The Obama administration is reinterpreting a federal law that requires employers to provide up to 12 weeks leave to a parent who needs to care for an ill child (or following the birth or adoption of a child), so that the law now covers nonparents who are "in loco parentis"-the legal term for people who act as parents but legally aren't. Because of the Defense of Marriage Act, this federally mandated benefit could not simply be applied to an employee who, say, is married or officially partnered to a child's biological parent or parent by adoption.
It's good that a gay parent in such a relationship now may be able to better care for his or her child, but mandating that employers provide this benefit so broadly opens the door to abuses by non-parents such as extended family members who claim to be in loco parentis but aren't. Employers now must investigate these circumstances in order to determine whether the employee's relationship with the child is loco parentis enough to qualify. That's loco.
Worse, while the federal statute in question, the Family and Medical Leave Act, also allows employees to take up to 12 weeks off to care for their ill spouse, the new interpretation applies only to a same-sex parent's caring for a child. It does not apply to same-sex spouses or partners who need to take the time off to care for each other.
Regulatory contortions and half-steps are better than nothing, but let's remember that this is a president who has shown no inclination for repealing or modifying the onerous Defense of Marriage Act, despite his campaign pledges. Those attending the White House announcement should temper their applause.
More. Richard Socarides, Bill Clinton's special assistant and senior advisor on gay rights issues (a position that doesn't exist in the Obama White House), is disappointed with the president. He writes in the Wall Street Journal (subscription required):
...despite a steady trickle of small steps Mr. Obama has taken to promote gay rights, on the big issues he is a disappointment....
The Obama administration's stance on gay marriage is especially troubling. In California, even Republican Gov. Arnold Schwarzenegger has refused to defend the constitutionality of Proposition 8, that state's antigay marriage law. Not so for the Obama administration on the federal version, the Defense of Marriage Act.
Attorney General Eric Holder and the Department of Justice not only have chosen to aggressively defend the constitutionality of that law, which bars recognition of same-sex marriages, but Justice Department lawyers actually cite it affirmatively to deny federal employee benefits like health insurance to same-sex couples....
In a telling development, the most significant and aggressive legal effort to promote gay equality today is being led by a conservative, former U.S. Solicitor General Ted Olson. In federal court in San Francisco, together with co-counsel David Boies, he is prosecuting the most comprehensive and sophisticated legal attack on antigay marriage laws in history....
When Mr. Olson's case reaches the U.S. Supreme Court in a year or more from now, will Mr. Obama be one of the few left on the wrong side of history? What a bitter irony that would be.
40 Comments for “Half-Step Forward”
posted by Bobby on
12 weeks? Why the hell would I want to hire an employee that gets a 3 month vacation at my expense while he or she is “taking care of a child.”
Nobody needs 12 weeks, if the kid is in the hospital the parents can take turns visiting him. This is exactly what I hate about progressives, when someone else is paying the bills, the don’t mind writing crazy laws that don’t cost them a penny. But if they had a butler that required to be absent for 12 weeks, do you think they would pay him a salary? No.
posted by Mark on
You say broadening the interpretation “opens the door to abuses.” But so what? If the government prints money it opens the door to counterfeiting. If it allows cars it opens the door to accidents.
How else would you expect grandparents, uncles and others “in loco parentis” to be covered by the FMLA? Repealing DOMA certainly won’t help them. Or are you just concerned with gay parents? Actually, the paucity of thought that seems to have gone into this post makes me think you’re really just concerned with criticizing President Obama.
posted by avee on
Gee Mark, what a good insult thrower you are (hurling insults and then complaining about the blogger’s "paucity of thought" — kettle, meet pan. Actually, if you knew anything about HR, you’d be aware that abuse of FMLA is already a huge problem. So, tell us, Mark, how do employers determine if a grandparent or uncle is actually loco parentis and not just looking for a sabbatical?
posted by Jorge on
Yeah, I got a few qualms, too, but it’s an “expansion” that pays some attention to resolving discriminatory disparities in a way that’s fair all-around to everyone, and that ensures everyone has rights (no rights are taken away). It’s achieving progressive ends through conservative means, so I see no harm.
