The confusing state of family-leave policies.

The confusing state of family-leave policies.

The confusing state of family-leave policies.

What women really think about news, politics, and culture.
Aug. 17 2010 10:03 AM

Yes, You Can Get Fired After Taking Maternity Leave

The confusing state of family-leave policies.

Illustration by Robert Neubecker.

Sandy Stephens got pregnant when she was working in housekeeping for a company known as Global NAPs Inc. in Massachusetts. Her supervisor at the small telecommunications firm had told her that she could take unpaid maternity leave longer than eight weeks if she gave birth by cesarean section. Stephens did wind up having a C-section, and so she stayed home for 11 weeks. Yet, when she returned to her job, she found she had been fired.

It's the kind of "misunderstanding" that takes place all the time. The postpartum deal is struck, the baby comes, and then—whoops!—human resources has no record of the agreement. The story often ends up with a confused, angry, and suddenly unemployed new mother quietly accepting her fate. In this case, though, Stephens decided to sue; and last week the Massachusetts Supreme Judicial Court handed her a decision that is a depressing, if not surprising, reminder of the sorry state of parental-leave policy in this country.

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According to the decision written by Judge Francis X. Spina, the Massachusetts Maternity Leave Law does not protect a worker's right to a leave of more than eight weeks. The state law, which has been on the books since 1972, requires private-sector companies with at least six employees to grant eight weeks of job protection to women who give birth to or adopt a child. But if an employee takes more than eight weeks—even if the employer verbally approved the leave—the maternity leave law no longer applies, according to the decision. Her only legal hope would be if she had gotten the promise in writing, in which case she could sue for breach of contract.

Even before this case, the question of how much time a worker is entitled to after having a baby is confusing and governed by technicalities. In theory, the law of the land is the Family and Medical Leave Act, which grants 12 weeks to workers, whether male or female, after the birth or adoption of a child. But FMLA does not apply to companies with fewer than 50 employees, or to employees who have worked fewer than 1,250 hours in the past year or have been employed for less than a year. Some states have passed their own "FMLA-fix" laws—six states and Washington, D.C., have lowered the number of employees a company has to have in order to be covered by the law—but the FMLA still applies to little more than half the workforce.

Most everyone else is out of luck, including, apparently, those who do not officially file for FMLA leave in writing. This may explain why Stephens chose to sue under the Massachusetts law, which doesn't require any specific filings, rather than the federal law, which usually trumps state law—and would have guaranteed Stephens 12 weeks of job protection. The written-filing requirement means that new parents in other states who don't remember to request FMLA leave in writing could also be fired for taking leave. In that case, they may have no legal recourse, since, unlike Massachusetts, most states don't have separate laws providing job-protected leave. (According to the National Partnership for Women and Families, only 16 states, including Massachusetts, have separate leave laws. With its eight weeks of unpaid maternity, though not paternity, leave for private-sector workers and up to a year for state employees, Massachusetts earned a C+ grade from the partnership, putting it in the top half of the class of states. Nineteen states got Fs.)

The decision in the Stephens case threatens to make employers only more persnickety about parental-leave arrangements. After a high-profile lawsuit in which, at first, Stephens prevailed (Global NAPs had to pay her $1.3 million, which she was allowed to keep, even after last week's ruling in the company's favor), businesses may well become even warier of making any promises about maternity leave, whether spoken or written. "My biggest fear with this case is that every H.R. person in the state, maybe in the country, is now going to say to their employers, 'Just promise what you have to promise under the law and don't promise anything else,' " says Sherry Leiwant, co-founder and executive director of A Better Balance: The Work and Family Legal Center.

Indeed, the day the decision came down, the Associated Industries of Massachusetts, a state business group, posted a statement on its Web site from the vice president of its Employer's Resource Group, which warned that "the decision underscores the need for employers to maintain consistent leave policies and to be cautious when making verbal representations to workers."

Of course, however employers decide to respond to this case does not change the more fundamental problem with leave laws—the first being that the time is unpaid. Only two states, New Jersey and California, have leave programs that offer parents cash benefits, while Rhode Island, Hawaii, and New York provide some disability payments to new mothers. Meanwhile, Washington state, which passed a paid parental leave law but has so far been unable to pay for it, is in limbo. Without any income to keep them afloat during their time off, a substantial minority of those covered by the federal leave law don't wind up taking the leave to which they're entitled. Some 2.73 million workers surveyed over an 18-month period said they didn't take FMLA leave because they couldn't afford to, according to a 2000 Department of Labor study, the most recent of its kind. Besides those lucky enough to reside in the five states that provide any cash benefits, the only others who receive paid leave do so based on the generosity—or, perhaps, whim—of their employers. Indeed, that number is declining. In 2008, just 16 percent of employees were offered fully paid six-week maternity leaves, down from 27 percent about a decade ago, according to the Families and Work Institute, a New York-based nonprofit. And the number is likely falling further as the economy contracts.

In reality, the rest of new mothers are often forced back to work well before they'd like to be there. Most working women don't take the maximum leave afforded by the FMLA. Only 42 percent stayed home for the first 12 weeks of their infants' lives, according to 2002 census numbers. Contributing to that dismal figure is a huge number of people who are covered by neither federal nor state leave laws and run a real risk of being fired for taking any time off after having a child.

In its absurdly stingy approach to what happens to mothers and families after we bring a new life into the world, our country is almost entirely alone. The United States is the only developed nation not to have paid maternity leave and one of a small handful of countries in the world—rich and poor—not to do so. Had Stephens been employed in Haiti, Chad, Afghanistan, or Djibouti, for instance, she would have been entitled to paid time off. Meanwhile, back in Massachusetts, she took only unpaid time off, and even that turned out to come back and bite her.

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