REPORT AND SAMPLE POLICY
ON ALTERNATIVE WORK ARRANGEMENTS
New York State Bar Association Committee on Women in the Law
Purpose of the Sample Policy
The Committee on Women in the Law of the New York State Bar Association is pleased to present this Report and Sample Policy on Alternative Work Arrangements to offer attorneys and law firms a framework for discussion and guidance in the development in written policies on the use of non-traditional work arrangements.
Legal employers are increasingly recognizing the value of giving firm members and employees opportunity for greater flexibility in how they work. With the influx of working mothers into the legal profession, more firms are becoming accustomed to addressing these considerations in balancing professional and family responsibilities and having attorneys work in non-traditional ways. Alternative work scheduling, however, is not a new concept. For years, some firms have engaged attorneys "of counsel" who typically are not at the office five days a week, 10 or more hours per day.
Today, there are many possible alternatives for structuring work arrangements, including reduced caseloads, compressed work weeks and job sharing. Described in the following sample policy, these arrangements can give employers a competitive edge. With more firms offering attorneys and support staff greater flexibility to balance work with other commitments, firms that do not offer such arrangements may be less attractive to job candidates, notably women recruits who comprise half or more of law school graduates and often prefer to build a career with a firm that is responsive to work/family issues.
Family-friendly policies are not just a women’s issue. Increasingly, numbers of men are interested in devoting more time to responsibilities at home, often as part of dual career couples. Firms reap benefits of a high level of productivity and commitment from firm members who work non-traditional schedules, as most take their responsibility to their clients and colleagues seriously and will not take the added flexibility for granted.
As firms continue to face the challenges of attracting and retaining a diverse workforce, new human relations challenges arise. Flexible work arrangements offer law firms another tool to help members and employees to achieve and maintain a healthy balance in their lives and avoid premature career burnout. From a firm perspective, the availability of such arrangements promotes retention, allowing the firm to benefit from the training provided to, and the experience developed by, the firm member or employee. In addition, it makes good economic sense.
Addressing Compliance Issues
In addition to the competitive and human relations reasons cited above, several recent laws make the immediate consideration and use of alternative work arrangements a wise approach. Under the Americans With Disabilities Act, in effect since 1992, employers are required to make reasonable accommodation for the known disability of employees, absent undue hardship. The federal regulations have been interpreted by the United States Supreme Court as including flexible work arrangements, such as return to work on a part-time basis following disability leave. Only the smallest law firms might be able to successfully argue that having someone work a non-traditional work schedule is a hardship.
Further, the Family and Medical Leave Act of 1993 provides for "intermittent leave," i.e., time off that is taken in increments, such as working three days per week for three months or working half days for six weeks. These leaves are mandated for men and women, for reason of an employee’s own illness or injury, or care for a newborn including an adopted or foster child. Such leaves are recommended, though not mandated, for employees to care for a seriously ill parent, child or spouse.
Value of Written Policies
Written policies serve to ensure awareness, promote consistency in policy application, and assist firms and their members in planning ahead in regard to work schedules.
Need for Flexibility in Policy Provisions
To be effective, however, a policy must be adapted to meet the unique characteristics and needs of each firm and its members. The Committee recognizes that not all the provisions contained in the sample may be feasible for every firm in striving to balance the needs of the firm, its clients and attorneys. The sample should serve as a helpful reference in developing and effectively communicating alternative work arrangements. While the sample policy is designed for law firms, it is readily adaptable to other practice settings as well.
Building on Association, Committee Actions
This resource is part of a series of Reports and Sample Policies prepared by the Committee to aid attorneys and firms in addressing issues in the workplace and responding to the evolving needs of the profession. The Committee also has issued Report and Sample Policies on Childbirth and Parenting Leave and on Sexual Harassment in Law Firms.
