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On Capitol Hill, Ad Hoc Paid Leave Policies Flourish

Why do congressional offices vary so much on paid parental leave? Because many policies are decided ad hoc. (CQ Roll Call File Photo)

Much has been written about Capitol Hill staff and the wide disparities in paid maternity and paternity leave policies. Offices with longstanding histories of generous leave policies are quick to speak up , but many offices dodge the question , either citing privacy concerns or giving the classic silent treatment by ignoring reporters’ questions.  

But this is Capitol Hill, where every member has one or more staffers dedicated to responding to press inquiries. So what is it about this particular question that's making offices clam up and refuse to share what would theoretically be a single paragraph in an office handbook? It turns out many offices may be reluctant to respond about paid parental leave because they don’t have a policy — or an up-to-date handbook — and have been making many personnel decisions as they go, often on a case-by-case basis.  

The people who spoke to Hill Navigator for this story did so on the condition their current and former bosses not be named. The primary reason they did not have a parental leave policy in their office handbooks? No one in the office had children.  

“Only one woman had a baby,” said a former chief of staff who spent eight years working for a member of Congress from New York. “We didn’t have a policy on [the Family and Medical Leave Act], even though my boss is a huge proponent of it, and even passed a law to expand FMLA. We negotiated it with her individually and came to an agreement. We really liked this employee, she was awesome. We had in our heads that 12 weeks was right. I said to her, take whatever you want.”  

In that same office, when a male employee had children, he took makeshift paternity leave. “Maybe it was a couple of weeks,” the former chief of staff said. “We didn’t really consult on how much time it would be. We just stayed in touch with him over the phone until he felt like his wife could get along by herself until he could go to work.”  

Another former House chief of staff said he hadn’t put together a formal leave policy because none of his staffers had children in his 10 years as the member's top aide. Most of the staff were young and unmarried in D.C., or in the case of the district office, much older, having worked for the preceding congressman. “Now that the staff has turned over, I am sure they are seeing a more normal trend in this area,” he said.  

Even staffers from states such as California, where state law mandates six weeks of paid leave for employees, face uncertainty. It was an ad hoc process for a former House legislative director who had a baby. She was told she would get two weeks paid maternity leave, but when she made the decision to stay home and raise her son, the member of Congress offered her six weeks instead. “He thought it might be an incentive to keep me,” she said.  

Ad hoc processes, even when they provide generous paid leave policies, produce myriad problems for current and future employees, including grounds for lawsuits.  

“You want to develop a standard and a policy on how your office is going to address these family life issues rather than just dealing with them on an ad-hoc basis,” said Scott Mulligan, deputy director of the Office of Compliance, who has seen cases such as these give rise to discrimination suits. “Making leave decisions on a case-by-case basis can cause problems when you start granting paid leave to one person and denying it to another. Having a standard in place clears this up.”  

Without a written policy, staff might be reluctant to take leave, particularly men who do not feel entitled to ask for paternity leave. “Men are less likely to speak up and ask for paid paternity leave. With a written policy, at least they can look at the policy and say, 'This is what I am entitled to,' and then they can make the decision to ask,” said Scott Behson, a professor of management at Fairleigh Dickinson University and author of the forthcoming book, "The Working Dad’s Survival Guide."  

Behson cited a July 2014 study published in the American Economic Review that showed men were more likely to take paternity leave if others, particularly supervisors, took leave. “When left unstructured or unstated, many men are just going to assume that this is going to violate the workplace code or ‘man code’ and not pursue family leave,” Behson added.  

Uncertainty in workplace benefits can also affect morale and productivity, according to Bradford Fitch, president of the Congressional Management Foundation, a nonpartisan organization that studies Congress and provides management guidance. Fitch believes offices without clear guidelines are outliers, not the norm, though he acknowledges the CMF has seen weaker attention to employee issues on Capitol Hill than in the private sector. “Major companies can’t really get away with it,” he said.  

Even for offices that do have written policies, actual paid leave may still vary in practice. “Those office handbooks are like fruitcakes at Christmas — there's only one of them and it just keeps getting passed around and copied. No one really knows what's in it,” said a former House chief of staff who worked for several member offices. In these cases, leave policies vary, despite having a written document.  

A recent Roll Call article in which a staffer quoted inaccurate information from his office handbook further illustrates the gap between what is written on paid parental leave and what is done in practice.  

Office handbooks carry extra importance on Capitol Hill, where offices are not obligated to post FMLA information in public workplaces. By law, both private sector offices and the executive branch are required to have such postings, but this rule was not included in the 1995 Congressional Accountability Act, the legislation that grants congressional staffers rights under the FMLA, among other workplace protections.  

Finally, another reason offices may be reluctant to put FMLA policies in writing comes from a lack of understanding about the law and how it works. “If Congress wants this to be a model workplace for the nation and be an example for others, it’s worth making sure that managers understand the requirements of the FMLA,” Mulligan said. Mulligan and the Office of Compliance sent its most recent list of training classes for both House and Senate congressional offices, including a training course on the FMLA and how to apply it.  

“We got more responses back from chiefs of staff requesting FMLA training than any of our others,” Mulligan said. “That is our big item right now.”  

At the very least, clear, written policies may lead to happier, more productive employees. “Any office that doesn’t have a clear policy on their office benefits and leaves that to uncertainty is making a huge mistake,” said Fitch, “I guarantee that their office employees are unhappy and just not telling management about it.”  

Congressional offices interested in FMLA training should contact the Office of Compliance at ooctraining@compliance.gov or 202-724-9270. Related: Answers on Paid Leave Hard for Staffers to Find Even Among Supporters, Paid Parental Leave for Capitol Hill Staff Varies Paid Maternity, Paternity Leave Coming for Congressional Staff? The 114th: CQ Roll Call's Guide to the New Congress Get breaking news alerts and more from Roll Call in your inbox or on your iPhone.