Father time: flexible work arrangements and the law firm's failure of the family.

• Author: Cunningham, Keith

Kevin Knussman was not asking for much. His wife was suffering medical complications from childbirth, and his newborn daughter needed his care. Knussman went to his employer and sought twelve weeks of paternity leave under the Family and Medical Leave Act (FMLA) of 1993.(1) The Maryland State Police, Knussman's employer, saw things differently. "Unless your wife is dead or in a coma," Knussman's supervisor said, "you could not be the primary provider."(2) His request for extended leave was denied, and he sued.

When Knussman became the first man to win a gender(3) bias claim under the FMLA in 1999,(4) he was depicted as a "poster dad" and "something of a folk hero" by an adoring national press.(5) Unfortunately for Knussman, the battle did not stop there. Before he could return to work, his employer required him to take a psychiatric test.(6) Although the state police claimed that the exam was "routine," the retributive message was clear: Any man who goes to such lengths to put family above work must have some sort of mental defect.(7)

The resistance Knussman encountered is emblematic of a larger struggle occurring within the American workforce. The balance of work and family, once an issue isolated to the "woman's domain," has found a place in the American male psyche; many of today's working men seek the dual objective of maintaining successful careers while being involved in their children's lives.(8) However, the working father's appetite for time with his children is often trumped by the greater hunger of the robust American economy, which is in the midst of its largest expansion in history.(9) With the country's unemployment rate at a thirty-year low,(10) there is an ever-increasing demand for employees to stay at work longer, away from their families.(11) One economist estimates that today's workers spend a month longer at work each year than their parents did.(12)

As the hot U.S. economy swallows employees' time, no industry is hungrier than the carnivorous legal market. The unbounded nature of the law firm economic structure allows firms to grow exponentially.(13) This growth potential, coupled with the economic boom of the late 1990s, has created a record demand for legal services(14) and a dramatic rise in billable hour requirements;(15) today's law firms are increasingly hard-pressed to attract and retain the best legal talent. As one industry journal reports: "[G]ood economic times have swung the employment pendulum in favor of the associates who are seeking jobs."(16)

At the same time, lawyers' dissatisfaction with their work has reached startlingly high levels.(17) Lawyers have the highest job dissatisfaction rate among all major professional groups.(18) Half of the lawyers in a Rand study said that, if given the chance, they would choose a different career.(19)

Given the state of the profession, it is little wonder that firms remain associate mills, churning in and spitting out a new crop of lawyers annually. The "normal" large law firm turnover rate of twenty percent is over double that of other industries.(20) Even one major firm's marketing director admits that attrition rates are "staggeringly high."(21) By the end of their third year of employment, over forty percent of all associates have left their firm.(22) Within eight years, the typical law firm has lost seventy-seven percent of its original associate class.(23) The ABA Young Lawyers Division reports that nearly one-third of lawyers under the age of thirty-six are "strongly" considering leaving their firm within the next two years.(24) Only ten percent of respondents say they "definitely" will not consider leaving their current firm in the next two years.(25)

Faced with the stark view of what life in the law firm holds for them, many of today's law school graduates make employment decisions based not only on salary but also on quality-of-life considerations, such as a firm's personnel policies and work atmosphere.(26) In doing so, this "`life-centered' generation of talent"(27) approaches the legal job market with a value set quite distinct from their predecessors. The old notion that associates must "eat, breathe, and sleep" their work might not be as palatable to the new recruits as the old guard would like.(28) Over half of the college students responding to a 1999 survey identified "attaining a balance between personal life and career" as their primary professional life goal.(29) In a recent study of American workers, the job characteristic that was most often cited as being "very important" was "[h]aving a work schedule which allows me to spend time with my family."(30) "I think people coming out of law school feel that they are entitled to a lifestyle," says one legal recruiter who worked eight years at large law firms before transitioning to the career services industry. "When I got out of school, I didn't think I was entitled to a life."(31) Law students' lifestyle considerations have been studied by psychologist Everett Moitoza, who says, "Firms are speaking about the dilemma because the best and brightest associates come in with the attitude that they have a life, a profession and a family, and wish to negotiate the balance."(32)

