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INTRODUCTION

Are you pregnant or thinking about taking that step? Maybe your partner is pregnant, and you are trying to plan for the big changes that await you. Or perhaps you are eagerly anticipating a new baby through adoption. No matter how you got here, welcome!

You’ve probably been reading about what to expect from pregnancy and how to prepare for childbirth. Maybe you’ve even started thinking about the early days of parenthood and how to care for your new baby. We are here to help you learn about your legal rights as an expecting or new parent. Specifically, we want to help you plan how to integrate pregnancy and parenthood into your work life. How do you plan for maternity/parental leave? What are you entitled to? What do you do if you suspect workplace discrimination? What if you want to work part-time after your child is born?

Don’t know the answers to these questions? You are not alone. We work on these issues every day and talk with plenty of people who don’t understand their rights as working parents. Many more don’t realize how limited their rights are in comparison to the rights of parents in other countries around the world. For example, we got a call to our hotline from a woman who was born in Denmark, where parent-friendly laws are the norm. Helena was now living in the United States and was pregnant with twins. She worked for a small company that didn’t offer any paid maternity leave. Her boss wanted her to return to work two weeks after her babies were born, but Helena (understandably) wanted more time to recover from giving birth and to bond with her newborns. Helena couldn’t get much information out of her employer, but she thought she was entitled to twelve weeks of unpaid leave under federal law. Unfortunately, because her employer was too small to be covered by the law, Helena had no guarantee of time off. When we broke this news to Helena, she was shocked. She couldn’t believe that a country as rich as the United States, whose politicians profess their commitment to family values, could leave someone like her in the lurch—and at such a critical moment in her life.

Helena’s situation is all too common in the United States, where parental leave, child care, and flexible work schedules have been left largely to employers and employees to work out on an individual basis. As we describe in more detail throughout this book, there are some federal laws to protect employees and lots of state laws too, but mostly employers still call the shots. And in a struggling economy many employers have cut back on what limited benefits they do provide to employees, making the situation that much worse for expecting and new parents.

On top of all this, bias against pregnant women and new mothers is still a serious problem in the United States, despite the fact that Congress outlawed discrimination based on pregnancy about thirty-five years ago. Apparently, many employers haven’t gotten the memo. The Equal Employment Opportunity Commission (the federal agency that enforces the law) saw a steady increase in charges of pregnancy discrimination over the decade between 2000 and 2010: complaints jumped by 50 percent. And according to a recent MSNBC poll of over 7,000 people, more than 62 percent have personally seen or experienced workplace discrimination against pregnant women.1 By that measure, pregnancy discrimination is the norm, not the exception, in today’s workplaces. Given that women make up half of the workforce, and 80 percent of American women will become pregnant at some point in their lives, there’s a high likelihood that you, your partner, or a friend may encounter pregnancy discrimination on the job. How’s that for a sobering thought?

As you prepare for parenthood, you may find yourself focused on picking a name for your baby or planning your baby shower. But we urge you to save some time, amid all the excitement, to learn how the law protects you as an expecting or new parent and how to fend for yourself where it does not. We’ve organized the information in this book chronologically to follow the path from pregnancy to parenthood and have tried to highlight key issues and deadlines for you to focus on along the way. We’ve incorporated stories from real people, whom we met through our legal clinic and advocacy, to bring these issues to life. We have changed all names and some identifying details to protect their privacy and confidentiality. Their experiences also may help prepare you for potential scenarios that may arise and equip you with the tools you need to respond.

As lawyers, we also have to remind you that the information, ideas, and suggestions in this book are not intended to render legal advice. Before following any suggestions contained in this book, you should consult an attorney. Neither we (the authors) nor the publisher shall be liable or responsible for any loss or damage allegedly arising as a consequence of your use or application of any information or suggestions in this book.

We hope the pages that follow will inform and empower you to be an advocate for yourself in the workplace. And in addition to providing this resource, we hope we may inspire you to help improve policies in the United States for working families like yours.

Let’s start with a story of two families, one in the United States and one in Sweden:

Jenna is from Scranton, Pennsylvania, and she is seven and a half months pregnant. She works as the assistant to the director of human resources at a midsize law firm. Her husband is the manager of a local grocery store. They own a modest home and make ends meet but still feel like they live paycheck to paycheck.

Jenna is covered by the Family and Medical Leave Act (FMLA) and can take up to twelve weeks of unpaid family leave in a year. Unfortunately, because her husband’s employer has fewer than fifty employees, he is not covered under the act and is not eligible for any family leave. He will have to use his own vacation leave as needed to bond with his new child. Jenna wishes to maximize the time she is able to spend with her baby at home, so she has decided to save as much of her family leave time as she can for after the child’s birth. Her frequent prenatal appointments are covered by the FMLA, however, and count toward her total leave time, reducing by nearly two weeks the bonding time she’ll have with her baby. And even though Jenna battles fatigue and sickness throughout her pregnancy, she drags herself to work because she doesn’t want to use up any more of her time off before the baby arrives.

