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The parental-leave pickle

|Written By Kevin Marron

When Juliet Knapton conducted an informal survey recently on parental-leave policies in small to mid-sized Ottawa law firms, the young associate was amazed to discover not only that most firms didn’t have a policy but also that most female associates didn’t know and were afraid to ask.

Knapton, who was doing the research in order to help her firm, Ottawa-based Williams McEnery, review its own policies, contacted 20 firms with between five and 25 lawyers and found that 12 of them handled maternity or parental leave requests on an ad hoc basis, while the eight with policies had put these in place during the last year because an associate who was pregnant had pressured them to do so.


“I was shocked at how little anyone seemed to know, including human resource people,” says Knapton. The HR people would initially tell her they had policies, she says. But she would then ask for details, such as how long people get for maternity leave, how much money they receive, what flexibility there is, and what happens if someone gets ill. Then she would get answers such as “We’re not sure,” or “We didn’t really plan for that.”


The complete absence of parental-leave policies, or the lack of clear and consistent parental-leave policies, is considered by many people as an affront to associates and an embarrassment to small to mid-sized law firms across the country. “It makes you wonder if they know where babies come from,” says former Canadian Bar Association president Eugene Meehan, a partner at Lang Michener LLP.


In British Columbia, lawyer Anne Bhanu Chopra says she has received a lot of feedback, both in her role as the Law Society of British Columbia’s equity ombudsperson and as chairwoman of the mentoring committee of the CBA women lawyers forum, about the difficulties that women face because of inconsistent parental-leave policies. She says some firms have exceptionally good policies but, in others, longer parental leaves may only be granted to associates who can prove they are exceptionally valuable to the firm. People are put in the position where they have to try to negotiate parental leave, rather than having a right to it, she says.


“We’re hearing from the women that every time a woman takes a leave or becomes pregnant, it’s as if it happens for the first time. It’s sad but true,” says Bonnie Warkentin, a partner at Willoughby MacLeod Warkentin LLP in Kingston, Ont. and co-chairwoman of the Law Society of Upper Canada’s retention of women in private practice working group.


So what can be done about this sorry situation?


First, it is important to recognize that there are two distinct sets of issues with regards to parental leave. The first involves associates, who are employees and thus may have certain rights to leave under each province’s employment standards legislation (except in British Columbia and Newfoundland and Labrador, where lawyers may be excluded from the legislation). They are also entitled to funding for maternity and parental leave under the federal Employment Insurance Act. The issues that law firms’ parental-leave policies must address, however, include whether and how much the firm will “top up” the employment insurance pay, whether and how much extra leave will be granted beyond statuary minimums, and — most important for many young lawyers — what plans are in place to ensure their careers are not adversely affected and they still have the same quality and quantity of work when they return.


Women working in solo practices or as partners in small firms face “a real hardship to maintain an income during a leave of any sort and to have a practice to return to after their leave,” says Warkentin. “We heard a number of women say, ‘We’re fortunate if we get at best a week or two off after we’ve had a child.’”


When Toronto immigration lawyer Janet Bomza had twins, she says she was only away from her office for six weeks. “It was very challenging, to say the least,” says the managing partner of Bomza Law Group. “I was fortunate that I had two other lawyers, an articling student, and paralegals to manage the practice.” But, she says, it was overwhelming to come home and have to deal with twins and trying to figure out how to become a mother as well as worrying about looking after her practice.


The second set of issues involves partners and sole practitioners, who are self-employed and thus not eligible for employment insurance benefits or protected by any provincial employment laws. And the problems arise mostly in small or mid-sized firms because the larger firms can generally better afford to offer decent benefits, they have the numbers that make it easier for them to cover for people on maternity leave, and the competition for talent is such that they cannot afford not to have adequate policies. Bomza says she remembers thinking how patently unfair it was that she provided jobs for a number of people — in her firm all the employees are women — whom she would support and assist if they wanted to go on maternity leave, but she herself got no support from the government.


Various law societies are addressing some of the challenges involved in parental leave for solo and small-firm lawyers. The Barreau du Québec instituted a funding program for parental leave for self-employed lawyers in 2005 and handled more than 50 requests for funding before the provincial government made parental-leave funding available a year later for self-employed people, including lawyers. The Law Society of Manitoba investigated implementing such a program, but did not get support for it from members, and now has plans for a counselling program that will help lawyers adjust to their departure on maternity leave and their subsequent return to practice.


In 2007, the Law Society of British Columbia initiated a pilot program that will provide loans of up to $8,000 to solo practitioners who have to take time away from practice in order to give birth. Now the Ontario working group has proposed a plan that would grant a total of up to $9,000 in benefits for lawyers in firms of five lawyers or less, providing they have no other access to parental, maternity, or adoption-benefit programs. At the same time, the LSUC working group is proposing a program to promote and support the use of practice locums, who could be hired to help lawyers keep their practices going while on leave. (The full LSUC working group report is online at www.lsuc.on.ca/about/b/equity/retentionofwomen.)


Warkentin says her group’s proposals have so far received strong support at focus groups across the province and will be voted on by the governors of the law society in late May (after the magazine goes to press). She says law firm leaders welcome the locum proposal as a way of handling the genuinely difficult problem of how to keep serving clients and maintain an income stream in a situation where there are just not enough lawyers in the practice to cover for the person who is on leave.


With regard to the problematic lack of adequate policies in firms with more than five lawyers, the various law societies all promote model policies, while many individuals and groups are doing their best to shame the profession into compliance. Ultimately, the demands of the marketplace and demographics will probably force firms to introduce policies since job candidates need the assurance of a good policy. Furthermore, even though law firm leaders will often offer the excuse that clients expect their lawyers to be available 24/7, the fact is that maternity and parental leave are a norm in almost every other sector of society. Not only are clients unlikely to be upset about their lawyer taking a maternity leave, they would very likely be outraged if they heard that she was being denied adequate benefits.   

Kevin Marron can be reached at kevin@kevinmarron.com

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