The State of Paid Family Leave
Our intentionally scarce economics of care.
Somehow 2024 was the first year we needed a parental leave policy at Wanderwell. Typical of me, crafting a new policy sent me down a rabbit hole, weeks reading everything I could find on the United State’s absolutely fucked support for new parents. And so today I bring you part one, a dive into the context that landed us here; part two will be a Boss Talk about our policy and how went about supporting the teammate in taking 16 weeks off. I do not claim my business as a paragon of much of anything, how it played out is a combination of luck and good business practices, but since I couldn’t find much in the way of examples of how tiny businesses practically and operationally support family leave, I very much wanted to contribute *a* roadmap for what we are doing.
Listen to the Whiskey Friday’s Podcast episode on Paid Leave:
The US is one of only 61, out of 186, countries in the world without any form of paid leave for new parents. The last time the idea was seriously entertained in legislation was 2021, the final deal on the table would have offered 4 weeks, whittled down from 12, which is still wildly, and very American-ish, below the average length of 29 weeks globally (that’s a smidge over 6 months).
Which means that leave is largely left up to individuals, and individual employers to figure out.
Maybe you caught whiff of the recent internet drama about the CEO of a company that makes baby stuff denying a new mother’s request to work remotely while caring for her baby while in the NICU2 and then subsequently firing her. Obviously, this CEO did a shitty thing…but also, that these kinds of decisions rely on individual employers to do good things…also shitty!
There’s a simple hand wave explanation of this is just how we do it here: every person for themselves, a nation of individuals left to succeed or fail on their own merit. But I wanted to understand where we had tried and failed to do better, and to think a bit about the unique issues around the labor and material conditions surrounding birth. This deep dive changed the way I frame our lack of care, and I hope this piece will shed some insight for you too on systems underpinning our dearth of care.
“Over half of American women (55%) return to work during their child's infancy and most return within the first 3 months after childbirth despite often experiencing lingering health issues related to pregnancy and giving birth”
A Gendered History
The concept of maternity leave is tied directly to the World Wars of the 20th Century. During both wars women were conscripted into the formal productive labor force in greater numbers— like Rosie the Riveter, producing war— while men were drafted and sent to the front lines.
The end of WW1 brought the beginnings of calls for protections and pay for new mothers, alongside a renewed focus on labor rights in general: women were summarily laid off to make way for the returning (male, obviously) soldiers; meanwhile men in the US and Allied Europe leveraged their status as returning war heroes to organize for reasonable workdays and other labor protections. One of the outcomes of the post war negotiations was the establishment of an International Labor Organization, the first convening of its kind, charged with creating standards for just labor and working conditions.
While women fought for some voice in this process, no women were appointed as full voting members. Even so, pressured by activists, the ILO did adopt the Maternity Protection Convention in 1919. The charter called for 12 weeks of paid maternity leave, healthcare during and after pregnancy, and job protection and guarantees for returning to work.
It’s passage led to a wave of adoptions all over the world (but not in the United States) which in Europe were largely cemented in the wake of WW2. A decimated population prompted economic incentives to support women in giving birth. There’s an economic argument that the United States, with an influx of new immigration and with its soldiers returning from war (and without having sustained mass population loss) took the opposite tack: encouraging women to return home as homemakers, which any sort of labor protections or support tied to work would undermine. Many women remained in the workforce, however, which meant more employees with pregnancies on the job.
Beyond economic arguments for removing women from the workforce, we have a deep and consistent history— anytime there are gains in labor rights or benefits— of creating particular loopholes to exclude people of color. White women were granted the right to vote before most Black women; labor rights evolved while excluding domains with high concentrations of African American workers (the reason farm and domestic workers are still excluded from fair labor laws even today). It’s not hard to imagine white patrician lawmakers panicking at the thought: pay women to have babies, and soon poor women, African American women, and immigrant women will have more babies!
Of course, historically most working women were poor, and immigrants or women of color. And most women’s time in the workforce was also viewed as temporary: once married, women would stay home to raise and care for families.
Back to the 1919 ILO convention:
“Most medical experts,” the delegates — all of them men — insisted, “favor the idea that it is best for a working woman to continue her work as long as possible before childbirth.” Mary Macarthur supplied the rebuttal: If employers truly believed this claim, they would be sending their own expecting wives into the factories to reap the health benefits of manual labor while nine months pregnant! Male employers had little to offer in response.
In the post-WW2 era and up to the present, the US government has passed more protections for pregnant people, while at the same time all attempts at any sort of paid leave have either fallen apart or been vetoed (Nixon, Bush Sr multiple times).
A brief outline of milestones in the United States:
1970’s: discrimination protections. Feminist activists brought more focus to working women as well as the reproductive and care labor supporting the entire economy. Legislation passed in 1972 and 1978 creating protections for pregnancy, both in treating it as a covered disability and also in outlawing workplace discrimination of pregnant women.
None of these protections offered any sort of wage replacement or paid leave, which meant that women often still left the workforce after giving birth.
