Could Capping Billables Force Work-Life Balance?

Before the pandemic, many lawyers may have longed for more flexible time, and the ability to work more from home.

The past year and a half may have challenged those professed goals, especially for those who have other responsibilities or distractions in the home. Working from home does not necessarily mean more personal time, and it does not necessarily mean that there will be less work.

As lawyers slowly make their way back to the office, they’re also revisiting the perpetual struggle to find enough time for self-care and care of others. One of the ideas that has started to emerge is a cap on billable hours, with a directive that any hours beyond such cap will not be compensated or recognized by the firm.

The New York Bar Association advanced this solution in their October 2021 report on Attorney well-being. In addition to many clients moving to alternative fee arrangements to promote productively, efficiently, predictably and cost-efficiency, they also point to the enormous savings to firms from improved lawyer wellness.

The greatest impacts on well-being based on this survey was the lack of boundaries, no down time, client expectations and demands ,and financial pressures. The need for time off was the underlying solution for many of the problems identified in the report, and the problems were often worse in larger firms.

Other industries in various jurisdictions have benefited from these types of interventions.

France amended its Code du travail in 2015 to adapt the workplace for digital technologies, following a 2001 decision that found there was no obligation of the employee to work from home or install files and equipment there. The amendments to Article L2242-8 state,

7° Les modalités du plein exercice par le salarié de son droit à la déconnexion et la mise en place par l’entreprise de dispositifs de régulation de l’utilisation des outils numériques, en vue d’assurer le respect des temps de repos et de congé ainsi que de la vie personnelle et familiale. A défaut d’accord, l’employeur élabore une charte, après avis du comité social et économique. Cette charte définit ces modalités de l’exercice du droit à la déconnexion et prévoit en outre la mise en œuvre, à destination des salariés et du personnel d’encadrement et de direction, d’actions de formation et de sensibilisation à un usage raisonnable des outils numériques.

These restrictions apply automatically to companies with more than 50 employees, while smaller companies would develop their own procedures and communication for staff.

Other European have been closely looking at adopting similar provisions earlier this year, with the European Union passing a legislative initiative to propose a law to allow digital workers to disconnect. Ireland implemented a Right to Disconnect in April 2021 under Section 20(2) of the Workplace Relations Act, 2015 , specifically creating a Code of Practice in response to pandemic working conditions and its Remote Working Strategy.

Ontario recently introduced Bill 27, Working for Workers Act, 2021, which introduces new provisions under PART VII.0.1 to the Employment Standards Act that require a written policy for “disconnecting from work” for any employer with 25 or more employees,

21.1.1 In this Part,

“disconnecting from work” means not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.

The special exemptions to this statute, O Reg 285/01, indicates that Parts VII, VII.1, VIII, IX, X and XI do not apply to lawyers. There is no indication in the government’s bill as to whether this regulation will be updated to include these new provisions.

The Universal Declaration of Human Rights also appears to suggest some inherent or objective basis for limit to the amount of work,

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Lawyers are often exempt from various employment law standards around overtime and hours of work across Canada. Those exemptions may be firmly grounded in valid public policy. That does not mean there should not be greater effort to privately create or foster such limits within firms as a wellness and productivity measure.

Lawyers frequently deal with critical updates and time-sensitive information that may make a complete prohibition on after-hours emails impossible, or even compromise some professional obligations (i.e. during a trial). Managing the volume of those e-mails, in particular through limits on clients and volume of files over the year, may instead achieve this objective.

Dr. Emma Russel of the University of Sussex conducted a systematic literature review of the impact of work-email on employee wellness. Their research found that a culture of trust is more important than e-mail use for managing time and maintaining good workplace relationships. Frequent checking of e-mail allows prioritization, and turning off all alerts may increase workload the next day. Only a small portion of e-mails received at work is non-work critical.

Dr. Russell notes that frequent processing and clearing of email can avoid inbox clutter and feelings of being overloaded. Team inboxes and out of office settings can help set better expectation. Managers and part-time workers may need extra time allocation for dealing with e-mails, and all staff may benefit from adopting best practices.

Concerted efforts to either cap billable hours or limit how much work is done off-site may ultimately be the true solution to lawyer wellness, and should be given serious consideration for all law firms looking to distinguish themselves in the post-pandemic employment landscape.