This article is the second in a two-part series about work/life balance and diversity programs.
The authors’ proposal is simple: eliminate the word “part time” from law firm and law department vocabularies and change the focus to flexible work arrangements. Why? “Part time” is politically charged and stigmatizing. “Flex-work,” on the other hand, is widely accepted and working well. And guess what? In many instances, the same policies and discipline are required to support both reduced hours and flexible work.
Legal employers have dabbled with part-time programs for more than 20 years; even though there have been some success stories, legal employers in general are still struggling. Nearly all large law firms have part-time policies on the books, yet nation-wide only 3 to 4 percent of attorneys work part time. At the same time, attrition rates have climbed sharply in recent years, according to the National Association for Law Placement.1 Legal employers face twice the attrition rate of employers in similar industries, and “family responsibilities discrimination” is taking shape as a new area in employment law.
When Pillsbury Winthrop Shaw Pittman LLP (Pillsbury) surveyed its attorneys in fall 2006 to learn more about how to make reduced hours programs work, 85 percent of the attorneys working reduced time schedules reported that they would have left the firm but for these arrangements. At a cost of $200,000 to $500,000 to replace each attorney, little more needs to be said about the oft-documented business case for effective reduced hours programs.
In the same survey, 90 percent of respondents said they would rather figure out how to make a valued attorney’s reduced schedule work than lose the attorney. Even more striking, three-quarters of lawyers on reduced hours schedules reported that they were still being assigned to “major cases or deals.” Yet, even in this largely supportive environment, 30 percent of respondents felt that there is still a stigma attached to reduced hours schedules, and 43 percent felt that reduced hours harmed career prospects.
The stakes are high. The D.C. office of Fulbright & Jaworski increased retention of senior women associates from 29 percent to 47 percent in just four years when it adopted key elements of the best-practice “Balanced Hours” Model Policy2 developed by the Project for Attorney Retention as part of its women’s initiative. Unfortunately, this kind of success is the exception rather than the rule. How can legal employers progress toward successful implementation of alternative work schedules? This article provides some answers.
1. “Flex Time” versus “Part Time”
The first political challenge is to eliminate the widespread stigma—the sense that a reduced hours schedule is a “mommy track” for less committed lawyers. The solution we suggest is to abandon the artificial distinction between “part-time” and other types of flexible schedules.
Today, many attorneys are flexible in both time and place. In 1990, when Marina Park became one of Pillsbury’s first two associates to reduce their hours under a formal arrangement, attorneys still had to be sitting in their offices to get their work done. Cell phones, wireless networks, email, and voice mail have changed that requirement, and have created a service expectation that lawyers are always available to their clients.
But these same advances also permit lawyers much greater freedom in choosing when and where they work. An important step in eliminating stigma is to recognize that many flexible work arrangements already exist. “Part time” is an artificial dividing line. Many law firm partners now work from home a day or two a week. Others work a half-day during the week and make up the time on weekends. And most lawyers often do business from outside the office—on business trips or the golf course, or because they are working from home. Yet all too often, one particular type of flexible work arrangement is stigmatized: the reduced hours schedule worked predominantly or exclusively by women for reasons having to do with child care.
The chart below sketches the schedules of three lawyers. Although all three are working flexible schedules, only one is likely to encounter stigma on the grounds of being a part-time lawyer.
|Full-Time Partner||Full-Time Associate||Reduced-Hours Associate|
|Flex Schedule||Flexible hours: coaches daughter’s baseball team 2 afternoons a week; cannot work Thursdays or at all two weekends a month due to custody arrangement.||Flexible hours: works out for 2 hours every day; took time off last year for death in the family; billed fewer hours than many part-timers.||Flexible hours: goal is to not work on Fridays, and typically doesn’t.|
The chart represents a troubling but common situation in which only the part-timers with childcare responsibilities—typically female—are stigmatized, while other attorneys who are enjoying alternative work arrangements are not. Folding reduced hours into a continuum of flexible work arrangements and eliminating the artificial distinction between part-time and flexible full-time work can help overcome the stigma that attaches to just one type of flexible work.
