Do I have to reimburse my maternity leave ‘top-up’?

THE QUESTION

My employer pays a "top-up" to me during maternity leave – an amount over and above what I'm receiving from employment insurance. However, my employer has a clause stating that, if I do not stay with the organization for a set period of time following my leave, I am responsible for reimbursing the top-up. I never signed an agreement stating I would follow this policy, but my employer is stating that it is mandatory. Am I bound to pay this back?

THE FIRST ANSWER

Daniel Lublin Employment lawyer, Whitten & Lublin, Toronto

This situation should arise only if you voluntarily leave the company within a set period of time after you return from leave (usually three to six months) and it's something you consented to.

The company has to show that you specifically agreed to this requirement and, without a signed contract, that will be difficult to do.

It's possible for the company to argue that you were made aware of its policy and implicitly agreed to take the money knowing that if you resigned you would have to pay it back. But this is the type of agreement I would expect to be put into writing and without such a document, it will be hard for your employer to enforce.

THE SECOND ANSWER

Billy Anderson Founder, The Courage Crusade

In addition to the legal realities of this issue, there is the non-legal impact on your integrity and reputation.

You want to feel good about your decisions and you don't want to hurt your long-term career opportunities.

Even if you do have a right to refute what they're saying, what impact will that have on your job? Will it taint existing relationships if you put up a fuss?

How important is this job to your long-term career? Will you need this reference, or can you afford to leave on less-than-perfect conditions if need be?

It sounds as if you're already considering not coming back for very long. Does that mean you have existing doubts about this job?

Financially, how important to you is the top-up? Would you be willing to forgo it in order to maintain the freedom to decide whether or not to return and for how long?

Do you have a strong ally in the company (preferably senior) from whom you could get advice? Very often we try to come up with answers on our own, but the best solution usually comes from a discussion.

In the end, the right decision will depend on your values. For example: Do you value freedom more than loyalty? Try to define your top five values and see how they align with the struggle you're now facing.