Home > News Room

Legal Momentum Testifies for Paid Leave Before NY City Council

Maya Raghu Calls for Passage of Intro. 1059-2009, Explains How Paid Leave Is Critical to Women's Economic Security and Safety

Founded in 1970, Legal Momentum is the nation's oldest legal advocacy organization dedicated to advancing the rights of women and girls.  Legal Momentum occupies a unique position as a multi-issue organization dedicated solely to women’s rights.  We are a national leader in developing and implementing litigation, advocacy, and public education strategies to open and expand opportunities for women, and to ensure that all women can build safe and economically secure lives for themselves and their families.  We are grateful for the opportunity to present this testimony before the New York City Council on Intro. 1059-2009.  This legislation is critically important to helping New Yorkers maintain economic security in these difficult times, but it is particularly important for women (especially those in low-wage jobs), and employed victims of domestic and sexual violence and stalking -- two groups to which Legal Momentum has long dedicated its advocacy efforts.

Throughout its forty-year history, Legal Momentum has worked to ensure women’s equality and economic security by enforcing laws prohibiting sex discrimination and sexual harassment on the job, and laws that provide workplace rights such as leave and unemployment insurance benefits.  Legal Momentum has litigated cases to secure full enforcement of laws prohibiting sex discrimination, including Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (in which the U.S. Supreme Court found that employers were potentially liable for sexual harassment by a supervisor), and authored influential amicus curiae briefs in leading cases, including Nevada Dep’t of Human Resources v. Hibbs, 538 U.S. 721 (2003) (in which the U.S. Supreme Court found that Congress acted constitutionally when it enacted the Family and Medical Leave Act (FMLA) to combat gender-based discrimination in the workplace). 

Legal Momentum’s interest in Intro. 1059 also stems from its longstanding commitment to ending violence against women and eliminating barriers that deny them economic opportunities.  We helped craft and generate support for the landmark Violence Against Women Act (VAWA) of 1994 -- the first federal legislation to address domestic and dating violence, sexual assault and stalking at a national level -- and its reauthorizations in 2000 and 2005. We created and chair the National Task Force to End Sexual and Domestic Violence Against Women, the umbrella entity under which national, state, and local organizations representing hundreds of thousands of survivors, advocates, and professionals join together to work for VAWA reauthorization. We also co-chair the economic justice subcommittee of the Task Force, which specifically works to ensure that victims of domestic and sexual violence have the economic independence they need to separate effectively from an abuser or recover from a sexual assault. Through our Employment and Housing Rights for Victims of Domestic Violence program, we provide information to domestic and sexual violence survivors to help them understand their employment and housing rights and we represent individual women seeking to enforce those rights.

Accordingly, this testimony will focus on the critical importance of the paid sick and safe days provision of Intro. 1059 to the economic security of working women, particularly women in low-wage jobs, and employed victims of domestic and sexual violence and stalking.

The Importance of Paid Sick Leave For Working Women

The need for legislation such as Intro. 1059 has never been greater.  The traditional family paradigm of a father who is the sole breadwinner and a mother who stays home to care for children and other family members is no longer a reality.  Today, half of America’s workers are female.[1]  The husband is the sole breadwinner in only 19.5% of families; in contrast, both the husband and wife are employed in 51.4% of married-couple families, and both the mother and father are employed in 62.1% of married-couple families with children.[2]  In addition, more than one in three families with children is headed by a single parent.[3]  In today’s families, both parents or a single parent must work to support a household.  At the same time, the U.S. is experiencing a persistent economic slowdown and a time of virtually unprecedented job loss.  Earlier this month, the U.S. Department of Labor reported that the unemployment rate reached 10.2%.[4]  The jobless rate for adult men and women rose to 10.7% and 8.1%, respectively, and the unemployment rate for women who are the sole breadwinners in their families rose to 12.1%.[5]

The significant increase in the labor force participation of women, against the backdrop of the worst recession in decades, has created a situation where women are struggling more than ever to balance work and family.  This is for two major reasons: first, despite changing gender roles, women still bear the burden of family caregiving; and second, because law and policy have failed to adapt to the new demography of the American workforce, many employees -- especially women and low-income workers -- lack important workplace benefits such as paid sick and family leave to help them meet work and family demands. 

