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Les femmes dans le monde du travail dans les Amériques

 | 
Gérard Gómez
, 
Donna Kesselman

Le long processus d’acquisition des droits des travailleuses

Paid Family Leave as Public Policy

A View from the States

Eveline Thevenard

Résumé

Cet article traite de l’équilibre entre la vie personnelle et la vie professionnelle. Avec l’entrée massive des femmes sur le marché du travail dans les sociétés du xxie siècle, les politiques publiques mises en œuvre se sont révélées inefficaces pour réconcilier la vie familiale avec la vie professionnelle. Le cas nord-américain est un exemple significatif.

Este artículo trata del equilibrio entre vida profesional y vida privada. Con la entrada masiva de las mujeres en el mercado del trabajo en las sociedades del siglo XXI, las políticas puestas en marcha se revelaron ineficaces para conciliar la vida familiar con la profesional. El caso norteamericano es un ejemplo significativo.

This article deals with work-family balance. With women’s massive entry into the market in the 21st century societies, public policies aimed at reconciling work and family have been inadequate. The United States are a meaningful example of this situation.

Texte intégral

Introduction

Work-Family Balance: Growing Visibility but Stalled Progress

  • 1 The conference, held in Bellagio, Italy (January 29 – February 2, 2001), sponsored by Cornell’s Ins (...)

1At a 2001 international symposium on “GDP vs Quality of Life: Balancing Work and Family,”1 veteran feminist Betty Friedan declared: “there is a new ‘problem that has no name,’ and that is the toll that outmoded employment models and new economy policies such as deregulation and privatization have had on working families.” A few years later, welfare state expert Gosta Esping-Andersen echoed her view that women’s massive entry into the market was one of the major challenges of 21st century societies, noting that because of inadequate public policies aimed at reconciling work and family, many households were “suspended between two equilibria” – the breadwinner/homemaker model and the gender-equality model (Esping-Andersen 2009: 1-15).

2The United States offers a poignant illustration of this conflict, with its absence of universal mandated paid maternity leave, making it an outlier among both developed and less developed nations. Over the past twenty years, in order to help parents cope with the increasing demands of work and family, most European countries have expanded their existing programs or set up new ones (Lewis 2009: Chap. I). In contrast, the United States still “has the most family hostile public policy in the developed world” (Williams 2010: 2), with no public child care provision, no legislated paid sick leave or paid vacation time, and inflexible work schedules, despite the frequent reference to family values in both parties’ political discourse.

3For sociologist Sheila Kamerman, one of the pioneers of American family policy studies, the absence of “explicit national, comprehensive family or child policy [in the U.S.]” cannot be viewed in isolation from the more general context of the American welfare state and the country’s political and social tradition. Among a range of contributing factors, she mentions the constitutional protection of individual rights and the ensuing distrust of government; the separation of church and state, which has limited government intervention in family issues, lest it should conflict with religious precepts; the attachment to voluntarism as opposed to government mandates; the legacy of slavery and strained racial relations which have undermined any initiative for a universal program which might benefit blacks. (Kamerman 1997: 309).

4As for the women’s movement, second-wave feminists put abortion rights and workplace equality, not family policy, at the forefront of their agenda, and sought to achieve equality through the “universal breadwinner model” rather than through public support for caregiving (Orloff 2006: 256-257).

5Three decades after the publication of Arlie Hochschild’s landmark study (Hochschild 1989), the issue of work-life balance has become even more pressing for families due to changing employment and family patterns: the rise of dual-earner and female-headed households, the increasing number of low-wage jobs in the service sector lacking employment related benefits, declining union membership, and the impact of the 1996 welfare reform: many low-income, single mothers now work full-time without adequate work-family supports. The situation has been amply and increasingly documented, while numerous studies and reports have highlighted the absence of family-responsive policies in the United States compared to other developed nations, the difficult balancing act most parents struggle with, and the consequent harmful effects on families’ economic security, children’s health and potential scarring consequences for future generations (Heyman 2000; Gornick and Meyers 2005; Human Rights Watch 2011; Shriver 2014).

  • 2 The law allows eligible workers to take up to 12 weeks of job protected leave to care for a newborn (...)
  • 3 FMLA 2012 Survey.

62013 marked the 20th anniversary of the landmark Family and Medical Leave Act, passed after an 8-year debate – which split feminists and their allies over the substance and scope of the legislation – and two presidential vetoes by George H. Bush. This however was little cause for celebration due to the sizeable percentage of women excluded from its coverage. When it was signed into law by Bill Clinton, it was hailed as a major step towards workplace equality: it was the only universal expansion of the welfare state at a time of retrenchment, and placed the topic to the national agenda. While it is the only federal law that allows workers to take time off work to reconcile work and family responsibilities, the concessions made to win passage severely limit its scope: it applies to only 60% of all workers2 and leave is unpaid, making it unaffordable to many low-income women. Nearly two-thirds (64 %) of employees who claim to have needed – but did not take – leave in 2012 were women.3 In addition, although the FMLA was explicitly aimed at addressing sex inequalities in the workplace, its gender-neutral provisions fail to correct the imbalance, due to the persistence of social norms in family caretaking tasks.

  • 4 March 2013, Bureau of Labor Statistics, Employee Benefits in the United States. Federal workers are (...)
  • 5 Census Bureau 2013.

7Employers have not moved in to fill the gap: a mere 12 % of private sector workers and 17% of public sector workers receive paid family leave through the workplace.4 Only half of all new mothers have access to paid time off of any kind (vacation, sick, disability, personal, or designated maternity/parental leave) or of any length of time in connection with the birth of their first child.5 There are huge class and gender inequalities in access to paid leave: higher income workers are most likely to enjoy that benefit, men more likely than women (Ben-Ishai 2014). And because of competitive work environment pressures, even women who are granted paid maternity leave sometimes return to work earlier.

  • 6 The agenda included proposals in three broad areas – equal pay, work-family balance, and accessible (...)

