Monday, November 12, 2007

A Two Page Lit Review


This is a snapshot of a lit review, which may of course be expanded indefinitely--but it is wiser not to. Keep things focused, because you can spend your entire dissertation period just on the lit review.

I am going to focus on organizational ecology, new institutionalism, sociolegal scholarship, and of course pertinent law review articles on the FMLA. But that means I am ignoring micro perspectives on organizational behavior, resource dependence theory, and cognitive bias. Alas. It is interesting, but I am going to for the most part work on my empirical study of how organizations respond to and interpret a federal law. Maybe they will be footnotes.

Institutionalized Conceptions of Work and the Law

Rights in the workplace are mediated by both market forces and public policy. Kelly and Dobbin (1999, p. 3) argue that the employer treatment of maternity was driven more by compliance with government mandates rather than the isomorphic institutional adoption of market-driven industry standards. Kelly and Dobbin outline the legal mandates and agency interpretations that preceded the FMLA, from the first Equal Employment Opportunity Commission (EEOC) ruling that interpreted the disability leave provisions as covering pregnancy to state initiatives that guaranteed job retention following maternity leaves.
Kelly and Dobbin argue that administrative rulings and other public policy initiatives are more effective than is generally perceived by the public. Expanding on neoinstitutionalist studies that study the public perception that market forces are what drive public policy and business practices, Kelly and Dobbin argue that administrative regulations are more effective than is commonly perceived. Kelly and Dobbin criticize the “feminization [of the workplace]” and “risk of legal sanction” hypotheses for explaining employers’ adoption of maternity leave policies (1999, p. 4).

In spite of a “weak state” as reified by the separation of powers, Kelly and Dobbin argue that administrative law may be as effective as legislation in changing employer practices, particularly in the history of early maternity leave law (1999, p. 6). Kelly and Dobbin contend that employers “respond to the visibility of new laws and the perceived risk of litigation rather than to the objective risk of legal sanction” and that thus, administrative rulings compel organizational response “because they are inherently susceptible to court challenges” (1999, p. 7).

Kelly and Dobbin examine the early history of maternity leave policies from EEOC guidelines to their treatment under sex discrimination law—from administrative rules to legislation, and at both the state and federal levels. Their work is important for examining the foundation of rights in the workplace and how they are institutionalized. An affirmative action approach, as used in California, is more effective than equal opportunity laws for conferring benefits and leave to pregnant women (1999, 15-17). The equal treatment approach guaranteeing the same amount of leave to men as well as women had more limited effect in equalizing workplace attachment and opportunity for women. California’s initially broader affirmative action approach more expansively created a system of rights and leave entitlement (1999, p. 17). However, the equal treatment approach helped reconceptualize the concept of family leave as a gender-neutral entitlement, and this is the model for the FMLA.

Catherine Albiston’s work on the FMLA is particularly instructive on how employers institutionalize conceptions of work and gender (Albiston, 2005). By positing the FMLA as a law that redefines the employer-employee relationship regarding “work,” Albiston argues that the FMLA’s gender-neutral legal entitlement to leave for the purposes of childcare and temporary disability challenges traditional conceptions about work, gender, and disability. However, the legal and institutional attempts to redefine work and employer-employee relations are complicated by the apparent intractability of the “cultural frameworks” regarding work, gender and disability (2005, p. 12).

Albiston’s interviews with employees who attempted to mobilize their leave-taking rights illuminate the difficulty of challenging the discourse surrounding work. Albiston’s new institutionalist approach demonstrated how unequal power in the employment arena affects the mobilization of rights by employees. While the FMLA confers legal rights to which all covered employees are entitled, the implementation of leave is complicated by social and cultural constructions of work embedded into the workplace roles. Even though employers are legally obligated to allow up to twelve weeks of leave to employees who request it, Albiston’s interviews demonstrate that employees are reluctant to ask for leave, and employers even more reluctant to give it.

In Albiston’s study, several employees were reluctant to mobilize or maximize their leave-taking rights out of a fear of being perceived as a “bad worker,” or what Albiston calls the “slacker” narrative (2005, p. 25). Despite the legal rights and protections conferred by the FMLA, many employees were afraid to mobilize their rights for fear of adverse employment action in the form of reduced hours, demotion, or termination. Moreover, employers’ resistance to granting leave was characterized by gendered constructions, one employer going so far as to illegally terminate his female employee’s health care insurance during her period of leave (2005, p. 27). Interestingly, female employees had less difficulty in taking leave than in returning to their same positions with the same hours and benefits upon their return; demonstrating the relative weakness of the normative power of law to the actual institution and culture of work (2005, p. 32).

Most significant about Albiston’s project is her discussion of power in the employment relation and how it affects awareness of and mobilization of rights. Employees must request leave explicitly, and thus the information differential is key between employer and employee. The promulgation of laws in the workplace is a topic ripe for exploration: in addition to examining how and why employees mobilize their rights or how and why employers grant or deny such entitlements, the question of how legal entitlements are communicated and promoted is one that I hope my own project will address.