Following review of the Report and Model Policy on Childbirth and Parenting Leave on November 9, 1990, the Association Executive Committee adopted a motion that:
The Association encourages legal employers to review existing practices and policies concerning childbirth and parenting leave for attorneys and to adopt fair written policies.
The Association authorizes the Committee on Women in the Law to release its model policy as a sample that lawyers and law firms might consider in formulating their own written policies.
The Report and Model Policy on Childbirth and Parenting Leave encouraged firms to develop policies that, consistent with the needs of the firm and to the extent economically and practically feasible, assist attorneys who have taken such leave "to make the transition from full-time parenting to the return to the practice of law" and help "all attorneys balance the needs of their families and the demands of their profession on an ongoing basis." The Model Policy provides for consideration of requests for part-time or other flexible work arrangements, taking into account the needs and concerns of the individual, the firm and the firm’s clients.
The Report and Sample Policy on Alternative Work Arrangements builds on this work by recognizing that the need for flexibility in work arrangements extends to both women and men who seek to maintain a demanding career in balance with family and other non-work commitments.
Examining Workplace Concerns
In developing this Report and Sample Policy, the Committee inquired into the procedures and use of policies in law firms of different sizes and types of practice in New York State. Frequently, requests for alternative work arrangements were addressed on an ad hoc basis rather than through specific written policies.
In addition, the Committee reviewed studies of bar organizations in other states and at the national level. Surveys of factors that influence lawyer satisfaction suggest that the opportunity for alternative work arrangements is valuable in promoting satisfaction, health and productivity.
In 1988, for example, the Maryland State Bar Association Committee on Law Practice Quality interviewed lawyers from a pool of over 1,000 firms of various sizes and locations that agreed to participate in the study. Among factors found to significantly affect job satisfaction were:
• Opportunity to balance personal/professional life;
• Number of hours spent on personal versus professional activities.
Specific observations by the Maryland Bar Committee included that "the personal lives of all attorneys seem to be adversely affected by the demands on their professional lives. Sixty-nine percent of the lawyers fell into the range of somewhat satisfied to completely dissatisfied with the way their work lives mesh with their personal, family, social and civic lives and 59% foresaw that there would be no change in their future work relationships." The Committee noted that "this result seemed to flow naturally from the disclosure that 81% of lawyers spent between 50 and 70 or more hours in an average week on professional, rather than personal activities, and 72% log from 1,800 to 2,400 or more billable hours per year.
The American Bar Association’s Young Lawyers Division conducted a survey in 1984 and repeated the same survey in 1990 for comparison purposes, with contact made with the same respondents as well as new entrants to the legal community. The study revealed the following determinants, among others, of lawyer job satisfaction:
• amount of personal time;
• amount of family time.
In a 1990 New Jersey State Bar Association survey, factors found to significantly influence job satisfaction included:
• personal/professional life balance;
• amount of free/vacation time;
• perceived impact of the job on loved ones.
The Committee recommends the adoption by law firms of written policies on alternative work schedules to aid in planning and providing consistent application of such provisions. Further, the Committee offers the following sample policy for guidance, with flexibility to take into consideration the practical, economic or other conditions of the firm.
Committee on Women in the Law
Claire P. Gutekunst, Chair Shelley B. Mayer
Katherine S. Abrams* Denise L. Meyer
Joan Casilio Adams* Jill Miller*
Miriam R. Adelman Andrea R. Moore
Stacey B. Aicher Deborah J. Muhlbauer*
Phylis S. Bamberger Joanne Naughton
Deborah A. Blatt Leslie B. Neustadt
Caitlin E. Borgmann Susan B. Nogan
Margaret M. Cassady Elizabeth J. Oestreich
June M. Castellano Ann T. Pfau
Ruth Deh Chien Chen Toby J. Pilsner
Julianne B. Cowan Penelope D. Ploughman
Suzanne M. Dugan Margaret Rowe
Alexander A. Delle Cese Susan S. Savitt
Madeleine S. Egelfeld* Martha J. Schecter
Cheryl A. Ehrenworth* Jayne B. Schumer
Jeffrey M. Fetter Leslie F. Spasser
Howard A. Glickstein Edith I. Spivack
Arlene H. Hahn Leslie E. Stein
L. Priscilla Hall Sarah J. Stewart
Priscilla C. Hughes Julie M. Tamminen*
Helaine Hausner Lorraine Power Tharp*
Jo M. Katz Andrea T. Vacca
Lois V. Kelly Tanya L. Washington
Sarah L. Krauss John F. Wener
Rachel Kretser Mary M. Wilcox*
Jane Lee Pearl Zuchlewski
Toni C. Lichstein
* Members of the Subcommittee on Women in the Profession - The Subcommittee, chaired by Jill Miller, initiated and developed the Report and Sample Policy.