Bobby, you are pitting your own selfishness against the well-being of over 50% of the population, or to put it another way, your ideological purity ahead of what is best for society.
posted by Throbert McGee on
Um, Bobby — the FMLA provides for 12 weeks of unpaid leave, so your analogy about paying a butler’s salary while he’s on a three-month vacation doesn’t make much sense.
posted by avee on
Jorge: it’s an “expansion” that pays some attention to resolving discriminatory disparities in a way that’s fair all-around to everyone. … It’s achieving progressive ends through conservative means.
Throbert: the FMLA provides for 12 weeks of unpaid leave.
Yes, it’s unpaid leave (for now; Democrats keep proposing to require mandatory paid leave, as in Europe.
But unpaid FMLA leave of 12 weeks is still a huge burden for many employers. And it’s a “right” that is, as noted, frequently abused. Maybe that’s an ok tradeoff given the protections to care for a sick child or spouse, but adding in any nonparent (not just a gay parent) opens wide the door for even more abuse. This is not good for employers, or the economy, or those parents and spouses (gay and nongay) who actually need the leave. It’s more like the government requiring employers to give spousal benefits to all employee’s roommates. These mandates are not “conservative ends” in the least.
posted by Jorge on
I think I confused a few things in my post. Namely state vs. local laws. My state gives paid leave.
Lovely. I just know all the payroll secretaries are going to welcome this.
avee, I think pointing to an abuse rate and saying expanding categories will expand abuse is unconvincing. But hey.
So you think we’ll get proportionately more abuse and that it’s not worth it? I think it’s worth it if there’s a good reason to be expansive.
posted by Bobby on
“Bobby, you are pitting your own selfishness against the well-being of over 50% of the population, or to put it another way, your ideological purity ahead of what is best for society.”
—Ever heard about being self-reliant? You want help? Talk to your family or friends, don’t ask society to help you out. It’s like telling a private business that they need to provide heathcare for their employees, chance are the small business will either 1. Hire less people. 2. Fire people. 3. Retire and close the business.
It is better to be selfish than to force someone to be generous. That makes as much sense as the “mandatory volunteering” they have in Florida for high school seniors that want to graduate. Volunteering should never be mandatory! By the same token, companies should not put up with an employee being absent from work for 3 months.
posted by Tom on
I have no argument with this — my applause is non-existent when it comes to the Democrats’ non-efforts to repeal DOMA — but I’m curious why you think that DOMA repeal would resolve the “in loco parentis” issue that the bill addresses. The bill, it seems to me, is intended to extend medical/family leave to folks who are not married, more than provide a work around for gay and lesbian couples who are married in the five states that permit same-sex marriage.
While you are worrying about President Obama’s sloth on DOMA, you might consider sending some money to very limited domestic partnership bill that was vetoed by Governor Pawlenty. Governor Pawlenty has his hat cocked on the Presidency, and is not running this year.
The field of candidates is crowded. Three DFL, one Independence Party, and one Republican are in the race.
Predictably, the Republican candidate, Tom Emmer, has his heels stuck in the mud and is a strong opponent of marriage equality. In contrast, though, the rest of the field — DFL candidates Margaret Anderson Kelliher, Matt Entenza and Mark Dayton, as well as Independence Party candidate Tom Horner — openly support marriage equality.
And that — the prospect that Minnesota could have a governor who would actually sign a bill like the one Governor Pawlenty vetoed — has NOM in a frenzy. NOM has already bought $200,000 worth of television ads in Minnesota attacking Dayton, Entenza, Kelliher and Horner for supporting marriage equality, with more to come as the race heats up.
OutFront Minnesota could use some cash to counter the NOM barrage.
posted by Jimmy on
Bobby’s left brain, lizard-like thinking suggests his mommy didn’t love him enough.
posted by BobN on
These mandates are not “conservative ends” in the least.
What about all that talk about “the family” and “the children”? Hogwash?
