California and New Jersey, the paid family leave insurance programs faced fierce opposition when proposed, especially from business lobby groups. But a few years into their implementation, the opposition has largely disappeared. New research on the California paid family leave program, involving a survey of 500 workers and 253 establishments, found that businesses reported largely positive or neutral effects. The vast majority of establishments responded that the program had minimal impacts on their business operations.[48] They said that the program had a “positive” or “no noticeable” effect on productivity (88.5 percent), profitability and performance (91 percent), turnover (92.8 percent), and employee morale (98.6 percent).[49] Smaller establishments were less likely to report negative effects than large ones.[50] Most (86.9 percent) said that the program had not resulted in any cost increases.[51] 

California Paid Family Leave Insurance Program Results

 Research published in 2011 on the California paid family leave program, based on a survey of 500 workers and 253 establishments, found largely positive or neutral effects:

  • The majority of establishments responded that the program had minimal impacts on their business operations.
  • Business establishments said that the program had a “positive” or “no noticeable” effect on:
    • productivity (88.5 percent)
    • profitability and performance (91 percent)
    • turnover (92.8 percent)
    • employee morale (98.6 percent)
  • Smaller establishments were less likely to report negative effects than large ones.
  • Most establishments (86.9 percent) said that the program had not resulted in any cost increases.
  • Among workers with “low-quality” jobs, 83 percent of those who received paid leave benefits returned to their employer, compared to 74 percent of those who did not.
  • The median duration of breastfeeding doubled for all new mothers who used the program, from five to eleven weeks for mothers in “high-quality” jobs and from five to nine weeks for those in “low-quality” jobs.
  • The program increased the likelihood of breastfeeding initiation among women with “low quality” jobs: 92.5 percent of those who used the program initiated breastfeeding, compared to 83.3 percent of those who did not get paid leave.

The official in charge of New Jersey’s paid family leave insurance program said that when he asks business leaders about burdens of the program, the response is “deafeningly silent.”[52]  In fact, he said many employers are now enthusiastic: “It comes up a lot that people say they would give time off anyway…. They say, ‘as a good employer I would do this [grant leave] to help employees. It’s nice to see they can get a few dollars as well.’”[53]

There is now momentum for state-level paid family leave or parental leave in other states. In 2010, bills on paid leave were introduced in 10 states: Arizona, Hawaii, Massachusetts, Missouri, New Hampshire, New York, Oregon, Pennsylvania, Texas, and Vermont.[54] Most proposals would establish four to six weeks of paid leave with wage replacement of a few hundred dollars per week or a capped percentage of the worker’s wage. Federal grants to support such initiatives were under consideration in 2010, with the Senate appropriations committee voting in favor of a $10 million grant program.[55] Civil society groups, such as the National Partnership for Women and Families, 9to5, Momsrising, the Family Values @ Work Consortium, and A Better Balance support these initiatives, and several have drawn up a model paid family leave law.[56]   

There is also some progress at the state level when it comes to legislation for other forms of work-family supports, For example, two dozen states have laws on breastfeeding and the workplace.[57] As of late 2010, six states were considering legislation on flexible work hours and conditions, and 30 states were considering legislation on sick leave, mostly to guarantee paid sick days.[58]

Only Alaska and the District of Columbia have explicit state legislation to protect workers against employment discrimination on the basis of family care-giving responsibilities, although other states are considering such legislation.[59] There are municipal or other local laws on family responsibilities discrimination in at least 22 states, and an increasing number of lawsuits.[60] Nineteen states were considering bills on equal pay for men and women as of late 2010.[61] 

Opposition to Law Reform and Counterarguments

The main arguments against law reform to establish work-family supports—especially paid family leave—is that it could be expensive for employers or taxpayers and diminish productivity by encouraging absences. However, there is strong evidence to refute these arguments, including empirical research from other countries.[62]

Benefits to Business and the Economy of Paid Leave

  • One study found that 94 percent of leave-takers who received full pay during family leave returned to the same employer, compared to 76 percent of employees who took unpaid leave.
  • Paid leave can avoid the cost of employee turnover, which can range from 20 percent of annual pay for younger workers to 40 percent for more senior employees.
  • A study on productivity growth in 19 Organization for Economic Co-Operation and Development (OECD) countries from 1979 to 2003 found that paid parental leave had a significantly greater positive effect on productivity than unpaid leave.
  • Instituting 15 weeks of paid maternity leave in countries (such as the US) without paid leave could increase multifactor productivity by 1.1 percent.

