Portal de Periódicos da CAPES

*195 FAMILY VALUES FIRST WHEN FEDERAL LAWS COLLIDE: A PROPOSAL TO CREATE A PUB- LIC POLICY EXCEPTION TO THE EMPLOYMENT-AT-WILL DOCTRINE BASED UPON MANDATORY PARENTING DUTY

2010; RELX Group (Netherlands); Linguagem: Inglês

1556-5068

Pamela Gershuny,

Corporate Law and Human Rights

Wisconsin Women's Law JournalFall 2006Articles*195 FAMILY VALUES FIRST WHEN FEDERAL LAWS COLLIDE: A PROPOSAL TO CREATE A PUB-LIC POLICY EXCEPTION TO THE EMPLOYMENT-AT-WILL DOCTRINE BASED UPON MANDATORYPARENTING DUTYPamela Gershuny [FNa1]Copyright (c) 2006 Wisconsin Women's Law Journal; PamelaGershuny “Government cannot love a child, but it can support those who do, parents and family members and neigh-bors and caring adults who have heard the call.” [FN1]Introduction The passage of the Family and Medical Leave Act (FMLA)[FN2] and the Personal Responsibility and WorkOpportunity Reconciliation Act (PRWORA), [FN3] which created Temporary Aid to Needy Families (TANF),[FN4] has worked a hardship on children in the United States. This Article argues that courts are in the best pos-ition to narrowly apply an extension of the wrongful discharge tort in recognition of the mandatory parentingduty public policy. The FMLA as enacted provides unpaid leave for parents when their children are sick.[FN5]However, for parents whose employers do not fall within the purview of the act and parents whose children's ill-nesses fall outside the FMLA, there is no unpaid leave, only unexcused absences. These parents are caughtbetween the devil and the deep blue sea: they can leave their children alone or be fired. The risks inherent inleaving unattended children in cars or at home while parents work are obvious. Likewise, the loss of income andhealth insurance benefits attendant to employment termination is clear. The less evident peril is*196 the TANFdictated loss of work-first government welfare benefits when parents are fired.[FN6] TANF authorizes states toimpose harsh financial sanctions, including cutting off entire families from aid for violating work requirements.[FN7] The collision of these two federal laws--a policy driven work-first TANF requirement that cuts off fund-ing for children if their parent does not go to work, with the short-term illness gaps in FMLA coverage that al-low employers to fire parents for staying home with sick children--combine with the employment-at-will doc-trine to jeopardize the well-being of children and families.Traditionally, multiple statutory and common-law developments have mitigated the harsh effects of the em-ployment-at-will doctrine. This Article examines the importance of narrowly extending a common-law cause ofaction, wrongful discharge in violation of public policy, to instances where an employee engages in mandatoryparenting duty. Part I discusses the changing face of employees as the number of working mothers increases, theimportance of the employment relationship, and treatment of parenting leave under the FMLA. Part II reviewsthe traditional public policy exceptions to employment terminations without cause. Part III justifies extension ofthe cause of action to mandatory parenting duty based upon fundamental public policy as found in statutory en-21 WIWLJ 195 Page 121 Wis. Women's L.J. 195© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.