Challenging Family Leave Law

By Joshua M. Patton (Pittsburgh, PA)

Outside of a daycare in Pittsburgh, PA on a hot summer day, two women pass the time until the kids are released chatting about the news. After discussing Marcellus Shale drilling, one woman says, “Did you hear about that Google lady? She’s now the boss and she’s pregnant.”

“Yes, but” answers her friend, “it’s Yahoo, not Google. And she thinks she’s only going to need a few weeks off.”

“Shame on her,” says the first woman with something like disgust, “she’s the boss. She can take as long as she needs.”

Conversations like this took place all over the country and the internet after Google’s 20th employee and first female engineer, Marissa Mayer, was named the new CEO of the troubled Yahoo! Inc. She also announced that she was pregnant, but assured her stockholders that she would only take three weeks off, planning to work from home during that time.

The news has thrown the subject of family leave back into the spotlight.

How Secure is Family Leave?

The controversy emerges from that final part of her announcement. For many, Mayer is a great example of the modern female professional. The highly-educated Stanford graduate is only the 20th current female CEO of a Fortune 500 company and may be the first one to give birth so soon after accepting the position.

Some might suggest that she suffers from the same pressure all women face when it comes to the subject of maternity leave.

While Maternity Leave is covered under the Family Medical Leave Act of 1993, the rights inherent in that act are not as secure as some might think. In March of 2012, the U.S. Supreme Court ruled that state workers could not sue their employers if they violated the FMLA. In her dissent, Justice Ginsberg states that these rights were “designed to promote women’s opportunities to live balanced lives, at home and in gainful employment.”

Tiffany Waskowicz, Attorney for Joshua Bloom & Associates in Pittsburgh, PA has experienced cases from “wrongful termination to things that are more subtle.”

Even though some employers still terminate those on leave illegally, more often the impact is felt by the employee upon her return in more passive-aggressive ways. She is left out of meetings where she would have once been included or her responsibility at the company has been diminished without her consent. “I’ve seen cases where they aren’t on the same progression path anymore,” Waskowicz says, “It can be tricky to prove, because it’s all very subjective.”

The case is considered based upon the treatment of the employee at work before her leave began and the treatment she received upon her return to work. If the complaint is deemed “unworthy of credence,” typically attorneys will not pursue it. Of those that are pursued, only 3% of cases go to trial because companies want to settle these matters quickly to minimize their legal costs.

Where executives like Marissa Mayer and the typical female American worker share the same pressure is that for any leave that they take, there are bound to be repercussions. Says Waskowicz, “In some of the cases I have handled, leave is not always well-received by employers and co-workers.”

New Questions

Some have suggested that raising the profile of paternity leave may decrease pressure on women who take time off during and after pregnancy. But even if paid paternity leave had been a part of the discussion from the beginning, would it change the stigma associated with taking leave in our heavily work-focused lives?

For example, a recent Forbes Insights study showed that executives almost never completely switch off from work. What’s more, will the same technological advancements that enable us to work anytime or anywhere change the meaning of “leave,” effectively turning it into a “work-from-home” arrangement?

In reality, things are pretty good for Mayer. She will be reportedly earning a multimillion-dollar salary and she is the CEO. Mayer can work shortened days, hire help, or even change the policy on bringing infants into the workplace. Hopefully, she will champion a conversation about the challenges that come alongside motherhood in the corporate space.

But, in fact, Mayer’s greatest challenge will be steering Yahoo! Inc. back into profitable territory. Despite her personal family choices, Mayer is an accomplished business woman, facing her greatest challenge yet.