HISTORIC OPPORTUNITY

The US has never been closer to passing a paid parental leave bill than it is now

There are more than 180 nations with laws guaranteeing some form of paid maternity leave. Among them are some of the world’s poorest, smallest, and most dangerous countries, including Afghanistan, Burkina Faso, Central African Republic, Dominica, Haiti, Kiribati, Syria, and Yemen.

There are nine countries without it—six tiny Pacific island nations, Papua New Guinea, Surinam, and the United States of America.

The US, a pioneer in so many domains, is a laggard when it comes to government support for childcare and family needs, and in no aspect are its deficiencies more glaring than in providing paid leave for new parents. The Family Medical Leave Act of 1993 requires US employers to provide only unpaid time off for childbirth. While some employers do offer paid parental leave, only 12% of American workers are covered by those policies.

The US became a global outlier because of long-standing philosophical ideas about the role of the state in society, and how its economy has evolved. But it’s also due to strategic decisions made by advocates for women’s rights, during a crucial moment in policymaking history, in the face of fierce opposition to leave policies on the part of business interests.

Despite its lamentable record, the US may now be closer to enacting some form of paid family leave than at any point in its history. Legislation introduced in both the US House and Senate are gaining support, a handful of states have adopted their own policies, and both major-party candidates for president say they endorse some form of paid leave. (Hillary Clinton wants to cover up to 12 weeks of leave for both parents, while Donald Trump has proposed six weeks of maternity leave only, through an expansion of federal unemployment insurance.)

Advocates for paid leave are particularly optimistic that a Clinton presidency might yield a new federal policy.

“We could have a perfect storm of a president that prioritizes this issue, law makers who are hearing more and more about it, and the demonstration that it works well on the state level and provides economics benefits,” says Vicki Shabo, vice president for the National Partnership for Women & Families, which is lobbying Congress on the issue.

The FAMILY Act

The key differences between the proposal in the Congress, called the Family and Medical Insurance Leave (FAMILY) Act, and Clinton’s proposal, is the funding mechanism. The FAMILY Act borrows from the state models, and would fund paid leave through a modest payroll tax paid by both workers and employers; Clinton, meanwhile, has proposed a new tax on the highest earners.

The FAMILY Act might have an easier path through Congress, particularly because it is based on the successful state plans, but Clinton has pledged not to raise taxes on anyone earning less than $250,000, which may be why she hasn’t supported a new payroll tax. Shabo says her group doesn’t prefer one plan over the other, so long as some version of paid leave becomes law.

Any bill will be boosted by either a Democratic majority in Congress or a major breakthrough among Republicans. The current versions of the bill, sponsored by New York senator Kirsten Gillibrand and Connecticut representative Rosa DeLauro, both Democrats, have yet to escape their legislative committees.

If paid parental leave becomes law, the US could quickly become a leader on the issue for the first time in more than century.

The traditional US model broke down years ago

In Europe, legalized maternity leave dates to 1883, when Germany passed the first law. Sweden followed in 1891, and France in 1928.

Initially, the laws were rooted in paternalistic concern for the health of mothers and children. Particularly after World War II, when women entered the workforce in large numbers, many countries adopted laws to shield pregnant women from the workplace and return them to the home. In many nations, taking leave was mandatory.

In the 1960s, the motivations behind the laws in Europe began to shift and the rights of women began to guide lawmakers. Increasingly, women were guaranteed rights to return to their jobs and were offered income replacement, usually paid by the government.

Those countries had reasons beyond a sense of justice to ensure women could afford to have children, says Joan Williams, a law professor at the University of California Hastings, who has written about these policies. As birth rates declined, Europe was confronted with a looming labor shortage. Policymakers viewed increasing the domestic population as preferable to depending on immigrants, and they looked for ways to reduce obstacles for parents, she says.

The experience for working mothers in the US was much different, in part due to the country’s abundant labor supply, but also its small-government tradition and Calvinist-informed views about sex and family. Says Williams, “The reason you have paid maternity leave in Europe is they think of citizenship very differently than in the US. In the US having children is viewed as a private frolic, the same as hang gliding. You don’t subsidize my hang gliding, I don’t subsidize your child.”

Instead of relying on the state, US workers have traditionally looked to their employers to care for them.

Through much of the early to mid-20th century, much of US labor was organized in what some theorists call the Fordist industrial economy, named after Henry Ford. Under this system, workers—almost always male—were paid a wage high enough to ensure their loyalty to the firm, and to provide for their families. The wives could afford, and were expected, to stay at home and raise children, according to Catherine Albiston and Lindsey Trimble O’Connor, who describe the history of US leave policies in an article called “Just Leave” in the Harvard Journal of Law & Gender.

The Fordist system depends on industry offering life-long work, and on families organized in traditional, two-parent models. Both of those assumptions began to break down in the 1970s, as US industry fell pray to foreign competition, and as the rise of no-fault divorces meant more families were no longer in traditional two-parent households. From 1970 to 2012, the number of US households with married parents and children fell in half, from 40.3% of all households to 19.6%, according to US Census data.

The changes in family and employment structures meant more women with children needed to work—while the simultaneous rise of feminism meant that more women wanted to, and could.

In the 1970s, US legislators began passing laws to ensure that women could take time off after childbirth and return to their jobs. Congress passed the Pregnancy Discrimination Act in 1978, which expanded the definition of sex discrimination to include pregnancy, in response to a US Supreme Court decision ruling that employers were not obliged to provide disability benefits for pregnant women. While the law protected women in jobs with benefits that included disability leave, most low-income workers weren’t covered. The next year, California passed a law requiring employers to give women up to four months of unpaid leave following child birth.

