Year: 2023

American work culture is an international standout—and not always for good reason. For many, working within Corporate America comes with an all-or-nothing approach, bending over backwards for minimal thanks and bragging rights about who has taken the least amount of time off. Across the pond, this mentality is not subscribed to; rather, Europeans tend to emphasize and adhere to a healthy work-life balance, fully take maternity and paternity leave, and refrain from logging on to check work emails after hours. Recently, a new wave has taken over and carried its ripples over to American shores: the four-day work week. Studies have shown that employees who work four days per week without a cut in a pay report increased job satisfaction, higher productivity, and overall greater happiness. But what are the legal implications for such a drastic shift in the traditional work format? Can smaller companies and start-ups keep up with the trend?

Four days versus four days

The original concept of a four-day work week stems from the 100-80-100 rule: 100% of the employee’s pay for 80% of the hours while maintaining 100% of their original productivity. This brings the hours per work week to thirty-two, but the employee is still compensated the same as they were while working a 40-hour week. The intention is that employees use those thirty-two hours more efficiently because of their newly condensed timeframe. An immediate potential issue here is with employees’ benefits package: employers must ensure that working thirty-two hours per week does not disqualify their employees from any benefits they received on the contingent that they were working full-time. If, for example, an employee is dropped from their healthcare coverage because they are no longer working forty hours each week even though they are technically still full-time, this could violate an employment contract and raise a potential legal dispute regarding compensation. To avoid these issues, employers looking to implement a four-day work week in this model must ensure all the benefits currently provided to their employees are still available to them if hours are reduced.

Another model that is being adopted—and perhaps one that fits a little more seamlessly into American hustle culture—is a four-day work week in which the same hours are worked, just spread over longer days. For a traditional forty-hour week, that means employees need to work ten hours on each of the four days, while pay and benefits stay the same. Ten-hour days also pose a unique set of legal challenges for companies: will some employees need additional breaks throughout the day, especially minors or those with disabilities? Are all of the employees physically capable of working a longer day? It is crucial for a business to take these factors into consideration before implementing change to avoid alienating workers who may have challenges working a longer shift.

Unintended effects

One of the frequently overlooked consequences of the four-day work week is the unintentional discrimination it may cause. The traditional forty-hour work week was created around the concept of a nuclear family, in which one partner worked a full week outside of the home with the support of the other, who tended to all of the home and childcare needs. This idealistic concept is far from the current reality of most families: to stay afloat, many two-parent households require both adults to work, while single parents juggle similar childcare concerns. Daycare solutions may not provide care for the full duration of a ten-hour day, leaving child-rearing parents in a lurch with scheduling. If longer, ‘after hours’ childcare is available, it may be too costly for workers to afford.

Additionally, longer days may disproportionately affect employees with physical and mental health concerns. Working an additional two hours per day can disrupt medication schedules, overlap with physical therapy and doctor’s appointments, or cause scheduling conflicts with mental health counseling services. While a longer weekend may help to resolve some of these challenges, ability to actually complete a full ten-hour day may remain an obstacle for some employees. All of these factors can pose potential employment discrimination issues and may result in litigation.

Bringing on new employees

Many businesses that implement a four-day work week see an uptick in job applications, and many view the shortened week as mutually beneficial: workers get a longer weekend, and employers can enjoy a happier workforce with renewed productivity. Of course, if the business is just doing a trial run of the four-day work week, it is crucial for any onboarding employees to know that fact before they sign a new employment contract. These documents should specify that whether the shortened workweek is a permanent fixture of the business, as well as outline compensation details that may be affected by it. If the business chooses not to stick with a four-day week in the future, they do not want their employees to be blindsided by this decision, nor have a large influx of resignations should the company decide a short week is not the best fit.

If a company does elect to shift to a shortened week, it is imperative for the employee handbook to be updated to reflect that change. Any compensation or policy alterations that occur because of this change should be elaborated upon here as well to ensure employees are put on notice of the updates.

Overall, making the switch to a four-day work week is a change that should be considered seriously before implemented. The legal implications vary from issues found in labor and union law to potential employment discrimination, and it is important that the business take time to weigh these factors thoroughly. The four-day work week can boost morale, increase productivity, and make a company a better place to work—but only if executed thoughtfully.

https://www.siskinds.com/four-day-workweek-legal-issues-for-employers/

https://www.fisherphillips.com/news-insights/4-day-workweek-right-for-your-business.html

Image sources: https://www.theatlantic.com/family/archive/2021/06/kickstarter-four-day-workweek/619263/ & https://www.emburse.com/learn/blog/heres-how-much-a-4-day-work-week-saves-on-business-expenses

For many nascent entrepreneurs caught up in the many layers of starting their business, building an intellectual property portfolio is not at the top of their priority list. In light of fundraising capital, navigating the real estate market for the ideal property, and building initial inventory, thinking about intellectual property filings might stay on the back burner. However common this scenario may be, it is a mistake—one of the most critical elements of any business is its name (and subsequent branding!) and ensuring that your preferred name is both available and enforceable should be a main prerogative.

