Editor's Note
The Four Day Workweek and Overtime
We need more time off. We're all trying to do too much in too little time. And I'm not just talking about work, there's all the laundry, groceries, cooking, cleaning, childcare, pet care, plant care, and necessary stuff management like car repairs and cleaning out the garage to find things you haven't needed for a year. Now, it's the holidays where the additional time off is offset by all the extra errands, shopping, preparations, cooking, gathering, cleaning, and stuff management like untangling strings of lights. It may be festive, but it's a lot of work.
The four-day workweek is a good idea. It's great for humans and pretty darn good for companies too (see below). From an employment law perspective, the biggest issue in moving to a four-day week is overtime. But there may be some specific state rules that apply too.
In California, when a company switches to a four day workweek, the employees have to vote to approve the change. California also requires paying overtime any time a nonexempt employee works either more than 8 hours in one day or more than 40 hours in a week. If companies meet the legal requirements and the employees vote for the change, then California law allows employees to work up to 10 hours in a day without overtime. That way, it doesn't cost the employer any more in labor costs to make the change.
And moving to a four day, 32 hour workweek doesn't make a significant difference in productivity. So, you might not even have to worry about overtime.
This is an excellent discussion of what questions to ask and how to plan for moving to a four-day workweek.
- Heather Bussing
The four-day workweek is a hot topic of discussion among employers and employees. There are different ways for businesses to implement a four-day workweek, such as keeping a 40-hour workweek with employees working ten hours a day or reducing the workweek to 32 hours with employees working eight hours a day.
Countries such as Iceland, Germany, and Spain have successfully implemented four-day workweeks across various industries. For example, Spain recently introduced a “New Normal” pilot program in which a 32-hour workweek experiment was implemented across different sectors. Iceland’s government conducted a trial in 2015-2019 where some public sector workers shifted to a 36-hour workweek without a pay decrease. The results showed improved work-life balance, reduced stress levels, and no loss in productivity.
The United States is still in the infancy stage when it comes to the four-day workweek experiment and implementation. A 2023 survey performed by Drive Research shows that nearly one-third (30%) of large companies across the U.S. offer four-day, 40-hour workweeks. A 2024 survey by KPMG reports that 30% of large U.S. companies are exploring work schedule shifts to either four-day or four-and-a-half day workweeks. More than half of employees (56%) would rather work a 40-hour workweek in four days, as opposed to five days, and 58% of employees would choose a four-day workweek over a pay raise.
Is a four-day workweek the right choice for your business?
There are various implications to consider and potential legal issues that businesses should keep in mind before adopting a four-day workweek for its employees.
How Does Federal Law Define the Workweek?
The Fair Labor Standards Act (FLSA) requires certain employers to pay overtime to covered, nonexempt employees who work more than 40 hours per workweek.
The FLSA defines the workweek as a “fixed and regularly recurring period of 168 hours, comprising seven consecutive 24-hour periods.” The workweek need not coincide with the calendar week or the employee’s shift schedule. Employers may choose the day and hour that the seven-day workweek begins and ends, but whatever period is selected, thereafter it must be fixed and recurring. Employers also must keep a written record of the beginning and ending points (usually done in a policy manual or handbook).
While there has been federal legislation that has been introduced in recent years to amend the FLSA to reduce the standard workweek from 40 hours per week to 32 hours per week, none of the bills introduced have been passed.
What are the Potential Legal Implications for a Four-Day Workweek?
- Calculating overtime: While there is no current federal law dictating how many hours can be worked in a single day for overtime purposes, some states have enacted their own laws. For example, Alaska, California, Colorado, and Nevada have laws requiring that employers pay employees overtime if they work more than a certain number of hours per day, which may create issues if employees are expected to compress 40 hours of work per week into four days instead of five.
- Compliance with the Americans with Disabilities Act: Employers should be cognizant of employees with the Americans with Disability Act protections. For example, some employees may experience pain or fatigue and not be able to work longer hours if employees are expected to work longer days to work 40 hours a week in four days. On the other hand, some employees may not be able to produce the same output to accomplish business goals if employees are expected to only work 32 hours a week in four days.
- Employment contracts and agreements: If employment contracts specify the number of hours worked per day and/or the number of days worked per week, the contracts will need to be amended if an employer decides to lengthen or shorten the number of hours worked per week or the number of days worked per week. Additionally, some employers calculate vacation and sick time based on the number of hours or days worked, and a reduction in work hours or workdays could subsequently reduce those benefits if employment contracts or agreements are not amended.
- Childcare coverage: Not all childcare centers provide extended hours for children of employees that are expected to work longer days in a four-day workweek. This may negatively burden parents who rely on childcare during their working hours.
- Customer expectations: Customers may expect certain businesses to be available five days a week. If it is not practical for a business to only operate four days a week, businesses may consider staggering employees’ schedules to ensure full-time coverage for customers.
Conclusion
The four-day workweek is a promising concept with the potential to enhance work-life balance and boost employee morale. However, implementing this model in the United States presents legal and logistical challenges.
Employers must carefully consider federal and state labor laws, potential ADA compliance issues, and the impact on employee contracts and benefits. Additionally, childcare arrangements and customer expectations should be factored into the decision-making process.
While the four-day workweek holds promise, as those discussions and plans take place, employers should keep in mind the possible implications, both legal and non-legal, that may arise before making the transition.
