Once Donald Trump becomes president, he may find critics of his paid maternity leave proposal on both sides of the aisle. Republican-supported legislation for banking compensatory time to cover future family leave needs may have brighter prospects. Even that may be a long shot, though, as its chief sponsor, Sen. Kelly Ayotte, R-N.H., was not re-elected.
But Brian Turoff, an attorney with Venable in New York City, counters the prevailing view among many legal experts that paid leave legislation won't pass. "Some kind of paid leave law is likely to emerge and maybe even soon," he said, calling the comp time bill or an amalgam with Trump's proposal the likeliest to be enacted into federal law.
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Six Weeks of Paid Maternity Leave
Trump's proposal of six weeks of partially paid maternity leave benefits would not provide any paid leave for men or for parents who adopt, noted Marjory Robertson, assistant vice president and senior counsel for disability insurance company Sun Life Financial Services Co. in Wellesley Hills, Mass. She noted that Ivanka Trump has said the proposal is meant to benefit a married mother who gives birth to the child.
President-elect Trump's plan would guarantee six weeks of paid maternity leave by amending the existing unemployment insurance that companies are required to carry, noted Lawrence Lorber, an attorney with Seyfarth Shaw in Washington, D.C. The benefit would apply only when employers don't offer paid maternity leave and would be paid for by rooting out unemployment insurance fraud.
"This enhancement would triple the average paid leave available to new mothers in the workforce. As to the cons, there would be issues related to the tax expenditures" these plans would create, he added. "Also, opponents have argued that six weeks of maternity leave is insufficient and that these plans do not provide for paid sick leave." But Lorber said that Trump proposals will "probably form the basis of any policy discussions."
One criticism of this approach "is that it is only available to new moms and not new dads, and it is also unclear whether reforms of unemployment insurance would be sufficient to fund this program," said Lisa Horn, director of congressional affairs for the Society for Human Resource Management (SHRM). The proposal also has been criticized for not covering single mothers or adoptive or foster parents. "Democrats have an entirely different approach to paid leave, so I don't envision this proposal gaining bipartisan support," she said.
Bobbi Kloss, director of human resources management services for the Benefit Advisors Network in the Cleveland area, said there may not be enough fraud to cover the costs of Trump's proposal. Also, it is "not a self-perpetuating funding source. If you end the fraud, where then does the funding come from?" If the paid leave program were run like California's disability leave program, the state would reap the savings from reduced fraud. Kloss said, however, that Trump's maternity leave plan is not favored by the Republican Party.
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Jeff Nowak, an attorney with Franczek Radelet in Chicago, agreed: "If the past is any indication, the GOP congressional leadership has long been opposed to paid leave. I'm not at all confident this position will change now that Mr. Trump is taking office."
Stephanie Lewis, an attorney with Jackson Lewis in Greenville, S.C., noted that Senate Majority Leader Mitch McConnell, R-Ky., and Speaker of the House Paul Ryan, R-Wis., "consistently have said they are against paid leave." However, McConnell has favored the compensatory time paid leave bill.
Child and Elder Care Proposals
Robertson noted that Trump also has proposed:
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A deduction for dependent care. Trump proposes a deduction for individuals earning $250,000 or less—couples filing jointly $500,000 or less—that is available for both child care and elder care. The amount of the deduction would be based on the average cost of child care in the taxpayer's state and could be claimed for up to four children.
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An expanded Earned Income Tax Credit in the form of a child care rebate. To benefit low-income taxpayers, Trump would boost the credit to 50 percent of the payroll taxes paid by the lower earning parent and subject to an income limitation of $31,200. This could result in a credit of $1,200 per year.
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A dependent care savings account. This proposed account would be in addition to the dependent care flexible spending account that already exists. Annual contributions would not be subject to tax, and the amounts would grow tax free if invested. Employees or their employers could contribute up to $2,000 per year. Balances would roll over from year to year. When established for a child, funds could be used for tuition. When established for elderly dependents, the funds could be used for adult day care, in-home or longer term services. For low-income families, the government would provide a 50 percent match on parental contributions up to $1,000 per year.
State Action
While these additional proposals may gain support, a
Littler report on the election said, "Now that hopes of a progressive policy agenda are all but gone at the federal level, it is expected that legislation pushing for paid leave … will fall to the states and localities."
Currently, "California, New Jersey and Rhode Island already provide for paid family leave benefits for employees," noted Franklin Wolf, an attorney with Fisher Phillips in Chicago. "New York recently passed a paid family leave law that will take effect on Jan. 1, 2018."
"Employers with multistate operations have been left scrambling to coordinate the different leave laws they have to follow," Nowak said.
Comp Time
"There is practically no chance for bipartisan support of a paid leave law coming out of Congress," predicted Mark Kisicki, an attorney with Ogletree Deakins in Phoenix. "The only paid leave House Republicans might support would be an amendment to the FLSA [Fair Labor Standards Act] that would allow some type of compensatory time that employees could earn—at 1.5 times their regular hourly rate—by working overtime but electing to not be paid and, instead, banking those hours for future use as paid family leave."
Ayotte, as well as McConnell and Sen. Johnny Isakson, R-Ga., have introduced the Family Friendly and Workplace Flexibility Act, which would allow voluntary arrangements such as compensatory time and flexible credit hour agreements to be extended to hourly workers in the private sector. Already such arrangements are allowed for federal employees.
While Republicans may support such legislation, however, Democrats seeking broader paid leave rights may not. The legislation thus far has failed to reach the president's desk.
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