All this complaining about unpaid leave to take care of sick children. Stop harshing on the heteros!
posted by avee on
There will be more abuse because parent (biological or through adoption) and spouse/domestic partner are legal relationships; in loco parentis is an assertion. That’s why.
Hey, BobN, if requiring 12 weeks leave for the assertion of an in loco parentis relationship is good for the family, why not six months – or six years? After all, if the principle is good…
posted by Bobby on
“Bobby’s left brain, lizard-like thinking suggests his mommy didn’t love him enough.”
—Aw, I guess Jimmy wants Big Daddy Government to take care of him. Why work? Quit, become an artist and let Daddy Obama pay for your healthcare. Got credit card debt? Blame the rich! They’re the ones that forced you to buy things you couldn’t afford, so stop paying your bills and ask Mommy Pelosi to pay them for you.
Jimmy’s world sounds so attractive, nothing but the workers of the world holding hands and singing kumbaya, the reality is way different. Google “Greek riots” and see what happens when Big Daddy Government can no longer pay the bills. Later, davarish. That’s Russian for comrade, btw.
posted by Jorge on
…That makes as much sense as the “mandatory volunteering” they have in Florida for high school seniors that want to graduate. Volunteering should never be mandatory!…
Uh, what?
You have an amazing penchant for dismantling your own arguments, Bobby.
I do not mind Nanny State when it gets things right. There is a difference between right and wrong.
posted by Bobby on
“You have an amazing penchant for dismantling your own arguments, Bobby.”
—Are you saying volunteering should be mandatory? Are you saying high school students should be forced to do community service to graduate? I don’t see how I dismantled my own argument.
“I do not mind Nanny State when it gets things right. There is a difference between right and wrong.”
—The government never gets anything right! Our own military used to pay $500 for each toilet seat in the 1980s. Now they have to outsource services because it’s probably a lot cheaper and more efficient to pay Pizza Hut to feed the soldiers than to have more soldiers working as cooks.
The nanny state is bad, it creates dependency which later becomes slavery. If people need help they’re better off going to a church charity, to their neighbors and their families. Don’t believe me? Look at Santa Monica, California, in that hideous city they give each homeless person $300 a month to live on. What’s the result? Santa Monica is a magnet for the homeless, people who have no encouragement to sober up and find jobs because it’s more lucrative to live of the city’s tit while making $50+ a day begging.
A church-based charity on the other hand doesn’t tolerate hijinks for the homeless. In a Salvation Army shelter you’re not allowed to drink, do drugs, and you will get training to eventually get a job. That’s how you lift people out of poverty, the nanny state alternative is income equality, which means we’re all gonna be poor, thus poverty won’t exist.
posted by Jimmy on
“That’s how you lift people out of poverty, the nanny state alternative is income equality, which means we’re all gonna be poor, thus poverty won’t exist.”
Always the conventional logic, always wrong. We’re not all poor, Bobby. You yourself love to point out how good things were going before the recession. So which is it? Maybe if Republicans had bothered to pay their bills, and not helped shuffle jobs out of the country, there would be less people on the public tit. Any more Fox talking points? Flush them.
posted by Bobby on
“You yourself love to point out how good things were going before the recession. So which is it? ”
—So what? I’m stating the obvious, yes, things were great before the recession, things are crappy now. However, I have never asked for welfare, free college tuition, free health care, or anything from the state. Whether times are good or bad, I make it on my own and so do most people. It’s the lazy people that want the state to do everything for them.
posted by Jorge on
Are you saying volunteering should be mandatory? Are you saying high school students should be forced to do community service to graduate? I don’t see how I dismantled my own argument.
Yes. Volunteering grants great benefits not only to the community but to the person who volunteers. While I won’t personally go so far as impose my own values on other schools here, I will say that there is ample justification for others to do the same. I’m a strong believer in legislating morality, and that’s what I see your example as.
posted by Jorge on
The government never gets anything right!