8The importance of helping workers combine work and family responsibilities caught the attention of companies and researchers as early as the 1980s (Young 1999). Only recently has the issue now moved beyond academia to gain increasing visibility in the public debate, be it in political discourse or media coverage. While family policy legal expert and feminist Joan Williams deplored that work-family conflicts “tend to be reported in the lifestyles section” of the press (Williams 2010: 33), it has since migrated to economic and business columns. Beneath the impact of the Great Recession, notably, debate over passage of paid family leave laws and paid sick days is now growing at the state and local levels. During the 2008 presidential campaign, work-family balance featured for the first time on the agenda of all the Democratic candidates, with Hillary Clinton, John Edwards, and Barack Obama submitting proposals for paid leave. Every year since 2011, President Obama has unsuccessfully included federal funding to help states launch paid family leave programs in his budget proposal. In his 2014 State of the Union address, he stigmatized “workplace policies that belong in a Mad Men episode,” and declared that “[every woman] deserves to have a baby without sacrificing her job.” In September 2013, two initiatives were launched in Washington to address gender equity and family economic security. One was the Fair Shot Campaign, coordinated by the progressive think tank Center for American Progress, the Planned Parenthood Action Fund, and the Service Employees International Union. The other was the Economic Agenda for Women and Families, designed by then House Minority Leader Nancy Pelosi and Democratic lawmakers. Paid family leave featured prominently in a recommended package of measures6 aimed at promoting women’s opportunities by providing public policy solutions to the work-family conflict.

9So is the country at a turning point in this key area of social welfare, after several victories in 2013 and 2014 including paid sick days in two states and a number of cities and paid family leave in Rhode Island? Currently 63.9% of women with children under 6 are in the labor force,7 and momentum has been growing for paid family leave. There is strong bipartisan, public support for this issue which transcends the political, racial, gender divide: it is seen as providing important benefits to children’s health,8 to the elderly, and to family’ economic stability. Various studies have shown it increases women’s labor force attachment, shortens periods of career interruption which have negative consequences for pension rights, and reduces the need for public assistance (Houser and Vartanian 2012). It is seen as a crucial measure to further gender equity (Lester 2005). Younger workers, including men, value work family balance more than the previous generation. In 2012 a majority of respondents (Republicans, Democrats, Independents) in a nationwide poll believed paid family leave and sick days should be a matter of public policy.9 It is less controversial than other social programs and less divisive than health care reform. It can appeal to conservatives, in the name of family values and keeping families off public assistance (“Welfare”). For the progressive organizations leading the fight, it is a basic labor and human right, part of a broader work-family agenda which concerns society as a whole.

10However, no progress has been achieved at the federal level since passage of the landmark law, which incorporated elements of family and medical leave programs that several states had passed prior to FMLA adoption (Wisensale 2001: 124). This is due to welfare state retrenchment, to the growing influence of conservative lawmakers in Congress, concerns with the budget deficit, and, until recently, the low salience of an issue regarded as a mostly private problem, the consequence of individual lifestyle choices, beyond the scope of public policies.

1. States as Policy Innovators

11In contrast to federal inaction, states have been moving forward with measures to establish paid family leave. Nevertheless, while initiatives have been numerous and campaigns currently underway in several states, progress has been slow. To date, only three states have actually passed and implemented legislation: California in 2002, New Jersey in 2008 and Rhode Island in 2013. The factors which have contributed to the success of paid leave campaigns in the pioneering states, the impact of these programs and the political and policy challenges that state and national level advocates have to face to succeed in passing such policy innovations will be given particular attention. We then offer a tentative conclusion on the prospects for paid family leave at the national level. In addition to existing literature on the topic, this research draws on interviews with several national and state paid family leave advocates and campaign organizers as well as one source close to a state legislator.

  • 10 US Dept of Labor, 1996. A Workable Balance: Report to Congress on Family and Medical Leave policies (...)

12FMLA advocates had initially included paid leave, but dropped the idea early in the debate due to the controversy it sparked, part of the compromises needing to be made to get the legislation passed (Bernstein 2001: 96). The 1996 commission that evaluated the impact of the three-year old legislation pointed out its limits, in particular the absence of wage replacement, but recommended that expansion be initiated at the state level.10 Passage of the FMLA ended the “equal treatment” vs “special treatment” issue in all but academic debate: congruent with the path-dependent nature of US social policy change, measures that have been proposed or implemented since 1993 have all followed the gender-neutral orientation set by the FMLA precedent thereby not creating special protections for women.

13In addition to building socio-political consensus, an institutional dimension of the issue has to do with whether states can legally introduce and finance such public policy measures. In 1999, the Clinton administration authorized states to use the surpluses of their unemployment insurance fund (UI) to launch experimental paid family leave programs. Between 1999 and 2002, 26 states introduced paid leave proposals, none of which passed (Wisensale 2003), and in 2003 the Bush administration rescinded this so-called “Baby UI” regulation. In the meantime, California had opted for another financing mechanism based on an expansion of its temporary disability insurance system to pass its landmark Paid Family Insurance Law: its legislative content, forms and strategy of mobilization would become a template for other progressive states.

14Ellen Bravo, founder of 9to5, a major women’s advocacy organization which was involved in the battle for the FMLA, notes the differences between the current paid leave campaigns and the FMLA:

  • 11 Personal communication, 21 Oct 2013. Ellen Bravo, a long-running activist and advocate of working w (...)

There are some cultural advances, there is more public awareness that women are in the workforce to stay, that families are dependent on their income, that the aging population is growing and there’s greater need for care. More men also say they want to be part of their children’s lives. There is also broader involvement of public health advocates, there is more awareness now of how important an issue this is for early child development and more lining up of business support.11

  • 12 San Francisco (which pioneered the movement initiated by a grassroots group of young restaurant wor (...)
  • 13 Founded in 2005 in New York City by women’s rights lawyers from NOW’s Legal Defense Fund who though (...)