1985-1993: FMLA The 1993 passage of The Family and Medical Leave Act (FMLA) set a 12 week minimum for protected unpaid leave to care for a new child, a child’s illness, a spouse’s disability, or the employee’s own disability. It excludes small employers and short-tenure workers (to be covered, an employee must work for a company for a full year), meaning that about 40 percent of U.S. workers are not eligible for the FMLA.
The first iteration of what would become the FMLA was introduced in 1985. Various versions of the bill were introduced, dropped, renamed; Bush Sr vetoed it twice, then earnestly avoided the topic till he lost his reelection bid; Clinton signed the final version upon taking office in 1993.
As the bill evolved, its language expanded to court backing by AARP, adding coverage for family members caring for elderly relatives. This inclusion came at a literal cost: covering a broader swath of circumstances was also more expensive, which ultimately doomed the inclusion of any paid leave.
Still, the hope was that after this initial expansion of unpaid leave, further legalization would expand coverage and introduce paid leave and further protections.
Instead, while there have some tweaks to the FMLA, including to expand the definition of spouse after the legalization of gay marriage, paid leave continues to be shot down.
In 2015, Senator Kirsten Gillibrand (D-NY) and Rep Rosa DeLauro (D-CT) introduced the Family and Medical Insurance Leave (FAMILY) Act, which would have provided up to $1000/week of payments for up to 12 weeks as covered by FMLA. The bill stalled out in committee.
Most recently, Biden’s 2021 American Rescue Plan Act— the package that sent $1400 checks to most Americans— included temporary tax credits to businesses for who voluntarily provided paid emergency family leave.
The same year, in perhaps the closest we’ve come to a national paid policy, the Build Back Better Act passed the house with 4 weeks of paid family leave (whittled down from 12 weeks), only to be taken off the table in the Senate process after, you guessed it, Republican’s strenuous objections and Kristin Sinema and Joe Manchin held the whole bill hostage.
This bill supported inclusive language and protections that affirmed the fact that all sorts of people have uteruses and give birth; all sorts of humans welcome newborns into the world and care for family in all sorts of ways; and that families are not just a hetero pairing of cisgendered people. This inclusive lens also may have doomed the provision from the start.
What we have today instead is a patchwork system of coverage depending on on one’s residence and employment. Federal Government employees are eligible for 12 weeks of paid leave, and thirteen states and the District of Columbia have enacted mandatory paid family leave policies and systems in some form, usually via social insurance programs, similar to unemployment. An additional eight states have voluntary systems that provide paid family leave through private insurance.3
Independent workers and the self-employed sometimes have access to the state leave systems, sometimes not, but always on a voluntary, opt-in basis. I’ll come back another time to how self-employed folks can support themselves in taking leave, we suffer from many of the same issues, but also costs and operational challenges that are particular to owners.
In which small businesses are stuck.
The United States, uniquely, frames maternity leave as a privilege, instead of a right. So there are companies with generous fully-paid leave policies, usually offered to top earners. Others who work at larger companies have protections under FMLA, but that leave is unpaid.
I read a lot of arguments from business groups (the socially hostile Chamber of Commerce for one) claiming that broad policies are not flexible enough; that businesses, particularly small businesses, need to be able to create their own policies that best fit their circumstances. The reality is that “the policies that best fit their circumstances” for most businesses means minimal or no policies at all; the subtext here is that businesses need the freedom to pursue profit without being constrained by pesky workforce care.
The result of “flexibility” is that not even the top 10% of earners crack 50% of workers covered by paid family leave. The lower your earnings, the worse your odds of paid coverage. Overall, fewer than 1 in 4 private sector workers have access to paid leave.
The exclusion of small businesses from most social benefits laws that apply to larger companies means that while we are exempt from expenses or policies that may be difficult to support with fewer resources, we also are largely left to our own devices. In effect, we are not required to do anything, but neither do we often have the resources for generous care even if we wanted to.
I learned from Quora, always a font of wisdom, that the real reason the US doesn’t have paid family leave because companies worry that once they pay people to take time off, that they’ll just come back and quit right away. This isn’t an uncommon fear, there’s a proliferation of policies that lock employees into stay-on contracts in exchange for taking leave4. These policies position the employee as being indebted to the company for something that, in other countries, is treated as a fundamental right.
Surely we can figure this out?!
Almost every opinion-type piece I read on this subject included an exclamation that went something like: “Far, far poorer countries have figured out how to pay new parents to care for their children, surely the United States can figure this out!” As if it’s just a matter of resources, so in a country where we can certainly “afford” to pay parents for generous leave, it would be easy to “just do it”.
What’s more, it would seem to be the economically rational thing to do. Robust numbers of studies and statistics point to paid leave supporting better maternal and child health outcomes, stronger families, and a more productive workforce with higher rates of employee retention.
In all of my reading, I was struck by a peculiar tick in the language of how this lack of care is talked about: the United States is one of the world’s wealthiest nations and doesn’t have paid family leave, nationalized healthcare, subsidized childcare, etc… As if there is no connection between these two facts.
A reframe:
The United States is one of the wealthiest countries in the world BECAUSE it doesn’t have paid family leave.