That is a ridiculous statement to make about a representative democracy.
posted by BobN on
Hey, BobN, if requiring 12 weeks leave for the assertion of an in loco parentis relationship is good for the family, why not six months – or six years?
Six years is too long. How ’bout three?
posted by Tom on
I notice that the Supreme Court’s opinion in Doe v. Reed was issued today.
The Court held, 8-1, that disclosure of referendum petitions in general — hence the names and addresses of signatories — does not violate the First Amendment.
The Court remanded the case back to the trial court for consideration of whether the narrower challenge raised in the case — whether in particular circumstances the risk of “threats, harassment, and reprisals” to petition signers is so high that a court can order that the petitions be sealed.
Chief Justice Roberts wrote the Court’s opinion, and a number of concurring opinions were filed as well. Justice Scalia’s concurring opinion is of interest. Justice Thomas was the sole dissenting vote.
posted by Bobby on
“Yes. Volunteering grants great benefits not only to the community but to the person who volunteers.”
—You sound like a Marxist. “This is for your own good.” How about letting PARENTS and not the state making that decision. I’m not against laws, I’m against coercing people into doing things that a good for them. What’s next? Forcing the obese to eat their vegetables and do 10 push ups before ordering a slurpee?
“While I won’t personally go so far as impose my own values on other schools here, I will say that there is ample justification for others to do the same.”
—Kinda like “designate a fascist to do my dirty work.”
“I’m a strong believer in legislating morality, and that’s what I see your example as.”
—Then let’s bring back the sodomy laws. After all, you want to legislate morality, right? I’d rather legislate freedom, or actually get rid of the unnecessary laws that destroy it.
Forced volunteering is always bad, it’s a matter of principle. In
fact, forced volunteering is a form of slavery. You’re getting free labor without the consent of the laborer.
posted by BobN on
Justice Thomas was the sole dissenting vote.
I’m not sure which is more disappointing.
1) The idea that a self-touted “originalist” could even entertain the idea that the founders ever considered the petition process as somehow “private” when they lived in cities of a few tens of thousands.
2) The enormous slap in the face to generations of brave people who have signed their names to public petitions in the pursuit of justice, damn the consequences.
posted by Tom on
Justice Thomas seldom disappoints me, but then I don’t have high expectations of his jurisprudence.
Justice Thomas had, at least, the decency to refrain from citing the Declaration of Independence, to which Justice Scalia alluded in his concurring opinion:
“There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which … campaigns anonymously … and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”
posted by Jimmy on
“Forced volunteering is always bad, it’s a matter of principle.”
Even in the case of punitive community service for law breakers?
posted by Jorge on
Oh, goodie. I love reading Supreme Court decisions.
Thomas is often a lone dissenter. I read one case recently in which Thomas and Stevens were essentially the only dissenters in a decision that established that if you invoke your right to remain silent, the police have to wait 14 days before they can question you again. Stevens thought that was ridiculous and the period was too long. Thomas thought it was too short. Guess who wrote the decision?
posted by Jorge on
—You sound like a Marxist.
I’m a moderate. What do you expect?
How about letting PARENTS and not the state making that decision.
The parents are free to either vote or pull their kids out of school. Schools (including public schools) have a responsibility to teach civics and form responsible citizens, and they are justly granted the power to set the standards they choose to accomplish their goals. It’s up to citizens to decide how to reconcile their purer morality or general anti-socialness with the laws of the land when they conflict, and they have many ways to do so.
Kinda like “designate a fascist to do my dirty work.”
Of course. That’s why I’m so glad you’re such an active poster. Minus the f-smear.
Then let’s bring back the sodomy laws. After all, you want to legislate morality, right? I’d rather legislate freedom, or actually get rid of the unnecessary laws that destroy it.
Hey, let them Christian Conservatives try to pass an amendment. I’ll be happy to vote against it.
posted by Bobby on
“Even in the case of punitive community service for law breakers?”
—Are you comparing law-abiding high school students to law-breakers? People who break the law are not entitled to the same-rights as law-abiders. For example, many prisons examine a prisoners’ mail, and if there are naked pictures, porn, or anything objectionable, the prisoner won’t get his mail.