2. Implementing Good Intentions: The Complex Politics of Time
Navigating the politics of time in the legal profession requires employees to first identify and then engage the opposition. Work/family experts report that stigma can creep in even when upper-level management -solidly supports a part-time program. Two types of opposition typically emerge: overt and passive-aggressive. Both contribute to stigma and “schedule creep” (in which a part-time schedule creeps back up toward full time). A law firm may have an outstanding reduced hours policy, but individual partners and associates can make life miserable for a reduced hours attorney if they believe that attorneys who work reduced hours are “lightweights” who have no place at the firm. For this reason, it is essential that reduced hours programs be supported from the top, that proactive support is provided for attorneys seeking to make these arrangements work (such as balanced hours coordinators), and that rewards and consequences are enforced for those who contribute to or detract from the success of these programs.
The authors suspect that almost all firms and law departments have pockets of attorneys who oppose reduced hours—in Pillsbury’s study, for example, notwithstanding very strong overall support for the program, a small percentage of both partners and associates said they did not want to work with part–timers. However, if a workplace has decided that flexible work arrangements, including reduced hours programs, are in the best interest of your firm or company, attorneys in that firm need to develop a strategy to engage and move past that opposition.
A. Understand your organization’s starting point. Look in the mirror and be honest. Do you have a part-time policy that exists on paper only? Or do you have a policy that works, but only if the individual seeking reduced hours is fortunate enough to work with a group of lawyers who support reduced hours arrangements? You need to begin with an accurate understanding of your workplace’s culture and attitudes —you need to know not just what your current policy says but also how it is being implemented -throughout the organization and where the support and opposition exist.
B. Pick a leader who can change norms and behavior as well as policies. In the vast majority of legal workplaces, building a successful flexible work program will require a change of norms about what it takes to succeed. It is no coincidence that the demand for flexible work arrangements coincides with increasing billable hours, profit pressures, and technology that keeps many attorneys available to their clients around the clock. In fact, the Pillsbury study indicates that interest in flexible work is increasing at an even more rapid rate among male than female attorneys: 18 male attorneys said that they had reduced their hours and 47 expressed interest in doing so in the future (the numbers for women were 47 and 57). It is therefore important that the shift from an “old-fashioned” part-time program to a flexible work program have support from the top and be led by the general counsel or a partner who is known and respected throughout the organization, and who is willing and able both to build consensus about the changing profile of a successful lawyer and to take on the opposition. Ideally, middle management (in most law firms, this means practice leaders) will “get” the business case and will stand with the leader when the opposition speaks up. This is absolutely critical—a leader who says all the right things but who is unwilling to take on the opposition is not the right leader for this effort.
C. Know how to effect change in your organization. There are three principal ways to get things done in an organization: hierarchy; common vision, and power and influence. Hierarchy, in which a chair or CEO publishes a new flexible policy and tells everyone that this is how things will work going forward, sometimes works well in a corporation. Many accounting firms, for instance, have undertaken more far-reaching work/life initiatives than have most law firms. In law firms, on the other hand, a “workplace mandate” often results in policies that sit on shelves and are ignored or, worse yet, suffer from passive-aggressive undermining. A common vision might mean, for example, that the partners agree that their firm aspires to hire, train, and retain outstanding attorneys. Common vision is important—but it tells you only what your firm aspires to do, not how you will do it. In the power and influence approach, you figure out whose support is important to ensure and sustain a successful program, and then you figure out what changes are required to gain their support. We think this is the most effective way to build sustainable workplace programs. Let’s take the example of a typical national law firm, where profit and loss accountability runs through practice sections. If a practice section leader is held accountable for profit and loss, and the leader’s own compensation is based on section profitability as well as the leader’s own practice, what will motivate that leader to support flexible work arrangements? We recommend that legal employers establish, at most, one or two workplace goals (such as retention), identify who is responsible for achieving these goals (in terms of accountability), and make it clear that there will be favorable compensation results when these goals are achieved.