In other words, our position as one of the, if not the, wealthiest and most powerful nation on the planet intrinsically depends on our ability to extract maximum value while externalizing as many costs as possible. I don’t just mean costs like labor or the types of programs that support laborers, but also environmental and humanitarian costs.
In other words, we’re not a wealthy nation with a housing crisis, we’re a wealthy nation because of our housing crisis.
Just like Uber depends on drivers who pay for their own vehicles, gas, and repairs, to prop up a (still unprofitable!) business model, the US economy relies on women and people of color to take on the brunt of reproductive labor, unpaid and unsupported.
Reproductive labor is all of the work that goes into caring and tending to humans. That includes bringing new humans into the world and then ensuring they are fed, clothed, sheltered, and, ideally, hugged often and read to at bedtime.
The primary function of reproductive labor in a Capitalist system is to reproduce and maintain workers (the so-called productive labor force). Traditionally, workplaces— spaces where workers exchange labor for wages— were the site of productive labor, while households are the site of unwaged reproductive labor.
That neat binary is messier in our post-Fordist world: exponentially more women have entered the workforce and juggle both productive and reproductive labor. Families obtain care support outside the home individually and privately, which has created a marketplace catch-22: childcare and eldercare are too expensive for most families, while the workers in these sectors remain underpaid.
Without care and maintenance, machines and humans break down, becoming rusted and hollow shells. In the logarithm of US capitalism, our economy will lose productivity over time if we do not replace workers with either new babies or immigrants.
A Capitalist system relies on reproductive labor, and on keeping reproductive labor hidden and unpaid5, or at least very cheap, in order to maximize profit from productive labor. It’s another externalized cost, a piece of a full system that exploits people in service of wealth concentration.
And yes, we are talking about patriarchy: women still perform most care work and household labor. Those in power may pay lip service to gender equality, but materially, there’s no evidence that we support anything close6.
As sociologist Jessica Calarco has said: “Other countries have social safety nets. The U.S. has women.”
The other important point is one of control: by continually assaulting women’s right not to be pregnant, men in power seek control over reproduction, reconfirming the distinction between production and reproduction.
“For Marx, “reproduction”was the process by which capital accumulates itself. In contrast, feminists conceive of “reproduction as the process that reproduces the true makers of capitalist accumulation and the struggle against it.” — Silvia Federici
Who benefits? The obvious answer is found in all the charts showing widening wealth inequality.
Part of what’s happening in the economy overall right now is a fight over the costs of collective care. Is the government responsible? Is it privately held and publicly traded companies? The answer to this big thorny question is largely no one. Instead individuals suffer (or not) in direct proportion to their privilege.
When the government allows billionaires, who fight any attempts at taxation, to exist, while at the same time companies continue squeezing workers to accumulate those billions, well, that’s maximalist extraction. A system of power where wealth accumulation is protected at all costs.
At the risk of overstatement, we don’t live in a nation state that puts much value in human life. As a country founded on genocide and slavery— the original sources of wealth— exploitation permeates our orientation to life. And ultimately means that as a country we lack a moral clarity or direction other than control and cruelty.
Profit is a cost7.
In a healthy business profit is a hedge against future uncertainy and a source of caretaking— as Wanderwell’s profit supports paid family leave. In our current economy the cost is an increasingly untenable and unequal society.
In Part 2, I walk through how Wanderwell has supported family leave and a recent team member’s parental leave. I don’t have it all figured out, and as I wrote at the top, we “got lucky” in some ways. My hope is to provide a resource for what to consider in setting up a policy within a pretty hostile system.
Read Part 2:
Providing Paid Leave
Sources and further reading can be found here.
The other 5 are all Pacific islands: Marshall Islands, Micronesia, Nauru, Palau, Papua New Guinea, and Tonga
The company is called Kyte Baby, and I don’t particularly recommend watching the cringy videos.
It’s worth noting that most of the news around this case centered around the brand, messaging, and whether the company was “walking the talk” and whether customers would forgive the CEO her (multiple) apologies, and not so much on the material circumstances for an employee who could not take time off to care for a baby, much less a baby that required extended hospitalization, and would now inevitably face enormous medical bills. (I’d hazard a guess that someone has set up a GoFundMe somewhere…)
The Kyte Baby company with the shitty CEO? Their maternity leave policy provided two paid weeks off, but with a contract stipulation that the employee would return to their job for a minimum of 6 months after their paid leave was complete. This felt like a consistent policy for a company that would rather fire an employee than allow some flexibility for her to care for a sick baby.
I realized in writing this that, at least in recent decades, often the only time when household reproductive labor is accounted for and compensated is during a divorce in the form of alimony or in the split of marital assets.
“Poorly designed parental leave policies can actually reinforce these tendencies toward gender inequality. At first glance, providing mothers – but not fathers – with leave that is both long and generous may seem to benefit mothers relative to fathers. In practice, however, such a policy would more than likely increase the child care responsibilities for mothers while, at the same time, reducing their long-term earnings relative to fathers.” Source.
Quoting Peter Drucker here, and self-referencing The Radical Business Owner’s Guide to Profit, a zine project that I’m in the midst of finishing.