Why California needs stronger parental leave policies

Why California needs stronger parental leave policies

By Menaka Fernando

At first glance, a cultural shift appears to be occurring in the country when it comes to parental leave. In the past year, companies like Facebook, Microsoft, Accenture and Netflix have instituted generous paid parental leave policies that give parents the ability to take time off from work to bond with a new child. However, while paid parental leave may be becoming more accessible to high-wage earning professionals, it remains impossibly out of reach for many workers who risk losing their job if they take any time off after having a new child.  It’s worth noting that Netflix’s parental leave policy glaringly excluded low-wage workers from its benefits.

Last week, Senator Hannah-Beth Jackson (D-Santa Barbara) unveiled a new legislative proposal that would dramatically improve access to parental leave for all California workers by addressing one of its biggest barriers — job protection.

The reality is the patchwork of existing protections for workers who need to take parental leave are woefully inadequate. The California Family Rights Act and the federal Family and Medical Leave Act provide 12 weeks of unpaid leave and job protection, but these laws only cover employees who work for larger companies with 50 or more employees. This leaves over 40% of California’s workforce ineligible for job-protected leave because their employer is too small.

Because nearly half of the workforce is not covered by our family leave laws, employers can punish workers for taking time off to care for a new child.  As a workers’ rights advocate, I often hear stories of employees – particularly low-wage earners – whose careers are slow-tracked, whose hours are restricted, or who are simply fired for taking or even requesting family leave.

Even more troubling is that workers without job protection are unable to take advantage of the state’s Paid Family Leave (PFL) program, which provides partial wage replacement benefits for those who take family leave. Studies have shown that low-wage workers who qualify for these benefits often cannot use them even though they pay into the program.  A 2011 Center for Economic and Policy Research study of the PFL program showed that the ability to use parental leave is far greater for salaried employees (mainly managers and professionals) and high earners (those earning over $20 per hour plus employer health insurance) than for those in hourly and low-quality jobs.

In the same study, 37% of respondents expressed concern that if they took PFL, their employer would be unhappy, their opportunities for advancement would be affected, or they might simply be fired. At a time when financial security and healthcare coverage are so important, the risk of losing one’s job to take leave to care for a new child is simply a risk that many new parents cannot afford to take.

Senator Jackson’s bill would alleviate that risk by extending parental leave rights for new parents (including domestic partners and adoptive or foster parents) who work for employers with 5 or more employees.

The need for expanded and equitable access to parental leave in the state cannot be understated.  The benefits of parental leave on the health and welfare of the economy and our state’s working families have been well-documented.  Research shows that paid family leave, particularly when there is job protection, increased new mothers’ wage growth and future employment rates.  Fathers who take parental leave are more engaged with their newborns, promoting greater gender equity at home and at work. In addition, evidence strongly suggests that children enjoy many short- and long-term benefits from parental leave including better health and  higher high school graduation rates.

While it is encouraging that good corporate policy is pushing the conversation on parental leave forward, it’s time for the Legislature to act. The protections of Senator Jackson’s bill will help ensure the physical, psychological, and economic health of all of California’s working families, and not just Silicon Valley executives.

Menaka Fernando is an associate attorney at Outten & Golden LLP, where she represents individual employees in litigation and negotiation, and a member of the California Employment Lawyers Association.

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Sexism and civility in today’s legal profession: Why one attorney was sanctioned for his remarks to opposing counsel

Sexism and civility in today's legal profession: Why one attorney was sanctioned for his remarks to opposing counsel

By Eduard Meleshinsky

In a clarion call for civility among attorneys, Magistrate Judge Paul Grewal sanctioned a defense attorney for his tactics in a civil rights case, and excoriated him for “repeatedly and unapologetically flout[ing]” the Northern District of California’s Guidelines for Professional Conduct, the Federal Rules of Civil Procedure (FRCP), the court’s prior order, and – in this author’s opinion – offending standards of basic civility most of us learned on the playground, as children. The order is available here.

