Delaware Employment Law Blog

Utah was the first (and only) state in the U.S. to move to a mandatory four-day workweek.  Under the system, which was implemented by former Gov. Jon Huntsman in 2008, almost all state employees were converted to a schedule of four, 10-hour days per week.  As readers of this blog may recall, I have not been the biggest proponent of the four-day workweek.  See The Cons of a 4-Day Workweek.  

But not everyone agreed.  In fact, for a while, the compressed-week schedule was very, very popular and local governments around the country began to initiate pilot groups to test it.  These efforts were supported by announcements that the Utah program was generating lots of savings for the State and lauded as an official "success." 

Well, as it turns out, Utah may have been wearing rose-colored glasses when it made the "success" determination, according to a recent audit. The State admitted that it had not seen the reduced energy costs that it had hoped for (realizing only about $500,000 in savings in the first year, as compared to the expected $3 million).  But the audit says it goes a bit deeper, finding that the State overestimated how much money it saved in saved overtime and other costs.  In fairness to the Utah program, though, employee surveys do indicate that employees prefer the four-day workweek, so there must be some supporters. 

Katie Keuhner-Herbert's article on Human Resource Executive about the audit and the four-day workweek program in Utah. See Reassessing Four-Day Workweeks.  The article points out some of the flaws in the four-day workweek and pinpoints some sticking points for employers and employees alike.  (For purposes of full disclosure, I'm quoted in the article--but don't let that deter you.)

See also

Workplace flexibility has been a hot topic, a highlight of which was President Obama's White House Forum on Workplace Flexibility, televised earlier this week. The forum was designed as an opportunity for labor leaders, CEOs, small business owners, and policy experts to share their ideas and strategies for making the workplace more flexible for workers and their families. During the conference, the President compared flexible work schedules to the early stages of email: some companies have it, some don’t, but eventually, all companies will. Get ready employers – if you haven’t gotten aboard yet, the train may run you over!

With healthcare out of the way, the administration is freed up to focus on other priorities. During the campaign, then-candidate Obama included work-life issues as an important part of his agenda, committing to expand FMLA, to prevent caregiver discrimination, and to offer incentives to employers to expand flexible work arrangements.  The forum indicates  that work-life issues remain a focus of this administration. Although the Obamas now have a personal chef, chauffeurs, and other assistance to make their “balance” a little easier, I am sure that Michelle’s experience managing a demanding career and raising her two girls has helped to ensure this issue remains on the President’s radar screen.

The discussion has taken different varied focuses over the years, but the bottom line is this: for many reasons, in order to retain employees in the modern workforce, employers have to reinvent the old model of an ideal worker. Flexible work schedules are over and over again focused on as the reasonable way to accommodate the needs of both employer and employee. The impetus for employers to engage in this discussion has  evolved a bit over the years.

First, employers were interested in the topic primarily due to the economics of investment in skilled workforce (particularly professional women), who often left the job because unable to balance their work and family responsibilities. Then Gen Y came along, with both males and females placing a greater value on “down” time, whether with family or pursuing other activities. Gen Y consistently ranks workplace flexibility among the most desirable employment benefits. With the economic downturn, the discussion turned to how flexible schedules could immediately help the bottom line (4-day workweeks, voluntary reduction in hours for reduction in pay, etc.).

Law and politics have not shied away from the discussion: both Republican and Democratic administrations have made important advancements to the cause of work-life balance. In 2007, the EEOC under the Bush administration issued it Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiver Responsibilities. In 2009, Obama’s administration issued  Employer Best Practices for Workers with Caregiver Responsibilities, which focused primarily on flexible work arrangements. The White House Forum has work-life balance advocates everywhere eager to see what will come next!

See these related posts for more about work-life balance:

Resources for Work-Life Balance and Flexible Work Arrangements

Maybe It’s Not All Gloom and Doom for Work-Life Balance

Looking a Flexible-Schedule Gift Horse in the Mouth

Caregiver Discrimination: The "Sandwiched Generation"

5 Steps Toward a More Flexible Workplace

EEOC issued Employer Best Practices for Workers With Caregiving Responsibilities, a technical-assistance guide, last week.  Caregiver or Family-Responsibilities Discrimination, according to the EEOC, occurs when an employer makes an adverse employment decision based on the employee's care-giving responsibilities.  Because this type of discrimination is a derivative of gender discrimination, the basic premises begins with parents of young children.  But it extends in the opposite direction, as well, to employers whose own parents are the ones in need of caregiving.  This second category is the less commonly recognized of the two forms of discrimination.  But there is a third type, as well.  A  dual-income household where both caregivers are working and care not only for children, but also for aging parents, is known as a "sandwiched" home.  The sandwiched generation are those who are at a very fragile point, having responsibility for multiple generations.