15The paid family leave movement has also benefited from the emergence since 2006 of other grassroots initiatives, notably for broader workplace rights like paid sick days. Paid sick time laws have been passed in 16 cities12 and the states of Connecticut, California and Massachusetts. The same advocacy groups push for both kinds of leave, although campaigns for paid sick days are usually fought at the local level. State coalitions, however, see these issues as part and parcel of the same goal, i.e., that of building comprehensive movements for workers’ rights, thereby helping to promote the “paid leave” concept as part of a national conversation which is making its way onto the legislative agenda across states. And new women’s organizations such as A Better Balance13 have emerged on national and state levels, alongside the historic actors who waged the FMLA campaign, such as the National Partnership for Women and Families and 9to5. They provide legal expertise and help draft model bills. Foundation support has also been important to finance research, colloquiums, and organizations. In 2003, an 8-state consortium of state coalitions was organized with the backing of the Annie E. Casey and Ford Foundations. The Family Values at Work Multistate Consortium now extends to 21 states and counts on the support of numerous foundations. It has played a major role in paid family leave and paid sick day campaigns. So although initiatives are essentially aimed at state legislative reform, there is now a coordinated national agenda with leadership coming from Family Values at Work, The National Partnership, A Better Balance, to name the most prominent, which hold national conferences and forums, lobby Congress, provide resources, and support state-based coalition activism in favour of women’s and workers’ rights.

Getting Legislation Passed

16Despite their local color, it is interesting to highlight the similarities among paid family leave campaigns in California, New Jersey, and Rhode Island in terms of the actors, strategies, and political contexts that were conducive to victories.

Actors

  • 14 Interview with Ellen Bravo.
  • 15 November 2005, “The California Paid Leave Program”, Sloan Network Archive, vol. 7, n° 11.

17Interest group mobilization was the driving force. The battles were won thanks to broad coalitions which succeeded in organizing state-wide campaigns and mobilizing constituents to lobby legislators (Labor Project 2003; Brown 2010). Coalitions were launched by one or two powerful, active, and influential organizations which initiated and coordinated campaigns. In California it was the Labor Project for Working Families, in New Jersey, New Jersey Time to Care, in Rhode Island, Women’s Fund, a women’s advocacy organization which initiated the We Care RI coalition of community, cross-sector support in April 2013. These local/state actors were backed by national organizations such as the National Partnership for Women and Families, the Institute for Women’s Policy Research, and A Better Balance, which provided expertise and legal guidance. A key player in many coalitions (including in current campaigns), is the American Association of Retired Persons (AARP), since paid leave bills always include a caregiving component, therefore in line with one of the organization’s major national platform planks. Labor has played a major role within all coalitions: in the United States, this brand of social unionism” is a major component in progressive politics, a phenomenon which is little known abroad. Although the coalition leadership, while reaching out to a broad range of community stake-holders, tend to come from groups led by women and often focused on women, union input was key in California and New Jersey. Trade unions provide resources and contacts and are often influential in mapping out and winning over key legislators.14 Labor expert Ruth Milkman has highlighted the fact that the California law could not have been passed without union support and in particular, that of the California Labor Federation.15 In New Jersey as well, unions were crucial to the campaign, even though – thanks to their union contracts – most of their members were already entitled to some form of paid benefits.

  • 16 Insights into the R.I. campaign were provided by Marcia Coné, CEO of Women’s Fund of Rhode Island. (...)

18Grassroots women’s organizations such as Momsrising, an internet outreach group incubated by Moveon.org, have also generated critical support in recent campaigns. In Rhode Island in the final weeks of the legislative session, members waged an intensive telephone call drive to their legislators in support of the bill.16

19In all three states coalitions also included faith-based organizations, children’s advocates, senior groups, health care professionals, and more recently, in the case of New Jersey and Rhode Island, progressive business organizations like the Small Business Majority. It is worth noting that in Rhode Island, while there was less union involvement than in other campaigns, the AARP and the Senior Agenda Coalition (a local elder group) were prominent coalition leaders and thus instrumental to the bill’s passage. Rhode Island is one of the states with the highest proportion of elderly residents, so getting senior organizations on board was crucial.

Strategies

Financing the program

  • 17 In all five states, except California and Rhode Island., both employers and employees contribute to (...)

20The key to success in California, New Jersey, and Rhode Island was finding a funding mechanism that would not be an excessive burden on public finances or business. All three states paid leave proposals built off of one particular institution, their existing Temporary Disability Insurance Programs (TDI) which are financed by a payroll tax. These programs, which were also adopted by Hawaii and New York between 1942 and 1969 for workers in private employment, also cover pregnancy (since the Pregnancy Discrimination Act of 1977) and offer partial wage replacement for an average length of 4-6 weeks.17 So the administrative infrastructure capable of managing a new social right was already in place. Paid leave would thus be easy – contingent of course upon political will to do so – to implement: funded by employees contributions, it would take the form of social insurance: those paying into the program get something, an earned benefit, in return. That was one of the advocates’ main selling points. To further the project’s credibility, reports attesting to the positive societal impact of paid leave were solicited. Supporters in California commissioned a cost-benefit analysis of paid family leave from academics at the University of Chicago and the University of California. The New Jersey and Rhode Island campaigns commissioned cost estimates for paid leave benefits from the Institute for Women’s Policy Research.

Framing the issue

21Although the campaigns were initiated by women’s groups, and women stood to benefit the most, they carefully avoided framing paid leave formally as a “women’s issue”, but instead, so as to garner broader support, as universal and intergenerational vested interest. In California, many higher income women already enjoy paid leave, but the Labor Project refrained from emphasizing any class dimension, rather promoting the program as a means of helping to keep beneficiaries off public assistance thus having less resort to state welfare assistance, food stamp money and unemployment insurance. Elsewhere economic arguments were put forward. In New Jersey it would be good for business, make the state attractive for workers, level the playing field for small employers whose employees would thereby acquire a benefit most often reserved to those of large firms. In Rhode Island the issue was framed as an economic driver that would enhance the state’s regional competitiveness. Businesses would be able to recruit and retain desirable employees while devoting precious resources for investment, thereby keeping people employed and the economy prosperous. At the time, Rhode Island was suffering from one of the nation’s highest unemployment rates, as its economy was taking longer to emerge from the Great Recession than other states. The message of triumphant supporters was that paid leave was “win-win-win”: for workers, employers, and the state’s economy.

