Valuing fatherhood in the workplace

Valuing fatherhood in the workplace

Nurse

By Sarah Schlehr and Mariko Yoshihara

This Father’s Day, let’s do more than just celebrate our dads with Hallmark cards and backyard barbecues.  Instead, let’s give our dads something they really need – flexible workplace policies.

It can’t be surprising that the increase of women in the workforce, coupled with laws that discourage fathers from taking leave, has created a cascade of domestic stresses.  While women still bear a disproportionate share of the domestic work despite also working outside the home, working fathers now report feeling more work-family conflict than working mothers do.  The irony of this conflict is that fathers are actually prevented from sharing some of the burdens (and joys) of family life because they are saddled by Leave It To Beaver-era parental leave laws.

The good news is, change appears to be on the horizon.  This April, Massachusetts became the first state to require all but the smallest employers to provide fathers with unpaid job-protected leave for the birth of a child.  The law, renamed from the Maternity Leave Act to the Parental Leave Act,  requires businesses with at least six employees to cover dads as well as moms.  The expanded coverage is a much-needed first step in recognizing the universal need for fathers to spend time and bond with their newborn children.

A 2007 study found that fathers who took two or more weeks of leave after a child was born were more likely to perform certain daily child care tasks, like diapering, feeding, and bathing later on.  Fathers who took less than two weeks of leave were no more involved than those who took no leave at all.

Despite the clear benefit of taking time off to bond with a new child, fewer and fewer businesses are offering leave benefits to fathers and research has shown that those who do take leave face a significant stigma in the workplace (let’s not forget the New York Mets baseball player, Daniel Murphy, who was criticized when he took three days off for the birth of his child).

According to a recent study, most fathers only take between one and two weeks off after the birth of a child and the length of time off was closely tied to how much of the leave was paid.  Luckily, California is one of the few states that offer paid leave to parents.  And it’s no surprise that since the program was implemented, the percentage of “bonding leaves” claimed by men has gone up from 18.7 percent in 2005 and 2006 to 31.3 percent in 2012 and 2013.

Unfortunately, many fathers, especially low-income fathers, cannot take advantage of paid leave because their employers are too small to be covered by a law that would provide the new dads with job protection.  Most fathers simply cannot risk losing their job, especially after the birth of a new child.  Leaving aside the lucky Massachusetts dads, the only fathers who can access job-protected leave are those who are covered by the Federal Family and Medical Leave Act (FMLA) or a state law corollary.  But these laws leave a lot of fathers out in the cold since they only cover employees who work for companies with 50 or more employees and who have worked there for at least a year.

Incremental change may be on the way in California, where advocates for working dads (and moms) are pushing to increase the boundaries of who is covered by the California Family Rights Act, California’s corollary to the FMLA.  California’s SB 406, the legislation that would amend the law, does not go as far as the Massachusetts parental leave law.  But it does propose to expand leave rights to workers at smaller businesses, by lowering the employee threshold from 50 or more employees to 25 or more.

While SB 406 and the Massachusetts law are certainly steps in the right direction, both still lag far behind what other countries provide for their fathers.  For years, Sweden has had a generous parental leave policy of 16 months that could be shared by the mother and father.  Beginning in 1995, Sweden introduced a “use it or lose it” policy that reserved one month specifically for dads.  This was increased to two months in 2002 and will increase again to 3 months in 2016.  Some countries, like Chile, Portugal, and Italy, go so far as to make paternity leave compulsory, to help ensure that fathers share childcare responsibility with mothers.

It’s time for California and the rest of the United States to catch up and show that the job of parent is at least as important as the jobs parents perform for their employers.

Sarah Schlehr

About Sarah Schlehr

Sarah B. Schlehr is the founder of The Schlehr Law Firm, P.C. Her firm focuses on representing employees who are discriminated against because of pregnancy or for taking a leave of absence. Her firm also represents veterans who have been discriminated against for taking military leave. She is a graduate of Harvard Law School, Brigham Young University, Gerry Spence’s Trial Lawyers College, and the Strauss Institutes’ Program on Mediating the Litigated Case.