As many as 9-13% of American households can be characterized as a sandwiched household.  The typical couple includes a 44-year-old man and a 42 year-old-woman, who have been married for just less than 20 years. Both spouses work full time.  There are two children in the home and two aging parents who require assistance in performing daily tasks of living, such as transportation, shopping, making care-related decisions, housekeeping, and managing money.  

Until the economy enjoys a significant improvement, it is easy to imagine that the number of sandwiched households will continue to grow.  Aging parents who, in good financial times, may have been able to afford the expense of assisted living, may see a more reasonable option as living with an adult child.  Of course, as we continue to outlive previous generations, the number of aging parents will continue to grow. 

Employers can play a key role in the lives of employees facing these challenges at home.  Of course, alternative work schedules can be used to attract and retain the best employees of all ages and in all stages of life.  To a group facing extraordinary pressures at home, an alternative work schedule may separate a good employer from a great one. Even aside from these more formal workplace initiatives, though, employers can take important steps to improve the work-family culture in the workplace.  Managers who are sensitive to employees' personal needs, for example, can be a great source of comfort to an otherwise over-burdened employee.  Guilt is not an emotional area in which they come up short and it's the last thing they need to feel at work when the pressures of home require them to leave early or to take a longer lunch.

For more on Family Responsibilities Discrimination (FRD), see:

Family Responsibility Discrimination. Download of a Short and Sweet Summary of the FRD Now Available

Flexible work schedules come in every shape and size. Job sharing is just one type of work arrangement that offers employees flexibility and, in turn, the opportunity for an approved work-life balance. But what exactly is job sharing?  It's just what sounds like--employees share job duties as a way to reduce each person's job duties. Essentially, job sharing is a type of part-time work. It involves two or more workers who are responsible for the duties and tasks of one full-time position.

Some job shares are set up so that each employee handles specific duties.  Other job shares have a less formal division of duties. In either set up, the employees coordinate their schedules so that the regular "shift" is always covered.  When one job sharer is not working, the other is.  There is usually some overlap in scheduling to enable the sharers to communicate.  The division of time can be split evenly but any assignment can be successful.

The most basic requirement for potential job sharers is a well-honed sense of teamwork.  An employee who tends to be controlling of his or her duties may have difficulty in letting go of that control to another employee.  Communication skills also are critical.  The job sharers must be able not only to work well together, but also to be able to communicate when things are going well and when things are going not so well. 

Telecommuting has been on the rise for several years. Worsening economic conditions have increased the telecommuting trend more than ever, as employers begin to take notice of its potential cost savings and reduced overhead.   Many employees, though, worry that they lack the discipline required to telecommute effectively.  Working from home does require discipline. It requires the employee to be aware of potential distractions that are not issues in the traditional workplace. 

But there are strategies to make working from home work for you.  If your employer has asked you to consider telecommuting or if you recently started working from home, here are a few tips to help you succeed at telecommuting:

1.  Stick to a schedule

By scheduling break and meal times, you can prevent taking too many breaks during working time.  If you have a set schedule for lunch, you will be less inclined to take multiple trips to the fridge to "grab a snack."  And when it's time for a break, really take it.  This time to clear your head is critical to continued clarity during working hours.

2.  Dress for success

Don't work in your pajamas.  Get dressed for work as you would if you actually had to leave the house to go to work. We are so susceptible to visual clues that we'd be kidding ourselves to pretend that we don't act the way we look.  So dress the part--it will help you remember that you're not on a vacation day but, instead, need to get down to business.

3.  Set the stage

A similar strategy is to create an office environment that is dedicated just to work.  And when work is done, leave the "office" and join the rest of the family in the rest of the house.  If you are able to have a separate room where you will work during the day, leave the room and close the door at quitting time and don't return until the next day.  The purpose of telecommuting is not to meld your working and non-working times into a single, undistinguishable 24-hour cycle. Just because your office and your home share an address does not mean that you're on call at all times. 

Delaware's largest industrial employer is asking its salaried workers to take at least two weeks' unpaid leave.  75 of the company's senior leaders announced that they will take three weeks off without pay in response to the current market conditions.  There are a number of reasons to consider initiating this type of voluntary program instead of involuntary layoffs.  According to the article reported by the Wilmington News Journal:

Employers appear to be favoring voluntary programs, according to a February survey by Watson Wyatt consulting firm. Eleven percent of the 245 U.S.-based companies surveyed have instituted mandatory furloughs, while another 6 percent expect to launch a program in the next 12 months.  By comparison, 10 percent already have had voluntary furloughs and another 9 percent are expected to ask for voluntary furloughs within the next 12 months, the survey said.

A DuPont representative cited the current preference for flexible work schedules as one reason for its decision to initiate the voluntary program.  Another reason was that it made compliance with foreign laws easier than if an involuntary layoff program had been utilized. 

