Monday, September 10, 2012

Work/Family Balance: The Dems, the GoP and Colorado's Civil Unions Proposal

In this post, I'll discuss the current climate in work/family balance management for shared earning/shared parenting families.  Then I'll discuss any proposals by Democrats and Republicans to make any changes in that environment.  I'll also look at whether Colorado's civil unions law will affect the rights and responsibilities of parents in those unions, which might in turn then affect their work/family balance.

The Current Situation.

Work/family balance issues are a source of discussion, debate, conflict and even polarization in the United States among employers, parents and government.  Although there are many stories of success on these issues, there are also a lot of problems and conflict.

To my view, the problems and the conflict tend to result from the fact a lot of the discussion of work/family balance focuses on two polarized viewpoints which don't consider broader interests or the viewpoint of the other party:

(a) the employers: desires for maximum control over workers and flat conclusions of inability to meet a vague standard of "competitiveness" if they make provision for work/family balance; employers do not base any discussion in productivity, recognize that some of their most productive workers are those that share parenting (as Erin Reid, a recent Harvard Business School PhD, analyzed in her paper "Passing as Superman: Men's Professional Identities and the Persistence of the Ideal Worker Image") or recognize the risk to employers' investments in workers' experience or education; and

(b) the parents and their desires: (A) some parents seeking maximum choice, power and flexibility with regard to child responsibilities, (B) some parents seeking maximum freedom from responsibility for their children while having rights over them and (C) some parents seeking to be paid for taking care of their children; in each of these cases the parents appear to demand that employers, the government or their co-parent meet these desires and do not base any discussion in (i) children's actual needs and welfare, (ii) child responsibilities belonging to both parents, not just the mother and in (ii) adults' responsibility or even interest in being productive earners for their employers or in the economy generally.

As a result, this topic tends to read as though it cannot be resolved and so parents, employers, and government are not willing to consider or negotiate proposals that might make things work better.

Because state abuse/neglect and parental responsibility laws are now almost universally set up with a "best interests of the child" standard, a lot of the advocacy would be more effective if it focused on the benefits to the child when each of his/her parents take half the responsibility for the personal work of caring for and parenting the child.  The bulk of recent parenting research supports this view, particularly as more and more families have done shared earning/shared parenting marriage and thus provided child development experts, psychologists and other social scientists with the ability to see the effects on children.

Likewise, focusing on the benefits to the political economy of having a general consensus that every adult is responsible for providing for him or herself financially and has half the responsibility for any dependents he or she brings into the world or for whom s/he otherwise assumes responsibility as well might be more productive.

In any event, here's the current landscape:

Employers.

While some companies have had a lot of success addressing these issues directly, others ignore them and some overtly or implicitly discriminate against employees who bring them up.  Some large, very profitable and very "competitive" companies that have had success with gender-neutral work/family balance policies include IBM, the law firm of Fenwick & West, and Dupont.  Many government employers have also had success on these issues; some offer flex-time (for example, schedules where longer days are worked for 9 days, and then one day is a leave day) and gender-neutral paid parental leave policies.

Parents.

Parents who are in shared earning/shared parenting marriages tend to have varying approaches on this issue.

Some manage this in overt negotiation, often quite successful, with employers and co-workers.  Amy and Marc Vachon describe negotiating their 35-hour and 30-hour schedules in their book Equally Shared Parentinghttp://www.equallysharedparenting.com/ESPTheBook.htm.  The Third Path Institute also has a lot of information on successful negotiation strategies.  http://www.thirdpath.org/

Some manage this more quietly, keeping their jobs but internalizing the balancing issues.  Some are more outspoken and quit their jobs for a short while, sometimes explicitly as a type of rebellion and difficulty in negotiation or imagining a job that works.  Here's a story of a father who wished to do shared parenting but had difficulty imaging a job model that would work since he had not seen this in his industry before and so did not try to negotiate and just quit his job and stayed home for a while.  http://www.dailymail.co.uk/femail/article-2204180/Why-MEN-Thought-just-women-crumple-pressure-perfect-parent-AND-career-Think-.html?fb_action_ids=4684025981703&fb_action_types=og.likes&fb_source=timeline_og&action_object_map={%224684025981703%22%3A407106526009252}&action_type_map={%224684025981703%22%3A%22og.likes%22}&action_ref_map=[]

In my observation as a corporate lawyer who has worked on these issues for clients, a lot of employers are especially responsive when an employee approaches the company with a cooperative approach of "how can we work this out so I meet my responsibilities to the company to be productive but also meet my responsibilities to my child."  Employers and co-workers tend to be more receptive to this than (a) an attitude of "I'm entitled to my leave and taking it", (b) the act of quitting in frustration or rebellion and leaving the employer regretting investments in the employee, or (c) surreptitious juggling, or even lying about reasons for absences, and not making up lost time, that can make work environments less than productive.