After Jenna has her baby, she begins taking the rest of her twelve weeks of unpaid leave to bond with her baby. In the back of her mind, she worries about the fact that she is not earning any income during this time; she worries that she didn’t save up enough money in case an emergency should arise. When her newborn is only ten weeks old, Jenna must return to full-time work. She is lucky enough to have a nearby mother-in-law to care for the child while she is at work all day. Otherwise, she would have to find a way to afford day care until her child reaches school age. Even though the child is still a newborn, and the family is comfortably considered middle class, Jenna worries that she will never be able to save up enough money to provide her child with the right opportunities or higher education. She looks for a part-time side job that she can do at home in addition to her full-time job in order to set aside money for the child’s future.

• • •

Lynn is also seven and a half months pregnant and is from Stockholm, Sweden. She is a waitress at a fine-dining restaurant. Her husband is a real estate agent. They live in a two-bedroom apartment that they rent in the city. They have a secure middle-class lifestyle with relatively little financial insecurity.

Lynn is covered by the Family Benefits laws of Sweden. This means that she and her husband are collectively entitled to take up to 480 days of paid leave per child at 80 percent of their salaries. They can take time off of work for long continuous periods and for single days or parts of days, and they may use their days at any time until the child reaches eight years old or completes his or her first year in school. Because Lynn is less than sixty days away from her due date, she is eligible to use her benefits. She uses her leave time when she is feeling too ill to attend work or when she must attend doctor appointments.

After Lynn has her baby, she and her husband decide to stay home together for the first three months to bond with the baby. After the initial three months, Lynn’s husband goes back to work, and Lynn stays at home with the baby for an additional three months. Lynn works out a flexible part-time schedule with her restaurant so that she can go to work while her husband is at home with the baby. She is able to take time off when she needs to while still maintaining a comfortable salary. Further, the Swedish government issues Lynn and her husband a parental allowance to assist in caring for their child. Until the child reaches the age of sixteen, Lynn and her husband get a nontaxable monthly stipend of 1050 Swedish kronor per child, or the equivalent of approximately $155.

Shocked? Jealous? Ready to pack your bags and move to Sweden? The contrast is pretty surprising. As one woman wrote to us:

Unfortunately this country does not realize bringing a new life is also bringing a new citizen, who, if all goes well from the beginning, will be a good student and eventually a productive worker. Why is the beginning of a new life so difficult to cherish?

So how did we get here? Why is US policy so lacking when it comes to supporting pregnancy and parenting?

Picture a scene of a model American family from the 1950s. Dad heads to work every morning with a tip of his hat, leaving Mom at home to care for the children and the household. Dad’s employer is probably some big company that offers him a healthy salary generous enough to support a whole family without additional income. Dad’s company also probably offers him a wide array of benefits, including health insurance for his wife and kids. Mom does all the hard and mostly invisible domestic work, allowing Dad to stay at the office or factory as long as necessary each day and allowing his employer to rely on him for forty years or so of uninterrupted work. Dad works hard too, but he doesn’t have to worry about who will stay home to meet the refrigerator repairman or who will check in on his aging mother or care for his small children. And when he comes home from work, the aroma of a home-cooked meal greets him at the door.

Flash forward to 2014 and you see a very different picture. Today’s family may have a mom and dad or one single parent or two parents of the same sex. But no matter what the configuration, parents in today’s family are probably all employed and earning wages because few can afford not to. Parents juggle the demands of their jobs with the needs of their families, and the pressure only worsens in a shaky economy, when a job may be here one day but gone the next. With no adult managing the home front full-time, parents must pay (often a lot!) for child care, negotiate who will leave work to pick up a sick child from school, and figure out how on earth they will get a healthy meal on the table each night.

In 1969, women made up only one-third of the workforce in the United States, and more than half of all families had a full-time stay-at-home mom. Today, nearly four in ten moms are the primary breadwinner for their families, and even more are a co-breadwinner.2

This modern-day juggling act affects families of every size, shape, and income level. Its consequences are far-reaching. The work–family time crunch leads to poor health outcomes for parents and kids, including higher rates of childhood obesity.3 It drags down wages for working women4 and those providing care and perpetuates the gender imbalance and devaluation of domestic work. These consequences hurt us as a society and impact our economy, yet we have few collective solutions to the problem. Here in the United States, we regard this problem as a private issue to be solved on an individual basis, one family and one employee at a time.