For those of us on the East Coast, where summer is king, now may be an ideal time to consider offering a flexible-downsizing initiative.  If your organization is trying to cut labor costs without having to layoff its valued employees, you may want to think about unpaid leave, voluntary furloughs, and reduced-schedule work week.  If your employees traditionally flock to the beach on Friday afternoons, they may jump at the chance to work a four-day week for 4/5 of their normal pay.  Even a temporary program for the summer months may be enough to enable your organization to stave off unwanted involuntary reductions.

I'll be conducting an audio conference on layoff alternatives in June for M. Lee Smith Publishers.  Be sure to check out the HR Hero website for lots of resources on employment-law and human-resource topics, including information about voluntary and mandatory furloughs.  Delaware employers can learn more about the legal considerations involved in layoffs at our annual Employment Law Seminar on April 29.  (Learn more about the employment-law seminar here and register for the seminar here).

Utah's four-day work week has been in place for nearly a year and the numbers are in. According to state officials, the energy savings have not materialized but there have been increases in employee productivity and reported worker satisfaction. State planners report the following benefits to the four-day work week:

• Less overtime hours worked
• Less leave taken
• 70% satisfaction

NPR ran an article on the reduced-workweek program. There was no mention in the article about how the "increased productivity" was measured.  But it did include the opinion of one state employee who is not in the 70% of "happy workers." 

Nicki Lockheart is quoted in the article as saying about the alternative work schedule, "I hate it."  "A 10-hour day for me is like eternity," she says.

By the time the customer service agent gets home and eats dinner, she says, it's time for bed. By Friday, Lockhart is so stressed out, she gets headaches. 

Gov. Huntsman will decide whether the pilot program goes permanent later this summer. 

Previous Posts on the Four-Day Work Week:

Flexible schedules is a topic of particular interest to me, in some part, because I am the grateful beneficiary of one.   I commend employers, including my own, who have made the enlightened and informed decision to offer this benefit.  It's a decision that I firmly believe will pay dividends in employee loyalty and ultimately save the employer money on hiring, retraining, etc.

Raising happy, healthy, adjusted children is the responsibility of our entire population, and the burden of doing so should not rest on the mother’s shoulders alone. However, the United States, unlike other industrialized nations, has little legislation to promote this ideal. Absent the FMLA, permitting new parents 12 weeks (unpaid) to bond with their children, and the Pregnancy Discrimination Act, which prevents employers from discriminating against women on the basis of their pregnancy, accommodations or benefits to assist new mothers in balancing their work and families are left largely to the employer’s discretion.

WorkLife Law has advocated aggressively and effectively on behalf of working mothers, suggesting litigation through existing statutes where possible to remedy inequities with respect to mothers in the workplace. In part due to their efforts, the EEOC issued its guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities , which helped to focus employers and EEOC investigators on subtle biases about the commitment of working mothers to their job responsibilities, that may result in actionable discrimination cases.

A recent “Employer Alert” from WorkLife Law, however, has taken it too far, suggesting the following:

Continue reading "Looking a Flexible-Schedule Gift Horse in the Mouth" »

The four-day work week is very popular among public employers these days.  Employers who have implemented a compressed work week program successfully say they've enjoyed benefits such as saved energy costs, decreased absenteeism, and improved employee morale resulting from the change. 

I don't believe that a four-day work week is the solution of all solutions, as some have claimed.  But I do believe that there are certain organizations that, because of their structure and purpose, can be good models for the program.  The ideal candidates, though, are almost always government employers.  A mandatory four-day work week, generally, is not realistic in the private sector.

But does that general proposition lose its vigor in a bad economy?  Can the four-day work week be implemented in the private sector more effectively because of the downturn?  It turns out that flexible schedules can have important benefits in an economic downtime, just as they can in times of fiscal health.  The trick, though, is to get employers to be aware of the opportunities.  

Fast Company blogger, Cali Yost, has an ongoing series of posts about the benefits of "flexible downsizing" and why employers are better suited to consider this option as opposed to layoffs.  In a recent post, she explains:

There are creative, cost-effective ways to use strategic work+life flexibility to reduce labor costs while remaining connected to valuable talent. These options include reduced schedules, job sharing, sabbaticals, and contract workers.

In a recent interview with Penn professor and author, Dr. Peter Capelli, Yost questioned why more employers aren't taking advantage of the benefits that can be derived from a flexible-downsizing initiative.  Most employers, said Capelli, are too short-sighted, focusing only on short-term cuts instead of the longer term savings to be had.  Capelli asserts that it is cheaper to retain an employee at  5% reduction in pay than to layoff 5% of the workforce because "there are no severance packages; the legal liability and associated costs are much less; and the savings come instantly without the agonizing administrative process of figuring out who has to go…”.