In connection with a deposition noticed by the mother of a pretrial detainee who committed suicide while in jail, the attorney for the public entity and employee defendants produced documents in a “physically cracked and unusable disc” on the day of the deposition, delayed correcting this abjectly deficient production for over a month after being repeatedly asked to do so by plaintiff’s counsel (only to produce documents defendants’ attorney already knew to be in plaintiffs’ possession), made “extremely long speaking objections” in depositions ordered by the court, and many more violations. Tellingly, defendants’ attorney made “no attempt to defend any of this conduct.”

The unprofessional conduct did not stop at discovery abuse.  Escalating his disgraceful misconduct from unprofessionalism to sexism, defendants’ attorney told one of the plaintiffs’ female attorneys, at a deposition she was taking, “[D]on’t raise your voice at me. It’s not becoming of a woman ….” In briefing his opposition to the sanctions request, defendants’ attorney doubled down on his statement with a sorry-not-sorry apology (“a halfhearted politician’s apology ‘if [he] offended’ Plaintiff’s counsel”).

As Judge Grewal explained in his order, defendants’ attorney’s attack “endorsed the stereotype that women are subject to a different standard of behavior than their fellow attorneys.” The judge further elaborated that such gender-based vitriol “reflects not only on the attorney’s lack of professionalism, but also tarnishes the image of the entire legal profession and disgraces our system of justice.” The Court found that these types of statements – in addition to harming the many female attorneys who regularly endure similar treatment – degrade the legitimacy of the legal system itself.

Gendered attacks “reflect and reinforce the male-dominated attitude of our profession.” This malignant attitude has deep roots in the legal profession. Even the Supreme Court of the United States in Bradwell v. The State (a case that has rightfully taken its place among Plessy and Korematsu as part of the constitutional anti-canon) has perpetuated these gender stereotypes.  In upholding a state law prohibiting women from practicing law on account of their gender, the Court opined:

The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.

A lot of progress has been made since 1872: the 19th Amendment was ratified; Congress enacted the Equal Pay Act and Title VII of the Civil Rights Act of 1964, and amended the same to prohibit pregnancy discrimination; and Sandra Day O’Connor was confirmed as the first of four women so far to serve on the high court. However, despite the important gains made in the fight for gender equality in the workplace and beyond, much has remained the same in the legal profession for female attorneys.

For example, the opportunity for female attorneys to advance to leadership roles in law firms remains stymied, female attorneys are judged more harshly if they lack “interpersonal warmth” and are not recognized for their legal competence to the same degree as their male counterparts for career advancement purposes, and, more generally, the gender pay gap remains ever- present and ever unaddressed. In light of the work that remains to be done in making women’s equality a reality, our profession should, at the very minimum, not tolerate Mad-Men-styled sexist remarks from its members.

Fortunately, Judge Grewal suffers no fools. Because of the defense attorney’s egregious misconduct, the jurist awarded plaintiffs their fees and costs in bringing the motion for sanctions, as well as attorneys’ fees for depositions, including the deposition during which the sexist comment was made. Recognizing that monetary compensation for plaintiffs’ attorneys’ fees and legal costs still fell short of a just result, Judge Grewal ordered the “specific and appropriate sanction” of compelling defendants’ attorney to “donate $250 to the Women Lawyers Association of Los Angeles Foundation … and submit a declaration to the court confirming his compliance with this order.”

One hundred and forty-four years have passed since Bradwell, yet we continue to see conduct in the legal profession that perpetuates harmful gender-based stereotypes.  Too often, that conduct is simply dismissed without any consideration of its broader impact on our progress toward gender equality.  Courts should emulate Judge Paul Grewal, giving discrimination no quarter and enforcing basic civility in the legal profession.

An earlier version of this post appeared on the Bryan Schwartz Law blog under the title “Court Sanctions Defense Attorney for His Sexist Remarks to Opposing Counsel.”

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