Is More Parental Leave Always Better?: An Analysis of Potential Employee Protections for Leave Offered Outside the FMLA

In the past few years, many large companies, including Netflix, Amazon and Facebook have implemented expanded—and very generous—parental leave policies. While on the surface these policies seem employee-friendly and even big-hearted, when one explores the potential consequences of taking such leave, the policies are fraught with potential dangers for employees. In a groundbreaking new study, researchers have found that employers view time off or flexible work arrangements made for an employee’s personal reasons as negatively reflecting on an employee’s work commitment. But what happens if a company decides to terminate an employee because they have taken leave and are viewed as less dedicated to the firm? Are any legal protections available for an employee in that position? This Article is the first to explore this timely and relevant topic. As it turns out, any legal protections an employee may have vary by state and, consequently, are largely inconsistent. Even where a cause of action is recognized, the contours of the protections vary greatly by the actual wording of the policies. This Article reviews such protections and suggests new theories under which employees could be protected from adverse consequences stemming from using a company’s parental leave. Ultimately, this Article concludes that viewing the policy as a type of unilateral contract potentially provides the most comprehensive protection for employees in this circumstance