CMBA hosts virtual talk on employment leave, practices

Sarah J. Moore, attorney at Zashin & Rich, Matthew Besser, principal of Bolek Besser Glesius LLC, and Monica Sansalone, managing partner of Gallagher Sharp LLP, all in Cleveland, virtually discuss employment leave policies and practices Jan. 17 at the Cleveland Metropolitan Bar Association “Hot Talk” with CMBA CEO Becky Ruppert McMahon. 

As part of the Cleveland Metropolitan Bar Association’s virtual “Hot Talk” series, three local attorneys spoke on “Employment Leave Policies & Practices: The Intersection (And Clash) of Employer and Employee Expectations” Jan. 17, with CMBA CEO Becky Ruppert McMahon moderating.

The panel was made up of Sarah J. Moore, attorney at Zashin & Rich, Matthew Besser, principal of Bolek Besser Glesius LLC, and Monica Sansalone, managing partner of Gallagher Sharp LLP, all in Cleveland, with over 200 viewers tuning in.

The topic was inspired by recent events surrounding employment leave policies and practices inside a local law firm, where Jon Dileno, a former attorney from Zashin & Rich, was let go following a viral LinkedIn post by another local lawyer that revealed a critical text he sent to a former colleague at Zashin & Rich regarding her recent maternity leave and decision to leave the firm for another opportunity on her return.

At the center of the topic is whether or not individuals on maternity leave are required to remain in contact or required to do work, McMahon said, asking if there is any legal articulation of what is expected of an employee while away.

While Moore indicated that there are no requirements in terms of what an employee should be expected to do besides some exceptions for state employees, Besser said there are a few things that employees should expect to occur, especially with notice requirements under the Family and Medical Leave Act. FMLA requires about 30 days’ notice, he said. If unforeseeable, employees should give notice “as soon as practical,” Besser said.

“Once you’re on leave, the statute does not require communication of the employee proactively, but the employer is allowed to request periodic updates about the employee’s status and return to work,” he said, adding if the employee’s doctor has strict instructions that they provided to their employer, like bed rest for six weeks for example, the employee is required to listen to those instructions and should not be doing work or physical activities.

Sansalone said when she went on maternity leave for her son 23 years ago, her firm didn’t have an official maternity leave protocol. Since then, her firm has offered 12 weeks of paid leave – a job guaranteed with flexibility in terms of providing additional time for extenuating circumstances.

To ensure a smooth transition of responsibilities, Sansalone said her firm works together to reassign cases to other attorneys while someone is on leave, and that doing it this way has garnered “loyalty” from women at the firm.

“We try not to bother people on maternity leave,” Sansalone said, recognizing it might be different for larger firms and that the opportunity to shift responsibilities might not be available to smaller companies.

“Ethically handling things is a balance that law firms and lawyers need to understand, and to try and get those building blocks in place before someone leaves so someone else can assume those responsibilities,” she said, ensuring nothing “falls through the cracks.”

While many firms seem to employ the practice of working with employees who are preparing for maternity leave, Besser said there are instances where that negotiation may not “go well” or may not happen in a time frame that makes sense for all parties.

“The way law firms treat maternity leave is as varied as there are employers,” he said. “That is the nature of human beings and businesses. We have seen some law firms where if you are a young female associate and you get pregnant, you best not plan to retire from that law firm in the future,” Besser said.

Sansalone said those next steps should be explored beforehand so the burden of finding someone to take on work isn’t left to the employee on leave. She added it is “good ethical practice” for work to be transferred to a full-time employee instead of someone who is “sleep deprived, but not sitting on their ass,” like Dileno’s text stated to his former colleague.

“The last thing the employer really wants is a malpractice action on the back end because you have an employee that is sleep deprived that might be missing deadlines,” she said. “And that is the responsibility of management to make sure deadlines and transfer memos are put into place beforehand.”

But for employees that do apply for leave, Moore said the bottom line is the employee should take that leave and not be interrupted during it. What’s difficult in this is that “it is not the practical reality we all face sometimes,” she said.

“But, where the employee wants to continue being involved, that is their choice and it is not something that should come from the firm,” Moore said, adding it is “always possible” that something will come up that no one currently working has context for. “We’re a service-oriented industry, so there will be moments where there will be a reach out. But any reach out should be brief, to the point in what those needs are, and get in and get out.”

If an employee is on leave and choosing to not do work, but is communicated with directly or indirectly that there is an expectation to do work, Besser said they shouldn’t be afraid to speak up when something is contrary to their wishes.

“Many employees are afraid to speak up for their rights, so they sort of swallow it,” he said. “But, if they feel inclined, they should reach out to HR and do it by email so there is a record.”

Moore added the power dynamic that exists in the business might make it hard for employees to speak up for themselves.

“The smaller the organization, the harder it is to create avenues of recourse,” she said. “The larger, the easier. But, that is not an excuse to not create those avenues.”

In the text, Dileno also expressed anger that the lawyer decided to move to another firm after returning from maternity leave. Besser said employers cannot require employees to return from their employer-sponsored leave for a certain period after returning.

“The way I can frame it is that loyalty is not a one-way street,” he said. “If a law firm decides it was in their best interests to let an employee go, no one would bat an eyelash or raise a question. ... So why would we expect more loyalty from an associate?”

[READ: Thinking of quitting job? Put financial plan in place first]

For young lawyers and law students that are viewing this situation with concern as they prepare to enter the job market, Sansalone said it is not reflective of the profession in Cleveland.

“I think we’re a lot better than what one text is,” she said. “Do that due diligence to not get yourself in that situation. If you find yourself in that situation, get out of it. You don’t have to subject yourself to it.”

In closing the talk, each lawyer shared their final thoughts, with Moore noting there is “a lot of work” to be done relative to women’s rights, maternity leave, paternity leave and “all the things that go along with it.”

“The key is to keep the conversation going, keep moving forward and celebrate the wins,” she said. “We’re focused on what good can come from this.”

Besser said he’s glad people are paying attention to the issue, indicating it’s been “ignored or unspoken in legal circles for a long time.”

“I hope it does spark a larger conversation,” he said. “More than that, I hope this also informs (a) firm on how they advise their clients.”

Sansalone said lawyers should not be afraid to look outside of their immediate circle for guidance - to find mentors and ask if what they’re going through is normal or right.

“You have to be an advocate and not be shy in doing that,” she said. “And to everyone generally, leave the profession better than you found it. It’s not 1977 anymore, but you have to continue moving things forward.”

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