Employers need not shoulder the direct cost of funding paid family leave. If states follow the lead of California and New Jersey, there would be no employer contribution to the leave insurance funds. In those states, and in most of the bills under consideration, family leave insurance is exclusively financed via employee-paid small payroll tax deductions. Employer, and even government, contributions are certainly a possibility. But California and New Jersey have shown that paid family leave insurance can be financed with no employer contribution. 

In fact, work-family supports like paid family leave can benefit, rather than burden, employers. Studies show, for example, that pay during family leave increases the chance a worker will return to the same employer. One study found that 94 percent of leave-takers who received full pay during family leave returned to the same employer, compared to 76 percent of employees who took unpaid leave.[63] Another study of US women workers found that lengthier childbearing leave (combined paid and unpaid leave) had a strong deterrent effect against women quitting the labor force or changing jobs postpartum.[64] New research on California’s paid family leave program found it improved employee retention. The study distinguished between workers with “high quality” jobs that paid more than $20 per hour and had employer-paid health insurance, and “low quality” jobs that did not meet those criteria. It found workers with high quality jobs were more likely to return to the same employer. Among those with low-quality jobs, 83 percent of those who received paid leave benefits returned to their employer, compared to 74 percent of those not paid.[65] 

Employers can also avoid recruitment and training expenses by reducing turnover that results from workers quitting due to insufficient work-family supports.[66] While varying widely across fields and job positions, many estimates find turnover to be costly—ranging from 20 percent of annual pay for younger, less experienced, workers to 40 percent for more senior employees.[67]  Estimates from before the most recent financial downturn were even higher: one study from 2006 estimated that turnover costs for hourly workers amounted to 50 to 75 percent of annual pay, and 150 percent of salaried workers’ pay.[68] 

Work-family support policies can also foster employee loyalty and commitment, which may in turn boost productivity and profitability. For example, one study on productivity growth in 19 Organization for Economic Co-Operation and Development countries from 1979 to 2003 found that paid parental leave had a significantly greater positive effect on productivity than unpaid leave. The study also estimated that instituting 15 weeks of paid maternity leave in countries (such as the US) without paid leave could increase multifactor productivity by 1.1 percent in the long run.[69]

Although the FMLA does not require paid leave, there are valuable lessons to be learned from how even unpaid leave has impacted employers. In the 2000 FMLA survey, 90 percent of covered establishments reported that the FMLA had either a positive or neutral effect on profitability and growth.[70]  Of the businesses that experienced cost savings from the FMLA, 77 percent said decreased turnover was the number one reason for the savings.[71] The majority of employers surveyed said that implementation was “easy” or “somewhat easy.”[72] 

Although opponents of work-family supports cite particular burdens on small businesses, there are clear benefits for them as well. For example, where paid family leave insurance programs are available through a state fund, as in California and New Jersey, small employers benefit from a leveled playing field with larger employers for recruitment. Larger employers are usually better placed to directly fund paid leave.[73] Enabling workers at small businesses to access a state family leave insurance fund would give employers a better chance to recruit talented employees. Employers will also save on salary costs during leave if employees can access state insurance funds, freeing up funds to hire substitutes. As noted above, the 2011 survey on California’s paid family leave system found that small businesses were even less likely than businesses with over 100 employees to report any negative effects of the program.[74]  

Low and Disparate Access

Since US law does so little to establish work-family supports, their availability is left largely to employers. The idealized notion is that private markets will foster such supports as employers compete for good workers. In reality, however, huge swaths of the workforce have no such supports, and there are enormous disparities in access.

