In an effort to attract and retain valuable employees, several large national companies are implementing updated leave policies to provide paid time off for employees who welcome a new child. The most recent news comes from Netflix, which announced its new policy of allowing full-time salaried employees in Netflix’s streaming division unlimited paid leave for a year following the birth or adoption of a child. Netflix’s announcement last month comes on the heels of several other companies who are providing paid time off to new parents.
Goldman Sachs recently doubled the amount of paid time off for nonprimary caregivers from 2 weeks to 4. This is in addition to 16 weeks of paid maternity leave for its U.S. employees.
Johnson & Johnson announced their new policy to provide 8 weeks paid time off to all new parents—maternal, paternal, and adoptive—within the first year of the child’s birth or adoption.
Microsoft will increase its parental leave to 12 weeks paid time for mothers and fathers of new children. These companies join Facebook, Google, and Yahoo in providing generous parental leave that was unheard of 10 years ago in the U.S. Although the Family Medical Leave Act (FMLA) requires covered employers (that is, those with 50 or more employees within a 75-mile radius) to provide 12 weeks of time off to qualifying employees, there is no requirement that the time off be paid. The new national trend of providing paid time off goes above and beyond the obligations imposed by FMLA.
As the economy strengthens and unemployment drops, companies are trying new ways to draw in and keep employees. As we see from these recent changes in parental leave, companies are beginning to offer more comprehensive and family-friendly leave policies. But it is important for employers to remember that parental leave policies need to be gender neutral to avoid discrimination claims brought under Title VII of the Civil Rights Act. As the corporate culture moves towards more generous parental leave policies, employers need to be mindful of the EEOC’s continued aggressive stance on prohibiting discrimination on the basis of sex or gender. Employers who grant more leave to mothers than fathers—without justifying any disparity in parental leave by proving that it is attributable to the woman’s pregnancy-related condition—may be in danger of violating Title VII. The EEOC updated its guidance on parental leave and other pregnancy-related issues on June 25, 2015.
Care should also be taken when writing a parental leave policy to not discriminate against same-sex couples or transgender individuals. See our discussion from July on the EEOC’s recognition that sexual orientation claims fall under the purview of Title VII. And, as always, it is vital that employers apply any parental leave policy consistently and fairly to all eligible employees. This evolving area of the law presents new challenges to employers as they compete for employees in today’s economic climate.
Finally, large employers should bear in mind that the FMLA permits employers to choose whether to allow employees’ job-protected, unpaid leave time to run concurrently with or consecutively to other available paid or unpaid leave offered under the employer’s policies. It is always best to specify in an employee handbook (and also in a letter to the employee notifying him or her of the leave allowance) whether the paid leave being offered is intended to run concurrently with, or consecutive to, FMLA leave. Most employers will want to require employees to use paid leave concurrently with FMLA so that it is exhausted at the same time as paid leave is eaten up; otherwise, employees could have a large federally-mandated unpaid leave period immediately following the paid leave time that their employer voluntarily granted.
Lanier Ford attorneys are very experienced in walking human resources representatives and management through the process of implementing a leave program and administering existing programs. Please feel free to give us a call with any questions. Specific legal advice is always the safest bet.
Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.