Comparative Maternity Leave

It is well known that the United States has one of the least generous parental leave policies in the world. A current project of mine is to try to explain why this is so, and then to project the likely future path of law and private practice in this area.  I am very eager for insights arising out of other countries' law and practices, and so I welcome readers' comments and observations.

I begin with a few observations, and then I will return in a subsequent post to a few theories. First, in the U.S. only recently has law required employers to hold jobs for employees who take leave to give birth, beyond that leave which they may have under disability clauses. Meanwhile, most other countries, ranging from rich ones to poor ones, promise paid leave for weeks or months. Some extend the leave to fathers, but for the present I focus on the most basic maternity leave. In some countries the cost of paid leave is shared between the government and the employer. My first observation is that the U.S. system is "upside down" compared to others, and can be seen either as regressive (in terms of income) or simply as designed to respond to market pressures against a backdrop in which there is an expectation of participation in the labor force by women. Thus, many private firms in the United States offer astonishingly generous leave (astonishing as compared with other countries) to highly paid employees.  Many law firms give several months paid leave in the event of maternity, and yet paralegals or secretaries at the same firms may get only a few weeks of paid leave. In many other countries, indeed in most, the "paid leave" is capped at something like the social insurance wage.  A banker or lawyer in the U.S. might get $100,000 worth of leave time; the secretary in the same firm might get $3,000; the delivery-person who works for a vendor to that firm might get $0 (or perhaps we should put some option value on the promise of the job held open, as required by law).  Meanwhile, in many other countries all three persons would get the equivalent of perhaps $10,000. We might say that the private market perceives that generous maternity leave is a means of attracting women to high-end jobs, and perhaps of retaining them as well, while the political "market," or moral climate, in most countries is more egalitarian, to be sure, but not necessarily more generous in terms of overall cost or aggregate benefits.

It goes without saying that if private employers offer real (market wage rather than minimum wage or social insurance level) paid leave to enough employees, there is less political pressure for the social insurance approach. Note also that birth rates do not explain very much of the international variance.  They explain a little, such as Scandinavian generosity, perhaps (longer leaves, with paternity included if not required), but not much.

I do not believe that any system ties its benefits to retention. Many systems have vesting periods, so that one cannot begin work and then very soon thereafter earn paid leave. But I do not think any requires that a portion of benefits be forefeited if the beneficiary does not return to work. I will return to this possibility - and to why we are likely to abhor it in a future post.