Pushed by Ivanka Trump and others, a bipartisan agreement on paid family leave is gaining steam. But first we should step back and evaluate programs already in place, like the federal Family and Medical Leave Act (FMLA).
During my 17 years as a labor attorney, I have witnessed the FMLA erode the rights of businesses and families. Let’s review why expanding family leave entitlements is bad for America.
1. Top-Down, One-Size-Fits-All
Signed by President Bill Clinton in 1993, FMLA requires employers to provide 12 weeks of leave to employees with serious illness, new babies, or other caretaking responsibilities. FMLA is not paid, although private and state benefits may be available.
FMLA applies to all industries across America. Attorneys and truckers, hotel operators and web designers: if a business employs more than 50 people, FMLA governs every employee request for family leave.
In a nutshell, this means the employer must hold the person’s job open for up to 12 weeks. For an excellent employee in a flexible job, the employer may not mind waiting. But what about a poor employee in a time-critical job, where the company is already searching for a replacement? Either way, the feds have decreed the job must stay open.
FMLA was enacted with good intentions, to solve one of life’s harsh edges. When employees have babies, or other family caretaking duties, their ability to work may be impaired. They may even be fired.
Losing your job due to caretaking sucks. But, as Thomas Sowell likes to say, “There are no government solutions, only tradeoffs.” Shouldn’t these tradeoffs be evaluated at the local, individual level, rather than mandated from on high by Congress?
Some private employers craft their own paid and unpaid leave policies, within the parameters of business needs. These policies are intended to increase morale and retention. Ironically, FMLA “entitlements” tend to crowd out creative, local solutions. When employers ask me to review their employee handbooks, they want to know “What am I required to do?” not, “What can I do to benefit my workforce?” Blame FMLA for compliance culture instead of creative culture, which means fewer mutually agreeable options for families and businesses.
2. A Hidden Tax
FMLA is not “free.” Instead, it represents a hidden tax on employers. For starters, many employers are reluctant to add the 50th employee who triggers FMLA, impeding job and economic growth. Once forced into the brave new world of FMLA paperwork, employers must increase their human resources staffing.
In addition, the employer must now make personnel decisions to please the federal government, rather than promote their business’s needs. This ultimately harms workers by reducing their employment opportunities. But it’s invisible to most people because they have no idea federal rules like this are a drag on their career potential and overall national economic health.
Every week I receive calls from employers struggling to reconcile their operational needs with FMLA requirements. Sometimes, while the employee is on leave, the employer uncovers evidence of misconduct. Sometimes the workforce discovers it is happier and more productive without the employee. And sometimes, during the three months of FMLA, business needs change and the position becomes redundant. What should the employer do in such cases?
Theoretically, employees on FMLA may be terminated for the same reasons as other employees (for example, poor performance or layoffs). But in practice, employees on FMLA are in a special, “protected category.” When an employer terminates an employee on FMLA, even for legitimate reasons, the company risks a lawsuit. This is the answer I must give my clients, over and over again, regardless of how unjust it is to customers, other employees, the business, and potential hires for the position.
Lost flexibility and efficiency under FMLA impairs employers’ ability to respond to customer needs, not to mention the needs of other employees. When the company’s bottom line is hit, consumers and co-workers bear the brunt through higher prices and lower wages.
3. Bound by Red Tape
FMLA assumes employers can’t be trusted to do the right thing freely. Certainly it assumes employees can’t be trusted to negotiate their own terms. Instead of common-sense decisions based on private interests, we have rigid protocols constructed by an unaccountable, unelected bureaucracy.
The Federal Register devotes more than 52,000 words to FMLA regulations, not including Department of Labor (DOL) opinion letters and interpretive guidance. The parties can’t just sit down and rationally discuss how to accommodate both company and worker. Instead, both employer and employee must follow voluminous, impersonal rules.
The paperwork is so technical, and the risk of litigation so high, that some employers outsource FMLA administration to a third party. Can you imagine requesting family leave from an impersonal 800 number? Many employees do. Thanks, federal leave!