The Committee extends special thanks to Deborah J. Muhlbauer and Julie M. Tamminen for their work in drafting the report and sample policy.
SAMPLE POLICY FOR ALTERNATIVE WORK ARRANGEMENTS1
I. Statement of Purpose
The firm has adopted a policy for our attorneys concerning requests for alternative work arrangements. The object of this policy is to strike a balance between the business and economic concerns of the firm, the demands and expectations of our clients, and the needs and goals of our attorneys.
The firm recognizes that while our attorneys are highly committed to the practice of law, they have responsibilities beyond those to their clients and colleagues. Our firm appreciates that it may become necessary or desirable for an attorney to seek a work arrangement which is more flexible than the traditional work schedule, to attend to family or other non-firm related responsibilities.
Our firm recognizes that all alternative work schedules must be fair to the attorneys who practice pursuant to an alternative arrangement, to the attorneys who practice pursuant to our traditional schedule and, above all, to our clients. The foundation of any successful alternative work arrangement is flexibility. The continued flexibility to the success of each particular arrangement, as well as to this policy as a whole.
II. Alternative Schedules Offered by Our Firm2
Our firm recognizes that attorneys face a variety of outside demands and commitments. Our firm offers the following alternative work options to those attorneys in need of a more flexible work arrangement.
1. Flextime - Full time employment with nontraditional office hours. A flextime attorney may either begin the work day earlier or extend the work day later than our traditional office hours. However, the firm requires that all flextime schedules include a minimum of _ office hours, each day, that coincide with our traditional business hours.
2. Flexiplace - Carrying a full caseload with the majority of the work performed at an alternative location. Attorneys considering a flexiplace arrangement should consider the practicality of this option in light of the attorney’s particular area of practice.3 For an attorney whose area of practice is well suited to this option, our firm will make all reasonable efforts to allow for remote access to our system. Flexiplace attorneys will be required to maintain office hours during normal business hours at least _ day(s) a week to provide for consistent access for clients and colleagues.
3. Compressed Work Week - Full caseload compressed into three or four days a week. This alternative option normally requires longer work days.
4. Caseload Sharing - Full caseload shared between two attorneys. This option will require the highest degree of cooperation among the two attorneys sharing the caseload and our firm. The particular delegation of responsibilities will result from an initial proposal from the two attorneys, which will be reviewed by the managing partner or committee. If approved, the arrangement will be reviewed every three months for the first year to insure its continued success.
5. Reduced Caseload - Reduced caseloads by 20% to 50%. A reduced caseload attorney must select a minimum of __ days a week during which the attorney will maintain office hours for access by clients and colleagues. The __ days are not required to be full days. However, it is expected that the days and hours selected generally will remain consistent.5
An attorney who selects an alternative work schedule is required to maintain daily contact with his or her secretary or legal assistant from Monday through Friday. This will allow for the attorney’s continued prompt attention and response to client telephone calls or any other emergencies which may arise.
Additionally, all alternatively scheduled attorneys are required to maintain consistent and predictable office hours during our firm’s regular business hours. Any changes must be approved by the firm and promptly communicated to both colleagues and clients.