Employers don't want to lose good employees (and co-workers don't like to lose good co-workers) and they like employees who take the initiative, have negotiation skills and are able to take responsibility for themselves, including managing their work/family balance, in a way that is not covert but also not something that employer has to manage, particularly in detail.

Men and women in shared parenting situations have the benefit of being responsible for only half the care, including half of the unscheduled emergency needs of children, like illness, which can be especially difficult to balance with work responsibilities.  This makes them more attractive to employers than employees who are taking more than half the responsibility for meeting their children's needs.

Employees who work on a shift schedule may use a different approach than those who work on a salaried  schedule.

Parents Who Work on Scheduled Shifts.

In you work in a job that it is set up on scheduled shifts, the importance of your being being present for your shift is usually critical to the employer.  Much of the litigation around the Family and Medical Leave Act (FMLA), discussed below, and employer opposition to FMLA is about intermittent leave or emergency leave that shift workers take where the employer has no notice.  So for shift workers, it may be especially important for the two parents to stagger their shifts as much as possible, so that emergencies family care issues don't fall on a time when both parents are on their shift.

Parents Who Work in Salaried Positions with Deliverables and "On Demand" Work Requirements. 

For those who work on at a salaried job with responsibilities that are more focused on deliverables than working hours, there is less a standard of showing up for a shift, but more one of being available when people need the work done.  To deal with this issue, parents may need to communicate well with each other about their schedules and to manage projects so that only one parent has a high-intensity project going at once; in some jobs this may mean discussing with employers and co-workers doing fewer big projects per year and taking less pay (which may be built into the system anyway for those employers who pay employee's commissions on completed projects).  Actors and others involved in large-scale cooperative projects with intensive work schedules tend to follow this model.  For people in service professions, such as lawyers or doctors, there may be ways to schedule "office hours" when you are available "on demand" to employers, patients and clients, but to do other work on a personally scheduled timetable when it fits around childcare responsibilities.  Many lawyers I have worked with have worked 9-4, for example, and used that time for meeting with employers, clients and colleagues, and then done 2 or 3 more hours after their children go to bed at night.  For parents in these jobs, some of the same issues apply as for those on shift work; it is important for both parents not to be in "on demand office hours" at the same time if there are child emergencies.

Government.

Our federal laws on work/family balance have several sources:

1.  The Family and Medical Leave Act (FMLA).  More information here: http://www.dol.gov/whd/fmla/index.htm
Shared earning/shared parenting families are sometimes able to negotiate staggered leave or otherwise spread the 12 workweeks over a longer period of time. Some employers help employees save for leave by creating a paycheck deduction savings program that the employer contributes to as well, but without this type of program, or another employer program that pays for leave, employees need to self-manage the savings and other financial aspects of taking leave.

2.  Various laws and policies that consider the 40-hour work week to be the standard.    These include laws like the Fair Labor Standards Act, which requires overtime pay when an employee works more than 40 hours per week.  More information here: http://www.dol.gov/whd/flsa/index.htm  None of these laws requires that the 40-hour week be the norm, but they have a tendency to make it the norm, because it is the outer limit for regular pay. 

Colorado has no laws or programs for work/family balance beyond the federal laws except for a provision that requires employers with 50 or more employees to allow parents take up to 18 hours away from work each year to attend an academic activity for or with a child. 71 Colo. Rev. Stat. § 8-13.3-103.

A recent paid sick leave proposal in Denver was rejected.  http://coloradoindependent.com/104641/denver-sick-leave-measure-loses-big  Governor Hickenlooper opposed the proposal.