Low and Disparate Access to Paid Leave

  • According to the US Bureau of Labor Statistics, only 11 percent of “civilian” workers had paid family leave as of March 2010.
  • Civilian workers in the highest 25 percent of average wages are three times more likely to have paid family leave benefits than workers in the lowest 25 percent.
  • Civilian workers in the highest 10 percent of wages are six times more likely to have paid family leave than those in the lowest 10 percent.
  • Full-time civilian workers are more than twice as likely as part-time workers to have paid family leave.
  • Only 67 percent of US civilian workers (22 percent for the lowest income workers) have paid sick leave, and more than a quarter lack paid vacation days.
  • The percentage of employers reporting that they offered full pay during leave after childbirth fell from 27 percent in 1998 to 16 percent in 2008.

Data on access to paid family leave—one of the most important work-family supports—show that overall coverage is low and that disparities among workers are enormous. According to the US Bureau of Labor Statistics (BLS), only 11 percent of “civilian” workers (which it defines as those in the private nonfarm economy except those in private households, and workers in the public sector, except the federal government) had paid family leave as of March 2010.[75]  This figure reflects benefits specifically identified as paid family leave, rather than all forms of paid leave that might be applied during time off work to care for family (such as paid sick and vacation days). Some workers are also eligible for temporary disability insurance, which covers pregnancy and childbirth related “disability,” but just 37 percent of civilian workers have access to such insurance.[76] 

For the many workers not entitled to temporary disability insurance or to paid leave for childbirth or adoption, benefits such as paid sick or vacation time offer the only prospect of pay during leave to care for a new child. Unfortunately, only 67 percent of US civilian workers (22 percent for the lowest income workers) have paid sick leave, and more than a quarter lack paid vacation days.[77] 

Trends on employers voluntarily offering paid family leave are not encouraging. A national study of employers found that the percentage of employers reporting that they offered full pay during leave after childbirth fell from 27 percent in 1998 to 16 percent in 2008.[78] A 2009 survey by the Society for Human Resource Management found that 25 percent of its member respondents provided paid family leave, compared to 30 percent in 2005.[79] 

The disparities in access to paid family leave between low-income and high-income workers are profound. According to the BLS, civilian workers in the highest 25 percent of average wages are three times more likely to have paid family leave benefits than workers in the lowest 25 percent.[80] Workers in the highest 10 percent of wages are six times more likely to have such paid leave than those in the lowest 10 percent.[81] Access to pay during maternity leave through temporary disability insurance is also far less available to low-income civilian workers. Only 18 percent of workers in the lowest 25 percent of average wages have access to such insurance, compared to 49 percent of workers in the highest 25 percent.[82]     

Disparities between full and part-time workers in accessing paid family leave are also glaring. Full-time civilian workers are more than twice as likely as part-time workers to have paid family leave.[83] Only 15 percent of part-time workers have temporary disability insurance compared to 43 percent of full-time workers.[84] Women make up the bulk (65 percent) of the part-time workforce and thus suffer disproportionately from the lack of part-time parity.[85]  As of 2009  women who worked part time made up 26 percent of all female wage and salary workers, compared to just 13 percent of men.[86]

Disparities between men and women in access to paid and unpaid leave after childbirth or adoption are mixed. According to a 2004 report analyzing data from the Urban Institute’s 2002 National Survey of American Families, women were more likely to have access to maternity leave than men were to paternity leave (89.3 percent versus 71.9 percent of respondents). However, men were more likely to have paid leave (83.5 percent compared to 76.2 percent of women respondents).[87] Among working parents with some paid leave, women were more likely to have one workweek or less, and men were more likely to have more than three workweeks of paid leave.[88] According to the 2000 FMLA survey, male leave-takers were more likely to receive pay (70.4 percent) than female leave-takers (62.5 percent) during their longest leave (which may include leave for their own medical reasons or to care for family).[89] On the other hand, when it comes to pay during just maternity leave and paternity leave, research has found that more women workers get pay during maternity leave than men during paternity leave. A 2008 national study of employers found that 52 percent said they offer some pay to women on maternity leave, compared to 16 percent offering paid leave to men on paternity leave.[90] The study did not specify whether these employers offered paid leave to employees at all levels, or only select employees.

Gender differences also arise with respect to unpaid FMLA leave. The 2000 FMLA survey found that among workers with young children, men were more likely to be eligible for FMLA leave than women (67 percent of men and 56 percent of women).[91] Yet in the 18 months prior to the survey, more women (76 percent) than men (45 percent) with young children took some leave.[92] This is undoubtedly due to social expectations of women as caregivers and because women’s income, lower on average than men’s, is easier for families to sacrifice when the only choice is unpaid leave.

