It sounds dreamy doesn’t it? The other morning on my drive to work, I heard a story on the radio program Marketplace about four day workweeks. According to the most recent Marketplace – Edison Research Poll, nearly two-thirds of the workers polled said they would prefer a four day workweek with ten hour days over the standard eight hour, five day workweek. I suppose the allure of the four day workweek depends on the nature of your work. For me, the thought of work piling up in my absence and having to play catch-up – each and every week – would create more stress than benefit. Apart from the issue of balancing the continuous flow of work, the Marketplace story made me wonder about employment law implications of a ten hour, four day workweek.
The Fair Labor Standards Act (FLSA) requires employers to pay overtime when a nonexempt employee works more than forty hours in a workweek. The ten hour, four day workweek should not create an FLSA issue, unless your nonexempt employee is “secretly” working on his or her day off. However, many states have wage and hour laws that require the payment of overtime if the employee works more than eight hours in a day. Unless these states’ laws are amended, ten hour work days could result in overtime liability, even though the employees work forty hours for the week.
Ten hour work days raise an administrative issue under leave laws such as the Family and Medical Leave Act. If the employee takes a full week of FMLA leave or multiple full weeks of leave, things are easy – you simply count the number of weeks of leave taken against the 12 (or 26) week leave entitlement. However, when the employee takes leave in increments less than a full week, the ten hour day, four day workweek may require the employer to adjust how it calculates leave entitlement. The U.S. Department of Labor’s Wage and Hour Division provides the following guidance in Fact Sheet #28I:
Where an employee takes FMLA leave for less than a full workweek, the amount of FMLA leave used is determined as a proportion of the employee’s actual workweek. The amount of FMLA leave taken is divided by the number of hours the employee would have worked if the employee had not taken leave of any kind (including FMLA leave) to determine the proportion of the FMLA workweek used. . . . An employer may convert the FMLA leave usage into hours so long as it fairly reflects the employee’s actual workweek.
When dealing with a ten hour, four day workweek, it may be easier to convert the 12 week leave entitlement to a 480 hour leave entitlement and track the leave taken on an hourly basis, especially for employees taking leave on an intermittent or reduced schedule basis. For example, in the case of an employee who uses two days (20 hours) of FMLA leave in a week, you can subtract 20 hours from the 480 hour leave total, rather than track that the employee used 1/2 of a week (20 hours/40 hour workweek) of FMLA leave.
The four day workweek may not be coming any time soon. If your workplace is considering making the change to a ten hour, four day week, keep in mind that there could be employment law implications.