If you live outside Colorado, you may find this report on parental leave in other states helpful.   http://www.nationalpartnership.org/site/DocServer/Dads_Expect_Better_June_2012.pdf?docID=10581
  
California, for example, has a gender-neutral paid family leave benefit for employees who have paid into the state's disability insurance fund, which pays part of an employee's foregone salary during leave.  http://www.edd.ca.gov/Disability/Paid_Family_Leave.htm 

One concern about paid family leave insurance as it is being done in states like California (with subsidies to low wage workers) is that high wage earners carry the load for themselves and low wage earners and capital/property-based earners pay nothing.  (Even if employers pay part of the insurance premium they usually just reduce the employee's salary or wage accordingly.)  This creates a triangulated moral hazard problem where conflict between high wage and low wage workers gets exacerbated and includes repressed conflict both have with capital/property-based earners.  To address this, parental leave insurance should be either (a) a simpler insurance program with no subsidies to low-wage workers and (b) include a capital/property-earner tax.
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Proposals for Change.

The political parties tend of late to focus on issues that are not quite those of shared earning/shared parenting families:

The Democrats.

Here are excerpts from the 2012 Democratic party platform at http://www.democrats.org/democratic-national-platform:

"Women."

"We understand that economic issues are women’s issues, and the challenges of supporting and raising a family are often primarily a woman’s responsibility."

"Families.

 It’s time we stop just talking about family values and start pursuing policies that truly value families. The President and Democrats have cut taxes for every working American family, and expanded the Child Tax Credit and Earned Income Tax Credit. We believe that all parents and caregivers – regardless of gender – need more flexibility and support in the workplace. We support passing the Healthy Families Act, broadening the Family and Medical Leave Act, and partnering with states to move toward paid leave. We have invested in expanding and reforming Head Start and grants to states to raise standards and improve instruction in their early learning programs, and we support expanding the Child and Dependent Care Tax Credit. We must protect our most vulnerable children by supporting our foster care system, adoption programs for all caring parents, grandparents, and caregivers, and protecting children from violence and neglect. We recognize that caring for family members and managing a household is real and valuable work.

President Obama’s administration has offered men who want to be good fathers extra support. We have bolstered community and faith-based groups focused on fatherhood, partnered with businesses to offer opportunities for fathers to spend time with their kids at the bowling alley or ballpark, and worked to help deployed dads connect with their children. We all have a stake in forging stronger bonds between fathers and their children.

We support parents and their children as they work to lead healthier lives. With prevention and treatment initiatives on obesity and public health, Democrats are leading the way on supporting healthier, more physically active families and healthy children."  http://assets.dstatic.org/dnc-platform/2012-National-Platform.pdf 

The Democratic platform thus seems to be based on the idea that "the challenges of supporting and raising a family are often primarily a woman’s responsibility."  Michelle Obama's repeated references to being "mom-in-chief" have raised concern among parenting journalists and others interested in shared earning/shared parenting families.  See these articles:  http://www.huffingtonpost.com/lisa-belkin/obama-mom-in-chief_b_1858440.html  and http://www.washingtonpost.com/blogs/on-parenting/post/mom-in-chief-moniker-needs-to-be-voted-out/2012/09/05/57f24914-f773-11e1-8b93-c4f4ab1c8d13_blog.html.

The Democratic platform thus does focus on parents, particularly mothers, but also fathers to some degree, but does not discuss the needs of children in a general sense (it does discuss policies for "our most vulnerable children").

The Democratic platform also mentions several current and proposed work/family balance laws:

(i) The Healthy Families Act is a proposed law that would be binding on employers that had 15 or more workers. It would guarantee employees one paid hour off for each 30 hours worked, enabling them to earn up to seven paid sick days a year. They would be entitled to claim their days when they or a child, a parent, a spouse or someone else close to them became ill.  A significant number of Republicans oppose the law and it has not passed.  http://www.nytimes.com/2009/05/16/health/policy/16sick.html  The law is gender-neutral, however, much of the advocacy has centered around women as primary caregivers.  http://womensissues.about.com/od/intheworkplace/f/HealthyFamiliesAct.htm

(ii) I am not aware of how the Democrats seek to "broaden . . . the Family and Medical Leave Act".  If anyone has information on this I would be glad to receive it.

(iii) I don't know if Colorado is considering instituting a family leave program like those of other states (such as California's discussed above) and whether the Obama Administration is working with our officials on this.  If anyone has information on this I would be glad to receive it.