[22] IWPR, “Majority of Voters Support Workplace Flexibility, Job Quality, and Family Support Policies,” October 29, 2010, http://www.iwpr.org/pdf/PressReleaseRock_WorkFam_28Oct2010.pdf (accessed November 15, 2010). Women and parents with children under 18 voiced even stronger support for work-family support policies across the board.

[23] National Partnership for Women and Families, “Key Findings from Nationwide Polling on Paid Family and Medical Leave,” September 25, 2007, http://www.nationalpartnership.org/site/DocServer/Paid_Family_Leave_Poll_Results_ 2007.pdf?docID=2521 (accessed October 12, 2010).

[24] Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601.

[25] Sarah Fass, “Paid Family Leave in the States: A Critical Support for Low-Wage Workers and Their Families,” National Center for Children in Poverty, Mailman School of Public Health, Columbia University, March 2009, p. 5.

[26] DOL, “Administrator’s Interpretation No. 2010-3,” June 22, http://www.dol.gov/whd/opinion/adminIntrprtn/FMLA/2010/ FMLAAI2010_3.pdf (accessed October 19, 2010) (stating: “day-to-day care or financial support may establish an in loco parentis relationship where the employee intends to assume the responsibilities of a parent with regard to a child.” See also DOL, “Fact Sheet # 28: The Family and Medical Leave Act of 1993,” February 2010, http://www.dol.gov/whd/regs/compliance/whdfs28.htm (accessed October 19, 2010).

[27] Ellen Galinsky, James Bond, and Kelly Sakai, “2008 National Study of Employers,” Family and Work Institute, 2008, p. 6. The FMLA includes enforcement measures, including civil actions by employees for damages or equitable relief and administrative or civil actions by the Secretary of Labor, for companies failing to comply with the law. FMLA, section 2617.

[28] Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000(e) et seq., amending Title VII of the Civil Rights Act of 1964. See also EEOC, “Facts About Pregnancy Discrimination,” September 2008, http://www.eeoc.gov/facts/fs-preg.html (accessed October 19, 2010).

[29] WorkLife Law, a leading academic center on workplace discrimination, defines “family responsibilities discrimination” as discrimination against workers who have family caregiving responsibilities, such as pregnant women, mothers and fathers of young children, parents of disabled children, and workers who care for their aging parents or sick spouses and partners. A factsheet on this form of discrimination is available from the center at http://www.worklifelaw.org/FactSheet.html (accessed January 10, 2011).

[30] Executive Order 13152, May 2, 2000, http://archive.eeoc.gov/federal/eo11478/eo13152.html (accessed November 15, 2010).

[31] EEOC, “Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities,” 2007, http://www.eeoc.gov/policy/docs/caregiving.html (accessed November 15, 2010).

[32] No law prohibits such retaliation. One narrow law covering only federal employees authorizes scheduling flexibility programs, including compressed schedules, but does not require them. Federal Employees Flexible and Compressed Work Schedules Act of 1982, 5 U.S.C. § 6120.

[33] Patient Protection and Affordable Care Act (PPACA), P. Law 111-148, effective March 23, 2010.

[34] PPACA, section 4207, excerpted at http://www.usbreastfeeding.org/Portals/0/Workplace/HR3590-Sec4207-Nursing-Mothers.pdf (accessed October 20, 2010). This provision of the PPACA was based on the Breastfeeding Promotion Act, HR 2819, sponsored by Rep. Carolyn Maloney (see below). A summary of the law’s provisions on breaks for expressing breast milk is available at DOL, “Fact Sheet #73: Break Time for Nursing Mothers under the FLSA,” July 2010, http://www.dol.gov/whd/regs/compliance/ whdfs73.htm (accessed October 20, 2010).

[35] Family Leave Insurance Act of 2009, HR 1723, introduced March 25, 2009, sponsored by Rep. Fortney (Pete) Stark.

[36] Family Income to Respond to Significant Transitions (FIRST) Act, HR 2339, introduced May 7, 2009, sponsored by Rep. Lynn Woolsey.