A long term process

22These paid family leave campaigns necessitated long-term efforts to raise awareness, educate the public and legislators, and succeed in placing the issue on the political agenda. Although each had its own time frame, specifically adapted to a different sets of actors and local circumstances, in each case, network building, research, fundraising, and winning over legislators to sponsor paid leave were long sought after prerequisites for a bill actually being introduced with any reasonable chance of success.

  • 18 For example in New Jersey, penalties for fraud and abuse rose from $250 in the initial bill to up t (...)

23In California, a 1999 bill improving the level of state disability insurance benefits and ordering a feasibility study on the adoption of a paid family leave program based on the state TDI program paved the way for passage of the law three years later. It took New Jersey 12 years to pass its paid leave bill, during which many proposals never even succeeded in making it to the state congressional committee phase. An initial bill introduced in 1997 faced strong opposition from business lobbies: a series of bills introduced between 2001 and 2008 failed to pass. In Rhode Island, an initial bill introduced during the 2012 congressional session failed passage, but was considered to have enough support to be reintroduced in 2013. Although the entire legislative process only took 18 months, state senator Gayle Goldin (elected in 2012) and non-profit organizations had been working since the early 2000s to expand the state TDI program to include another social program, that of bonding for adoptive families. While not yet coming to fruition, their efforts had laid the foundation for the 2012 campaign. Compromises and adjustments were also essential parts of the strategy to bolster support for the legislation. In all three states, concessions had to be made on the number of weeks, employer contributions, and job protection, so as to minimize employer opposition.18

Local Political Environment

24The political environment of each state’s local legislation and political culture were also important factors. All three states that passed paid leave legislation had traditionally enjoyed family-friendly traditions, had unified Democratic legislatures, and Democratic governors during the debates, and their bills had strong legislative support. They had all already adopted their own family and medical leaves before the federal FMLA. Rhode Island in 1942 had been the first in the nation to offer TDI, initially covering maternity, before dropping it because of cost constraints (N.Y, N.J, California and Hawaii did not offer it until 1977). In 1999, California passed an initial, limited family sick leave law. Its paid leave program also built on the state’s existing provisions for maternity leave (4 months of unpaid leave), which stood out as being exceptionally generous.

  • 19 “Labor had long standing ties to many Democratic elected officials and had played a key role in hel (...)

25In California, the Democrats had been in office since 1998, and organized labor had access to State Senator Sheila Kuehl, who had sponsored the legislation introduced in 2002.19 Advocates also benefited from a narrow window of opportunity: Governor Gray Davis, up for re-election and needing to shore up his unenthusiastic Democratic base and motivate voters, made paid leave one of the defining issues late in his campaign.

26In New Jersey, none of the bills gained traction until Democratic State Senator Steven Sweeney, a former union organizer, became the prime sponsor of a bill which could attract bipartisan support in 2006. The strong support of Democratic Senator Jon Corzine was also critical to the bill’s passage when reintroduced in 2008. Upon signing, he declared:

I believe the daily reality of the lives of New Jersey families makes this historic law a necessity. I am confident this self-funded family insurance program will improve family life, fill a gap in our social contract with our citizens and attract workers to this state.20

27In Rhode Island, the bill introduced benefited from the enthusiastic and open commitment of its sponsors, both of whom had a personal interest in paid family leave. Recently elected Democratic State Senator Gayle Goldin, a long-standing advocate of gender equality and member of the Women’s Policy Institute of the Women’s Fund of R.I., was a mother of two adopted children who believed that adoptive parents should be entitled to paid leave. She worked hard to rally a majority of senators behind legislation she believed was long overdue. Democratic State Representative Elaine Coderre had been personally affected by lack of paid family leave while her mother was ill. She made it her legislative signature piece, and having this senior, highly respected member of the House sponsor the bill was a strategic asset. The bill also benefited from the patronage of Democratic Governor Lincoln D. Chafee. A source close to Gayle Goldin shared her views on the paid leave victory, after a campaign that had not received any national media attention until its final days:

  • 21 Personal communication, June 3, 2014.

Many factors aligned for the passage of the bill in 2013, including the external advocacy of a broad coalition, support internally in the General Assembly from many elected leaders including the Senate President, the input of national organizations on policy and cost-analysis, and her own determination to get this bill into law.21

28Despite the differences in their campaigns, the above conclusion fittingly applies to all three states, where reformers were faced with similar hurdles to passing this landmark legislation.

Obstacles

  • 22 Opposition comes from organized business more than individual business owners.

29Advocates in all three states had to stand up to powerful, determined, well organized and financed adversaries, especially from the organized business community22 and their highly paid, savvy lobbyists. The battle therefore took place on two fronts and combined complex temporalities, for the challenge included mobilizing at the same time a constituency and maintaining a grassroots movement around an issue people are concerned with only during a short period in their lives. In California, business used the same arguments as in the FMLA campaign, arguing that the costs of the program would drive them out of the state, kill jobs, and increase the risk of fraud and potential abuse. They also argued that the disability fund would not be sufficient to finance the program. Similar objections were raised in New Jersey, where a bill close to passage in 2001 had ultimately failed due to business community resistance, the Chamber of Commerce, and the New Jersey Business and Industry Association arguing that employers would suffer by having to bear the cost of hiring replacement workers. In Rhode Island, the National Federation of Independent Business, the Chamber of Commerce, and the Society for Human Resources Management opposed it, worked hard to kill the bill, and once passed pressured the Governor to veto it. While many employers already provide paid time off to their employees and recognize it makes good business sense, they still tend to be firmly opposed to a government mandate. In addition to concerns about costs, they prefer to retain management control, considered to be part of an employer’s human resources prerogatives. Yet a key to success was support from a number of progressive business groups that testified in favor of the measure, including the U.S. Women’s Chamber of Commerce, the Main Street Alliance, and the Small Business Majority.

A Positive Impact, but Implementation Leaves Something to be Desired

  • 23 In California the combined payroll tax for the state disability insurance fund and paid family leav (...)
  • 24 Which is scheduled to be extended to 6 weeks in 2016.

