Confessions of an Employment Attorney after Extended Maternity Leave

From the moment I sent the frantic emails to my colleagues that baby Ollie was on his way, I unexpectedly have been becoming a better lawyer.

Specializing in employment matters, I’ve spent years advising employers about a variety of issues, including leaves of absence in many different states. This past March, I welcomed my first child and gained a new perspective on leaves of absence, specifically on parental leaves. I have always believed that a trusted client advisor is able to engage in thoughtful discussions with clients about the bigger issues behind many of their questions. Many employment law questions must be filtered through the lens of the client’s desired business culture — not just the immediate needs of the business.

How does my advice differ now, having experienced my own extended maternity leave and return to work? Although each client’s situation is different, I offer a deeper and more nuanced perspective that encompasses issues of employee recruitment, retention and the long-term goals of the business.

If a client wants to offer only the leave required by law, I completely understand. No matter how large the organization, the absence of an employee is palpable. Since coming back, I’ve realized that many of my coworkers worked long hours to handle my workload. For perspective, my maternity leave was 24 weeks, which far exceeds the base legal requirements and what most new parents receive in the United States. If my firm was not big enough that the work could be covered during this extended time, my leave would not be practicable without the risk of losing those who were asked to pick up the slack for several months.

When my clients consider a more generous leave than required by law, I now offer my personal experience of feeling a strong sense of loyalty and gratitude when I returned; I wanted to hit the ground running and be a team player. I also brag about our policies and use them in recruitment efforts. If attracting and retaining top talent is a primary goal, it may be worthwhile to consider if extended or paid leave is a smart investment that will pay dividends in employee loyalty.

In addition, post-leave reduced schedules or other integration policies make a world of difference and increase the chance that an employee will return from leave and stay employed for a meaningful amount of time. I am benefitting from a 75% schedule for six months after my return, which greatly helps ease the transition — at least in theory. Personally, I have found it difficult to set and maintain boundaries and decline an assignment when I know the work needs to be done.

As this reduced hours program is very new, I have the opportunity to provide real-time feedback about how to better implement this vital program, and also layer my experience into the advice I offer clients. I’ve shared with my firm and my clients that a transition policy is more likely to have the desired effect on retention if an employee is paired with an advisor to help establish and maintain boundaries and act as an “enforcer” of the policy. Weekly or monthly check-ins are also likely to go a long way in conveying that the employer genuinely supports the policy and wants to prevent burnout.

I now include in my advice to clients to consider transitional policies along with leave policies if employee retention is a priority. In fact, I’m starting to think that transitional policies may be more important than the actual leave policies to increase the number of parents returning and continuing to work.

Last, as an employment lawyer, my brain is programmed to see the potential for harassment and discrimination in even the most well-intentioned practices and interactions. Because of this occupational hazard, I am more acutely tuned into how new parents, and especially new moms, could be at particularly high risk of experiencing differential treatment.

For example, people seem compelled to comment on a mother’s body following childbirth, which makes me cringe from both a personal and legal perspective. Additionally, a new mother could feel that opportunities are not presented to her because of her frequent need to be excused to pump breast milk or a presumption that she would not want to travel or work late.

On this point, I can’t emphasize enough the importance of a supportive culture and clear communications to leadership about leave and transitional policies. If management does not respect and back the organization’s parental leave offerings, these risks of actual or perceived discrimination and retaliation are much greater.

Along with the decision of how much leave to offer, I now include in my discussions with clients an evaluation of organizational culture and what training should be provided to ensure that the needs of the employees and the business are met.

Hannah Caplan is an associate with Brownstein Hyatt Farber Schreck.