Family Values First When Federal Laws Collide: A Proposal to Create a Public Policy Exception to the Employment-at-Will Doctrine Based Upon Mandatory Parenting Duty

Abstract

The passage of the Family Medical Leave Act (FMLA) and the Temporary Aid to Needy Families Act (TANF) has worked a hardship on children in the United States. This paper examines how these children can be saved by the state courts. Parents who need leave to care for children with illnesses not covered by the FMLA are caught between the devil and the deep blue sea: they can leave their children or be fired. The risks inherent in leaving unattended children in cars or at home while parents work are obvious. Likewise, the loss of income and health insurance benefits attendant to employment termination is obvious. The less obvious peril is the loss of work-first government welfare benefits when parents are fired. The collision of these two federal laws, a policy driven work-first TANF statute with the short-term illness gaps in FMLA coverage, combine with the employment-at-will doctrine to jeopardize the well-being of children and families.

Traditionally, the harsh effects of the employment-at-will doctrine have always been mitigated by multiple statutory and common law developments. This paper examines the importance of narrowly extending a common law cause of action, wrongful discharge in violation of public policy, to instances where an employee engages in mandatory parenting duty. Part I of the paper discusses the changing face of employees, the importance of the employment relationship, and treatment of parenting leave under the Family Medical Leave Act. Part II reviews the traditional public policy exceptions to terminations without cause. Part III justifies the extension of the cause of action to mandatory parenting duty based upon fundamental public policy as found in statutory enactments and court decisions. Part IV justifies extension of the tort based upon the third party effects on children when parents must choose between leaving children alone and being fired. Part V defines mandatory parenting duty.

Keywords: caregiver discrimination, employment-at-will, public policy, Family Medical Leave Act, FMLA, TANF, Temporary Aid to Needy Families, PRWORA, Child Support Recovery Act, Deadbeat Parents Punishment Act, Tort, unemployment, child abuseort, public policy, child abuse, family responsibilities discriminat

JEL Classification: K31, K13, K00, K10, K12, K30, J44, J71, K31, M14, K30, D63, J24, J17