Flexible downsizing is also a valuable option when employers are trying desperately to avoid layoffs--at the cost of the fiscal health of the organization.  These companies are so pained by the thought of laying off personnel that they avoid doing so to the extent that it actually results in more layoffs in the long-term.  Alternatives such as voluntary, across-the-board pay cuts, reduced-hour schedules, and furloughs of even a few weeks can mean the difference between voluntary, and relatively minor, cut-backs now and involuntary and severe cut-backs later. 

The four-day work week is touted as a way for employers to offer employees a more flexible schedule.  The demand for flexible and alternative schedules continues to grow.  There are a number of reasons for this increased demand.  The influx of Generation Y workers has played a role, for one.  Also, the increased focus on work-life balance mandates the need for flexible scheduling.  And, as the workplace becomes more and more mobile, the need for office workers to actually work from the office continues to diminish.  

There are many ways in which employers can implement flexible-schedule programs.  When done right, these programs can act as ways to recruit the best candidates and retain the best employees.  But not all flexible workplace programs are created equally.  And, in my opinion, one of the most hyped offerings, the four-day work week, doesn't meet the criteria at all.  In a short post for the Sloan Work and Family Research Network, I write about Why the Four-Day Work Week Would Be the Death of the Flexible-Schedule Initiative.  In the post, I address some of the reasons why I think the four-day work schedule cannot, by definition, classify as a "flexible work schedule." 

In Delaware, courts take a holiday on December 26.  Accordingly, most law firms are closed for the day, including ours.  And, not surprisingly, many Delaware lawyers will work anyway.  Duty calls. 

Is there a way to accomplish those important work tasks without having to sacrifice family time?  Enter telecommuting.

Technically speaking, telecommuting is one of many flexible work initiatives.  A telecommuter works from home full-time or several days out of the work week.  Telework or telecommuting involves work that normally would have been performed from a central office setting but can now be performed at home or remote location.  Telework requires the use a computer, an internet connection, telephone, scanner, and, perhaps, a fax machine. 

Telecommuting is an employment arrangement that involves moving work to the workers instead of workers to work.

Proponents of telecommuting claim (with good support), that efficiently run programs can offer employers the following benefits:

• Cost Savings through the reduction of overhead and fixed costs, such as rent.

• Increased Productivity of 10-40%, due in part to the absence of typical office interruptions.

• Improved Motivation of employees who see the program as a sign of trust and confidence.

• Skills Retention when an employee who would otherwise leave the workplace is able to stay. Includes employees on maternity leave, whose families move out of the area, whose disability prevents them from working in the standard office set-up, or who are nearing retirement but who the employer wants to retain as long as possible.

• Organization Flexibility is substantially improved. Teams can be created without consideration for geography or the need for travel. 

• Flexible Staffing by reducing the number of hours worked to those with the highest demand.

• External disruptions, such as natural disasters, inclement weather, traffic problems, and even security issues, have a lesser impact on the organization's ability to operate at a fully functional level.

• Enhanced Customer Service, which can be extended beyond the working day or the working week without the costs of overtime payments or the need for staff to work non-traditional business hours.

Each of these claimed benefits have at least some legitimacy.  Although telework may not be appropriate for every type of job or every type of workplace, it certainly seems to be attractive on a day like today when there's no need to be in the office and when my mother-in-law's cookies are guaranteed to be gone before lunch!

For more information on telecommuting or other flexible work schedules, be sure to see the Working TIme category, under Telecommuting.

Flexible work schedules are continually becoming one of the most demanded employment benefits.  Life Meets Work is an organization that promotes flexible work schedules and alternative work arrangements. The organization is currently conducting its first annual survey on the topic of work-life balance.

The goal of the survey, called Flexing, Floundering, or 'Just Fine Thanks': Work/Life Issues in America, is to capture the opinions of Americans challenges in balancing work and life, the role of government in work-life initiatives, and flexible work programs. Life Meets Work also wants to hear about the flex programs, and work-life initiatives from an employer's perspective.

Whether you're working parent, stay-at-home mom, business owner or human resources executive, Life Meets Work want to hear from you. The survey takes less than 10 minutes to complete. Your responses are confidential.

The results of the study, along with a corresponding white paper, will be presented on a free Webinar, appropriately titled after the survey,  on October 28, 2008.

With the ever-increasing interest in alternative work schedules, Americans are curious how the candidates in this year's election feel about work-life issues, particularly our first woman (and mother)  Vice Presidential nominee.  MomsRising.org is an advocacy organization lobbying for the need of a more family-friendly America. They have drafted the following letter they encourage you to sign and submit to Governor Palin. The letter reads as follows:

Dear Governor Palin,

It was dazzling to see a mom on the stage at the Republican convention accepting  the Vice Presidential nomination.  There are too few mothers in the boardrooms and high levels of political office.  As members of MomsRising.org we celebrate your path from PTA to Vice Presidential candidate, but we didn't hear much in your speech about what you and your party will do for mothers and families. 