A rational economic model suggests that the greater clout law graduates and young associates hold in the job market should yield lifestyle-enhancing concessions by the firms. Firms openly state that recruitment and retention of associates are among their primary business goals.(33) To that end, law firms have instituted a wide set of policies to make the workplace more "family-friendly."(34) Explains one legal journal: "With young lawyers and even law students announcing family as a priority, firms have followed suit, making their [family-friendly] policies ... a prominent selling point of firm brochures and Web sites."(35)

However, beyond serving marketing goals, these programs have done very little to assist lawyers with attaining a work-family balance.(36) The fact remains that although these policies are facially supportive of a lawyer's familial commitments, structural deficiencies and cultural mores remain firmly in place to keep most lawyers, especially men, from taking advantage of the programs.(37)

This note will consider the effect of law firm policy and culture on lawyers in general and on men in particular. Large law firms are the primary focus of this note because of their extraordinary influence on the national legal landscape. These firms leave an indelible mark on law and policy formation in this country by influencing legal precedent through high-profile litigation, as well as by contributing large sums of money to local and national political campaigns.(38)

The first part of this analysis will provide an overview of the current state of law firm leave policies. Although law firms each possess their own unique culture and climate, some broad trends can be seen in the industry, which has adopted family leave policies that require men to prove they are the "primary caregiver," while forcing women into that default position. Part II will describe flexible work arrangements and the working man's low use of them. Part III will analyze the reasons male lawyers are particularly averse to alternative work schedules; this non-use by men reinforces stereotypes of women in the legal workplace, while keeping men from realizing their dual goals of family involvement and workplace commitment. Part IV will outline the efficiency gains of modified work schedules and will offer an example of a model law firm that has incorporated a family-friendly culture while still meeting the bottom line.

In any business setting, successful adoption of alternative work schedules will only occur once clear support of the policies is given from upper management, which in turn will lead to a critical mass of men using these programs. The lesson to large firms is unmistakable: Having a family-friendly policy on paper means nothing in an environment that fails to honor a man's simultaneous commitments as lawyer and father.

1. LAW FIRMS AND PARENTAL LEAVE

   1. The Family and Medical Leave Act of 1993

      On February 5, 1993 President Clinton made the FMLA his first bill to be signed into law.(39) The FMLA, which had been vetoed twice by President Bush in similar forms, entitles eligible employees to twelve weeks of unpaid, job-protected leave for family illness, childbirth, adoption, or elder care.(40) In its wording, the FMLA recognizes the national importance of allowing fathers and mothers time off to care for their infant children.(41) However, beyond the symbolic wording of the Act lie serious limitations that prevent a great many workers from taking formal parental leave.

      Before the FMLA's passage, the United States was one of only two industrialized countries that lacked a formalized parental leave policy.(42) Yet, even after the FMLA's adoption, the United States still lags far behind European countries in the leave it offers parents.(43) Professor Carol Daugherty Rasnic's 1994 analysis of the parental leave policies in nineteen European countries(44) shows that the United States has not come close to matching the family leave standard set by Europe.(45) All European countries surveyed provided statutory maternity leave with pay, and eleven of the countries provided paid paternity leave as well.(46) The European model is set among a backdrop of state-subsidized support for families with children, including national healthcare, cash benefits for families based on the number of children in the family, and guaranteed minimum child support payments for single parents.(47)

      Although it was touted as a monumental breakthrough in pushing employers to honor family commitments, the FMLA has considerable drawbacks that keep it from having a greater impact on the U.S. workforce because 1) the leave is unpaid, thus making it "largely a pipe dream" for parents with low wages,(48) and 2) the FMLA only applies to...