30In all three states, benefits are employee-funded through a payroll tax and premiums are quite modest.23 In California and New Jersey, Paid Family Leave Insurance provides partial wage replacement benefits for up to six weeks to workers who take time off to “care for a seriously ill child, spouse, parent, domestic partner, or to bond with a new child.” In California, employees usually receive 55% of their pay (up to a max of $1,075/week in 2014), while in New Jersey, Family Leave Insurance provides up to 2/3 of weekly pay (up to a maximum of $595 in 2014).Under the Rhode Island Temporary Caregiver Insurance law which took effect in January 2014, all private workers (about 80% of the workforce) are entitled to four weeks off24 with two thirds of their wages, up to a cap of about $750 a week. Rhode Island has the most generous program, since it is the only state to offer job protected leave and has the broadest definition of family. All these programs improve on the FMLA, since workers are eligible regardless of the size of their company.

31Women have been the main beneficiaries of the new programs. In New Jersey, three years after passage of the law, 80% of the claims were for bonding with a new child and 89% of leave-takers were women, usually for bonding (White et al, 2013). In California, an estimated 168,000 workers have taken paid leave annually since the program went into effect. In 2011, 56% of leave-takers were women, and they submitted 70% of bonding claims (Appelbaum and Milkman 2011). In Rhode Island, in June 2014, over 1,000 residents had applied for Temporary Caregiver Insurance. Advocates considered that for the first year the take-up rate was on target and that awareness of the program would gradually rise.

32California has the longest running program and provides the best case study of the impact of paid leave on beneficiaries and businesses. On the positive side, five years after implementation, the program had no negative impact on businesses, and the majority of employers had no difficulty covering the work of employees on leave, suffered no additional costs, and experienced less turnover, since the program encourages job retention. Studies show that it has been particularly beneficial to low-income mothers financially: while having growing recourse to leave, it has not damaged their job opportunities. It has benefited infant health as well, notably thanks to longer duration of breastfeeding. As more fathers take advantage of the program, especially for bonding with a new baby, paid leave becomes a vector for changing gender norms (Appelbaum and Milkman 2011 and 2013; Rossin-Slater et al 2011).

  • 25 However, a bill that broadened the definition of family under the paid family leave act was passed (...)

However, the program does fall short of one of its major goals: reducing inequalities between high and low income earners (Appelbaum and Milkman 2013: Chap. V). Low awareness, a major problem in early years, persists. Six years after its launch, many low income workers, immigrants and notably Latinos were not aware of the program, although standing to benefit the most, since most highly paid workers already receive family benefits. And many who are aware of the program don’t apply for paid family leave: one-third of workers surveyed explained that the wage replacement was insufficient and another third feared making their employer “unhappy.” Thus 24% were “afraid of being fired,” since there is no job protection for workers in companies not covered by FMLA rules. A bill that would have added job protection to the program died in the Senate in September 2013 due to strong employer group opposition.25

Although the New Jersey law is more recent, initial surveys of its impact have yielded similar results: 3 years after passage, awareness was very low, 6 out of 10 surveyed were unaware of the law, in particular those who stood to benefit the most, even while contributing to the program through pay check deductions, and some of them had even taken leave without claiming benefits (White et al 2013).

On the other hand, impact studies show, as in California, virtually no significant financial losses or lower productivity (Appelbaum and Lerner 2014).

It should also be noted that the way those systems are funded is regressive and penalizes low-wage workers: in all three states there is a cap on taxable salaries for paid leave insurance, so that the poor contribute a higher percentage of their salaries than the better off.

  • 26 Rachel-Lyn Longo, Shanna Pearson-Merkowitz. Paid Family leave. University of Rhode Island. Digital (...)

So the record is mixed. Awareness of the issue is spreading and momentum is growing, but even if more women are benefiting from leave, existing state programs have been largely unable to address class inequalities. Extensive outreach and education campaigns will have to be undertaken to better inform potential beneficiaries. Suggestions have been made to eliminate the cap on taxable income to make the system more equitable.26 Enacting legislation is the first, crucial step, but the process does not end there. Devoting sufficient resources for effective implementation and adjustments is just as essential for the programs to deliver on their promises.

2. The Limits of the Laboratory Metaphor

33These experiences raise the perennial question of whether states in a federal system can be testing grounds for innovative policies that will then trigger emulation by other states and ultimately set the stage for national legislation. Historic examples often cited in support of the states-as-“laboratories-of-democracy” theory include unemployment insurance and minimum wage laws. More recently, since Nixon’s New Federalism and Reagan’s attempts to shift responsibility for social programs back to the states, there has been a resurgence of the states’ power in policymaking (Karch 2007:chap. I). Welfare reform and the Children’s Health Insurance Program (CHIP) were local experiments before being enacted by Congress in 1996 and 1997. Major features of the Affordable Care Act were borrowed from the Massachusetts health care system, introduced in 2006.

34Passage of the California law was undoubtedly a catalyst, model and inspiration for other state-based initiatives on paid leave, for the movement regained momentum after the 2002 landmark victory. In New Jersey, many bills had been introduced but without gaining traction until the California law passed. New Jersey advocates and policy makers saw this as a precedent for their state, citing reports showing that the California measure had not been detrimental to business. New Jersey program administrators also took note of the implementation problems their California counterparts had encountered in order to ensure a smoother start. In Rhode Island, coalition leaders worked closely with their California and New Jersey counterparts to understand those campaigns’ research, policies, best practice, and obstacles to overcome. However, even in traditionally progressive states, advocates are faced with a number of political and policy challenges which make policy diffusion problematic. New York and Washington are two cases in point.

  • 27 It includes over a hundred organizations, women’s groups, unions, children’s advocacy groups etc.
  • 28 Some details of the N.Y. campaign were provided by Sherry Leiwant, Co-Founder and Co-President of A (...)
  • 29 Interview with N. Rankins, Vice president for Policy Research and Advocacy, Community Service Socie (...)

