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There ought to be a class. Or a seminar. Or something, anything, to help professional parents negotiate the pitfalls of such a life. It starts, at least for a working woman, the minute she finds out she is expecting a baby. It should come as no surprise to law firms that their female associates may want to have children. Given the fact that almost one half of recent graduates from law schools are female, it would seem that female associates with children would be a fairly normal occurrence.

Yet law firms generally are not prepared to handle the situation when it arises, often leaving the associate to negotiate her own position, one she has worked hard to obtain and maintain, without any precedent or policy to rely upon. Even in law firms with written policies relating to family leave, it is important to have a frank conversation with a law firm employer as soon as a pregnant associate feels it is medically reasonable to do so – and before it becomes physically obvious. She should discuss immediately, obtaining in writing if possible, the firm’s policy with respect to family leave or how her leave will be treated, if no policy exists. She should also discuss the need to use sick or vacation time during the pregnancy. Let’s face it – it is a long nine months. And, as ridiculous as it sounds, pregnancy is considered a type of disability.

Some things to be aware of going into the conversation:

• Law firms, indeed all employers, have no obligation to offer maternity leave pay. Many firms require an employee to have worked for the firm for one year to qualify for pay, if it is offered. Law firms are also not required to give any type of consideration to employees on leave when awarding bonuses.
• A firm which employs over 50 employees is bound by the Family Medical Leave Act (FMLA) and must guarantee that an attorney, who has worked for the firm for 12 months will be reinstated to her job or an equivalent job after 12 weeks of leave (in a one year period). Smaller firms are not bound by the FMLA, but public agencies (such as state or local governments) are bound by the FMLA regardless of the number of employees they employ.
• The FMLA requires a qualifying firm to maintain all group health benefits during the 12 week period of leave.
• The 12 week period of leave need not be consecutive and extended time-off for health issues relating to pregnancy may be counted towards the 12 week period.
• A firm bound by FMLA is not required to continue an employee’s benefits or reinstate her if she would have been laid off or otherwise terminated had she continued to work through her leave (such as in the case of a general lay-off).
• New York State offers disability insurance to attorneys out of work due to a pregnancy, but the benefit is only a percentage of the attorney’s salary and cannot exceed $170.00 per week. Many firms who do offer maternity leave pay require their employees to file for disability and pay the benefits back to the firm.
• Many firms will make maternity leave pay contingent upon the attorney’s return to work for a period of time, paying out only a portion of the pay while the employee is on leave, and the balance proportionally thereafter. FMLA also permits an employee to elect, or the employer to require the employee, to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. When paid leave is substituted for unpaid FMLA leave, it may be counted against the 12-week FMLA leave entitlement.

The concerns are not just financial. The pressure to compete in a law firm environment, where the hours are long, the work challenging, and the atmosphere often competitive, will seem even more difficult to bear when compounded by the physical challenges of a pregnancy. With a pregnancy a female associate faces, for the first time, the balancing act between family and career that will follow her throughout her lifetime. And while many attorneys think they know what they will do after the baby is born, returning to work or not, it is difficult to really know the right choice until the baby has arrived.

Therefore, it is extremely important to keep one’s options open. How a female associate handles her pregnancy is often viewed by employers as indicative of how she will handle motherhood. Honesty, flexibility, and commitment to the firm, balanced against the realities of maternity, will help pave the way towards negotiating a more flexible family-friendly lifestyle after the baby is born. Even if a female attorney does not plan to return to work, it not a good idea to burn bridges or take advantage of an employer – some day she will want or need to re-enter the workforce. She almost certainly will need the support and reference of her former employer then, even if it is many years down the road.

Tara C. Fappiano, Esq. is a founding partner of Havkins Rosenfeld Ritzert & Varriale, LLP, where she focuses her defense litigation practice on environmental and toxic torts, products liability, and premises liability. She resides in Westchester County with her husband and three year old son. Tara.Fappiano@hrrvlaw.com

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