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Paternity Leave Policy Can Breed Employment Practices Liability Claims

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Employment practices liability cases may arise from any number of business decisions that managers make on any given day—case in point, in situations where firms fail to recognize the growing trend of new fathers who want to take time off to bond with their newborn children via paternity leave. Failing to stay ahead of the curve on developing benefits like this one can leave an employer more vulnerable to lawsuits.

Must a Business Offer Paid Leave?

As of 2017, paid paternity leave is not required by federal law but this could change—though far from a “done deal,” the topic of paid parental leave extending beyond mothers to include fathers and adoptive parents as well came under discussion by the Trump administration after the release of the initial federal budget proposal. In the meantime, many businesses are considered “covered employers” for purposes of the Family Medical Leave Act (FMLA), which requires employers to provide 12 weeks of unpaid family leave per year for a variety of eligible reasons, including the birth (natural or adoptive) and care of a newborn child. Here’s where the concept of coverage gets murky, though—because FMLA does not offer benefits to every employee, there is some potential for confusion. In some areas, lawmakers at the local level have passed laws requiring that employers provide additional benefits. In 2016, San Francisco won the distinction of being the very first city in the nation to pass laws that require many companies to offer paid parental leave for their employees. Now that the precedent has been set, other cities are expected to follow San Francisco’s lead. In the meantime, here are some ways that employers can help their employees better understand their position on paid parental leave:

  • Establish a level playing field. Whenever possible, ensure that your parental leave policy offers an equal amount of leave for both mothers and fathers. One lawsuit filed by the ACLU against an employer alleges gender-based discrimination because of the firm’s presumption that a mother is the primary caregiver and thus is entitled to 16 weeks of leave from the firm, yet the father was offered only two weeks of leave. This disparity is common—a study by the Society for Human Resource Management found that on average, new moms receive an average of 41 days of leave after childbirth, compared with new fathers who on average receive 22 days of the same leave.
  • Review frequently. Evaluate the company’s parental leave policy periodically to ensure it remains in compliance with current laws as well as remains competitive with the marketplace.
  • Step carefully. Make sure qualified human resources staff are consulted before approving or denying any employee requests for family leave to ensure policy is being applied consistently and fairly. Men have to not only feel there is no stigma to their taking paternity leave, they have to feel their jobs are not in danger; studies show these are common reasons why men do not avail themselves of leave, even when it is available.
  • Normalize the behavior. Foster a business culture that ensures employees—both male and female—are comfortable in taking family leave without fear of negative consequences—being passed up for assignments or being ostracized, for example.

The popularity of proud papas electing to take time off is expected to continue growing, in part because of the declining social stigma associated with men taking time off for paternity leave, combined with the increasing number of employers that offer the benefit. Talk about being in good company—high-profile companies such as Netflix, Facebook, Twitter, and Etsy are offering parental leaves from 17 to 26 weeks to a full year (in Netflix’s case). Examples like these only whet the appetite of employees who will begin to expect similar treatment—or may consider a lawsuit if they feel they are being treated unfairly. That’s why your business policy on this issue should grow with the times, reflecting both state and federal requirements as well as current trends that are feasible for your operation to endorse. Beyond establishing good practices, the right insurance program is an essential part of your core business framework, offering protection for your operation should a claim occur.

RPS provides insurance solutions for businesses, with comprehensive programs that can be designed to include Employment Practices Liability and many other coverages. Contact us for more information.

Source: Fisher Phillips

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