THE QUESTION
I am going on maternity leave in a few months and my employer has asked me to sign a parental leave agreement. It’s all pretty standard, except there is a paragraph stating that I must repay 55 per cent of my top-up if I don’t return to work for at least six months. Do I have to sign this form? If I don’t sign it, and I decide not to return to work after leave, will I be required to repay a portion of my top-up? How can they enforce it if I am no longer an employee?
THE FIRST ANSWER
Allison Venditti, HR expert and founder of Moms at Work, Toronto
Parental leave “top-up programs” are retention programs that employers put in place to incentivize employees to return to work after parental leave. Most companies insist on 100-per-cent repayment. Other similar programs exist for leadership training and paying for postsecondary training. If an employer pays for an employee to get an MBA, they are investing in that employee for the company’s benefit and they almost always are provided under contract that if they leave within a specific time period the employee would have to pay it back.
Returning to work after having a baby is an incredibly stressful period. A survey completed by Moms at Work of Canadian working mothers found 40 per cent of women considered quitting during the return-to-work process. Top-up programs are meant to help bring women back to work after leave, but they should be part of a bigger program of support.
These programs are optional and at the employer’s discretion so the answer is as follows: Yes, this is common and yes, if you would like to receive the top-up, you will have to commit to returning to work after maternity leave and signing the contract. If you are uncomfortable with this, you may choose to not take the top-up and not sign the contract. As for enforcement, employers can and will use litigation to recoup the money as top-up amounts to a significant investment – more than $20,000 in many cases.
THE SECOND ANSWER
Christie Gilmour, employment lawyer, Forte Workplace Law, Surrey, B.C.
It is legally required for employers to allow maternity/parental leaves and return employees to a comparable position afterward. Even if you don’t sign the parental-leave agreement, your employer must still allow you to take leave and return you to a comparable position.
Parental leave top-up pay is not legally required (except if it is an already agreed term in a contract or collective agreement). This means that if your employer is offering you top-up pay, they can put conditions on it, including repayment terms. You are not required to agree to those terms. If you don’t sign the form or agree to the terms, your employer is not required to provide you with the top-up pay, and likely will not.
It is common for parental-leave agreements to include top-up repayment terms if an employee does not return after their leave or if their employment with the company ends within a set timeframe after returning from their leave. Not all companies enforce these repayment obligations, and some require repayment only if the employee voluntarily leaves the company.
If an employee signs an agreement that has a repayment obligation and the employee does not return or leaves the company during the noted repayment period, they are likely contractually obligated to repay the top-up. If they refuse to do so, the company could 1) do nothing, 2) demand repayment or 3) sue the employee for breach of contract. By refusing to repay the top-up, the employee risks being sued and burning bridges with their former employer.
If the employee does not agree to the repayment terms and refuses to sign the agreement, and the employer decides to pay the top-up anyway, the employer would not be in a good position to require repayment or pursue legal action for the repayment. If the employee does not agree to the repayment terms and refuses to sign the agreement, and the employer pays the top-up inadvertently or because of an administrative error, there may be a requirement for the employee to report that as an overpayment of wages and repay it to the employer.
The employer’s ability to start a lawsuit against the employee for repayment does not depend on whether they are still an employee or not, but would depend on the limitation period to start lawsuits in the particular jurisdiction.
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Andrea Yu