Besides, if high school students can be forced to volunteer, why not adults then? How about forcing lazy senior citizens to pick up the garbage? Or what about those Wall Street bankers? I’m sure you’d like to see them pruning trees, erasing graffiti, and making the city beautiful. Or we can go further, let’s have Obama serve soup at a homeless shelter and then clean the dishes.
Or we can go back to being a free country where kids volunteer because they WANT TO, and if they don’t want to, fine. Habitat for Humanity is better off without teenagers that don’t want to be there just like the military is better off without a draft.
posted by Jimmy on
So, I take it you’re OK with forced volunteerism in on a punitive basis.
posted by Jorge on
Stevens thought that was ridiculous and the period was too long. Thomas thought it was too short. Guess who wrote the decision?
Excuse, I got the two mixed up.
Although I must say this case is the first time I’ve ever read a liberal opinion from Justice Thomas. It’s like he switched places with Stevens. He always has something interesting to say. I’m completely undecided, though. The major opinions were all too persuasive.
posted by Bobby on
“So, I take it you’re OK with forced volunteerism in on a punitive basis.”
—Jimmy, it’s called PRISON for a reason. You are supposed to pay your debt to society. What would you have them do? Watch TV and workout all day?
posted by Jimmy on
You are so fuc*ing reactionary, Bobby. I’m asking a simple question; do you approve of community service/forced volunteerism coming in the form of punishment?
posted by Bobby on
“You are so fuc*ing reactionary, Bobby. I’m asking a simple question; do you approve of community service/forced volunteerism coming in the form of punishment?”
—Yes I do. Simple enough? By the way, forcing high school students to volunteer when they have done nothing wrong is a form of punishment. How would you feel if your neighbor’s dog took a crap and you were forced to pick it up? Seriously Jimmy, if you want to volunteer, go ahead, but why must you force someone else to join you?
posted by Jimmy on
“forcing high school students to volunteer when they have done nothing wrong is a form of punishment.”
Or, a civics lesson in citizenship and the value of thinking about yourself as a member of society, rather than some ogre locked away in his fortress of Me, Myself, and I. High schoolers are forced to do a lot of stuff they don’t want to do, like take tests, follow codes of conduct, be on time, etc. Participating in a class activity that may involve volunteering to help clean up a wetland as part of, say, and earth science class, is not beyond reason.
posted by Bobby on
“Or, a civics lesson in citizenship and the value of thinking about yourself as a member of society, rather than some ogre locked away in his fortress of Me, Myself, and I.”
—You know, the law doesn’t require a student to take the pledge of allegiance or to sing the national anthem. You confuse teaching vegetarianism to forcing students to give up meat. And by the way, individualism is an American tradition. Free speech, the second amendment, the fourth amendment, they are not about the collective but about the individual.
“High schoolers are forced to do a lot of stuff they don’t want to do, like take tests, follow codes of conduct, be on time, etc.”
—There are limits. No school can force the students to attend a pep rally, join a sports team, attend the football game on Saturday. In fact, when teachers organize a field trip they REQUIRE the students to bring permission slips from their parents. So you see? Teachers don’t have total control.
“Participating in a class activity that may involve volunteering to help clean up a wetland as part of, say, and earth science class, is not beyond reason.”
—First of all, the required volunteering in Florida has nothing to do with the school curriculum. Habitat for Humanity, the Red Cross, Greenpeace, the ACLU, ACORN, that has never been part of the curriculum. It’s funny how liberals don’t mind turning kids into brown-shirts when they’re marching for their causes, but if conservatives wanted the kids to volunteer for the pro-life movement or simply to teach abstinence-only sex education or intelligent design, they cry bloody murder.
See? When you mess with freedom, it goes both ways, and the fascism you support today it’s the fascism that’s gonna crush you tomorrow.
posted by Jimmy on
“See? When you mess with freedom, it goes both ways, and the fascism you support today it’s the fascism that’s gonna crush you tomorrow.”