35In the wake of the New Jersey and Rhode Island bills, New York has been heralded as the likeliest new candidate for paid family leave: it is one of the five states with a temporary disability insurance system, one of the most liberal states in the country, with the highest unionization rate and a track record of progressive legislation. However, the peculiarities of local politics, unfavorable timing, conflicting agendas, and the complexities of the intra-legislative process have contributed to the failure of all the bills introduced since advocates (mostly from the New York AFL-CIO) first began pushing for paid leave in the late 1990s. The current campaign is led by the New York Paid Leave Coalition,27 A Better Balance, and the Community Service Society of New York, an anti-poverty non-profit organization. Women and labor have been key coalition partners from the outset, and advocates have more recently been mobilizing children’s rights groups. These organizations were also instrumental in the passage of the landmark paid sick days ordinance in June 2013. A paid family leave bill passed the Democrat-controlled State Assembly with the support of Assembly Speaker Sheldon Silver in 2007 and 2010, but failed to garner enough votes in the State Senate, historically dominated by Republicans. In 2012 the coalition intended to again launch a real push for the bill, but other issues absorbed energy and focus from advocates: the debate over the 10-point Women’s Economic Agenda, introduced by Governor Andrew Cuomo (which doesn’t include paid leave) and the paid sick days campaign in New York City, for which there was a political opening in an election year.28 A redrafted bill passed the Assembly again in March 2014, sponsored by State Representative Catherine Nolan (who had sponsored the 1998 bill!) but was stalled again in the Senate, hampered by divisions among Democrats (a small fraction, the Independent Democratic Caucus, led by State Senator Jeffrey Klein formed a coalition with Republicans and introduced its own bill). The bill also faced strong opposition from the New York Business Council. Although advocates insist on the plan’s affordability and simplicity which builds, as previously explained, on existing social state programs, one difficult policy area is the benefit level of the current TDI program ($170/week), which has not been adjusted for inflation since 1989 and is much lower than in other states. Debate has focused on the need to raise payment levels which would raise costs for business: although the family leave bill would be financed by payroll deductions from workers, the TDI program is financed by both workers and employers. Nonetheless business opposition, which, as elsewhere is arguably less about cost than about principle, is not the major obstacle to passing paid family leave. In addition to the aforementioned lack of Democratic unity in the Senate, the main stumbling block has been the absence of leadership from Governor Cuomo on the issue. Although positioning himself as a liberal on social issues such as same-sex marriage and abortion, he is a budget conscious, fiscal conservative who has declared that the number one problem in New York State is that taxes are too high. He has also proved to be reluctant to back any measure that might appear detrimental to business interests. As the spring 2014 legislative session drew to a close, paid family leave had clearly been put on the back burner while Senate Democrats refocused on their top priorities: the Women’s Equality Act, the DREAM Act for immigrant rights, and the public campaign finance system. In spite of the Republican takeover of both state houses in the 2014 midterms, paid family leave activists are determined to keep up the fight. Although renewing the initiative during the next legislative session will be tough, they are taking on the challenge vigorously. Their hope is to enhance public awareness to degrees achieved in their paid sick days campaign, where unions (SEIU and 32BJ) and grassroots New York City based groups such as ROC-NY played a more active role.29 A victory in New York is a major stake for advocates: it would have a vast resonance nationally, given the state’s size and historic leadership in progressive causes.

36However, the biggest impediment to policy diffusion remains the difficulty of designing an adequate financing model and benefit structure. So far the states having succeeded in passing reform have all built on the TDI model. Being able to rely on this mechanism for collecting and paying for benefits has been a key lever in passing reform. It is a much heavier lift in states where such infrastructure and a funding mechanism need to be built from the ground up. The state of Washington is an interesting case-in-point of the challenges of implementing paid leave without a pre-existing disability insurance program.

  • 30 Workers would be entitled to 5 weeks of paid leave, with a flat weekly benefit of $250.

37In the early 2000s, Washington was among the states which unsuccessfully tried to use the unemployment insurance administration to provide paid leave. A coalition led by the Economic Opportunity Institute, a progressive think tank, had gradually built support through awareness-raising campaigns and holding hearings on paid family and medical leave. From 2001 on, a paid leave bill was introduced every year, its focus adjusted to the political climate. Finally, in 2007 Washington became the second state to pass a paid leave law,30 with the support of a Democratic legislature and governor. However, the initial proposals had been watered down: the medical component was dropped, only new parents were concerned, and no funding source was included, for the proposed payroll tax had been abandoned in 2002 during the recession. In 2008, due to a second, much more severe recession, Governor Christine Gregoire froze the program along with other social programs. Implementation was scheduled for October 2009, but was postponed twice and has now been delayed indefinitely due to lawmakers’ inability to agree on a funding source, to the lack of a pre-existing administrative structure, and to state budget constraints. In the meantime it has faced steady opposition from the business community and the threat of repeal by Republican lawmakers. Along the way, advocates were able to score a meager victory: a bill allowing workers to use their paid time off to care for sick relatives.

38The movement does not, however, seem to have lost steam. In 2014-2015 campaigns were being waged in several other liberal or liberal-leaning states. Connecticut, Vermont, and New Hampshire had set up task forces for feasibility studies, paying close attention to precedents. Massachusetts had a bill pending. Notably thanks to union support, Colorado introduced a paid family and medical leave bill in the spring of 2014 which was stuck down in the Senate because of hostile business lobbies and concerns about the impact of start-up costs on public finances. In all cases, however, the primary obstacle is funding sources and administrative/redistribution mechanisms. Another, major challenge to the state-by-state approach to innovation which should not be underestimated is the current political landscape, the assault on labor rights in Republican-dominated states, and the determination of conservative groups to block or invalidate any and all progressive legislation. Paid family leave advocates face enormous political roadblocks in those states where paid sick time campaigns have also run into strong corporate opposition. Thus, under the pressure of business groups, Milwaukee’s paid sick days ordinance, approved by voter referendum in November 2008, was invalidated by the state legislature in 2011, in this state of Wisconsin which, notably since the election of conservative Republican governor Scott Walker that same year has taken a decidedly anti-union turn, sparking highly publicized mass protests and a recall election aimed at Walker, but to no avail. And a new brand of institutional obstructionist measure may be gaining ground: ten states now bar municipalities from enacting paid sick leave laws, seven of them having passed such laws in 2013.31 In this bleak context, if paid family leave bills are introduced into these states,32 they are unlikely to be passed. Partisan control of legislature and governorship is therefore a critical factor: as is the case for many state level policy innovations, paid leave legislation is a politically-driven process.33

Conclusion

Paid Family Leave – Unfinished Business or Work in Progress?

