“Your children need your presence more than your presents.” The Reverend Jesse Jackson
Achieving a balance between being there for one’s kids and providing for them is one of the greatest challenges faced by working parents’ in today’s society. In fact, the Bureau of Labor Statistics, Department of Labor, estimates that 90.7% of families with children under the age of 18 have at least one employed parent, and 62.2% of married couple families with children have two employed parents.1
In 2008, seven out of 10 mothers with children under 18 years old were in the labor force. Over half of all mothers regularly worked full time last year.2 “Most children – 70 percent – grow up in a family with either a working single parent or with two parents who both work.”3
As school-age children head back to the classroom this month, one of the challenges that oftentimes arises for working parents is balancing work requirements and attendance at school functions such as parent-teacher conferences, class parties, meetings, volunteer activities, assemblies, and other extracurricular activities. Parental presence at school proves to be particularly tricky for employees at companies lacking flexible leave and hours policies. One working mother reflected years later over the angst she felt when torn between her job and participating in her daughter’s school holiday party:
“When my (now twenty-something) daughter was four years old, her daycare class had a Thanksgiving program. I had just started a new 8-5 job as a sales support assistant, and right after I started, the company announced that we would all have to work overtime for the next two months to fill orders. I explained to my female boss that I couldn’t work that late, because I had to pick up my kids from daycare by 5:30 pm, and her reaction was pretty negative. There was no way I was going to ask her if I could have a couple of hours off to go to a Thanksgiving party in the middle of the day. I picked up my daughter after school and asked her how the program was, what the food was like and if there were a lot of moms and dads there. Her response was simply ‘you weren’t there.’ Many years later I still vividly remember that moment, because it really tore me up.”
Even workers with more schedule flexibility feel the tug of competing interests, and the pressure to avoid stereotypical stigmas attached to caregivers in the workplace. A father who is a partner in a large accounting firm describes his experience as follows:
“My own dad was a teacher, and usually able to attend my little league games and practices when I was growing up. That meant a lot to me, and I want to do the same for my kids. I don’t punch the clock, so when I need to leave to attend something for my family, I don’t have to ask permission to do so or tell anyone where I am going. But I certainly don’t broadcast that I am going to a school function. Given the fact that my firm has undergone a recent series of reductions in force, I keep this on the down-low. No one can afford to be dispensable right now.”
Responding to concerns such as these, over the last decade, many employers have began to offer flexible work schedules and leave policies (for example, paid time off that can be used for whatever reason the employee chooses) affording employees more opportunities to participate in their children’s educational activities. This practice has been lauded and strongly encouraged by nationwide work-life balance advocacy groups4, and by the Equal Employment Opportunity Commission. In April 2009 the EEOC issued Employer Best Practices for Workers with Caregiving Responsibilities, as supplemental guidance to its’ 2007 Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities. The document provides “examples of best practices for employers that go beyond federal nondiscrimination requirements and that are designed to remove barriers to equal employment opportunities.” While much of the guidance is geared towards promoting awareness and avoidance of stereotypical attitudes towards employees with caregiver responsibilities, the general tone of the document promotes a movement towards achieving greater work-life balance for employees.
The Legislative Landscape
Lawmakers over the past fifteen years have also demonstrated a willingness to provide employees with leave rights in this area. In the last three months alone the legislatures in two states (Colorado and Nevada) have passed legislation affording employees significant increases in school visitation leave rights. The proposed amendments to the federal Family and Medical Leave Act, and current state legislation related to this issue are outlined below:
A Bill to Watch: In February 2009, Representative Carolyn Maloney (D-NJ) introduced the Family and Medical Leave Enhancement Act of 2009, to amend the FMLA to allow employees (both public and private) unpaid leave to participate in or attend their children or grandchildren’s school or community organization activities (i.e. parent/teacher conferences, scouting or sport events).5 This leave is in addition to other forms of leave under the FMLA. As introduced, the bill would provide for up to four hours of leave in any 30-day period, not to exceed 24 hours during any 12-month period.6 Other features of the bill as introduced provide that:
- The employer may require, or the employee may elect, to substitute any accrued but unused paid vacation, personal, or family leave
- An employee is required to provide at least seven days notice or as much notice as is practicable before the leave is to commence
- The employer may require certification.