This policy is designed and will be implemented on a gender neutral basis. Additionally, both associates and partners are eligible for alternative work arrangements. Requests for alternative work arrangements will be considered on a case by case basis.6
There are no predetermined durations for any of our alternative work schedule options.
V. Work Assignments
All alternatively scheduled attorneys, including reduced caseload and job-sharing attorneys, will be assigned matters based on the attorney’s particular area of practice and level of experience, in conjunction with the individual needs of our clients. It is the policy of our firm to encourage and foster the continued professional growth of all our attorneys. Therefore, the firm will attempt to provide alternatively scheduled attorneys the opportunity to handle the same sorts of matters as our traditionally scheduled attorneys.
VI. Non-billable Responsibilities
Non-billable responsibilities for an alternatively scheduled attorney who retains a full caseload will be unaffected by the alternative nature of the arrangement. In general, the non-billable responsibilities of an attorney who obtains a reduced caseload will be reduced proportionally with the reduction in billable hours.
VII. Progression Towards Partnership
A request for an alternative work arrangement will not affect an associate’s eligibility or the substance of the firm’s consideration of the associate for partnership in our firm. However, because more experience usually leads to faster professional development, practice pursuant to a reduced caseload or job-sharing arrangement may delay the firm’s consideration of an associate.
Above all, our firm will consider the professional growth of the partnership candidate and the value of the attorney to our firm. Our firm does not believe that the value of our attorneys is comprised of billable hours alone. Therefore, it is anticipated that all associates requesting a reduced caseload arrangement shall continue to consider themselves eligible for partnership status and conduct their professional duties accordingly.
• Associates - Full caseload alternatively scheduled attorneys will be paid the same salary as the attorney received as a traditionally scheduled attorney. Additionally, eligibility for raises and bonuses will be unaffected by the attorney’s alternative schedule.
Reduced caseload attorneys will be paid a salary that is prorated based on the number of billable and non-billable hours to be worked. If the six-month review of the attorney reveals that a reduced caseload attorney has worked substantially more hours7 than anticipated in the original agreement, the firm will consider a bonus to the attorney to be determined by________________.8
• Partners - Partnership compensation for a full caseload partner will be unaffected by a partner’s alternative schedule.
Compensation for a reduced caseload partner will be determined by ________________.9 The firm will consider the requesting partner’s proposed reduction in billable hours compared to the requesting partner’s proposed reduction in billable hours compared to the requesting partner’s average full caseload billable hours, as well as the requesting partner’s non-billable hours, matters personally generated, and the supervisory and administrative duties of the requesting partner.10
Voting and equity participation of both a full and reduced caseload alternatively scheduled partner will be unaffected by his or her alternative schedule status.
All benefits for a full caseload alternatively scheduled attorney will be unaffected by the alternative nature of his or her work schedule.
Life insurance and participation in pension or other tax qualified plans will continue for reduced caseload or job-sharing alternatively scheduled attorneys, to the fullest extent allowed pursuant to the particular policies or plans. A reduced caseloads and job-sharing attorney is entitled to holidays and vacations on a prorated basis to account for the attorney’s reduction in billable and non-billable responsibilities. Health insurance and entitlement to paid and unpaid leave because of disability will be unaffected by a reduced caseload or job-sharing arrangement.
X. Requesting an Alternative Arrangement
A request for an alternative arrangement must come from an attorney who is in good standing, must be in writing, and must include the following:
1. General discussion of attorney’s reason for the request.
2. The particular arrangement which is being requested.
3. The anticipated in-office days and particular office hours that the attorney will be available to colleagues and clients.
4. The anticipated duration of the arrangement. If the anticipated duration is indefinite that should be indicated.
5. A discussion of any anticipated problems, especially those relating to client files and a discussion of the attorney’s suggested solutions.
6. An attorney anticipating access from a remote location should also include a request for all necessary information to obtain access to our system. The responsibility for obtaining all equipment will be the obligation of the attorney making the request.