39With increasing doubt about prospects for policy advances in the states, advocates have begun directing their efforts towards the national legislative arena believing the time is ripe, given the support of a family-friendly administration. And indeed, the passage of family leave in several states has helped move policy issues to the forefront at the federal level, helping to inform the national conversation and build momentum for a national paid family leave measure. But obstacles are no less formidable than those faced in the states: fierce business opposition, lukewarm support other than rhetorical from the top Democratic leadership, and a highly polarized Congress.

  • 34 The bill died in the House where it did not make it out of committee. It failed to attract a single (...)

40Some Democrats have shown their commitment to addressing work-family concerns. In addition to Nancy Pelosi’s initiative mentioned earlier, two Democratic lawmakers introduced a paid family leave bill in Congress in December 2013. The Family and Medical Insurance Leave Act (FAMILY Act), sponsored by Senator Kirsten Gillibrand (D-NY) and Representative Rosa DeLauro (D-CT), a long-time advocate of family friendly policies, would provide all eligible employees with up to 12 weeks of paid leave.34 A key point is the inclusion of a federal redistribution mechanism: the program would be administered through the Social Security Administration and be paid for through payroll contributions from both employers and their workers.

  • 35 Reintroduced in February 2015 by Rep. De Lauro and Sen. Patty Murray (D-WA).

41Another more modest piece of legislation, the Healthy Families Act, also initially sponsored by Rep. De Lauro,35 which would require employers of 15 or more employees to provide up to seven job-protected sick days each year to employees, has been introduced in every Congress since 2004, but with no success.

  • 36 The Republicans countered with proposals for tax breaks for working parents and for companies which (...)

42The Obama administration has adopted resolutely pro-family discourse from the start, hosting a Forum on Workplace Flexibility in March 2010 to encourage businesses to provide workers more choice in their hours and schedules. However, concrete measures have been largely symbolic, except for an expansion of FMLA leave rights for employees with family members in the armed services. In June 2014, the White House hosted the first Summit on Working Families to discuss workplace policies, including paid leave to accommodate the needs of parents. The event was preceded by weeks of regional forums held across the nation which brought together businesses, elected officials, nonprofits, labor experts, and citizens, who were invited to discuss the issues, share personal stories, and contribute ideas. Many Democrats focused on these issues in the 2014 midterm general elections, hoping to increase their traditional edge over Republicans among women voters.36 Paid family leave, together with paid sick days and women and families economic security featured on campaign agendas attempting to send the electorate a vibrant message that Democrats are determined to respond to the daily concerns of all working Americans.

43These issues, along with pay equity, are also part of the larger debate on inequality which has emerged in the nation since the Great Recession. But one may doubt whether the discourse will translate into action. Thus, although the Working Families Summit was an occasion to grandstand the President’s concern for these topics, he stopped short of formally endorsing the FAMILY Act since it would involve raising taxes on the middle-class and thus renege on one of his core 2008 campaign promises.37 And in June 2014, Hillary Clinton, a potential first woman candidate for the Presidency, declared federal paid family leave desirable, but added, “I don’t think, politically, we could get it now.”38 Indeed, in the aftermath of severe Democratic losses in the 2014 midterm general elections, prospects for a federal paid family leave bill are unrealistic in the near future although president Obama called on Congress to pass family friendly measures in his January 2015 State of the Union address.39 Although the issue has definitely gained political legitimacy and unprecedented visibility, advocates see it as a long-term trajectory, expecting it will take years and require a shift in the Congressional balance of power. Their strategy is to continue to highlight the issues in election campaigns, continue to make incremental gains in states and localities,40 including for paid sick days where their introduction represented one of the few bright spots in November 2014,41 and build evidence that a national program of paid family leave is long overdue and will ultimately be a political winner for candidates. However, whether broad popular support for public solutions to work-family problems translates into clear electoral gains for their proponents and losses for their opponents still remains to be seen.42 While some in the Democratic Party believe focusing on paid leave and measures to appeal to parents would help them attract middle-class votes in 2016,43 the party has to tread carefully on issues involving unpopular new taxes as it still reels from a bruising battle over the Affordable Care Act and tries to define a strategy to recover lost ground in the next election. But one thing is clear, that work-family policy has established itself as the next major social policy challenge on the Democratic agenda.

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Notes

1 The conference, held in Bellagio, Italy (January 29 – February 2, 2001), sponsored by Cornell’s Institute for Women and Work and directed by Betty Friedan and Francine Moccio, brought together scholars, labor activists and government officials from 14 countries to discuss work-family issues and develop recommendations.

2 The law allows eligible workers to take up to 12 weeks of job protected leave to care for a newborn or newly adopted child, for a sick relative or to recover from their own illness. It only applies to public and private employers with 50 or more employees. To qualify they must have worked at least 1,250 hours (approximately equivalent to 156 workdays and 31 workweeks) in the previous 12 months. Most part-time workers, and employees of SMEs are not covered by the FMLA.

3 FMLA 2012 Survey.

4 March 2013, Bureau of Labor Statistics, Employee Benefits in the United States. Federal workers are no exception. The Federal Employees Paid Parental Leave Act, which would provide 4 weeks of paid leave for the birth or adoption of a child, has been introduced every year since 2000, and was passed by the House in 2009 but failed in the Senate.

5 Census Bureau 2013.

6 The agenda included proposals in three broad areas – equal pay, work-family balance, and accessible child care.

7 BLS Employment characteristics of Families 2013.

8 Human Impact Partners, 2011, Fact Sheet: Parental Leave and the Health of Infants, Children and Mothers, Oakland, CA: Human Impact Partners.