Due to the economic downturn, mothers and families are struggling more than before.  A quarter of families with children under age six are living in poverty, and having a baby is a leading cause of a “poverty spell” in our nation--a time when income dips below what’s needed for food and rent.  Women get a huge wage hit when they have children: mothers make only 73 cents to a man’s dollar, and single moms make only about 60cents.  Countries with family-friendly policies and programs in place--like paid family leave and affordable childcare--have smaller wage gaps for mothers, healthier children, and spend less funds later on the criminal justice system, grade repetitions, healthcare, and much more.

Our nation can’t afford to ignore the issues of mothers and families any longer.  We want to know where you stand on the issues which are critical to mothers like healthcare, fair pay, paid family and medical leave, afterschool programs, childcare/early learning, paid sick days, and flexible work options.
With now three-quarters of American mothers in the labor force, but a societal structure which hasn’t caught up to that modern reality, we, as a nation, are at a crisis point for our families.  Bottom Line: Mothers want to ensure the well-being of their families.  No mother should have to choose between taking care of a sick child and feeding her child. And no mother should have to choose between taking her child to the doctor and paying rent.

Governor Palin, if elected Vice President of the United States, how will you support mothers and families? Mothers across the nation look forward to hearing where you stand on our issues.

To submit this letter, visit MomsRising.org , and simply sign your name electronically to the letter, which will then be submitted by the organization to Palin.

Alternative schedules, such as "4/10s" (a/k/a four-day workweeks), have been hot topics for the past several months.  I know I've put more than my two cents worth of commentary out there recently.  So why is it that only a tiny percentage of the country's employees report having access to such flex-time initiatives? 

In a recent Gallup Poll, only 12% of workers say that their employers encouraged its employees to work from home one or more workdays per week.  And only 16% say that the idea of the 4-day workweek has been supported by management.  Yes, these are increases from alternative schedules reported in the past but they can hardly be considered to be representative of the general population. 

What hasn't increased, though, is telecommuting.  There has been 0% increase in the number of respondents who say they telecommute at all.  Well, no, that's inaccurate--that number has actually fallen 2%, down to 30% today as compared to 32% in 2006. 

What I found most important was the finding that employees who reported that they have telecommuted say that they do so as a way to put in extra hours on nights or on weekends.  Telecommuting, it seems, has no correlation to a reduced cost of driving. 

Any employer considering a four-day work week should consider the possible legal implications before making the plunge.  Four-day-work-week policies potentially invoke several employment laws that may impact the decision-making process.  So, prior to switching to a compressed schedule, read on for some thoughts on how such a switch may trigger obligations under the ADA, FMLA, NLRA, and other significant employment laws.

[This post covers an important topic in some detail and is may be a lot of information to digest at once. I've made the material available in a pdf via the link below]

The Americans With Disabilities Act

The Americans With Disabilities Act (“ADA”), prohibits workplace discrimination against qualified individuals with a disability. Employers have an obligation to make reasonable accommodations to the known physical or mental limitations of an individual, unless the employer can show that the accommodation imposes an undue hardship or the person poses a significant risk of substantial harm to himself or others.

There is some risk that a compressed work week may have negative consequences for employees protected by the ADA.  For example, employees who have a disability that causes fatigue or weakness may require shorter work days and longer work weeks as a reasonable accommodation. In a workplace where all employees are converted to a compressed work week, the ADA would not require the employer to make an accommodation for the individual.  In that case, though, the employee who is unable to work an extended shift could find himself unemployed.

Of course, you may decide to offer the employee the opportunity to convert to a part-time schedule, thereby enabling him to continue on the reduced-hour shift. But if this alternative would cause the employee to lose his or her health-care coverage, it may not be seen as an alternative at all. Where only some of the workforce is converted to the reduced-day schedule, the employer should make every reasonable effort to preserve the employee’s accommodation by ensuring that he is not required to convert to the compressed work week.

Another scenario with the potential for negative consequences is in the case of an employee who takes time off for the treatment of a long-term or chronic condition. For example, an employee may be given off every Thursday afternoon so that he can receive kidney dialysis. This type of accommodation may have a more serious impact on the productivity of the workplace in a
four-day week. If he had previously been permitted to leave on Thursdays at 3pm instead of 5 pm, the company could be said to have lost 2 hours of work product during that time. Yet, in the compressed work week, the employee, who was too fatigued to return to work following his dialysis treatment, would now be out from 3 pm to 7 pm—doubling the lost time to 4 hours.

