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#1 Dad: The obstacles fathers face trying to designate themselves as primary caretakers

June 30th, 2017 by David Minces

Two weeks ago, most Americans were celebrating Father’s Day.  Remembering the contributions that our fathers made to our lives brings up the discussion of paternal leave, breaks male employees take from work to take care of recently born or adopted children.  Paternal leave can help accustom a father to his new role, ease the stresses of childcare placed on his spouse, and benefit the child during a very critical time.  However, many businesses feel that fathers leaving work can harm their bottom line.  As a result, many businesses keep outdated paternal leave policies that are harmful to male employees, their spouses, and their new additions.

Family

The law in its current state

Currently, the Family and Medical Leave Act (FMLA) states that most employers must allow their male and female employees twelve weeks of unpaid family leave.  Several exceptions exist to this law.  For example, companies with under fifty employees are exempt from complying with this rule.  Companies also do not have to grant family leave to employees who have not worked for their company long enough or employees who are in the top ten percent of wage earners in the company and have an economically significant role to the company.  Some companies have their own rules with regards to paid family leave.  While companies are not required to have paid family leave, if they choose to implement such policies, they are legally obligated to have equal policies for men and women.

Obstacles still exist to full equality

While society has made great strides towards equality between males and females in the past decades, discrimination against males still exists with regards to family leave.  This inequality was the subject of a recent Equal Employment and Opportunity Commission (EEOC) charge filed by Derek Rotondo, a fraud investigator, against J.P. Morgan, his employer.  Currently, J.P. Morgan allows sixteen weeks of paid parental leave for primary caretakers but only two weeks for non-primary caretakers.  Rotondo alleges that, after his two children were born, he tried to become the primary caretaker of his children and take sixteen weeks of paid parental leave.  However, he was not able to do so because, according to company policy, in order for a male employee to qualify as the primary caretaker, he has to show that either his spouse has returned to work or that his spouse is medically unfit to care for the child.  Because Rotondo’s wife is a teacher and does not work during the summer, when his son was born; and because his wife is healthy, Rotondo was unable to fulfill either requirement.  Rotondo argues that this policy specifically scrutinizes male employees.  Female employees at J.P. Morgan do not have to meet these requirements to be designated primary caretaker, and Rotondo believes this constitutes a violation of Title VII protections against discrimination by employers on basis of sex.

What next?

While the EEOC charge may seem damning for J.P. Morgan, its effects are unclear as no official court ruling has been made based upon the charge.  The charge might not even reach court if it is settled through mediation or another alternative dispute method.  However, the results of this EEOC charge may affect employers throughout the nation in the future.  Though the parties involved in the dispute are located in Ohio, a court ruling could have legal ramifications that trickle down to Texas.  Texan judges may look towards this case for guidance in their decisions with regard to paternal leave.  Employees may choose to file EEOC charges against their companies for their parental leave policies based upon the amount of success Rotondo has.  Rotondo’s EEOC Charge may just be the straw that breaks the camel’s back that is outdated family leave policies.

Law is changing

Paternal leave has become a major point of contention that is gaining ground.  Recently, bipartisan proposals have been made to update laws regarding parental leave. One such bill would institute paid parental leave for male and female federal employees.  Currently, federal employees are not paid for the time they spend taking care of their children.  However, the lawmakers behind this bill, including Reps. Carolyn Maloney (D-N.Y.) and Barbara Comstock (R-Va.), say that current policy harms the U.S. government because, currently, many talented people opt to work for other companies or governments that offer better family benefits.  Not only is family leave becoming as much for fathers as it is for mothers, but more and more employees are being paid for the time they spend taking care of their infants.  While U.S. family leave policies aren’t as family friendly as other countries’ (Sweden mandates that employers give parents on leave pay for 490 days), we are getting closer. Studies showing that paternal bonding, infant development and family structure all improved when both parents were able to take leave during the initial weeks of arrival support the push for mandating leave options for new fathers.

Beach

If you have any questions related to parental leave, do not hesitate to contact us.  Minces PLLC has decades of combined experience in employment law, including how it relates to maternal and paternal leave.

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