217 because voluntarily offering more generous family

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217 Because voluntarily offering more generous family leave may attract employees who are more likely to take leave, to the detriment of the employer, legally mandating a certain standard for family leave should remove this market effect. 218 Thus, amending FMLA to cover a greater number of employers, for instance, should eliminate concerns that small and mid-size businesses may have about remaining competitive while offering family leave. 219 213. See id. at 176, 177 (citing existing Temporary Disability Insurance (TDI) laws in five states that provide for paid caregiver leave, along with a proposed federal law to establish a national family leave insurance program). 214. WORLD ECON. FORUM, supra note 6, at 12 tbl.3b. 215. Id. 216. See S. LAUREL WELDON, WHEN PROTEST MAKES POLICY: How SOCIAL MOVEMENTS REPRESENT DISADVANTAGED GROUPS 57-58 (2011) (noting that extant scholarship suggests that the presence of women in government influences development of parental leave policy). 217. Baum, supra note 18, at 796. 218. Id. 219. See id. ("If MLL [maternity leave legislation] mandates that all employers offer maternity leave benefits, then the problem of adverse selection is eliminated. MLL would then benefit those employers who were willing to assume the cost of maternity leave in exchange for the benefits of retaining that work but were unwilling to bear other costs such as attracting a disproportionate number of leave takers."); see also supra notes 217-18 and accompanying text (legislation mandating that all employers offer maternity leave will eliminate the problem of "adverse selection," whereby employers who voluntarily offer maternity leave tend to attract employees who are disproportionately 2015]
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HO USTON JOURNAL OF INTERNATIONAL LAW Note, however, that over the FMLA's two decades of existence, experimental attempts have been made to create a paid parental leave system in the United States, all of which have failed thus far. For example, in 1999, the Clinton administration proposed a regulation that would permit states to provide paid family leave from unemployment compensation funds. 220 Despite strong opposition from the business sector, the Department of Labor promulgated this final rule in 2000.221 However, no state chose to implement the experimental program, and in 2003, the George W. Bush administration rescinded the regulation, largely due to the objection that such a regulation created a misuse of unemployment compensation funds, which are not intended for persons who are not actually unemployed, but merely on temporary leave. 222 Nonetheless, despite failed attempts in the past, if the ACA proves to be a successful healthcare reform, it may set the stage for revisiting the possibility of reforming FMLA as well. likely to take such leave). 220. Birth and Adoption Unemployment Compensation, 64 Fed. Reg. 67,972 (proposed Dec. 3, 1999) (codified at 20 C.F.R. pt. 604); see also Susser, supra note 34, at 179-80 (stating that the Clinton administration published a Notice of Proposed Rulemaking that would allow the adoption of "rules providing wage replacement through the unemployment compensation system for certain family-related leaves" in states that administer
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