A Nascent Maternity Precedent

On paper, pregnant Russian workers are generously protected: Russian labor law guarantees women five months of paid maternity leave, three years of unpaid leave and other privileges.


But as with a number of Russian laws, the lack of precedents in the courts mean that pregnant women in the workplace may get less than their legal due.


According to Article 165 of the Russian Labor Code, women are entitled to paid maternity leave of up to 10 weeks before childbirth and 10 weeks after, said Glenn Kolleeny, who specializes in labor law for the law firm Baker & Botts. Additional leave is provided for in the event of complicated or multiple births. Article 168 of the Labor Code also provides for 10 weeks of maternity leave for women who adopt children less than 18 months of age.


A woman, at her request, must also be given unpaid child-care vacations until the child reaches three years of age. Russian law also stipulates that the father, grandmother, grandfather, or other relatives or guardian who actually perform childcare are also entitled to such unpaid childcare "vacations."


The Labor Code, adopted in 1971 and amended several times since, provides for more maternity benefits than in much of the West, attorneys said, and offers more protection than even the old Soviet law. During Soviet times, however, pregnant women were in no danger of losing their jobs because the system guaranteed work for everyone.


Today, some multinationals doing business here may try to circumvent Russia's worker-friendly labor laws, lawyers said. Legal experts said there are a number of complicated methods, including offshore employment agreements, that could arguably be used to limit the financial impact of Russian labor regulations.


But in the end, they said, Russian employees will be covered by Russian labor law. So far, though, the lack of precedent-setting court cases on the matter make maternity leave a gray area.


One method Western companies use to get around Russian labor laws is called "secondment," in which the company will contract out workers through an Russian employment agency. The Western employer pays the agency, which in turn "employs" and pays its workers; in this way, legal experts said, the company transfers to the agency the responsibility for complying with labor laws.


But a recent instance involving a young woman who worked for a local multinational under such a scheme raised the question of who should pay for maternity benefits, according to a Western lawyer familiar with the case. The pregnant employee submitted her claim for maternity leave to the agency that employed her. The agency, in turn, said the multinational company should be responsible for paying her benefits.


Even though the claim was for a relatively small amount, the multinational company was against paying for maternity leave because of the precedent it could set, the attorney said. In the end, the company avoided making the payment since the agency was technically her employer.


"This is highly questionable in terms of ethics," said one Russian lawyer, who wished not to be named. "The woman is in a difficult position and she should be protected."


Maternity rights are also spelled out in Article 19 of the Russian Constitution, which guarantees men and women equal rights. The article does make an exception: Pregnant women or women with children under three years can refuse to work nights or overtime, work during days off, or take business trips.


The Labor Code further states that if a new mother cannot perform her regular work functions, she should be transferred to another task until her child reaches 1 1/2 years of age. Women with children under that age are also entitled to additional breaks for relaxation and feeding the child. These breaks should be given not less frequently than every three hours with a length of not less than 30 minutes each. In case the woman has two or more children under 1 1/2 years, these additional breaks should not be less than two hours apart.


For now, women are staying away from testing these points in court.


"Women here usually will not challenge a Western company [for maternity benefits] because there are not many opportunities to work at these companies," said Yury Kondikov, an attorney for the Russian legal firm Business & Law. "Many are concentrating on their careers and will think about children later."