The California legislation was ushered into law by then-state assemblyman Howard Berman, a Los Angeles Democrat who was the chamber’s majority leader. Six years later, Berman was in Congress, and planned to introduce a similar law creating a national right for maternity leave.

In meetings with women’s rights advocates, Berman was convinced to expand the bill to include paternity leave, too. The argument: Men also need time to bond with their babies, and law that only applied only to women meant employers might not hire women if they thought they might become pregnant, Berman recalls.

But as Berman’s maternity leave bill evolved into something more ambitious—it would eventually became the basis for Family & Medical Leave Act—discussions about actually paying parents during their leave didn’t advance far. “In the early ‘80s, no one was talking about paid leave,” Berman says.

With Reaganism in its ascendancy, and the country coming out of a recession, there was little interest in creating a new entitlement, and it was clear that asking employers or tax payers to pay for maternity leave would kill any bill.

“We talked about it and were told pretty early on by political leaders that it just was a non-starter,” says Judith Lichtman, the former executive director of the Women’s Legal Defense Fund (now called the National Partnership for Women & Families), and an early backer of the bill. “It just wasn’t something we could get.”

The long road to FMLA

In 1985, a conference on parental leave, held in New York, was attended by a wide range of advocates who called for the immediate passage of a leave bill. Paid leave was endorsed in theory, but the only recommendation was that the funding mechanism be studied.

“By this means the critical question of pay would be finessed, not just for this conference but by the successive waves of legislative authors and advocates over the course of eight sessions of Congress,” journalist Ron Elving wrote in his book Conflict and Compromise: How Congress Makes the Law, a history of the FMLA.

Eventually Berman’s concept was taken up by Patricia Schroeder, a representative from Colorado, who in 1985 introduced the first bill to create a federal parental leave policy. But if its advocates thought a bill without a pay component would have easier passage through Congress, they were proved wrong. The FMLA faced strong resistance from business lobbies, particularly the Chamber of Commerce and the National Federation of Independent Business.

Along with the costs associated with keeping jobs open, employers objected to the idea of the government interfering with how they run their business, said Aparna Mathur, an economist and resident scholar at the American Enterprise Institute, a conservative think tank. “There’s historical resistance to the federal government getting between the employer and their employees,” she says.

Catherine Albiston, a law professor at the University of California, Berkeley, sees a different motivation. “Their real issue with FMLA is the idea that employers would no longer have unilateral control over the schedule of their employees,” she says. “That medical leave was an entitlement, not a privilege controlled by employers.”

Despite the eventual support of Congressional Republicans—including conservatives like Henry Hyde, who were persuaded that allowing women to take time off after childbirth would reduce abortions—the bill was vetoed twice by then-president George H. W. Bush.

It wasn’t until after Bill Clinton’s inauguration in 1993 that the FMLA was passed—without paid leave.

Even Walmart is getting more generous now

While the FMLA was a step forward, it still has flaws, UC-Berkeley’s Albiston notes. It only covers workers in business with more than 50 employees, and who work 1,250 hours in a year, which excludes part-time workers or those who piece together employment from several part-time jobs. That means about 40% of workers aren’t eligible.

Even with its gaps, more than 200 million workers have taken advantage of the FMLA since its passage, evidence that Americans quickly embrace social insurance programs.

“There is resistance, and then once a program is in place, it’s widely heralded,” Lichtman says. She expects introduction of paid leave would be met with a similar reception.

In the decades since FMLA’s passage, there’s been growing recognition in the business world of the value of retaining and rewarding employees. Employers of professionals in technology and consulting firms compete to offer the most generous family benefits programs, such as providing up to 16 weeks paid for either spouse, paid in-vitro fertilization, and even couriers to transport newly pumped breast milk home for traveling mothers.

As unemployment falls and workers have more bargaining power, an increasing number of low-wage employers are also providing more generous benefits. Even Walmart, the largest US private employer, has begun offering workers a disability plan for illness or childbirth. Full-time employees can take up to 26 weeks off with 50% pay, for a maximum of $200 a week.

Paid leave is gaining support

In retrospect, the business lobby’s resistance to FMLA was probably misguided, says the AEI’s Mathur, and she thinks there are sound economic reasons for passing paid leave, particularly if employees cover the cost through a payroll deduction. A paid-leave policy would benefit the economy by keeping people in work, Mathur says. It also might lead to more women entering the workforce, a trend that has climbed sharply from the 1940s but has plateaued in the last two decades.

Another argument in support of paid leave is that it would be far less costly than other government insurance programs like Medicare and Social Security. Only about 13% of workers would take advantage of it in any given year, and so the payroll deductions proposed in the FAMILY Act bill are minimal: $0.02 on every $10 earned, or about $1.50 a week for the average worker.

Similar plans have been effective in New Jersey, Rhode Island and California, where almost 2 million claims were filed between 2004 and 2014, according to the FAMILY Act’s sponsors.

One major shortcoming of the FAMILY Act is that it doesn’t protect workers from retaliation by employers for taking leave, Albiston says. That means low-income workers, especially, might be more reluctant to take leave, and with good reason, she says.

While the major business lobbying groups remain opposed, a number of companies have signed on, ranging from predictably progressive Patagonia to more surprising names like Morgan Stanley. And a leaked survey of 1,000 business executives conducted Frank Luntz, a pollster for Republicans, showed overwhelming support for increasing the length of maternity leave and introducing paternity leave.

“The fact that there are many big businesses today, unlike in the late ’80s and early ’90s, that are supportive of paid family leave makes me hopeful,” Lichtman says.

home our picks popular latest obsessions search