4. Increased Litigation
Employees can enforce their legal preferences under FMLA by filing a complaint with the DOL or any court. Because the legal process is astronomically expensive, employers almost always settle, without any determination by a neutral third party about whether the employer did anything wrong. This self-perpetuating, complaint-based system squanders company resources on attorneys and rewards employees for being aggrieved.
As with other well-meaning employment laws, attorneys are the big winners. The losers, of course, are consumers, who bankroll big legal budgets by paying higher prices. Perhaps if Congress stopped encouraging frivolous litigation, the cost of living would go down, and more families could survive on one income.
5. Fake Doctor Notes
To get approval for FMLA leave, employees must produce a doctor’s note. This means the doctor is the gatekeeper for protected time off. Furthermore, doctors do not have to explain their reasoning, since privacy laws prevent disclosure of specific diagnoses. Thus doctors have unilateral authority to place employees on and off work.
Based on the cases I have litigated, I can testify that employees regularly abuse FMLA to avoid work. Unfortunately, plenty of doctors are complicit. If an employee wants time off—perhaps due to “work stress”—some doctor will write the note. As long as the doctor releases the employee back to work within 12 weeks, this legal gamesmanship at the employer’s expense has no consequences to doctor or patient.
6. Clogging Up Job Availability
By forcing employers to “hold the place” of employees on leave, FMLA reduces available jobs. Once an employee goes on FMLA, the employer can (1) make do with existing personnel; or (2) hire a temp. Both of these options are problematic. For example, clients have told me they are more than willing to hire a permanent replacement, but training a temp is not cost-effective. Instead, then, the federal leave mandate forces existing employees to struggle with extra duties.
FMLA also blindly diverts other people’s resources toward the caretaking employee, even when unnecessary. For example, employees who are thinking about quitting might accept job-protected FMLA to keep their options open. When they don’t return to work, they have delayed the hire of a replacement by several months. In other cases, employees on leave are deterred from exploring other paths that might be more beneficial to their families. The 12 weeks of FMLA becomes a default.
7. A Confusing Patchwork of Rules
Meanwhile, many state and local governments have enacted their own paid and unpaid leave policies. The general rule is that employers must follow the law most favorable to the employee, which sounds straightforward. But in practice, the multiple layers of leave laws are horribly confusing. For example, try explaining to your client that leave under the California Family Rights Act (CFRA) generally runs concurrently with FMLA, unless the employee is pregnant, in which case California Pregnancy Disability Leave (PDL) runs concurrently with FMLA, then transitions to CFRA.
Assuming we even need government instead of the responsible parties to secure family and medical leave, aren’t state and local governments better able to gauge the needs and goals of their communities? There is no reason for the national government to insist on its own layer of red tape.
8. Shifting Responsibility
Joy Pullmann discusses how a proposed extension of FMLA by letting people tap Social Security benefits after childbirth would impoverish families. A quarter-century ago, FMLA got the ball rolling by normalizing the anti-family assumption that other people are responsible for one’s family, and all in a law that starts with the word “family.”
At its core, FMLA assumes you are not able to handle caretaking for your own family. Instead, you need the government to force your employer to hold your job. This is a gross misplacement of responsibility.
Caretaking is one of life’s basic challenges. Individuals, families, and communities should be empowered and held responsible to plan and meet these challenges in ways that fit the specifics of the situation.
Your employer is responsible for producing products and services, not for subsidizing employees’ personal needs (although a free and robust economy benefits everyone, including caretakers). And it is ridiculous to assume the federal government, to whom you are just a number, can come up with the ideal plan for your family.
9. Anti-Family Assumptions
FMLA assumes that (1) the obligation to care for family members is an “interruption” from work, making work the primary and more valued activity; (2) full-time caretaking can and should be completed in 12 weeks, at which point the caretaker is expected to hustle back to work; and (3) caretakers (generally mothers) should expect to support themselves by returning to work, rather than rely on breadwinners (generally fathers).
These all undermine the family as a person’s primary responsibility and replace it with paid work. Instead, people should be free to make their own priorities and should be encouraged to personally uphold commitments they have made to people who depend on them rather than trying to force others to do it for them.
Perhaps one day Americans will have the courage to repeal expensive, restrictive legislation that undermines the family. At minimum, we should think twice before expanding FMLA by passing any federal paid leave plan.