Although the employee may be able to push back the time for his weekly appointment to 5 pm, or even reschedule them for Friday afternoons instead, it is also possible that he may not be able to make the change for any number of reasons. It is safe to presume that he needed the appointment on Thursday originally for a reason, thereby necessitating the accommodation in the first place. In this case, the employer would have to find a way to work around the four hours of lost productivity. It would likely violate the ADA to revoke the employee’s accommodation.

The Family and Medical Leave Act

The Family and Medical Leave Act ( “FMLA”), provides up to 12 work weeks of unpaid, job-protected leave in a twelve-month period for one of four qualifying reasons: (1) the birth of a child and the first year care of the newborn; (2) the placement of a child through adoption or foster care and the
first year care of the child; (3) the need to care for a parent, spouse or child with a serious health condition; and (4) the serious health condition of the eligible employee.  The FMLA provides for intermittent leave, which is taken in separate blocks of time due to a single qualifying reason.

The same concerns identified in the ADA scenario, above, are also present in the context of FMLA intermittent leave. Because the 4/10 schedule puts a heavy emphasis on increased productivity via a shortened work week, absenteeism would have a greater impact.

But productivity is not the only concern. The more stress put on an organization as a result of an employee taking protected leave, the more likely it is that the employee will be subject to unlawful retaliation. Supervisors who are unfamiliar with the anti-retaliation provisions of the FMLA may be more likely to terminate, or take other adverse action against an employee who is on
protected leave.

The National Labor Relations Act

The National Labor Relations Act (“NLRB”), is the statute that governs union activity. As the NLRB has been interpreted, a change in work schedules is a mandatory subject of bargaining. In other words, employers in the unionized workplace may not unilaterally institute a four-day work week policy. Instead, the union would have to consent to such a change. This, of course, could trigger negotiations on other, unrelated issues. 

The Fair Labor Standards Act

The Fair Labor Standards Act (“FLSA”), controls the way in which regular wages are determined. The FLSA mandates the minimum wage, for example. It also provides the standards for what constitutes overtime hours and how overtime rates are calculated. It regulates what pay records employers must maintain and for how long.

Finally, the FLSA is the law that governs child labor.  The FLSA imposes limits on the hours that a minor under 16 can work. Parallel state laws often impose stricter limits—regulating which hours, the total number of hours, and the maximum number of consecutive hours that a minor may be permitted to work. The U.S. Department of Labor provides a link to each state’s child-labor laws. Be sure to check every state in which you may employ children under 18 so that you are in compliance with those state’s laws, as well as the FLSA. (http://www.youthrules.dol.gov/states.htm)

Some of the most misunderstood provisions of the FLSA are the overtime regulations. According to federal law, employers must pay non-exempt employees at one and one-half times the regular rate of pay whenever the employee works any hours in excess of 40 during the work week. Federal overtime law does not require premium pay for time worked in excess of 8 hours per day.
It is common practice in many industries, though, to pay overtime (or even double time) to employees who work a shift longer than the standard 8 hours.

How these industries would handle a compressed work week is unclear. It seems highly unlikely that those employers will continue to pay a premium rate for what would be standard time. As a result, employees who have come to rely on the extra income may resist making the change. Would the drop in pay drive the employees to look for work with another organization?

In a few states, including Alaska, California, Colorado, and Nevada, employers are required to pay an overtime rate based on the number of hours worked per day, as opposed to per week. So, in Alaska, employers who implement a compressed work week will be required to pay employees two hours per day, or eight hours per work week at time and one-half of their normal hourly rate.  Calculated over the period of a year, this means that employers would be paying for approximately 400 hours per employee for time that was not actually worked.

Special Considerations in California

California employers face additional obstacles. In accordance with the California Labor Code,  employees who work 10 hours or more per day in a 40-hour work week must be compensated at their overtime rate. To implement an alternative work schedule, employers must comply with some onerous requirements.

The plan must be described in a written notice that must be provided to the affected work unit. A meeting must be held where the employees are given the opportunity to discuss the proposal. Then, a secret-ballot election is held no fewer than 14 days after the meeting. More than two-thirds of the work unit must vote to approve the schedule.

The employer has 30 days to report the results to the state Division of Labor Standards Enforcement. In addition, workers cannot be required to work the new schedule for another 30 days. During these forty-four (or more) days, there can be work stoppages and other disruptions to the workplace as the focus turns to the proposed change in schedules.

Employers are going green.  Employees are compressing their work weeks and saving gas.  And now, one major U.S. city is mandating employers provide "commuter benefits" to employees.  Will this prompt more employers to adopt a four-day workweek? 