Textual Ambiguity in the FMLA

The FMLA is by no means a clear-cut law that may easily be enforced. While some provisions appear to be uncontroversial, the fact remains that there has been much dispute over the definitions of a covered employer or employee. The FMLA covers employers of over fifty employees, and employees who have worked for said employer for at least twelve months. While there has been case history concerning whether such a twelve month period of employment must be continuous and what types of disability or care qualify such leave, largely unexplored is the question of what constitutes “up to twelve weeks of leave.” Kelly Daniels’ note argues that a key site of contention is when the twelve weeks exactly begin and end. The FMLA allows employers to require their employees to take any employer-provided paid leave in substitution of FMLA-provided unpaid leave. Thus, one area of textual ambiguity is what counts against FMLA permitted leave: if an employ takes two weeks of paid leave, does that mean that she is thereafter entitled to only ten weeks of unpaid leave under the FMLA? Raising a similar question to Kelly and Dobbin in their 1999 article regarding administrative regulations vis-à-vis legislation, Daniels’ explores the case history surrounding the Department of Labor’s regulations that require the employer to notify their employees that such leave counts against their FMLA leave.

Daniels states that the courts of appeals are split on whether the DOL regulations are a valid interpretation of Congressional intent in passing the FMLA (2002, p. 264). This circuit split poses interesting issues for my own project, as employers may be confused as to whether they should rely on agency interpretation or the textually ambiguous FMLA in making their own decisions on how best to promulgate the FMLA and inform their employees of their rights. The validity of agency interpretations of statutory provisions is not a new controversy, but because the FMLA is up for amendment, it will be instructive to determine what employers may rely on as authoritative when institutionalizing the FMLA.

Daniels argues for the necessity of a “Clarification Act” that would require the employee to explicitly choose between his entitled unpaid FMLA leave or his employers paid leave, or else to amend the FMLA to create a presumption that paid leave counts against the legal entitlement if taken for reasons that would qualify under the FMLA (2002, p. 277). This places the burden on the employee to preserve his FMLA-qualifying leave, and although Daniels offers ways of mitigating this burden (by giving other reasons for taking paid leave that are not FMLA-qualifying), I remain unconvinced that her solutions would work. Placing the onus on the employee to define the type of leave he or she is taking or risk losing more leave than he or she is entitled to may undercut the total amount of leave the employee is able to take. The presumption of counting paid leave against FMLA leave exacerbates the imbalance of power dynamic in the workforce, as documented by Albiston (2005). Daniels’ proposed amendments may help to clarify the textual ambiguity of the FMLA and resolve the conflict between agency interpretation by the DOL and Congressional intent, but they will not make it easier for the employee to mobilize his or her rights in the workforce.

Another note by Mary Geroulo explores the textual ambiguity surrounding the provisions of the FMLA that relate to proper notice, termination, and reinstatement (2002, p. 53). Geroulo’s article offers solutions to minimize both employee abuse of leave policies and inadvertent violations by employers. Geroulo suggests amending the FMLA to require employees to specifically request FMLA leave for their rights to be triggered (2002, p. 60) rather than requiring the employer to determine if the leave qualifies under the FMLA. By placing the burden on employees to specifically request FMLA qualifying leave, Geroulo hopes to mitigate employee abuse of the ambiguity inherent in most leave taking policies: what types of leave count against the FMLA entitlement.

Again, putting the burden on employees to define their rights may suppress the employee’s perceived freedom to ask for and take such leave. Geroulo has more promising calls for clarification to minimize violation of the FMLA by employers. Geroulo argues that “the key to avoiding inadvertent violations of the [FMLA] Act is in the education of supervisors and managers who are responsible for keeping track of employee absences” (2002, p. 67). Importantly, Geroulo notes that “employers need to understand…that it is the employer’s responsibility, not the employees’ to qualify leave as FMLA and inform the employee of its limits and requirements” (2002, p. 68). I would agree that further clarifying the FMLA to place greater burden on effective employer promulgation of the FMLA would help employers mobilize their rights in the workplace. If it is the responsibility of employers to inform their employees, rather than for employees to inform themselves with the power and information access differential, then the rights under the FMLA may be more effectively obtained.

Albiston, Catherine R. 2005. Bargaining in the Shadow of Social Institutions: Competing Discourses and Social Change in Workpalce Mobilization of Civil Rights. Law & Society Review 39: 11-50.

Daniels, Kelly E. 2002. The Family and Medical Leave Act of 1993: Does Twelve Weeks Really Mean Twelve Weeks? 87 Iowa L. Rev. 263 (2002).

Geroulo, Mary J. 2002. The Family Medical Leave Act: Reinstatement Following Leave: How to Cope from an Employer's Perspective. 2 Houston Business and Tax Journal 51 (2002).

Kelly, Erin and F. Dobbin. 1999. Civil Rights at Work: Sex Discrimination and the Rise of Maternity Leave Policies. American Journal of Sociology 105: 455-492.


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