7. A proposal for a job-sharing arrangement must also be in writing and include the following:
a. All information required in points 1-6, where applicable; and
b. The anticipated apportionment of the full caseload between the two attorneys. The allocation of cases or duties proposed by the two attorneys should take into consideration the proposing attorneys’ area of practice, their particular talents, and their levels of experience.
All requested for full caseload alternative work arrangements should be submitted no later than 45 days before the alternative schedule is proposed to begin. All requests for reduced caseload or job sharing arrangements should be submitted no later than 90 days before the alternative schedule is proposed to begin. However, our firm recognizes that emergency situations may arise which will make it impossible for an attorney to provide the required notice. Our firm will make every effort to allow such attorney, if otherwise eligible, to achieve an alternative arrangement within a lesser period of time. If immediate compliance with the attorney’s request is impossible, we will attempt to create an interim solution until full compliance is feasible.
XI. Evaluation of Requests
The following factors will be considered by our firm when evaluating a request for an alternative work schedule:
1. Present and anticipated future client demands of the firm.
2. Particular area of practice of the requesting attorney in conjunction with the option requested. This will be particularly true when the request is for a flexiplace arrangement.
3. Present cases being handled by the requesting attorney and the attorney’s ability to continue to provide proper service to his or her clients in conjunction with the requested option.
4. If the request is to allow for additional attention to parental or family responsibilities, the firm will not make an independent evaluation of the necessity of the request. However, if the request is made for reasons other than those related to parental or family responsibilities, the specific reasons for, and necessity of, the request will be considered.
5. If the request is for a reduced caseload or job-sharing arrangement, the firm will also consider the anticipated duration of the arrangement in conjunction with the firm’s ability to handle its present or anticipated future caseload.
It is anticipated that all alternatively scheduled attorneys will maintain the particular assignments existing at the time of the request, with the exception of our reduced caseload and job-sharing attorneys. If an attorney making a request anticipates a particular problem with any one case, the particular problem with suggested solutions should be included in the written request. If the firm anticipates a specific problem with an alternative schedule, the firm will discuss this matter with the attorney making the request in an effort to achieve a viable solution. Such problems may also be considered in evaluating requests. However, the firm will make all reasonable efforts to comply with requests for alternative arrangements, and to obtain practical resolutions to all anticipated problems.
XII. Evaluation of Arrangement
The first evaluation of an alternative work arrangement will occur three months after the alternative schedule begins. Thereafter, with the exception of a job-sharing arrangement, the alternative arrangement will be reviewed every six months, or more frequently if a problem arises. Job-sharing arrangements will be reviewed every three months for the first year of the arrangement, and then at least every six months thereafter.
Evaluations will provide both the alternatively scheduled attorney and the firm an opportunity to formally address any issues or difficulties which arise during the course of the arrangement. These issues may include, but are not limited to, assignments that have resulted in the associate working excessively beyond the agreed upon schedule, particular problems with client matters, internal administrative affairs, or necessary additional components of the arrangement which were not perceived at the time the request was made or addressed by the original proposal.
The firm anticipates that the evaluation will provide both the firm and the alternatively scheduled attorney an opportunity to converse openly and honestly about the perceived successes and failures of the arrangement. The firm reserves the right to terminate an alternative work arrangement in its discretion. However, the firm will approach each evaluation with a continuing commitment to the arrangement. Additionally, the firm will address difficulties with a consistent willingness to attempt to resolve problems and obtain viable solutions. It is expected that the alternatively scheduled attorney will approach each evaluation with equal willingness to resolve problems with practical and reasonable solutions.
The firm does not believe that attention to outside responsibilities is any reflection on the attorney’s dedication to the practice of law. Loyalty and commitment to our clients must always be our highest priority and our first consideration. The firm believes that we can maintain our high standards and accommodate the often demanding parental, family, and non-firm related responsibilities of our attorneys.