by Tessa Brandsema
American work culture is an international standout—and not always for a good reason. For many, working within Corporate America comes with an all-or-nothing approach of bending over backward for minimal thanks and bragging about who has taken the least time off. Across the pond, this mentality is not the norm. Instead, Europeans emphasize and adhere to a healthy work-life balance, take maternity and paternity leave, and refrain from checking 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 workweek 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 rule brings the hours per workweek to thirty-two, but the employee gets compensated as if working a forty-hour week. The intention is that employees use those thirty-two hours more efficiently because of their newly condensed timeframe. A potential issue occurs with employees’ benefits packages. Employers must ensure that working thirty-two hours per week does not disqualify their employees from the benefits they receive. Specifically, employers must ensure that the decreased hours do not negatively affect benefits hinged on 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 workweek in this model must ensure that all the benefits currently provided to their employees are still available even if hours decrease.
Another possible model — and perhaps one that fits more seamlessly into American hustle culture — is a four-day work week in which employees work the same amount of hours spread over longer days. For a traditional forty-hour week, employees need to work ten hours on each of the four days while pay and benefits stay the same. Ten-hour days also pose 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 longer days? A business must consider these factors before implementing change to avoid alienating workers who may have challenges working longer shifts.
Unintended Effects
One frequently overlooked consequence of the four-day workweek is the unintentional discrimination it may cause. The traditional forty-hour work week centers around a nuclear family, in which one partner works a forty-hour week outside of the home with the support of the other, who tends to all the home and childcare needs. This idealistic concept is far from the current reality of most families. Many two-parent households require both adults to work, and single parents juggle similar childcare concerns. Daycare solutions may not provide care for 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 longer weekends may help resolve some of these challenges, the ability to work a full ten-hour day may remain an obstacle for some employees. These factors can pose potential employment discrimination issues and may result in litigation.
Bringing on New Employees
Many businesses implementing a four-day workweek see an uptick in job applications. This shortened workweek is likely mutually beneficial since workers get longer weekends, and employers enjoy a happier workforce with renewed productivity. Of course, if the business is doing a trial run of the four-day workweek, employers must inform their onboarding employees of this before having them sign a new employment contract. These documents should specify whether the shortened workweek is a permanent fixture of the business and outline compensation details that may be affected by it. If a business discontinues its trial run of a four-day week, the business should immediately inform its employees. Transparency in the change will help avoid 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, the employee handbook must reflect that change. Any compensation or policy alterations based on this change should be elaborated upon in the employee handbook to ensure employees understand the updates.
Overall, switching to a four-day workweek is a change that a business must seriously consider before implementing. The legal implications of a four-day workweek vary from issues found in labor and union law to potential employment discrimination. A business must take time to weigh the factors thoroughly. The four-day workweek can boost morale, increase productivity, and make a company a better place to work — but only if executed thoughtfully.
This post has been reproduced and updated with the author’s permission. It was originally authored on March 23, 2023 and can be found here.
Tessa Brandsema, at the time of this post, is a 3L at Penn State Dickinson Law. Tessa serves as an associate editor of Jus Gentium and the vice president of the Women’s Law Caucus. She is a former graduate from Millersville University, where she studied communication and media, political science, and international relations. Before law school, Tessa spent two years as an intellectual property paralegal.
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Implementing a four-day workweek: Legal issues for employers to consider
Confidentiality clauses that define what employees are forbidden from sharing with the outside world are an important part of employment agreements. Confidentiality policies are a crucial part of any business that has trade secrets to protect from competitors. There is often a significant amount of proprietary information that employers may want to keep locked down. However, some federal government agencies care about what goes into confidentiality agreements and have policies in place to protect employees’ rights. It is important to keep these rights in mind to ensure that employment contracts are not infringing on protected rights.
Section 7 also governs employee criticism of the employer. The NLRB found that overly broad rules that may be construed to ban criticism or protests about supervisors and the employer, in general, are unlawful. This includes statements prohibiting negative comments about the company, “insubordination,” and social media posts that could affect the employer’s business or reputation, to name a few.
Savannah Wilt, at the time of this post, is a third-year law student at Penn State Dickinson Law. She is an MBA student at Penn State Harrisburg and is a graduate of York College of Pennsylvania. Savannah is the current Treasurer of the Business Law Society and is pursuing a career assisting small businesses with legal matters.