Notice And Comment: Biglaw Vacation Policies

How would you resolve these different issues?

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Last week, as I mentioned in the personal update that begins each installment of Judicial Notice, I took a quasi-vacation. When you work for yourself and from home, “vacation” is an amorphous concept. But I did take the liberty of turning on my out-of-office autoreply and checking email less frequently than usual (and not feeling as guilty as I usually do over being delinquent in correspondence).

Vacation matters more for most people—especially the overworked denizens of Biglaw. So here’s today’s topic for Notice and Comment: what’s the ideal law firm vacation policy?

Here are my thoughts on three key questions that arise in the context of vacation policies (from an admittedly employee-centric perspective):

1. Is “unlimited” vacation a good thing? This policy is becoming increasingly popular in Biglaw, with maybe 40 percent of firms adopting it, but I’m not a fan. It strikes me as mainly a way for employers to get out of paying employees for accrued time off.
   
   And research shows that employees at companies with “unlimited” vacation policies actually take fewer days off. Why? As Dan Schawbel of the HR advisory firm Future Workplace told Marketplace, “An unlimited vacation day policy creates more guilt around going on vacation because if you take too many days and your teammates don’t, you feel like they have the upper hand when it comes to career advancement.”

2. What about a “use it or lose it” feature? If an employer doesn’t want to pay employees for accrued time off, I think a “use it or lose it” feature is preferable to “unlimited” vacation. In a “use it or lose it” system, employees forfeit vacation days that they haven’t used before a certain deadline (e.g., the end of the year).
   
   This might seem harsh, but it has its advantages. The point of vacation is to give employees the chance to recharge and avoid burnout. A “use it or lose it” policy encourages folks to actually take vacation—which can be surprisingly hard at certain law firms with a machismo around overwork. (That said, if you have to cancel a vacation because of work and then come up against the “lose it” deadline, you should be allowed to carry those days over into the next period.)

3. What’s a good number of weeks of vacation per year? At least three, ideally four. Two weeks strikes me as chintzy, and it doesn’t give employees enough time to get rejuvenated. For folks who like to take two-week vacations, perhaps to visit family in a faraway place, a two-week policy leaves them with no other days off.
   
   Four weeks is perfectly civilized, and it’s fairly common at firms that haven’t moved to the “unlimited” model. But it should be a “real” four weeks, not a policy on paper that gets ignored because associates are pressured into never taking time off.

These are three of the biggest issues; there are a whole host of others. For example, if someone ends up working on a day that’s supposed to be a vacation day, how many hours do they need to work so that the day won’t count as vacation? (Yes, law firms have policies on this.)

So which vacation policies and practices are ideal? And which are just plain cruel?

Please discuss, in the comments. Thanks!

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Thanks for reading Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, you can reach me by email at davidlat@substack.com, and you can share this post or subscribe to Original Jurisdiction using the buttons below.