With regard to the platform's discussion of fathers' responsibilities, President Obama's "Fatherhood Initiative" has been criticized as focusing on mentoring fathers, but not regarding men as equally responsible for the unpaid work of childcare and parenting and thus perpetuating, rather than resolving, some problems in expensive and misguided welfare and other social service programs that do not meet a "best interests of the child" standard. This article discusses this criticism and also looks at the "Fatherhood Initiatives" of President Bush and President Clinton.  http://onlinelibrary.wiley.com/doi/10.1111/j.1744-1617.2012.01453.x/abstract

The Republicans.

Here is an excerpt from the only discussion of parenting or parenting responsibilities in the 2012 GoP party platform at http://www.gop.com/2012-republican-platform_home/:

"Preserving and Protecting Traditional Marriage  

The institution of marriage is the foundation of civil society. Its success as an institution will determine our success as a nation. It has been proven by both experience and endless social science studies that traditional marriage is best for children. Children raised in intact married families are more likely to attend college, are physically and emotionally healthier, are less likely to use drugs or alcohol, engage in crime, or get pregnant outside of marriage. The success of marriage directly impacts the economic well-being of individuals. Furthermore, the future of marriage affects freedom. The lack of family formation not only leads to more government costs, but also to more government control over the lives of its citizens in all aspects. We recognize and honor the courageous efforts of those who bear the many burdens of parenting alone, even as we believe that marriage, the union of one man and one woman must be upheld as the national standard, a goal to stand for, encourage, and promote through laws governing marriage. We embrace the principle that all Americans should be treated with respect and dignity."

"The Sanctity and Dignity of Human Life

Faithful to the “self-evident” truths enshrined in the Declaration of Independence, we assert the sanctity of human life and affirm that the unborn child has a fundamental individual right to life which cannot be infringed. We support a human life amendment to the Constitution and endorse legislation to make clear that the Fourteenth Amendment’s protections apply to unborn children. We oppose using public revenues to promote or perform abortion or fund organizations which perform or advocate it and will not fund or subsidize health care which includes abortion coverage. We support the appointment of judges who respect traditional family values and the sanctity of innocent human life. We oppose the non-consensual withholding or withdrawal of care or treatment, including food and water, from people with disabilities, including newborns, as well as the elderly and infirm, just as we oppose active and passive euthanasia and assisted suicide.

Republican leadership has led the effort to prohibit the barbaric practice of partial-birth abortion and permitted States to extend health care coverage to children before birth. We urge Congress to strengthen the Born Alive Infant Protection Act by enacting appropriate civil and criminal penalties on healthcare providers who fail to provide treatment and care to an infant who survives an abortion, including early induction delivery where the death of the infant is intended. We call for legislation to ban sex-selective abortions – gender discrimination in its most lethal form – and to protect from abortion unborn children who are capable of feeling pain; and we applaud U.S. House Republicans for leading the effort to protect the lives of pain-capable unborn children in the District of Columbia. We call for a ban on the use of body parts from aborted fetuses for research. We support and applaud adult stem cell research to develop lifesaving therapies, and we oppose the killing of embryos for their stem cells. We oppose federal funding of embryonic stem cell research.

We also salute the many States that have passed laws for informed consent, mandatory waiting periods prior to an abortion, and health-protective clinic regulation. We seek to protect young girls from exploitation through a parental consent requirement; and we affirm our moral obligation to assist, rather than penalize, women challenged by an unplanned pregnancy. We salute those who provide them with counseling and adoption alternatives and empower them to choose life, and we take comfort in the tremendous increase in adoptions that has followed Republican legislative initiatives."

The GoP platform thus focus on "defending traditional marriage", conception, pregnancy and "unborn children" (or fetuses) but does not mention anything about children's needs, parents' responsibility to meet children's needs, or work/family balance issues. It is unclear whether the definition of "traditional marriage" encompasses shared earning/shared parenting marriage or just means male breadwinner/female stay-at-home caregiver.  Because the GoP platform contains no discussion of the needs of children or of parents' responsibilities, it also avoids and omits any discussion about whether employers or employees need government help in managing work/family balance issues. 