Some key features of the new ordinance: 

Beginning 120 days after August 22, 2008 [December 22, 2008], San Francisco employers with 20 or more employees must provide commuter benefits to employees who work at least 10 hours of work per workweek within the geographic boundaries of San Francisco. This includes offering employees at least one of the following transportation benefits:

1. A pre-tax election of a maximum of $110 per month, consistent with current federal law; or
2. An employer-provided transportation pass (or provide reimbursement for) equal in value of $45 (or more) per month; or
3. Employer provided transportation at no cost to employees.

Is this a prediction of things to come?  If employers are required to pay employees up to $110 per month for the costs of commuting, I'd say that the four-day work week movement would likely explode.  One of the big motivators of the four-day work week has been the high cost of fuel. Employers claim that the compressed workweek will help alleviate the cost of gasoline for employees. 

[H/T to California's favorite HR blogger, HR Lori]

For more on the Four-Day Work Week, the pros and cons, various alternatives, and considerations for implementation, see:

1. Feds Take a Cue from the States and Consider the 4-Day Workweek
2. 35 Questions You Should Ask When Drafting a Compressed Work Week Policy
3. Positive Benefits of a Four-Day Work Week
4. 5 Steps Toward a More Flexible Workplace
5. Should a Four-Day Work Week Be Mandatory*
6. It's Saturday Today in Utah: 4 Day Work Week
7. Alternatives to the Four Day Work Week
8. Popularity of the 4-day Week Continues to Grow
9. Will Four-Day School Week Push the Four-Day Work Week Trend?
10. Utah's Mandatory 4-Day Work Week Will Save the World. Sort of.
11. Alternative Work Arrangement May Soon Become Mandatory
12. I Hate To Say "I Told You So"–The 4-Day Workweek Is a Hot Topic
13. How the Current Economy Could Affect the Future of Flextime
14. New Employer & Workplace Study on Flexible Schedules 
15. The Pros and Cons of a 4-Day Workweek: Cons 
16. New Survey on Workplace Lateness Supports Flextime Initiatives?

15% of workers say they are late to work at least once a week and nearly 25% lie about the reasons why.  According to a new CareerBuilder.com survey, 2008 Late to Work Survey, 43% of managers say they don't mind if employees are late as long as their work is finished on time and done well.  Other managers, though, reported that they would consider terminating an employee who arrived late several times a year. 

When asked about the reasons for their tardiness, traffic was far and away the most common excuse, reported by more than 32% of employees surveyed.   17% reported that they had fallen back asleep and 7% pointed to a long commute.  27% of managers didn't buy it, saying they were skeptical of the excuses.

In light of these statistics, is there a case to be made for flexible-hour initiatives?  Obviously, certain jobs require adherence to a specific schedule and do not allow for employees to come and go as they please.  Customer satisfaction, for example, would not benefit from a customer-service department where the phones went unmanned because employees decided to arrive later in the morning.  But other jobs can be performed successfully with flexible hours.  As the saying goes, "If you can't beat 'em, join 'em!"  Is there some validity to that phrase in this context?

A lot of employees are big fans of the 4-day workweek. Four, ten-hour days to replace the normal 9-to-5 schedule we’ve all come know as “standard.” It’s a popular idea and it’s catching on like crazy, especially in the public sector. But there are two sides to every story, right? Earlier this week I discussed the pros, so now it’s time to look at the cons. Some of the ideas below were sent to me by readers who feel strongly that a four-day week is a bad thing. And just to show that they’re not alone, even Forbes recently ran an article called, Why the Four Day Work Week Doesn’t Work.

So, what’s not to love about a 4/10 compressed schedule?

Where should I start?

1. Decreased Productivity. Many people find it difficult to stay focused for eight hours. Adding two more hours may not result in any more work at all. Or, the work that is performed may be performed inefficiently or with errors.

2. Wrong Perspective. Author Cali Ressler says that this is the wrong approach to work. Instead of continuing to focus on the amount of time we spend doing work, she advocates that employers start to look at the results of the time we spend doing work. In a results-oriented approach, like the one she helped implement at Best Buy, how long employees is irrelevant as long as they get the work completed.

3. No Fuel Savings. Employees will still be driving on the fifth day—just not to work. Although they won’t be spending gas money on the commute, they will still have to fill the tank to run errands and make other trips that they didn’t do after their long workday.

4. Access to Child Care. Because the four-day workweek is new to many, childcare providers are not likely to change their business hours. Extended time at daycare means extended costs—often at a premium. This additional cost offsets the purported fuel savings.

5. Decreased Family Time. In reality, after a ten-hour work day, many people find that they are too tired for a family game night, or to attend a sports event. Remember, it’s not just 10 hours of work, by the time you figure in wake-up time and day-care drop-off in the morning and pick-up at night, employees will have been going strong for more than 13 hours, and that’s before anyone eats dinner. The result is a Friday packed with the errands and activities that were not accomplished after work and not much additional family time at all.