Despite women moving into the workforce in significant numbers, the majority of family caregivers in the United States are still women.[6]  A significant portion of many women’s caregiving responsibilities arises as a result of pregnancy.  Eighty-five percent of women become pregnant at some point during their working lives, and more than half of women who give birth in a given year were working at the time.[7]  And after childbirth or adoption, women continue to shoulder a large share of caring for children: for instance, 80% of mothers assume primary responsibility for selecting their children’s doctor, taking them to doctor’s appointments, and arranging follow-up care.[8]  Women also take primary responsibility for the care of elderly or ill relatives.[9]  Women at all socioeconomic levels are hard-pressed to find quality affordable child/family care; so when the child or family member of two working parents or a single working parent becomes ill or has an accident, many times there is no other caregiver reliably available other than the mother.  A working woman will likely have to take time off from work to deal with her pregnancy, her own illness, or a family member’s health condition.  This can prove challenging for many workers, but can be alleviated if the worker has paid sick leave.  However, only 66% of all workers in this country have access to paid sick leave.[10] 

Those who do not have paid sick leave face a difficult dilemma: should they risk losing income, and possibly a job, by taking time off to attend to family health issues? Or should they risk their own or a family member’s health by working and not taking time off?  A pregnant woman who needs to go for a checkup, or a mother who needs to leave work to attend to a sick child, accompany a family member to medical treatment, or provide care to an elderly relative could face discipline or termination if she does so.  Few workers can risk losing a job in these difficult economic circumstances.

Federal law does not require employers to provide paid vacation, sick, or holiday leave; therefore, access to paid time off is unequal across workers based on occupation and income.[11]  When it comes to paid sick leave, the losers are women and the lowest-paid workers.  Almost half of the women working in the private sector have no paid sick days,[12] and only 22% of the lowest wage workers in private industry (lowest 10^th percentile) have paid sick leave.[13]  Moreover, most women work in a handful of industries, such as retail and service, and completely dominate occupations such as administrative assistants/secretaries (96.1% women), nurses (91.7% women), maids and housekeepers (89.7% women) and home health, psychiatric and nursing aides (88.7% women).[14]  These jobs pay less, often have poor working conditions, rigid working schedules, mandatory overtime, and offer fewer benefits, such as paid vacation and sick time, than those in male-dominated industries.[15]  Many workers, especially those in low-wage jobs, do not have flexible schedules, and cannot leave work for an hour, or switch a shift, to accommodate a doctor’s appointment.[16]  If a low-wage worker becomes pregnant, she is unlikely to be able to adjust her work schedule to accommodate doctors’ appointments or to take time off for associated health conditions.  If she does so, she may be subject to discipline or termination.  And if a woman is the primary caregiver in her family, and she must leave work to accompany a child or relative to a doctor’s appointment, her options for doing so and preserving her job are distressingly narrow. 

Unfortunately, existing laws offer little protection.  Only one federal law, the Family and Medical Leave Act (“FMLA”), requires large employers to provide 12 weeks of unpaid, job-protected leave to eligible workers for the serious health condition of the employee or their family member.[17]  But the FMLA is not a panacea for most working families, and especially for women, many of whom are unable to avail themselves of FMLA leave.  First, many employers are not covered by the FMLA because they have fewer than 50 employees; in fact, only 11% of private sector employers are covered.[18]  Only 62% of employees work for covered establishments and are eligible for FMLA leave.[19]  Second, because many women work on a part-time basis to accommodate family care responsibilities, they will not meet the 1250 hours per year requirement to qualify for FMLA leave.  Moreover, the health conditions of these employees or their family members may not be serious enough to qualify under the FMLA’s stringent standards, even though they require time away from work.  Finally, and most importantly, many women are unlikely to be able to afford to take unpaid leave, even in cases in which their health or their family’s health would necessitate it.  

