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Best
Practice #3
Adhere to the Principle of Proportionality
Proportionality
is fundamental to a balanced hours program's success, particularly
in these key areas: salary, bonuses, benefits, and advancement.
If the principle of proportionality is not followed - for example,
if all benefits are denied to an attorney who reduces his or her
hours - the balanced hours program creates disincentives for its
use. In addition to the financial penalties, it produces a sense
of unfairness and second-class citizenship. If the program isn't
attractive to attorneys who do not want to work long hours, their
choice will be, of course, to leave the firm. In response to these
issues, some law firms are now providing more-than-proportional
compensation and advancement, and "proportional" should
therefore be viewed as a minimum position.
Salary
Proportional pay for proportional work is an essential component
of a successful balanced hours program. In other words, working
an 80% schedule should result in an 80% paycheck. Giving balanced
hours employees a "haircut" by paying them, for example,
60% of a full-time salary for 80% of the full-time hours, will
undermine a balanced hours program, and may even create claims
under the Equal Pay Act (EPA) and Title VII. For example, in Lovell
v. BBNT Solutions, 295 F. Supp. 2d 611 (E.D. Va. 2003), a federal
district court in Virginia held that paying a woman chemist who
worked a 75% schedule a lower effective pay rate than a full-time
male chemist, for substantially the same work, violated the EPA;
part-time status alone could not justify a lower rate of pay.
Bonuses
Bonuses
should also be at least proportional. It is a best practice to
reward desirable behavior, whether in a balanced hours program
or any other program, and bonuses can be used to encourage business
development, firm service, professional development, and the like.
In recognition of this, many firms pay bonuses that are based
on factors other than or in addition to the number of hours billed.
Under such bonus plans, balanced hours attorneys should receive
full bonuses for meeting established non-hours-based criteria,
and proportional bonuses for hours-based criteria. Note: when
balanced hours attorneys have worked more hours than their agreements
with their firms call for, some firms recognize the additional
work through a bonus. While it is good to compensate the attorneys
for their additional time, a better practice is to prevent the
schedule creep in the first place or to give the attorneys time
off to compensate them for the extra time worked.
Benefits
This
same principle of proportionality applies to benefits programs,
including health care and leave. An increasing number of firms
provide full benefits to balanced hours attorneys, as reflected
in The Scoop. Firms should review their insurance policies to
see whether their providers have established a minimum number
of hours an employee must work to be eligible for coverage (often
20-25 hours). This minimum may be met by counting all work done
by the attorney, including non-billable.
Advancement
Advancement
opportunities, too, should be at least proportional. For example,
at a firm with an eight-year track to partnership, an associate
who works full-time for four years and then moves to an 80% schedule
should be considered for partnership after nine years. An increasing
number of firms keep attorneys "on track" to be eligible
for partnership with their classes if they work an 80% - 90% schedule.
Firms may look not just to hours worked to determine partnership
eligibility, but also to factors such as skills, knowledge, professional
maturity, judgment, and business development potential. All of
these may be as important as the number of hours put in over the
years.
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