On August 5, 1993, the Family and Medical Leave Act went into effect. This was an important, if not world-changing, piece of legislation that demonstrates the historical difficulties of groundbreaking expansions of the welfare state in the U.S.
The United States’ welfare state has always lagged behind that of western Europe. The greater power of employers and the myth of individualistic capitalism has undermined a class-based politics. That combined with ingrained sexism and the belief in the male family wage to make expansions of the welfare state that benefit women and children even more difficult. There have been moments where activism saw significant expansions in labor law and workers rights for women and children, particularly in the Progressive Era’s fights for protective workplace legislation for women and the banning of child labor. Key moments in this history is the founding of the National Consumers’ League led by Florence Kelley, the Muller v. Oregon case, the success of state-based bans on child labor, and the photography of Lewis Hine, exposing the lives of child laborers for Americans. But the Child Labor Amendment to the Constitution was never ratified and it was not until the Fair Labor Standards Act that child labor was banned nationally and even that did not include many lines of work, most importantly farm labor. The FLSA was the last comprehensive labor reform in this nation. From there, most legislative “reforms” have been anti-labor such as Taft-Hartley and, more complicated, Landrum-Griffin.
But in the period of the reforms of the 1960s and 1970s, there was one near-miss that would have transformed the lives of working families and especially working women– significant move toward universal child care. Alas, Richard Nixon, who as many internet commenters between 2009 and 2017 liked to claim, was way more liberal than Barack Obama, vetoed it. What’s more liberal than that! Sadly, universal child care has largely disappeared from the progressive agenda and even today, isn’t a top demand. Title VII of the 1964 Civil Rights Act and the Pregnancy Discrimination Act of 1978 moved the ball forward to some extent for women workers, and the Supreme Court ruled 7-2 in 1974’s Cleveland Board of Education v. LaFleur that restrictive maternity leave in public schools violated the 14th Amendment (Rehnquist and Burger dissented) but real equality at the workplace remained fleeting.
No one ever claimed Bill Clinton was a great friend of the labor movement. Unions have never successfully organized the South on a massive scale, despite many efforts over the last 75 years. So Clinton didn’t require unions for his political rise, especially at the state level. His centrist DLC-Third Way politics had little place for unions except as fundraisers and GOTV operations. This was epitomized in his support for NAFTA, where he worked with Republicans to see it through, even if it was already well on the way when he took office.
But Clinton’s relative indifference to unions didn’t mean that he didn’t see the need to expand the welfare state to help working families. The most obvious way he tried to do this was through his healthcare reforms, which blew up in the face of right-wing opposition and never came to pass, even if Barack Obama did move the ball forward significantly through the Affordable Care Act a decade and a half later. Another piece of Clinton’s agenda was finally getting family leave for workers who either had babies or needed to take care of ill family members. This should have been such an obvious problem that it was taken care of a long time ago. However, workers could be fired simply for having a child or taking time off to take care of a family member. With the myth of the family wage largely gone by 1993, not that unions haven’t held onto that dream, there were simply too many women in the workforce to leave this problem unaddressed. Moreover, many men wanted to stay at home with their babies as well.
The FMLA didn’t do much. It gave family members 12 weeks of unpaid leave while keeping their health insurance intact. It only cost employers the insurance payments and hiring a temp to replace the worker. That’s certainly not much of a solution to this problem. How many families could even afford 12 weeks of unpaid leave? Not many at all. For the most vulnerable Americans–the working class–such an idea was nearly impossible. And yet, this was as good as it was going to get. It also only applied to employers with at least 50 employees over at least 20 weeks in the last year. An employee needed to labor there for a minimum of one year before eligibility and have worked at least an average of 25 hours a week in that time. They had to give employers at least 30 days notice of the leave, with some exceptions around sudden health issues. Also, the law provided for 26 weeks of leave for a member of the military, because of course soldiers are more important than babies in American life.
The law was introduced to Congress by Michigan’s William Ford on January 3, 1993. It passed the House by a 265-163 vote on February 3 and then the Senate the next day by a 71-27 vote. That it was so limited is what sped its passage. Yet a lot of Republicans, gearing up for the New Gilded Age, couldn’t even support such a limited measure. In fact, George H.W. Bush had vetoed a very similar law during his term! Clinton signed it on February 5, the first bill he signed into law. The law took 6 months to take effect, August 5. And while talk of paid family leave is part of the progressive legislative world, it’s not really a top priority today. We’ve been stuck at the same limited point for 25 years now. Five states have enacted some paid family leave in the years since–California, New Jersey, Rhode Island, Massachusetts, and New York. Washington passed a law for it but it had no funding mechanism so never went into effect, which to me says so much about Washington state politics. A few other states have lowered the employee threshold under 50. Vermont is the lowest, with 10. In 2009, Congress did pass a slight amendment to the FMLA that expanded coverage for military families to next of kin and adult children, but again, everyone else was excluded. This was signed into law by Barack Obama–again, after George W. Bush vetoed a similar bill the year before.
A 2003 study noted that only 60 percent of private sector workers were even covered by the FMLA. Moreover, the Department of Labor study in 2007 showed that somewhere between 8 to 17 percent of eligible workers took their FMLA leave. That’s all who could afford it. Heck, I don’t think I could. Maybe with some significant advance planning. The U.S. is today the only industrialized nation without paid family leave for parents. Overall, the Family and Medical Leave Act was a positive step in American history, but like so much of our social and economic history, it falls ridiculously short of where we should be.
America, we need to do better. We must make real demands on our politicians for policies such as federally guaranteed child care and paid family leave. That starts by getting these issues on the agenda in 2020.
This is the 278th post in this series. Previous posts are archived here.