This nation shouldn’t be held hostage by your paranoia.
Anti-psychotic drugs will help with that.
posted by Jorge on
So would young liberal hippie wannabes actually voting instead of being stoned or hung over all day.
posted by Mark on
Gee avee, I think I’ll stick with my original “insult” of “paucity of thought.” It looks like it may also apply to you, since you seem to have missed the point of my comment a few days back. Stephen criticizes this expansion of FMLA as a regulatory contortion, as if the obvious purpose of the reinterpretation was to expand FMLA to cover same-sex couples, and including aunts, uncles and grandparents who have a parenting role is just a negative externality that will further exacerbate abuse of the FMLA (I’m not sure why you assume I’m ignorant of the fact that “abuse of the FMLA is already a huge problem,” considering my comment acknowledged by analogy that increasing the population who can benefit from the FMLA will result in increased abuse of the act).
Stephen argues that if DOMA were repealed this reinterpretation would be unnecessary, as same-sex couples could then be covered, but as Tom notes above perhaps grandparents, uncles, aunts and others in loco parentis (in addition to same-sex couples) are intended beneficiaries of this new policy.
You ask how an employer should determine if a relative is truly in loco parentis or just wants a sabbatical? I have no idea. The question is completely inapposite to my comment (please feel free to ask someone who’s arguing that abuse will not increase). My comment simply addressed the fact that Stephen’s proposed solution (repealing DOMA) would not address the alleged issue he identified (abuse of the FMLA by those not truly in loco parentis).
posted by North Dallas Thirty on
Stephen argues that if DOMA were repealed this reinterpretation would be unnecessary, as same-sex couples could then be covered, but as Tom notes above perhaps grandparents, uncles, aunts and others in loco parentis (in addition to same-sex couples) are intended beneficiaries of this new policy.
Actually, they’re both incorrect.
In loco parentis has been an established relationship under the FMLA regulations for years. However, previously, the definition of in loco parentis meant that you had to be providing day-to-day care and financial support for the child, as is written in the Federal regulations, and you did NOT have to be biologically or legally related to the child.
The recent “reinterpretation” — which is essentially ignoring the plain text of the regulation — says that you only have to be providing ONE of those things, either “day-to-day care” or “financial support”, and it significantly weakens the requirements for those, making it much easier to claim completely-fraudulent relationships.
So Mark, here’s the answer to your question.
How else would you expect grandparents, uncles and others “in loco parentis” to be covered by the FMLA?
They already were. In fact, since the regulations already state that you do not have to have a biological or legal relationship to the child to be in loco parentis, by having one, they were already in a stronger position to be defined as such.
In short, this was little more than a desperate and naked attempt to pander to gays and lesbians who had no clue about what the regulations already were, would believe anything the Obama Party told them, and who, since they hate businesses and corporations anyway, wouldn’t care about the administrative snarls and vastly-increased potential for fraud it causes.
Which covers roughly 95% of the gay and lesbian population.
posted by North Dallas Thirty on
In federal court in San Francisco, together with co-counsel David Boies, he is prosecuting the most comprehensive and sophisticated legal attack on antigay marriage laws in history….
That’s hilarious.
Olsen’s argument is essentially to whine about emotions and feelings, how mean it is for the voters to be able to define marriage as they see fit, and how awful it is that gay and lesbian people aren’t allowed to marry with which they wish to have sex.
What’s really funny about that is that the judge in the case is probably dumb enough to fall for it and establish the precedent that it’s wrong to prevent anyone from marrying that which they “love” and with which they wish to have sex, and that all laws that do so are unconstitutional.
This is why I think the pro-Prop 8 people really didn’t seem to care much if they won or lost; once the decision comes down, they can then force the appeals court to work through the insane contradiction that the voters have no right to prevent people from marrying that which they love and with which they wish to have sex with the existing laws preventing incestuous, underage, and bestial marriage — PLUS the new precedent that will be established that you have to prove how someone else’s marriage will negatively affect yours in order to ban it.