3. Supplement Good Intentions With Disciplined Execution
The authors recommend that flexible work initiatives focus on a range of programs (including balanced hours) to help all attorneys do a better job of establishing boundaries between their work and nonwork lives. These programs should have staff support to ensure that they will be sustained and improved, with feedback and experience.
- Management skills. Provide training and 360-degree-review programs to improve attorneys’ skills in managing cases, deals, and people. Life as an associate and as a partner would be easier if the only last-minute crises were true crises rather than crises created by incomplete directions, poorly coordinated teams, or a “to do” item forgotten until 4 p.m. on Friday afternoon.
- Setting work/life boundaries. Encourage discussions about work/life boundaries. What are your organization’s norms about boundaries, and are these boundaries contributing in a positive way to the health of your organization and your people? For example, if a partner is clearing off her desk on a Saturday afternoon and sends a nonurgent email to an associate, does the associate believe that he will “look bad” if he fails to pound out a reply on his BlackBerry from his daughter’s soccer game?
- Career development. Include benchmarks as part of your review and mentoring programs, and make sure that all attorneys, including those on formal reduced hours arrangements, receive direct feedback about their career development and are provided with opportunities to round out their experience.
The politics of time in the legal profession were first documented by Cynthia Fuchs Epstein,3 and the Project for -Attorney Retention first documented the robust business case for nonstigmatized reduced hours schedules nearly a decade ago.4 Why has change been so slow in coming? The authors’ hope is to act as a catalyst for organizational change by providing a step-by-step political strategy. The need for change is more pressing than ever for two reasons. First, the spiraling increases in salaries and hours for first-year associates is making work/life balance ever more elusive for lawyers. Second, the new hot topic in employment law is the sharp increase in lawsuits over “family responsibilities discrimination.” Thirty-three legal employers have encountered suits filed by workers alleging discrimination based on their family caregiving responsibilities, and the Equal Employment Opportunity Commission issued new Guidance on Caregiver Discrimination last May.5 In this rapidly changing legal context, employers are increasingly motivated to avoid situations in which part-timers are stigmatized and paid less per hour than (in theory) full-time attorneys who are nonstigmatized and billing the same number of hours. This article aims to help legal employers struggling with these issues align the political forces to effect positive change. DB
Marina Park is a partner (and former Managing Partner) at Pillsbury Winthrop Shaw Pittman, LLP.
Joan C. Williams is Distinguished -Professor of Law at the University of California Hastings College of the Law, founding director of the Center for WorkLife Law (www.worklifelaw.org), and co-director of the Project for Attorney Retention (www.pardc.org).
1. Toward Effective Management of Associate Mobility: A Status Report on Attrition (NALP Foundation 2005) at 21.
2. Email from Joseph T. Small, Jr., Partner-In-Charge, Washington, D.C. office of Fulbright & Jaworski to Joan C. Williams, 7/11/06.
3. Cynthia Fuchs Epstein , Carroll Seron, – Bonnie Oglensky, Robert Saute, The Part-Time Paradox: Time Norms, Professional Life, Family and Gender (1998).
4. Joan C. Williams & Cynthia Thomas -Calvert, Balanced Hours: Effective Part-Time Policies for Washington Law Firms (2001), at http://www.uchastings.edu/site_files/WLL/BalancedHours2nd.pdf. See also Joan C. Williams & Cynthia Thomas Calvert, Solving the Part-Time Puzzle: The Law Firm’s Guide to Balanced Hours (NALP, 2004).
5. U.S. Equal Employment Opportunity Commission, EEOC Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities (2007).
From the September/October 2007 issue of Diversity & The Bar®