[37] Federal Employees Paid Parental Leave Act, H.R. 626 and S. 354, introduced in the Senate on January 29, 2009 and passed by the House of Representatives on June 4, 2009. Sponsored by Rep. Carolyn Maloney and Sen. Jim Webb.

[38] Working Families Flexibility Act, S. 3840, introduced September 24, 2010, and H.R. 1274, introduced March 3, 2009. Sponsored by Sen. Robert Casey and Rep. Carolyn Maloney.

[39] Breastfeeding Promotion Act of 2009, H.R. 2819 and S. 1244, introduced June 11, 2009. Sponsored by Rep. Carolyn Maloney and Sen. Jeff Merkley.

[40] Healthy Families Act, S. 1152, introduced May 21, 2009, and H.R. 2460, introduced May 18, 2009. Sponsored by Sen. Edward Kennedy and Rep. Rosa DeLauro.

[41] Paycheck Fairness Act, S. 182, introduced January 8, 2009, and H.R. 12, introduced January 6, 2009 and passed in the House on January 9, 2009. The bill failed to pass the Senate by two votes on November 17, 2010. Sponsored by Sen. Hillary Clinton and Rep. Rosa DeLauro.

[42] For example, in October 2010, President Obama issued a statement on National Work and Family Month, stating in part, “There are steps we can all take to help – implementing practices like telework, paid leave, and alternative work schedules – and my Administration is committed to doing its part to help advance these practices across the country.” See “Statement of the President on National Work and Family Month,” October 25, 2010, http://www.whitehouse.gov/the-press-office/2010/10/25/statement-president-national-work-and-family-month (accessed December 6, 2010).

[43] See Council on Women and Girls, “Continue the Conversation on Workplace Flexibility,” http://www.whitehouse.gov/administration/eop/cwg/work-flex-kit/home (accessed November 15, 2010). The workplace flexibility measures discussed included alternative work schedules, teleworking, part-time work, and paid leave; Women’s Bureau, DOL, “National Dialog on Workplace Flexibility,” undated, http://www.dol.gov/wb/media/natldialogue2.htm (accessed December 6, 2010).

[44] See “About the Middle Class Task Force,” undated, http://www.whitehouse.gov/strongmiddleclass/about (accessed December 7, 2010).

[45] Washington State did not have a pre-existing temporary disability insurance system, so the state has the additional challenge of setting up the administrative infrastructure to manage paid leave. Once operational, workers will be entitled to five weeks of paid leave to spend time with a newborn or newly adopted child. Employees who work at least 35 hours per week will receive $250 per week, and part-time workers will be eligible for pro-rated benefits.

[46]California Employment Development Department, “Paid Family Leave,” http://www.edd.ca.gov/Disability/Paid_Family_Leave.htm (accessed October 19, 2010).

[47] State of New Jersey, Department of Labor and Workforce Development, “Family Leave Insurance,” http://lwd.dol.state.nj.us/labor/fli/fliindex.html (accessed October 20, 2010).

[48] Eileen Appelbaum and Ruth Milkman, “Leaves that Pay: Employer and Worker Experiences With Paid Family Leave in California,” January 2011, http://www.irle.ucla.edu/publications/pdfs/LeavesThatPay_FINAL.pdf, (accessed January 25, 2011), pp. 4-5.

[49] Ibid., p. 8.

[50] Ibid.

[51] Ibid.

[52] Human Rights Watch telephone interview with Chris Longo, director – Temporary Disability Insurance, New Jersey Department of Labor and Workforce Development, June 3, 2010.

[53] Ibid.

[54] For a summary of the bills, see National Partnership for Women and Families, “2010 State Action on Paid Family and Medical Leave,” July 2010, http://www.nationalpartnership.org/site/DocServer/Paid_Leave_Tracking _2010_-_07_19_10__2_.pdf?docID=1921 (accessed October 20, 2010).

[55] See statement of Debra Ness, “Work/Family Expert Hails Senate Appropriations Committee Vote To Provide $10 Million to Help States Begin Paid Leave Programs,” July 30, 2010, http://www.nationalpartnership.org/site/News2?page= NewsArticle&id=25415&security=2141&news_iv_ctrl=1741 (accessed October 20, 2010). The fate of this program is uncertain since Congress had not yet passed a budget as of January 2011.