6. Decreased Morale. Long hours lead to fatigue, which leads to decreased morale. Long days spent in the office with colleagues with whom they may or may not get along can cause additional tension.

7. Day 5. When the nature of work requires employees to be accountable to clients or customers who do not work a four-day week, it may be unrealistic to think that their demands will not require attention on Fridays. Instead of a compressed schedule, employees may find that they’re working an extended schedule.

8. More Micro-Management. In order to reap the benefits of a compressed schedule, the typical workday slacking must be eliminated. Down-time for internet browsing and extra breaks have a greater impact and will require managers to become more involved on the ground level to ensure these time-wasters do not occur.

Employers who may be considering offering flexible work arrangements to employees should do their homework before selecting which type of program (or programs) to offer. We’ve previously discussed the various types of flex-time options.  

But once you know what’s out there, you should be sure you also understand how each option may or may not maximize your return on investment. Look to the benefits of each type to determine whether those are results that satisfy some need in your organization. Although each one provides benefits in one form or another, they simply may not be benefits from where you’re standing.

Here are a few benefits for each of the major types of flexible work arrangements. Use these as the starting point to determine whether each one may be of interest to your company.

Flextime

· Improve efficiency if schedules are linked directly to correspond with employees’ most productive times.

· Gives employees more control over scheduling personal responsibilities at either the beginning or end of the workday

· Avoid rush-hour commuting—a quality-of-life and an environmental benefit.

Compressed Workweek

· Improves productivity if some work can be accomplished during quieter times of the day

· Provides more days off

· Decreases the number of days employees commute, including the time and costs inherent to the commute.

· Avoid rush-hour commuting.

Part-Time Work

· Retains employees who need time off for personal or family reasons.

· Expands the labor pool to include retirees, students, and persons with disabilities.

· Gives employees time for education purposes, such as working towards a degree, or other similar, personal-improvement objectives.

· Provides for an option for the gradual return to work after maternity leave or other absences.

· Allows gradual entry into retirement, and, in turn, improved transfer of knowledge through succession planning.

Job Sharing

· The same benefits as those experienced as a result of part-time schedules.

· Brings broader range of knowledge and skills t a position.

· Provides cross-training and skill-enhancement, and facilitates knowledge sharing.

· Enables continuity of coverage when one partner is sick or otherwise unavailable.

· Continuous implementation of team-based efforts fosters a sense of unity and cooperation

Telecommuting

· Offers alternative to relocation

· Expands recruitment pool geographically

· Reduces office space and associated overhead costs
Can accommodate persons with disabilities.

· Decreases or eliminates commuting time.

· Increases productivity by enabling employees to work at their most productive time.

· Decreases the number of days employees commute, including the time and costs inherent to the commute

· Decreases other employee expenses, such as meals and clothing.

Is the federal government the next to implement a four-day work week? Maybe. House Majority Leader Steny H. Hoyer (D-Md.) wants the idea to be considered, anyway. He’s asked the Office of Personnel Management (OPM), to "undertake comprehensive analysis of the transitioning to a 4-day work week for all possible federal employees and inform me by August 31, of any additional actions Congress would need to take to implement such a policy by the end of fiscal year 2008."

Presumably, the idea would be to switch to a mandatory four-day week, like the Utah example. Federal agencies already have the discretion to implement a compressed schedule agency-wide or on a case-by-case basis. The Federal Employees Flexible and Compressed Work Schedules Act of 1982 (the F&CWS law), authorizes a “versatile and innovative work scheduling program for use in the Federal Government.”

The OPF previously recognized the value of alternative schedules as a way to attract and retain federal employees. In “Negotiating Flexible and Compressed Schedules,” the OPM concluded that alternative schedules will be an important part of the government’s future staffing efforts:

By all accounts, the workforce of tomorrow will be older, more culturally and ethnically diverse, and will consist of more female workers than ever. This diversity will require the Federal Government to utilize new and innovative approaches toward managing human resources and delivering services. To succeed, the Government must successfully compete for skilled workers; and it must be able retain them by providing challenging job opportunities and the flexibility to accommodate family responsibilities and other activities outside work. Flexible and compressed work schedules that are carefully planned and implemented can help make the Government more successful in its recruitment efforts, and more competitive and efficient in the bargaining should be undertaken with the goal of establishing flexible and compressed work schedules that support work and family programs, encourage the participation of employees and management, and also set up administrative controls necessary for the efficient operation of the agency and the success of the established work schedule.

August 31^st is just around the corner so we’ll have to wait to see what the OPM concludes in response to Hoyer’s inquiry. In the meantime, catch up on the four-day workweek trend.