Men don’t [take] leave

At least that’s what former NFL quarterback Boomer Esiason and radio talk show host Mike Francesa believe. Their critical comments of New York Mets second baseman Daniel Murphy, particularly those made by Esiason, recently created a storm of controversy that extended beyond just the sports world. Murphy missed the first two games of the 2014 regular season to be with his wife for the birth of their first child. In fact, Major League Baseball’s collective bargaining agreement with the Players Union provides that players can take up to three days for paternity leave. This provision was put into the collective bargaining agreement (CBA) back in 2011, a sign that the players lobbied and negotiated for such leave. Despite this, and despite the fact that Murphy played 161 out of 162 games last year, Esiason and Francesa ripped into Murphy. On his radio show, Francesa called paternity leave a “scam” saying, “One day I understand . . . But one day, go see the baby be born and come back. You’re a Major League Baseball player. You can hire a nurse to take care of the baby if your wife needs help.” Esiason went even further on his radio show, Boomer & Carton, incredulously saying that he would have told his wife to have a C-section before the season starts because you “need to be at Opening Day. I’m sorry. This is what makes our money. This is how we’re going to live our life. This is going to give my child every opportunity to be a success in life.” Wait, what? This is 2014, right? Or did I just go back in time with Marty and Doc in their DeLorean? One might think Esiason and Francesa’s comments are limited to professional athletes who are compensated richly for their services. But their words go far beyond that. Francesa’s statements imply that any high-income wage earner who can afford a nurse should do so and get back to contributing to their employer. And in fact, Francesa recently stood by his comments, “clarifying” that he was referring to people who have a “unique job” that allows them to “afford care that some people may not” and if so, “then you go back to work.” Esiason’s comments suggest that any man whose occupation provides him the means to take care of his family should be doing just that, and not taking time off work. Oh, and he also thinks Murphy should tell his wife to have major surgery, even if not medically necessary, so he doesn’t miss two games out of a 162-game season. I have to believe Boomer just finished binge watching the first six seasons of Mad Men causing a temporary psychosis where he thinks he literally is Don Draper. Because that’s crazy talk. Esiason has since publicly apologized for his comments, no doubt in part because of the widespread criticism his statements engendered. Regardless, whether Esiason, Francesa, and any others who share the same beliefs like it or not, paternity leave his here to stay. And growing. Currently, the federal Family and Medical Leave Act (FMLA) provides 12 weeks of unpaid leave for the birth or adoption of a child. A few states also provide employees paid leave (both paternity and maternity), and there is no doubt that additional states will enact such laws in the future. In an effort to attract and retain employees, certain employers have created policies providing paid paternity leave and such provisions are being negotiated and implemented in collective bargaining agreements in every industry, as they were with the Players Union’s CBA with MLB. Executives and other employees are also negotiating paternity leave in their private employment agreements with employers, signaling the growing importance of such leave to male workers. In addition, employers must be careful with respect to their paternity leave versus maternity leave policies and the potential for a lawsuit based on sex discrimination. In fact, there has been an upward surge in claims by male employees who contend their employer’s differing policies in maternity and paternity leave are discriminatory to males. However, just because an employer’s policy permits more paid maternity leave than paternity leave doesn’t make it discriminatory per se. This is because a woman who gives birth can be treated differently than a biological father. In addition to wanting time to care for her new child, she also may need time off to care for her own medical condition after childbirth — medical concerns that do not exist for the father. Employers must not only ensure compliance with respect to any federal, state, or local law concerning paternity leave but also recognize the growing trend in paternity leave lawsuits and the modern male employee’s emphasis on the importance of such leave and family in general. After all, while most of us don’t have an “offseason” like professional athletes do, we still aren’t asking our wives or partners to have a medically unnecessary C-Section over the weekend or during a holiday so we can minimize our absence from work.

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  David Kim, FordHarrison
  David Kim focuses his practice on the representation of employers in labor and employment law matters. He advises clients on employment discrimination laws, hiring, discipline and discharge, compliance with federal and state WARN regulations, implementing personnel policies and procedures, compensation, wage and hour laws and worker classification. David also represents clients in state and federal court in a variety of employment-related claims including unlawful discrimination, harassment, breach of contract and wage and hour class and collective actions. Find him on LinkedIn here.