[56] The National Partnership for Women and Families and A Better Balance have written a model law and are available for technical support to states considering paid family leave laws. See “Model State Paid Family Leave Statute,” http://www.nationalpartnership.org/site/DocServer/Paid_Leave_State_Statute_June_2010_Final.pdf?docID=6761f (accessed October 25, 2010).

[57] See National Conference of State Legislatures (NCSL), “Breastfeeding Laws,” September 2010, http://www.ncsl.org/IssuesResearch/Health/BreastfeedingLaws/tabid/14389/Default.aspx (accessed October 20, 2010).

[58] See NCSL, “2010 Legislation on Telecommuting, Flexible Schedules or Alternative Work Weeks, September 8, 2010, http://www.ncsl.org/?tabid=21268  (accessed November 15, 2010); NCSL, “2010 Legislation on Sick Leave,” September 9, 2010, http://www.ncsl.org/default.aspx?tabid=21272 (accessed November 15, 2010).

[59]  WorkLife Law, “WorkLife Law’s State FRD Legislation Tracker,” November 1, 2010, http://www.worklifelaw.org/pubs/StateFRDLegisTracker.pdf (accessed November 15, 2010).

[60]Stephanie Bornstein and Robert Rathmell, “Caregivers as a Protected Class?:The Growth of State and Local Laws Prohibiting Family Responsibilities Discrimination,” WorkLife Law, December 2009, http://www.worklifelaw.org/pubs/LocalFRDLawsReport.pdf (accessed December 6, 2010), p. 1.

[61]  NCSL, “2010 Legislative Bills on Equal Pay,” September 9, 2010, http://www.ncsl.org/default.aspx?tabid=21269 (accessed November 15, 2010).

[62] For an overview of costs and benefits of a range of work-family policies in other countries, see Janet Gornick and Ariane Hegewisch, “The Impact of ‘Family-Friendly Policies’ on Women’s Employment Outcomes and on the Costs and Benefits of Doing Business,” Commissioned Report for the World Bank, forthcoming 2011. Manuscript on file with Human Rights Watch.

[63] Lisa Bell and Sandra Newman, “Paid Family & Medical Leave: Why We Need It, How We Can Get It,” Policy Brief, Family Caregiver Alliance, September 2003, p. 4.

[64] Jennifer Glass and Lisa Riley, “Family Responsive Policies and Employee Retention Following Childbirth,” Social Forces, vol. 76(4), June 1998, p. 1426. The study also found that job retention was impacted by the ability to avoid mandatory overtime, supervisor and coworker support, and other factors.

[65] Appelbaum and Milkman, “Leaves that Pay,” p. 5.

[66] When California enacted its paid family leave law in 2002, one estimate projected that employers would save up to $89 million a year in turnover costs alone. Arindrajit Dube and Ethan Kaplan, “Paid Family Leave in California: An Analysis of Costs and Benefits,” June 19, 2002, http://www.paidfamilyleave.org/pdf/dube.pdf (accessed November 17, 2010), p.5.

[67] Email communication with Kevin Miller, senior research associate, Institute for Women’s Policy Research, December 14, 2010. For an overview of studies estimating turnover costs in a variety of industries, see Kevin Miller, Allison Suppan Helmuth, and Robin Farabee-Siers, “The Need for Paid Parental Leave for Federal Employees: Adapting to a Changing Workforce,” IWPR, 2009, pp. 8-9.

[68] Jodie Levin-Epstein, “Getting Punched: The Job and Family Clock,” Center for Law and Social Policy, July 2006, p. 9.

[69] Andrea Bassanini and Danielle Venn, “The Impact of Labour Market Policies on Productivity in OECD Countries,” International Productivity Monitor, vol. 17, 2008, p. 11. Multifactor productivity is the measure of changes in output per unit of combined inputs.

[70] Cantor, et al., “Balancing the Needs of Families and Employers,” section 6.2.3.

[71] Ibid., section 6.2.4.

[72] Ibid., section 6.2.2.