This is a particularly difficult for women in low-wage jobs who become pregnant.  Few low-income women can afford to take the full 12 weeks of unpaid leave during pregnancy or after giving birth, even if they are eligible for FMLA leave.  The Pregnancy Discrimination Act (“PDA”) enacted as part of Title VII, does little to alleviate this problem.  Although the PDA established pregnancy discrimination as a form of sex discrimination, it effectively creates a floor for the benefits employers must provide to pregnant workers.  Employers must treat pregnant women at least as well -- or as badly -- as other workers with temporary disabilities.  As a consequence, employers can refuse to provide pregnant women with leave (before or after childbirth) and other benefits and accommodations, as long as they do not provide these benefits to employees with other types of injuries and illnesses. 

The Obama Administration recently recognized that “more is needed to help protect the economic security of working families who must choose between a pay check and their health and the health of their families.”[20] It affirmed its support for pending legislation, the Healthy Families Act (“HFA”), which would require employers of 15 or more employees to provide employees with a maximum of seven paid sick days on an annual basis.[21]  The HFA and Intro. 1059 represent a significant improvement over the FMLA because they cover significantly more employees, provide paid leave, and protect those who need to use the leave from being sanctioned. 

But the Council should not wait for Congress to act.  New York City has always been in the forefront of protecting its citizens, and it should join San Francisco, the District of Columbia and Milwaukee in providing its workers with paid sick leave.  Intro. 1059 would ensure that hard-working women in New York City do not have to choose between a paycheck and their families’ health.

Paid Leave Is a Critical Resource for Victims of Domestic and Sexual Violence and Stalking

If enacted, Intro. 1059 would be only the third law in the country (after those in the District of Columbia and Milwaukee) that specifically grants victims of domestic and sexual violence and stalking the ability to accrue and use paid sick leave to attend to the various medical, legal, safety, and housing issues that arise as a result of the violence.[22]  Section d(2) of Intro. 1059 provides in relevant part:

(2) An employer shall permit an employee to use paid sick time for absence from work where, as a result of such employee or a relative of such employee being a victim of acts or threats of violence, a victim of domestic violence, or a victim of sex offenses or stalking, the employee needs to:

(i) seek or obtain medical diagnosis, care or treatment or psychological or other counseling for such employee or employee's relative;

(ii) obtain services from a victim services organization;

(iii) seek relocation or relocate; or

(iv) take legal action, including but not limited to preparation or participation in any civil or criminal proceeding.

This provision would have a significant impact on the safety and economic security of the hundreds of thousands of New Yorkers, particularly women and children, who are victims of domestic violence.[23]  One in four women will be subjected to domestic violence in her lifetime,[24] and nearly half (44%) of fatal violence against women in New York City recently was confirmed to be the result of domestic violence.[25]  Eighteen percent, or approximately 20 million U.S. adult women have been raped.[26]  One in 12 women has been stalked in her lifetime, and the stalker is most likely a former intimate, friend, roommate or neighbor.[27]  Unfortunately, recent news reports indicate that the incidence of domestic and other forms of violence are increasing as the economy worsens.[28] 

Employment is crucial to a victim being able to separate from an abusive situation.  With a job and source of income separate from an abuser, a victim can find a safe place to live, pay for alternative child care arrangements, new forms of transportation, medical costs, and legal bills.  But in these days of economic uncertainty, many victims are too afraid of losing desperately needed jobs to pursue legal remedies, seek medical treatment, or to take other essential steps to secure their safety – and with good reason.  When a victim discloses the violence to her employer, asks for assistance in dealing with the violence, or asks for leave, she often loses her job. Two recent studies of partner stalking of victims found that between 15.2 and 27.6% of women reported that they lost a job due, at least in part, to domestic violence.[29]  Similarly, almost 50% of sexual assault survivors lose their jobs or are forced to quit in the aftermath of the assaults.[30]  A recent Department of Justice study reveals that more than half of the stalking victims surveyed lost five or more days from work, and 130,000 victims reported that they had been fired from or asked to leave their jobs because of the stalking.[31] 