The GoP platform's focus on "defending traditional marriage" tracks President Bush's "Presidential "Fatherhood Initiative", which was focused on "traditional marriage".  This article criticizes President Bush's version of the initiative and notes that the focus on "traditional marriage" glossed over the significant contrast between (a) the male breadwinner/female stay-at-home caregiver and (b) the shared earning/shared parenting marriage in terms of meeting the needs of children and producing the results of children being "less likely to use drugs or alcohol, engage in crime, or get pregnant outside of marriage."  http://onlinelibrary.wiley.com/doi/10.1111/j.1744-1617.2012.01453.x/abstract

While GoP Presidential nominee Mitt Romney did not discuss these issues at the GoP convention and has not discussed any identity as a parent himself, Ann Romney gave a speech focusing on women as primary caregivers.  http://www.npr.org/2012/08/28/160216442/transcript-ann-romneys-convention-speech  This speech has been heavily criticized by shared parenting advocates as omitting any discussion of the needs of children and fathers' responsibilities to their children.   See  http://goodmenproject.com/good-feed-blog/megasahd-ann-romneys-gop-speech-caregiving-and-parenting-as-womans-work/ and http://www.washingtonpost.com/blogs/on-parenting/post/ann-romneys-mother-love-what-about-dads/2012/08/29/ce45a496-f1f9-11e1-892d-bc92fee603a7_blog.html

Colorado's Civil Unions Law Proposal.

Colorado's civil unions law proposal has this to say about parenting responsibilities, which allow a party to a union to qualify for employer parental leave benefits or federal laws like the Family and Medical Leave Act.

14-15-106. Benefits, protections, and responsibilities of parties to a civil union.
(4) THE LAW OF DOMESTIC RELATIONS, INCLUDING BUT NOT LIMITED TO DECLARATION OF INVALIDITY, LEGAL SEPARATION, DISSOLUTION, CHILD CUSTODY, ALLOCATION OF PARENTAL
RESPONSIBILITIES, PARENTING TIME, CHILD SUPPORT, PROPERTY DIVISION, AND MAINTENANCE, APPLIES TO CIVIL UNIONS.

****

(6) THE RESPONSIBILITIES AND RIGHTS OF PARTIES TO A CIVIL UNION WITH RESPECT TO THE BIOLOGICAL CHILD OF ONE OF THE PARTIES, WHICH CHILD IS CONCEIVED DURING THE TERM OF THE CIVIL UNION, ARE DETERMINED AS IF THE PARTIES WERE SPOUSES SUBJECT TO THE
PROVISIONS OF SECTION 19-4-105,C.R.S.   A PARTY TO A CIVIL UNION HAS THE RIGHT TO ADOPT THROUGH THE SAME PROCESS OUTLINED FOR A STEPPARENT ADOPTION IN ACCORDANCE WITH SECTION 19-5-203,C.R.S., IF THE CHILD OF THE OTHER PARTY TO THE CIVIL UNION IS OTHERWISE
AVAILABLE FOR ADOPTION PURSUANT TO SECTION 19-5-203(1) (d), C.R.S.

The civil union law incorporates the provisions of Colorado's domestic relations and marriage laws with regard to the responsibilities and rights for children born during the union and presume parentage of the child by both people in the union.  These laws are designed to require fathers to support their children financially. See  http://search.jurisearch.com/NLLXML/getcode.asp?userid=PRODSG&interface=NLL&statecd=CO&codesec=19-4-105&sessionyr=2012&Title=19&datatype=S&noheader=1&nojumpmsg=0

While the laws of presumed parentage don't address the issue of the personal work children require from their parents, for any biological or adopted child of a man or woman, whether in a marriage, civil union, or not, Colorado's abuse and neglect laws apply.  CRS 19-1-103(1)(a)(III) defines child neglect as, “Any case in which a child is a child in need of services because the child’s parents, legal guardian, or custodian fails to take the same actions to provide adequate food, clothing, shelter, medical care, or supervision that a prudent parent would take.”  In addition, CRS 19-3-102 (1) (c) states that a child is neglected if, “The child’s environment is injurious to his or her welfare”. 

And these abuse and neglect laws can also hold mothers to a requirement of financially providing for their children if this neglect standard is failed.

The civil unions law thus doesn't address work/life balance issues, directly, but does place parents in a civil union on a par with parents in a marriage concerning rights and responsibilities for the "best interests" of a child born during or adopted into the marriage or civil union.  This means they should be entitled to any employer leave or benefits policies or government laws, such as FMLA, that apply to parents.