The bill was referred to the Subcommittee on Workforce Protections on March 22, 2009, and the Subcommittee on Federal Workforce, Post Office and the District of Columbia on May 3, 2009. Co-sponsors of the act include approximately 23 Democratic Representatives from states such as Connecticut, California, Massachusetts, New York, Washington, Arizona, Texas, North Carolina, Michigan, Vermont New Jersey and Florida. Similar legislation has been unsuccessfully introduced several times in the past decade. However, the chances of success are now much greater given the fact that the Obama Administration lists expanding FMLA leave to include parental school leave as a key employment law initiative.
State Legislation: As of August 2009, twelve states and the District of Columbia afford some type of statutory leave to attend school and/or daycare functions and conferences. A summary of these laws and what they provide follows:
[ TABLE HERE ]
None of these statutes require the leave to be paid. Several statutes provide that the leave shall not affect the employee’s entitlement to accrual of benefits or seniority. Several also provide specifically that an employer may not discharge or otherwise discriminate against employees for exercising this right.
Arkansas, Utah and Tennessee have statutes that encourage private employers to provide for educational leave, but do not provide for any specific leave provisions or penalties for failure to do so.
A bill in Georgia (the Parent Protection Act, HB 37) has been introduced that would provide for unpaid parental leave9 to attend a school conference for the employee’s child, when the conference cannot reasonably be scheduled during non-work hours. Similar to existing state laws, this bill would provide for reasonable notice, allow employers to require written requests at least 48 hours before the planned absence, and allow employers to require written verification of the need for the leave. It also would also allow employers to require employees to take leave in increments of no less than two hours. The bill provides that small employers (with 10 or fewer employees at the same location) would be allowed to reasonably limit the number of employees allowed to take a personal absence on the same day.
Balancing the competing interests of employers and employees: Practical Tips for Employers
So what does all of this mean for employers? Obviously, incorporating as much leave flexibility as is possible within your business model will lead to a more productive and positive workforce. Here are some practical tips of how to proactively manage the potentially competing interests that may arise in this area:
- Review the law in the states in which you operate to determine if there is protected leave available; if so, revise your employee handbook in these states to address this leave
- Consider whether caregiver grandparents and step-parents, or others with legal custody, are to be afforded coverage
- Incorporate written advance notice requirements in compliance with the relevant law, to avoid after-the-fact employee claims that “I told my supervisor it was protected leave to attend a school conference” and draft a standard form to use for this purpose
- School conference schedules are often set months in advance. Remind employees to check school calendars in September and January, and to discuss their plans with their supervisors to minimize disruption to the workforce
- Consider possible FLSA considerations if your policy provides for unpaid leave for exempt employees in increments of less than a day
- Consider referencing your policy on partial day absences and use of paid leave for exempt employees due to FLSA concerns
- If your policies do not provide for school visitation or parent-teacher conference leave, but do provide for paid time off to be used at the employee’s discretion, consider mentioning this as a possible use of the leave in the PTO policy
- Regardless if you provide specific leave for educational or parent-teacher conferences, or simply allow for this under paid time off, train supervisors to avoid making any comments expressing anti-caregiver stereotypes in discussions with employees who seek to take leave to attend school conferences, etc. (such as asking a male employee with a wife who does not work outside the home, “isn’t t that something your wife could just cover for you?”)
- Train supervisors to avoid the appearance of disparate treatment of employees requesting school activities leave. For example, if a supervisor denies an employee’s request to attend a parent-teacher conference because the employee failed to provide the requisite notice, and then the next day allows another employee to attend a last-minute request to attend a baseball game in the middle of the afternoon, it is imperative that the supervisor have a legitimate business reason for this difference in treatment. Otherwise, the company may risk a claim of EEO caregiver discrimination (regardless if state law provides for protected school activities leave)
- Train supervisors to avoid the appearance of discrimination or retaliation against employees who exercise their rights to take school activities leave (avoiding negative comments about the employee taking time off)
With advance planning, employers can utilize this trend as a value added incentive designed to build harmonious workplace relations and improve retention levels.