[73] For example, the 2008 National Study of Employers by the Families and Work Institute found that larger companies were significantly more likely to offer some pay during maternity leave than small employers. Galinsky, Bond, and Sakai, “2008 National Study of Employers,” p. 19.

[74] Appelbaum and Milkman, “Leaves that Pay,” p. 8.

[75] DOL, Bureau of Labor Statistics (BLS), National Compensation Survey: Employee Benefits in the United States, March 2010, Table 32, Leave Benefits: Access, civilian workers, http://www.bls.gov/ncs/ebs/benefits/2010/printing.htm (accessed October 8, 2010). Among private industry workers, the rates are even lower. Just 10 percent of private industry workers have paid family leave benefits. DOL, BLS, National Compensation Survey: Leave benefits: Access, private industry workers, Table 32, March 2010, http://www.bls.gov/ncs/ebs/benefits/2010/ownership/private/table21a.pdf (accessed December 27, 2010).

[76] DOL, BLS, National Compensation Survey: Insurance Benefits: Access, Participation, and Take-Up Rates, Civilian Workers, March 2010, Table 17, http://www.bls.gov/ncs/ebs/benefits/2010/ownership/civilian/table12a.pdf (accessed November 12, 2010). Among private industry workers, the rate is slightly higher, with 39 percent having access to short-term disability insurance benefits. DOL, BLS, National Compensation Survey, Insurance benefits: Access, Participation, and Take-up Rates, Private Industry Workers, Table 17, March 2010, http://www.bls.gov/ncs/ebs/benefits/2010/ownership/private/table12a.pdf (accessed December 27, 2010).

[77] DOL, BLS, National Compensation Survey, Leave Benefits: Access, civilian workers, Table 32. As noted above, data on “civilian” workers covers public and private sector workers (defined in the table as “workers in the private nonfarm economy except those in private households, and workers in the public sector, except the federal government.”)  Data on private industry workers alone shows even lower levels of access to paid sick leave: just 62 percent of private industry workers have this benefit. DOL, BLS, National Compensation Survey: Leave benefits: Access, private industry workers, Table 32, March 2010, http://www.bls.gov/ncs/ebs/benefits/2010/ownership/private/table21a.pdf (accessed December 27, 2010).

[78] Galinsky, Bond, and Sakai, “2008 National Study of Employers,” p. 19.

[79] Society for Human Resource Management, “2009 Employee Benefits: Examining Employee Benefits in a Fiscally Challenging Economy,” June 2009, p. 27.

[80]DOL, BLS, National Compensation Survey, Table 32. Among those earning the highest 25 percent of average wages, 17 percent have paid family leave, compared to 5 percent of those earning the lowest 25 percent of average wages.

[81] Ibid. Among those earning the highest 10 percent of average wages, 18 percent have paid family leave, compared to 3 percent of those earning the lowest 10 percent of average wages.

[82] DOL, BLS, National Compensation Survey, Table 17.

[83] Ibid. Among full-time civilian workers, 13 percent have paid family leave, compared to 6 percent of part-time workers.

[84] DOL, BLS, National Compensation Survey, Table 17.

[85] National Economic Council, “Jobs and Economic Security for America’s Women,” October 2010, p. 4.

[86] DOL, “Highlights of Women’s Earnings in 2009,” July 2010, p. 2.

[87] Katherine Ross Phillips, “Getting Time Off: Access to Leave among Working Parents,” Urban Institute, April 2004, p. 2.

[88] Ibid.

[89] Cantor, et al., “Balancing the Needs of Families and Employers,” section 4.2.2, and Table A2-4.1 at http://www.dol.gov/asp/archive/reports/fmla/appendixa-2.pdf (accessed November 12, 2010).

[90] Galinsky, Bond, and Sakai, “2008 National Study of Employers,” p. 19. Similarly, US Census Bureau data indicate that in the years 2001 to 2003, just 49 percent of workers who took maternity leave received some paid leave benefits. US Census Bureau, “Maternity Leave and Employment Patterns of First-Time Mothers: 1961-2003,” February 2008, p. 18.

[91] Jane Waldfogel, “Family and Medical Leave: Evidence from the 2000 Surveys,” Monthly Labor Review, September 2001, p. 21.

[92] Ibid.