Moms, it's too early to cheer
Posted October 28, 2007 in Press Releases
The Akron Beacon Journal
By Dennis J. Willard
COLUMBUS: Pregnant women working for small companies shouldn't start planning to take a 12-week leave of absence yet.
Yes, the Ohio Civil Rights Commission flexed its muscle last week and used a 1977 law against sexual discrimination to order companies to provide 12 weeks of unpaid leave to pregnant workers.
But the real showdown on this issue is still coming, probably in early December, and it has all the elements of a political and ideological melee.
Democrats against Republicans, companies squaring off with the workers, the small business owners taking on the moms-in-waiting.
The battle also will once again illustrate the subtle tug-of-war that continues to be waged between the Democrats in Gov. Ted Strickland's administration and the Republican-controlled state legislature.
And it will also demonstrate once again that rules and laws are flexible, to be bent when convenient, and that the only truth in politics is that power is in the hand of the beholder.
And some people think this is only about whether a mom gets to take time off to have a child.
The fight will take place before an obscure legislative panel the Joint Committee on Agency Rule Review with an acronym that sounds like something Lee Iacocca would invent: JCARR.
Until last Thursday, pregnant women needed to rely upon the federal Family and Medical Leave Act to leave the workplace without pay or fear of losing their job or seniority.
Even the federal act was limited, however, to employers with more than 50 workers, and the pregnant worker needed to work at least 1,250 hours in the previous calendar year to be eligible.
A large group of workers in Ohio, around 445,000 according to Policy Matters, are not covered by the federal law, in large part because they work for small companies.
The commission's rule rectifies that problem by applying the law to companies with four or more employees, and it makes a woman eligible upon being hired.
Small companies can object by claiming the leave imposes an undue hardship on their operations and they can place pregnant women in light-duty jobs.
The civil-rights commissioners maintain they are only clarifying a vague reference in the 1977 law that states companies must provide a ''reasonable'' leave of absence for moms-to-be.
Lobbying organizations for small and large companies, like the National Federation for Independent Business-Ohio and the Ohio Chamber of Commerce, are taking a different approach to fighting the commission.
They will argue before JCARR that the commission is overstepping its authority and writing, rather than administering, law.
JCARR, created in 1977, or the same year the law cited by the civil-rights commission was passed, is unique because the 10 legislators on the committee act as judges, not as lawmakers.
They decide whether rules implemented by departments and commissions comply with the laws passed by the Ohio General Assembly.
Currently, JCARR has six Republicans and four Democrats, and the GOP members will have to become judicial activists to decommission the civil-rights rule.
This would be a complete flip from just two years ago.
In March 2005, 270 school districts were fighting the Ohio Department of Jobs and Family Services over $67 million in aid to students with special needs.
JCARR Republicans, with Democrats opposed, exercised judicial restraint, held their hands up and said they had no authority to intervene in the divisive issue.
State Rep. Scott Oelslager, R-Plain Township, was the JCARR chairman in 2005. He repeatedly told witnesses who appeared before the panel, many with children seated in wheelchairs in the hearing room's aisles, that JCARR does not make policy decisions.
''I know I sound like a broken record,'' Oelslager said at one point, then told the witness to take his complaint to one of the legislature's finance committees.
One Republican state Sen. Tim Grendell of Chesterland did seem to side with the school districts in 2005, but when he pushed the issue too fervently, he was removed from the panel by Senate President Bill Harris.
At the time, Grendell, a graduate of law schools at Case Western Reserve University and the University of Virginia, said, ''I was told I asked too many questions and didn't understand the workings of JCARR.''
Two years later, Ohio has a Democrat in the governor's chair and JCARR still has a 6-4 Republican majority.
With big and small business lobbying them on this issue, it will be interesting to see whether the Republicans take a different tack with the civil-rights commission.
It is clear that Democrats have gotten the message.
State Sen. Capri Cafaro, D-Girard, a JCARR member sounding a lot like Oelslager's broken record noted this week that the committee's job is not political or ideological.
Cafaro said JCARR only determines whether a state agency or commission is acting within its authority under law.
Need a final interesting twist to keep viewing?
Grendell, the lawyer who asked too many questions and didn't understand the workings of JCARR, was placed back on the panel this year by the same person who removed him in 2005 Senate President Harris.
At least Grendell has a chance to be consistent.