Religious freedom comes of age in corporate America

Religious freedom comes of age in corporate America

Abercrombie

By Alan Reinach

Religious minorities have always been at the forefront of pushing religious freedom in American law. This year is no different, as Samantha Elauf, a young Muslim woman, won a critical case on behalf of all who seek workplace accommodations for their religious beliefs and practices. Ms. Elauf was denied a job at popular retailer Abercrombie & Fitch, not because she was unqualified, but because she wore a head scarf. Although she was never asked why she wore the scarf to her interview, managers assumed it was for religious reasons, and for that reason, didn’t hire her. The United States Equal Employment Opportunity Commission took up Ms. Elauf’s religious discrimination case, all the way to the Supreme Court. The Supreme Court’s 8-1 decision rejected A & F’s argument that its “look” policy is religion neutral, and therefore, not discriminatory. The Court held that employers must treat religious beliefs and practices favorably, and cannot hide behind “religion-neutral” policies.

This decision is a stunning reversal of a decades-long trend treating religious accommodation claims with suspicion. Some fifty years ago, in the wake of the assassination of President John F. Kennedy, President Johnson arm twisted and cajoled Congress into enacting the Civil Rights Act, in honor of Kennedy’s legacy. While the act outlawed employment discrimination on the all the usual bases, religion has always been a poor stepchild.

Almost immediately, the question arose whether the Act’s prohibition of religious discrimination required employers to accommodate the religious beliefs and practices of its employees. Typically, such accommodations involve making exceptions from dress codes for religious expressions such as beards or yarmulkes. Or, even more commonly, employers are asked to permit workers time off to observe the Sabbath, a religious holiday, or to attend church.

When courts were divided on how to answer this question, Congress amended the Civil Rights Act in 1972 to clarify the employers must provide “reasonable accommodation,” but only if it does not result in an “undue hardship.” Still, employers did not know what these vague terms meant in practice. In a 1977 decision in Trans World Airlines v. Hardison, the Supreme Court appeared to view religious accommodation with suspicion, holding that even a minimal amount of hardship was “undue.” The back story on this case is that the court was asked to invalidate religious accommodation altogether as a violation of the First Amendment’s “establishment clause” separating church and state. Although the Court’s decision avoided the establishment clause argument, it greatly weakened the law instead.

The next time religious accommodation went to the Supreme Court was in 1986, when the Supreme Court held, in Ansonia Board of Education v. Philbrook, that employers get to choose among alternative accommodations. Often, employers choose accommodations that disadvantage employees.  This decision also weakened the position of workers seeking religious accommodation.

In 1990, when Congress enacted the Americans with Disabilities Act, Congress used the same legal standard for the disabled:  reasonable accommodation short of an undue hardship, but defined undue hardship as one causing “significant difficulty or expense.” Advocates for religious freedom began to draft comparable language, and have been asking Congress for nearly twenty years to toughen the religious accommodation law, to no avail.

But 1990 also saw a Supreme Court decision in a religious freedom case, Employment Division v. Smith, which has had an enormous impact on workplace discrimination. In the now infamous “peyote” case, Justice Scalia wrote that religion neutral laws did not raise First Amendment free exercise of religion concerns. Employers have often assumed the same logic applies to their own religion neutral policies – that they need make no exception for religious beliefs and practices. In practice, many Americans have lost their jobs because employers refused to make any exceptions for their religious observances, even when they could do so easily.

Justice Scalia’s opinion for an 8-1 majority in the Elauf case now buries the notion that company policies “trump” religious accommodation requests. The impact on companies will be modest, since such requests are typically quite few in number. But for those Americans of all faiths who can’t just park their religion at home when they go to work, the implications are huge. The issue in Samantha Elauf’s case concerned appearance: wearing of a head scarf. Clearly, the case signals a shift away from conformity to corporate appearance standards. California has gone even further, forbidding employers from segregating workers from the public on account of their religious appearance.

But the decision also implicates many other corporate policies, especially scheduling and discipline. Companies will have to become more flexible in scheduling those who need time to observe the Sabbath or attend church. They will also have to refrain from disciplining workers who would otherwise accumulate attendance points on account of religious observances.

