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Do I have to pay maternity leave monies back?

QUESTION: My company offers a maternity leave top up for the first 17 weeks of my leave.  They will supplement the EI I receive so that I end up getting, between EI and their payment, 90% of my regular salary.  In order to get it, however, they want me to sign an agreement that if I don’t return to work and stay for at least a year after my maternity leave I have to pay this money back. I have just been approached by someone else in the industry that has offered me a better position but if I have to pay this money back, the increase in my salary will be eaten up for the first three years. Is this enforceable?
 
ANSWER: Yes it is. There is no law anywhere requiring your employer to provide you with any kind of a top up.  It is a progressive and generous program for an employer to establish. If people are going to take their money and then decide to quit, however, they are not going to want to keep doing it. You can hardly blame them. Most employers will, in fact, make you sign something that says if you don’t return at all or come back but quit soon thereafter, you have to pay all or some of that money back depending on how long you stay. There will usually be an exception indicating that if you are terminated through no fault of your own, you get to keep the money.
 
These programs are set up to reward loyal employees and to support them during maternity leaves. Often, you will have had to have been with the employer for at least a year or so before you are eligible for the program. Whether we like it or not, unfortunately there are too many people who would, without the threat of a lawsuit, take the top up and then move on to greener pastures without a second thought.
 
If someone has come along and offered you a better job, think about asking them to cover all or part of the cost of the payback. If they really want your services, you may have the leverage to obtain a contribution.
 
As published in the Hamilton Spectator, September 20, 2010
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com