9 National Partnership for Women and Families http://www.nationalpartnership.org/news-room/press-releases/new-poll-shows-bipartisan-mandate.html.

10 US Dept of Labor, 1996. A Workable Balance: Report to Congress on Family and Medical Leave policies, p.199.

11 Personal communication, 21 Oct 2013. Ellen Bravo, a long-running activist and advocate of working women’s rights, is current executive director of Family Values at Work.

12 San Francisco (which pioneered the movement initiated by a grassroots group of young restaurant workers and activists), Washington DC, Philadelphia, Seattle, Portland (Oregon), New York City, Jersey City, Newark, Paterson, Irvington, East Orange, Passaic, Montclair, Trenton (N.J) Oakland, Eugene (Oregon). The movement accelerated in 2014: two states and 10 cities passed laws in that year alone.

13 Founded in 2005 in New York City by women’s rights lawyers from NOW’s Legal Defense Fund who thought “the traditional women’s groups were not paying enough attention to issues of work-family balance,” the organization is at the forefront of recent state campaigns for paid family leave and paid sick days.

14 Interview with Ellen Bravo.

15 November 2005, “The California Paid Leave Program”, Sloan Network Archive, vol. 7, n° 11.

16 Insights into the R.I. campaign were provided by Marcia Coné, CEO of Women’s Fund of Rhode Island. Sept 10, 2013. Additional details were offered by a source close to a R.I. legislator in June 2014.

17 In all five states, except California and Rhode Island., both employers and employees contribute to the TDI fund. Wage replacement rates and eligibility requirements vary. TDI only covers the period of disability related to childbirth, and as such excludes men.

18 For example in New Jersey, penalties for fraud and abuse rose from $250 in the initial bill to up to $1,000 in the final version.

19 “Labor had long standing ties to many Democratic elected officials and had played a key role in helping them achieve a voting majority in both houses of the California legislature as well as in helping to elect Gov. Davis” (Appelbaum and Milkman 2013: 20).

20 http://www.nj.com/news/index.ssf/2008/05/corzine_signs_family_leave_act.html

21 Personal communication, June 3, 2014.

22 Opposition comes from organized business more than individual business owners.

23 In California the combined payroll tax for the state disability insurance fund and paid family leave is 1.2% of wages. In New Jersey the payroll tax for PFL alone is 0.06% of wages. In R.I., workers pay 2% of their first $61,400 in earnings into the fund that pays for TDI. This amount will be slightly raised in 2015 to cover the cost of the PFL program.

24 Which is scheduled to be extended to 6 weeks in 2016.

25 However, a bill that broadened the definition of family under the paid family leave act was passed in November 2013, extending eligibility for program to employees who need to care for a seriously ill grandparent, grandchild, sibling, or parent-in-law.

26 Rachel-Lyn Longo, Shanna Pearson-Merkowitz. Paid Family leave. University of Rhode Island. Digital Commons@URI 2014.

27 It includes over a hundred organizations, women’s groups, unions, children’s advocacy groups etc.

28 Some details of the N.Y. campaign were provided by Sherry Leiwant, Co-Founder and Co-President of A Better Balance, Nov 13, 2013.

29 Interview with N. Rankins, Vice president for Policy Research and Advocacy, Community Service Society of N.Y., June 10, 2014. “Paid sick days was more of an issue for low-wage workers, Latinos and workers employed by smaller businesses, all of whom were less likely to have paid sick days … but the unions support both issues, and the state federation of the AFL-CIO is an important core partner in the Paid Family Leave Campaign.”

30 Workers would be entitled to 5 weeks of paid leave, with a flat weekly benefit of $250.

31 http://www.epi.org/publication/states-pushing-bans-sick-leave-legislation

32 Nebraska, a Republican dominated state, introduced a paid family leave bill in January 2013.

33 The nationwide republican gains in the states after the 2014 midterms might well put on hold initiatives aimed at improving workers rights such as paid parental leave. On Nov. 5 Republicans controlled both houses of the legislatures of 29 states and held 31 governorships.

34 The bill died in the House where it did not make it out of committee. It failed to attract a single Republican vote. It was reintroduced in March 2015.

35 Reintroduced in February 2015 by Rep. De Lauro and Sen. Patty Murray (D-WA).

36 The Republicans countered with proposals for tax breaks for working parents and for companies which offer paid leave on a purely voluntary basis. http://www.fischer.senate.gov/public/index.cfm/2014/7/fischer-king-introduce-bipartisan-paid-family-leave-proposal.

37 http://www.washingtonpost.com/politics/obama-uses-personal-experience-to-advocate-for-family-leave-workplace-flexibility/2014/06/23/b98b3410-faf0-11e3-b1f4-8e77c632c07b_story.html. However, in September 2014, the Department of Labor awarded $500,000 “to assist the District of Columbia, Massachusetts Montana and Rhode Island in funding feasibility studies on paid leave. The studies will inform the development or implementation of paid family and medical leave programs at the state level”. DC, Massachusetts and Montana are led by Democrats. D.C government employees became eligible for up to 8 weeks of paid family leave on October 1, 2014.

38 CNN interview 18 June 2014.

39 He expressed his support for the Healthy Families Act and included $2billion to help states to start their own paid leave programs in his budget.

40 In December 2014 Hillary Clinton confirmed that method by declaring “We need to get paid leave provisions on every state ballot by 2016 that we can possibly manage to do”. 10th annual Massachusetts Conference for Women.

41 Paid sick leave passed on four ballots including in Massachusetts where voters elected a Republican governor

42 The National Partnership for Women and Families analyzed the campaign websites of general election candidates for governor and the US Congress between September and Nov 2014 to assess whether their positions on work-family/women’s economic security had had an impact on their election. They found candidates whose websites mentioned this set of issues were more likely to win, but only 1/5 of all candidates had mentioned these issues at all. Further research will be necessary to confirm these findings. http://www.nationalpartnership.org/research-library/work-family/2014-midterm-election-candidates-campaign-website-analysis.pdf

43 http://www.washingtonpost.com/blogs/plum-line/wp/2015/02/12/the-next-democratic-pitch-to-middle-class-voters

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