Our experience working with victims shows that time off from work is one of the most-needed and most important forms of assistance that help a victim keep her job and stay safe.  Victims need the time off to get a protective order, testify in proceedings, meet with their attorneys, seek medical attention or counseling, and find new housing, for instance.  Some federal, state and local laws do grant victims of violence some time off for these activities, but vary significantly as to the allowable circumstances, as explained below.  Many victims fall through the gaps in this uneven patchwork of protected leave.  Furthermore, many of those victims do not have paid sick or vacation time to fall back on, and face the difficult choice of foregoing income to stay safe.  For this reason, the use of paid sick time by victims of violence pursuant to Intro. 1059 is critical to victims’ economic security. 

As previously mentioned, only one federal law, the FMLA, requires employers to provide employees with job-protected leave.  However, FMLA leave can only be used in particular circumstances by employees who have satisfied the length of service requirements and work for a large employer.  Eligible victims of violence can only use FMLA leave to attend to their own or their family member’s serious health condition that may arise as a result of the violence; they cannot use FMLA leave to go to court or to find a new place to live.  And because FMLA leave is unpaid, a victim may not be able to afford to use it, because she needs income to help escape the abusive situation. 

Only one New York State law currently exists that would allow victims to take time off from work to attend to some of the non-medical effects of the violence.  New York State Penal Law § 215.14, which is part of the crime victim’s rights code, allows a victim of a crime to be absent from work in order to meet with a prosecutor, testify in a criminal proceeding, or seek an order of protection from Family Court.[32]  An employer may not fire an employee for such an absence if the employee gives prior day notice, and the absence need not be paid.  Although this provision is broader than the FMLA, it still does not assist victims who have not reported the violence to the police, or who need time off to relocate to a safe place.

Finally, New York City and Westchester County do provide some broader measure of assistance to victims of domestic and sexual violence and stalking.  The New York City Human Rights Law and the Westchester County Human Rights Law explicitly prohibit employment discrimination against victims of domestic violence, sexual assault and stalking.[33]  They also require employers to provide employees who are victims with “reasonable accommodations,” including time off, to help them perform the essential functions of their job and stay safe.[34]  The laws do not restrict the circumstances under which leave may be sought or granted, or the uses of such leave.  But while a victim could ask for time off to seek assistance from a domestic violence advocate or move to a shelter, the employer could require the victim to exhaust any available sick or vacation time first, could refuse to provide unpaid leave, or could refuse to allow the victim to take any time off at all. 

What recourse do victims who do not qualify for protection under these laws have? What if an employee does not have any available sick or vacation time?  Unfortunately many employed victims of violence do not have the luxury of paid sick leave: 34% of workers in the private sector do not have paid sick leave.[35]  Low-wage workers, who tend to be at greater risk for domestic and sexual violence, are even less likely to have paid time off: 78% of low-wage workers have no paid sick leave.[36] A victim of domestic violence who misses work to obtain a civil protective order, meet with a counselor, or take other steps to address the violence typically knows that her absence could cause her to lose her job.  Therefore many victims, knowing their safety depends on an independent income stream even more than other safety-enhancing measures such as a protective order, forego services rather than risk their employment.

It is critical that the Council pass Intro. 1059 and allow employed victims to accrue paid sick leave, and to use it to maintain their safety.  The Council took an unprecedented step in 2001 when it passed the first law in the country to protect victims of violence from employment discrimination and to provide them with workplace accommodations.  We encourage the Council to continue its groundbreaking work to ensure that some of the most vulnerable citizens in New York City will not have to choose between keeping a job and keeping safe. 

Thank you for this opportunity to present testimony.

Contact:           Maya Raghu, Senior Staff Attorney, Legal Momentum