Not all countries in the world view family responsibilities this way. Our story of two moms highlights a particularly extreme contrast between Sweden and the United States, but it’s not just wealthy Nordic countries that go to bat for their families. Worldwide, 178 countries guarantee some leave with pay to women in connection with childbirth.5 Seventy-four countries ensure paid paternity leave or the right to paid parental leave for fathers.6 New mothers in Kazakhstan—a country made famous by Borat—are entitled to more paid maternity leave than mothers in the United States. One hundred twenty-six days of paid leave at 100 percent of their salary, to be exact!7 And our neighbors to the north in Canada can boast too. Mothers there get seventeen weeks of paid maternity leave, and families may split an additional thirty-five weeks of paid parental leave between the parents as they choose. In Quebec, where fathers get five weeks of nontransferable paternity leave at 70 percent of their earnings, over half of eligible fathers take leave.8 In contrast, nearly half of new mothers in the United States do not have access to any form of paid parental leave.9

Around the world, 178 countries guarantee paid leave for new mothers. Three countries do not: Swaziland, Papua New Guinea, and the United States.

Maternity leave is only the beginning. When it comes to valuing and supporting the work of caring for families, the United States lags behind the rest of the world in a variety of ways. Our country is one of only a handful that do not guarantee paid sick time for all workers, including time to care for sick family members. In fact, 163 other countries guarantee a minimum number of paid sick days, with many providing a week or more per year for personal health needs.10 The European Union has sought to eliminate discrimination against part-time workers and improve quality part-time work, but here in the United States part-time workers face discrimination in pay and benefits and are excluded from many labor and employment laws.

Dozens of countries provide universal child care at reduced cost to help parents return to work. In 1971, our Congress passed a bill to establish a national day care system in the United States, but President Nixon vetoed the law. More than forty years later, American families are still struggling to find reliable, affordable child care. Wouldn’t it be nice to have a high-quality, subsidized child care facility in your neighborhood that is open eleven hours a day? Or if you chose to hire a private nanny instead, to have the government pay her social security, health insurance, and retirement benefits? If this sounds good to you, get ready to brush up on your French and move across the Atlantic!

We tell you all of this not to discourage or depress you (although we admit that sometimes these statistics do bring us down). Rather, we want to show you that it is possible for countries to support working families through public policy, and they don’t have to be rich or risk their economic prosperity to do it. In fact, here in the United States a few states have started to fill in the gaps left by our meager national policies. Here’s an example of just how different the picture can look depending on where you live:

Krystal lives in San Francisco, California. Whitney lives in a smaller town in Florida. They don’t know each other, but they have a lot in common. Krystal and Whitney are both thirty-two years old, and both work as hostesses in small restaurants. They love going to the beach and relaxing with their friends. Each woman also just had a baby. Because their restaurants are small, neither woman qualifies for the Family and Medical Leave Act (FMLA). The similarities stop there. Considering the rights that these women receive in their respective states, they might as well be living on different planets.

Whitney stands all day since hostesses aren’t allowed to sit on stools at her restaurant. At the end of the day, her feet are so swollen that none of her shoes fit, and she stays in her apartment, exhausted. Whitney finds out that her restaurant doesn’t offer maternity leave, and there are no laws to protect her. She gets ten days of paid time off, so she uses all of them after having her baby. Two weeks after giving birth (and after being in labor for twelve hours), she’s back at her hostess station. At two weeks old, her baby is too young for day care, and Whitney doesn’t have any extended family nearby, so she has to pay $15 per hour to hire a babysitter. She doesn’t have time to heal and doesn’t even bother trying to breastfeed because she decides it will be too hard to establish in two weeks and too difficult to continue while she’s working. She spends $1,700 on formula in the first year, money she doesn’t have. Since her hours are unpredictable and her shifts change from week to week, she sometimes can’t find a babysitter in time. She asks for a more stable schedule, but her manager won’t give her one. She realizes she will have to change professions, so she quits her job. She’s incredibly worried about finding a job and having enough money to feed her new baby.

Krystal in California, on the other hand, asks for a stool and is entitled to one by law. One month before giving birth, her doctor puts her on bed rest. Krystal is entitled to disability leave and feels reassured, knowing she can get her job back. She receives state disability insurance payments during this time to pay her bills. She also decides to take six weeks after giving birth under the California Family Rights Act so that she can bond with her new baby. She is paid part of her salary during these six weeks, so while she is away from work for two and a half months, she is never entirely without income. Krystal breastfeeds successfully and pumps once she gets back to work. Her daughter, at six weeks old, is old enough to go to day care, so Krystal saves money on formula and hiring a babysitter. One day her daughter gets a cold, and Krystal stays home to care for her—in San Francisco, many employees get paid sick days to take care of their sick children. Although Krystal is still working hard to save money and support her family, she doesn’t have to worry as much as Whitney does.

We hope that you will keep all of this in mind as we detail the rights you do have under US laws and that you will think about how you might like to see these laws improved, both nationwide and in your home state. If, by the end, you are convinced, we hope you’ll join us to bring a better balance to all Americans.