What’s in a name?

When you think about the marketplace giants that we interact with every day—like Apple, Amazon, and Google—you will notice that their names are concise, unique, and recognizable. Entrepreneurs brainstorming a name for their product or business should try to emulate this blueprint, and not just because it is a smart marketing strategy, but because these names are likely to be more easily trademarked.

A trademark is a form of intellectual property protection that can be used to protect a name, logo, slogan, or trade dress, and they are used to identify a source for a specific good or service. The goal of a trademark registration is to protect consumers from confusion by source identifiers that are too similar or are likely to be confused by the average customer. This preserves the integrity behind a brand and prevents third parties from being able to make a profit off the goodwill and quality associated with another’s products or services.

For example, the United States Patent & Trademark Office (also known as the USPTO) is almost certain to refuse a trademark application for a search engine called Gaggle. This is a rather obvious attempt by the applicant to align themselves with Google’s search engine and be associated with the goodwill already stored in their brand, therefore drawing in customers who may think that their product is associated with Google. Furthermore, Google could be harmed by this likelihood of confusion if Gaggle puts out a poor product, causing consumers who believe the two companies to be related to hold Google in a low regard as a result of this faulty new search engine.

On the other hand, trademarks that are identical but represent different goods and services are allowed to coexist on the federal register. Delta is a prime example of this: two large companies with the same name, but one is an airline, and the other makes appliances like kitchen sinks and faucets. The chance of a consumer mistaking the source of these goods or services with the other is incredibly low, and thus the two trademarks are permitted to coexist peacefully.

Performing a search

These nuances are important to keep in mind as an entrepreneur selecting a name for their new business. If you would like to explore what options might be taken already but have not yet retained an attorney to assist with your start up, you can go to the USPTO website and use their Trademark Electronic Search System (TESS) to research what trademarks exist and may conflict with the one you have selected. After all, why get attached to a name and make plans based upon it, only to later find out that it is not a viable option for your business and need to start over unnecessarily?

Keeping in mind that the USPTO may issue refusals based on multiple grounds, including but not limited to identicality, likelihood of confusion, phonetic equivalents, and foreign language translations, it may be in your best interest to have an intellectual property attorney help with your search. Many law firms utilize special trademark search engines that are not accessible by the public, and these searches are much more sophisticated than the one available on the USPTO website. These comprehensive results can give you a better understanding of your name’s likelihood of success if you choose to file a trademark application. While some entrepreneurs may balk at yet another cost in the beginning stages, ensuring that your ideal company or product name is both available and protectable is invaluable down the road.

Policing & prevention

Trademarks are not only useful because they allow the enforcement of rights in the event of an infringement, but they can act as a deterrent before that even occurs. Think back to the preliminary searches mentioned just a few moments ago; in the event you found a conflicting preexisting mark, what would your course of action be? When a unique and protectable name is the goal, a business owner is more inclined to shift gears and turn to an alternative name that is more likely to afford their company an enforceable registration with the USPTO. The same is likely to be true for other parties searching the register and coming across your trademark—rather than continuing on with the name they originally selected, they will steer clear of anything too close to yours in an effort to avoid any confusion or potential litigation.

While common law trademark rights can be established just through use, obtaining a federal registration has many benefits for the owner. A federally registered trademark puts the public on notice that rights are reserved within the mark, acting as a deterrent for potential infringers who stumble across it, whether that be through a search of the USPTO website or by seeing your mark with the ® symbol next to it. Trademarks work hard to protect your brand by proactively discouraging infringement from taking place, making them a worthwhile investment for any entrepreneur. Starting a business is hard enough as it is—make sure your investments and branding are safeguarded by a trademark registration that can provide some peace of mind.

Sources:

https://www.uspto.gov/trademarks/basics/what-trademark

Chad Jalandoni, How to Conduct a Proper Trademark Search, Gerben Intellectual Property, https://www.gerbenlaw.com/blog/how-to-conduct-a-proper-trademark-search/.

 

Images: https://www.redpoints.com/blog/how-to-do-a-trademark-search-and-why/ & https://bonamark.com/