Religious freedom has finally come of age in corporate America.

Alan Reinach

About Alan Reinach

Alan J. Reinach, Esq., is the Executive Director of the Church State Council, the oldest public policy organization in the west devoted exclusively to issues of religious discrimination and the separation of church and state.

The Fair Scheduling Act: Get the facts

The Fair Scheduling Act: Get the facts
Via Twitter: @ChelseaRosario_

Via Twitter: @ChelseaRosario_

Over the past few months, the Chamber of Commerce and its Big Business allies have mounted an all-out war against AB 357, the Fair Scheduling Act of 2015, by Assemblymember Chiu and Assemblymember Weber.  AB 357 is a bill that would simply ensure that workers are provided with fair and predictable work schedules so that they can manage their lives and other commitments, like second jobs, school, family care, or medical appointments.  As more employers move to “just-in-time” scheduling, which gives workers little to no notice of what days or hours they’ll be working, the need for AB 357 is abundantly clear, which is why dozens of labor, civil rights, anti-poverty and women’s groups all support this bill.

Yet, as the bill moves to a floor vote in the Assembly this week, opponents of the bill have been bombarding legislators and news outlets with misleading information and “sky is falling” rhetoric designed to confuse legislators and alarm small businesses in the state.  Don’t be fooled.

First, this bill only applies to very large food and retail establishments — those with 500 or more employees in the state and 10 or more establishments in the United States — large corporations with extensive resources.  In fact, these are the corporations that created the advanced computerized scheduling algorithms that have put workers’ schedules in constant flux in order to maximize profitability.

The Chamber claims that the bill would penalize employers who make changes to a work schedule with less than two weeks’ notice of the scheduled shift.  This is false.  Additional pay is only required if a change is made with less than one week’s notice. The penalty for short scheduling is only one hour of additional pay, unless the change is made within 24 hours of the scheduled shift, in which case the extra pay varies between two and four hours of additional pay, depending on the length of the shift.  Considering the havoc this type of erratic scheduling wreaks on workers juggling multiple jobs and families, this is hardly a severe penalty.

They also claim that this bill denies employees the opportunity to pick up additional hours at the last minute.  This, too, is false.  The bill contains numerous exceptions that allow for flexibility.  For example, the bill would not apply if another employee is unable to work because of illness, vacation, or time off or if an employee trades shifts with another employee or requests a change in his or her shift.

Opponents argue that the bill would tie the hands of store managers in their ability to deal with unforeseen circumstances such as changes in weather, a product delivery date or a product launch.  The bill explicitly provides exceptions for situations like public utilities failures or acts of God.   Product delivery dates or product launches, on the other hand, are circumstances that large retailers know about well in advance.  Nothing prevents them from making necessary scheduling changes with adequate notice to its workers.

As a last ditch effort, opponents clamor for more time to assess how San Francisco’s fair scheduling ordinance will work.  For the thousands of workers whose schedules change daily, the time to act is now.  In fact, a unified statewide policy would benefit both retailers and workers in California.  Otherwise, retailers will have to deal with a patchwork of local laws as other cities follow in San Francisco’s footsteps.

It is time to set the facts straight on AB 357.  Scheduling fairness has been a core, fundamental principle of this state since the establishment of the eight-hour day and forty-hour work week.

Even in 1999, when the legislature passed AB 60, which codified California’s overtime requirements, the Chamber of Commerce opposed the bill, stating that “employers should be able to work employees 10 or 12 hours a day, without the penalty of overtime if competitive forces necessitate such work schedules.”

We cannot buy in to the same old arguments.  In the same way overtime laws affect employer scheduling practices – by imposing a premium or penalty on an employer for using overtime labor– and to compensate employees for the burden of a long week, AB 357 would impose a premium on an employer for last-minute scheduling changes. The power dynamic between employer and employee is already skewed in favor of the employer. Compensating employees for the burden of an erratic schedule is just a small incentive for employers to plan ahead so employees can do the same.

AB 357 is about fundamental fairness and recognizing that, like with our overtime laws, maximizing profitability for large businesses should not come at the expense of our working families.

%d bloggers like this: