Delaware Employment Law Blog

A mandatory four-day work week could create substantial economic savings for employers.  For example, Wake County in North Carolina estimates that it will save approximately $300,000 per year on utilities by closing its offices on Fridays.

However, not everyone supports the idea of a mandatory four-day work week.  Some parents may have to pay additional costs for early morning childcare, parents of older children may be forced to miss evening activities like sports games, and as Molly DiBianca recently pointed out, four ten-hour days may just be too exhausting for families with small children.  Another objection, often made by taxpayers, is that customers have come to expect service five days a week, regardless of whether they have increased access Monday through Thursday.

Enter Birmingham, Alabama.  The city switched to a voluntary four-day work week for its employees on July 1, and the reception has been overwhelmingly positive.  Employees still have the option of working a normal five-day schedule, and the ones who decide to work a four-day week may choose which weekday they would prefer to have as their extra day off.  The frequently cited environmental benefits of a four-day work week remain—fewer cars on the road, less traffic during rush hour, and an overall decrease in gasoline consumption.

The voluntary schedule seems to address the major complaints about a mandatory four-day week.  If an employee is unable to work a condensed week, that employee could still work a traditional five-day week.  Other employees looking for a shorter commute, an extra day off, and savings on gas could take advantage of the shorter week.

Birmingham’s voluntary four-day week also solves the problem of customer access.  With only some employees switching to the condensed schedule, customers not only have access to services five days a week, but they also receive the added benefit of earlier and later access Monday through Thursday.

The largest problem with making the four-day work week voluntary is that offices will need to remain open and powered five days a week.  This will likely negate any potential savings on utilities and make the four-day work week significantly less attractive to employers.

Given these incompatible benefits, a four-day work week is not the panacea that will solve all of the economic and environmental problems in the workplace.  But if employers are willing to give up the potential savings associated with a mandatory four-day week, a voluntary four-day schedule like Birmingham’s might be a good alternative.

*Guest Post by David Fry

[Editor's Note: David is a rising second-year law student at Duke Law School with whom we had the privilege of working with this summer.  As evidenced above, David is remarkably talented and will surely make a great contribution to the practice of law when he enters the field officially.  Thank you, David!  md]

Utah government employees finished their first four-day work week on Thursday.  Friday was a day off, an extra Saturday, really.  And today is Saturday Number Two.  Nice.  But is it too good to be true? I'm such a cynic.  Not that I've formed an opinion one way or another, I just happen to be a bit doubtful that it is the cure-all that it's being promoted to be.  Mostly, it's the "little things" that make me think twice. It seems to me that parents with small children will have the most difficult adjustment to make. 

For example, let's take a look at the reality of a day in the life of Utah state employees this week.  A ten-hour workday may run from 9 a.m. to 7 p.m.  And let's say we have a 25-minute commute. 

6:30:  Rise and Shine

7:45:  Depart from home

8:05:  Drop off kids at day care

8:20:  Coffee stop

8:55:  Arrival at office

9 am to 7 pm:  Work

7 pm:  Depart from work

7:50:  After picking up kids, arrive at home. 

8:50:  Dinner

Now, let's look at the somewhat obvious problems here. 

1.  Day care charges by the minute for time after 6 pm.

2.  Little kids don't eat dinner at 9 pm. 

3.  Little kids are grouchy after spending 11 hours at day care.

4.  Mom and dad are grouchy after a very long day.

Is it fair to say that parents with young children will face a very difficult four days, regardless of how well the work day goes.

The popularity of a compressed workweek has skyrocketed. Workplace flexibility has long been heralded as a way to bolster employee retention. Alternative work schedules have even been lauded as a key to keeping women in the workplace and off the off-ramp.

And now, with towns and cities across the country adopting a four-day work week, the trend towards workplace flexibility isn't going anywhere anytime soon. But the four-day work week isn't the only option. Here are some other options provided by When Work Works, a project of the Families & Work Institute:

Flex-Time.

Traditional flextime allows employees to chose their starting and quitting times within a range of hours surrounding core-operating hours. Daily flextime involves the same concept but allows employees to select their start and end times on a daily basis.

A compressed work week enables employees to work their full schedules over fewer number of working days. Usually this means 10 hours per day for 4 days, or 80 hours over 9 days. "Summer-hour" schedules add an hour to workdays Monday through Thursday, and end work at 1 pm on Fridays.

Flex-Leaves.

Time off during the workday to address personal and family issues includes time off for anticipated issues, such as parent-teacher conferences, or unanticipated issues, such as waiting at home for a repairman or delivery.

Paid time off to care for children permits employees to take off for a few days to care for a sick child without losing paid time.

Flex-Careers include multiple points for on- and off-ramping over the course of one career or working life. This can include formal leaves of absences and sabbaticals, as well as taking time out of the workforce.

Flex-Place is defined as working some or most of the employee's working time at a location other than the employer's main place of business. Telecommuting is included in this category.

The four-day work week has enjoyed continued popularity across the country.  Some of the recent cities and counties to implement or move closer to implementing a compressed work week for public employees are listed below. 

Arizona:  Queen's Creek has implemented the 4-day week on a trial basis. The town's government offices are open extended hours Monday through Thursday and, with the exception of essential services, are closed on Friday.  The plan was initiated to boost employee morale at a time when many employees have been subject to salary reduction and hour cut-backs.

Florida:  Manatee County has begun to make the switch to a 4-day work schedule on a voluntary basis, allowing its various agencies to make the decision independently.  The Central Community Redevelopment Authority is the latest to implement the alternative schedule.

New Hampshire:  New Hampshire's gubernatorial candidates would consider authorizing a four-day work week and telecommuting for state workers to save energy costs. But Democrats John Lynch and Katy Forry and Republican Joseph Kenney would not support a blanket telecommuting policy for all.

New Mexico: Torrance County is considering switching to a 4-day, 10-hour workweek to help employees with the cost of fuel. 

Pennsylvania:  Westmoreland County officials are considering a proposal for a flexible scheduling system so staff could work four-day work weeks as a means of reducing their travel expenses.  The Recorder of Deeds, Tom Murphy, who pitched the compressed-week idea, says he was motivated by hearing his employees talk about the price of fuel and how it affects their bottom line. 

Tennessee:  Tennessee will follow in the footsteps of Utah on Monday, August 3, 2008, when it implements a four-day workweek for all state employees.  Unlike Utah, though, Tennessee's program is voluntary.

The four-day work week has been gaining popularity, especially in the public sector, where numerous cities and towns have begun to implement the idea.  Recently, Utah announced that it will be the first state with a mandatory 4-day week for all State government employees.  It now appears that governments are considering the trend, not just for state employment, but for education, as well. 

What's Fuel Got to Do With It?  A lot.

In an article titled, "Schools eye four-day week to cut fuel costs," Reuters reports that about 100 schools in 16 states have already moved to a four-day week.

The 4-day school week is lauded as a way to save money on transportation, heating, and cooling.  The program is popular especially in "rural school districts where buses may travel 100 miles round-trip each day, there certainly are transportation savings worth considering," said Marc Egan, the director of federal affairs at the National School Boards Association.   With the increasing cost of fuel, the supporters of the 4-day week claim that the cost-savings in fuel and energy will help schools avoid having to eliminate important school programs or cut jobs.

What Do Kids Have to Do With It?  At least something, I hope.

The cost-savings, of course, is a tempting prospect, especially at a time when schools everywhere have seen their budgets wither yearly.  But there isn't any solid evidence as to the impact the change would have on learning. 

One question that comes to mind is what impact this type of program would have on parents?  Although school districts' fuel costs might go down, families' day-care bills would likely go up.  For older students, it could also mean more time at home without supervision.  Would the costs simply be redistributed to families with young children who may be the least able to absorb the increase?

And there are other practical issues.  For example, what about sports and extra-curricular activities?  If kids will be in class until 5, will they attend practice and games until 9 or 10 pm?  And what about the length of the school day? Do we expect our children to suddenly develop longer attention spans?  Will schools need to add programs during the day to give kids' brains a break?  Or would that mean less time overall?  And, let's be honest.  Despite the popularity of the four-day work week, there are lots of adults who are not embarrassed to admit that a 10-hour workday is just too long.  Might children not feel the same?

What About Parents? 

Assuming, though, that this turns out to be a great idea for kids and for schools, I wonder whether it will be the kind of push that would get more private-sector employers to consider a shorter work week?  The four-day week could easily become the battle cry of parents facing the cost of another day of day care. Just look at the scuttlebut when Google raised the price of its day care plan offered to employees. 

With all the buzz about alternative work schedules, four-day work weeks, flextime, and the like, the following Q & A on telecommuting as a reasonable accommodation under the Americans With Disabilities Act ("ADA") might be relevant as these types of requests increase.

Is telecommuting a reasonable accommodation under the ADA?

Q: One of our employees has asked that we allow him to work from home as an accommodation for a medical condition. He does suffer from a medical condition covered by the ADA but are we required to allow him to work from home as a possible accommodation?

 
Your question involves certain "assumptions" that are relevant to our response. For example, you said the employee does in fact have a medical condition that qualifies as a "disability" under the ADA. Our response is based on that assumption being true.

Can telework be an accommodation under the ADA?  Telework — that is, allowing employees to work from home — may qualify as a reasonable accommodation under the ADA.  Although the law doesn't require you to offer telework to your employees, you may provide it as an accommodation if it's appropriate for this employee, regardless of whether other employees without disabilities have the opportunity to work from home.
Is telework appropriate in this case?  You and your employee should discuss the appropriateness of telecommuting as an accommodation.  Generally, that interactive process begins when the employee communicates that he has a condition requiring a change in the way he performs his job. It's important to note that he doesn't have to use words like "accommodation" or even "disability" for the ADA to come into play. He merely needs to provide information that gives you a reasonable basis for making further inquiries about necessary accommodations.

After the employee provides you with notice of his need for accommodation and telecommuting becomes an option, he needs to explain why telework is an accommodation that makes sense in his situation. During that discussion, you may request information about his medical condition, including documentation that substantiates his need for an accommodation.
Is it reasonable to allow telecommuting? The possibility of telecommuting is really no different from other accommodations. You should evaluate the employee's job and review all of its essential functions. If some of those functions can be performed from home, it may be reasonable to permit telecommuting as an accommodation. If none of the job functions can be successfully completed from home, then you are not obligated to allow the employee to telecommute.

Factors you might look at when making your decision include whether:

• face-to-face interaction and coordination of work with other employees is essential;

• in-person interaction with outside colleagues, clients, or customers is necessary; and

• the job requires the employee to have immediate access to documents or other information that's located only at the workplace.

If the legitimate answer to these questions is "yes," telecommuting may not be appropriate as an accommodation.  But if elements of the job can be performed at home and don't require the type of interaction that occurs only in the workplace,  you should consider telework as a form of reasonable accommodation under the ADA.

Recent posts that may be similarly helpful include:

Calling All Students, School Is Now In Session! ADA 101

ADA 102: What Does the ADA Require

New Employer & Workplace Study on Flexible Schedules

Alternative Work Arrangement May Soon Become Mandatory

Utah's Mandatory 4-Day Work Week Will Save the World. Sort of.

I Hate To Say "I Told You So"--The 4-Day Workweek Is a Hot Topic

The 4-day work week has been a hot topic for several months.  The idea of a compressed work week has become popular, in large part, because of the increasing cost of gasoline and the resulting impact on the price of employees' everyday commute.  Although various iterations of an alternative work schedule have been on the radar of the news media, it's not clear whether the idea is really gaining momentum with employers in the private sector.  Government employers, on the other hand, seem to have taken a real interest. 

The latest announcement from the public sector comes from the State of Utah, which has announced that it will impose a mandatory 4-day work week for most state workers.  The spin, though, is a bit unusual. As reported by the article in USA Today, "Most state workers shifting to 4-day work week," Governor Huntsman (R), announced the plan and explained that its purpose is "to reduce the state's carbon footprint, increase energy efficiency, improve customer service, and provide workers more flexibility."

Approximately 80% of state workers will be affected.  Public universities, state courts, prisons, and some services will be exempt from the mandatory change.  The State doesn't seem to be concerned about the availability of state services for residents.  Many state offices will remain open on Fridays and "more than 800 state services are available online."

Really?  All of that from an alternative work schedule?  And with no negative impacts on citizens?  Pretty impressive.  Maybe. 

Pardon my skepticism but I have some doubts.  After all, it didn't work for Ohio, which abandoned a 4-day workweek after several months due to the lack of available services to the State's residents.  And, although I suppose the Governor's claims may be accurate, I suspect his expectations may be somewhat overzealous. 

For example, I can't make the connection between improved customer service and a 4-day work week.  After all, as Ohio experienced, it's a real hassle when the government offices close down for an entire day every week, further limiting citizens' access to state services. 

And, as for the claim about online services, I'd suspect that this will be of little or no help to the state's poor who are largely without ready access to the internet and who also are the group with the greatest need for the state assistance.  I would not be at all surprised if the law would be able to withstand a constitutional challenge for violating the guarantee to equal access to governmental services. 

But don't get me wrong, it's not that I'm opposed to the idea of a 4-day work week.  It's just that I'm not so crazy about it being mandatory--especially not given the potentially negative consequences on the citizens with the greatest dependence on the availability of government services. 

 

Congratulations to Jon Hyman, of the Ohio Employment Law Blog, who celebrated the birth of his son, Donovan Joseph Hyman, earlier this week!!  And, wouldn't you know it, being the dedicated blogger that he is, Jon actually tied the joyous occasion to an employment-related topic--the FMLA!  And, if you can even believe it, earlier this week, my office cheered on William W. Bowser, a partner in our Group, when he managed to pull off the unimaginable--tying together Brangelina and the birth of their twins, to the FMLA!  I kid you not.

So, to read about a real-life FMLA scenario that can match just about any set of facts your employees might throw at you, check out William W. Bowser post, Brad + Angelina + twins = One Great FMLA Hypothetical .  And, for the scoop on intermittent leave under the FMLA, see Jon's post called, Dads Get FMLA, too, (and while you're at it, drop a comment with a congratulations on his exciting arrival!).

And for more about guys and babes (the swaddled type), here are some other interesting posts from the blogosphere:

"Daddy Track" Is a Major Concern for Law School Grads, Study Says (Martha Neil at the ABA Journal)

From winning the bread to spreading peanut butter on it:  Confidence in themselves, along with family support, helps stay-at-home dads get in the groove (Boston Globe)

Some Days It Would Be Better to Be In Management (by the dad who Stays at Home with Triplets

Happy Father's Day to Fathers Across the County (Delaware Employment Law Blog)

The four-day workweek is gaining momentum. The rising price of fuel has caused many workers to pursue alternative working schedules.  A shortened week has seen a rapid increase in popularity. Even schools have considered the idea of reducing operation costs by closing their doors on Fridays.  Another employee alternative is telecommuting.  A new bill, passed by the U.S. House of Representatives, proposes to mandate this "alternative."

 

If passed, the bill would authorize all federal employees to work from home (i.e., telecommute), for at least 20% of their work hours every two weeks.  Federal agencies would be charged with creating programs that include this requirement. 

 

The bill doesn't seem to take into account that telecommuting doesn't always work.  Just ask the employees of the State of Ohio.  As reported by the New York Times back in April (see Ohio State Workers Are Coping: It’s Now 8 to 5), Ohio officials had tried unsuccessfully to implement a 4-day work week.  After several months on the 4 10-hour workdays, state officials planned to eliminate the alternative schedule in order to provide the basic level of customer service.  On the four-day-week program, departments were closed, phones unanswered, and the needs of citizens not met on Fridays.  Ohio officials did not prohibit telecommuting or flexible work hours--but compressed schedules (4-days workweeks) were off-limits.

Also see:

I Hate To Say "I Told You So"–The 4-Day Workweek Is a Hot Topic

How the Current Economy Could Affect the Future of Flextime

New Employer & Workplace Study on Flexible Schedules

Flexible work schedules (aka "alternative work schedules" or "flextime schedules") enable employees to work at varying times instead of the typical 9 to 5, 8-hour workday. This arrangement became popular as more career-women found they need some flexibility to deal with the hectic schedules of their families.  Not inclined to forego either, they forged the frontier of alternative schedules.  The future of flextime remains unclear.

A few days ago, my colleague, Adria Martinelli, posted on the results of a recent survey (New Employer & Workplace Study on Flexible Schedules), which indicate the decline of flexible work schedules.  The survey reflects statistics from the last 10 years and reflects employers of various sizes located across the country. 

Adria raised an excellent point--is the decline in alternative schedules linked to the sinking economy?  Certainly, one can imagine that, right or wrong, some employers may believe that it is more costly to employ workers on a flextime program. 

Historically, there has been a common theory that it was not profitable to use this model because of the cost of overhead per employee.  In other words, every employee, regardless of whether they work 60 or 28 hours per week still needs an office or workstation and are still entitled to benefits such as health care and employer-sponsored savings plans.  It was thought that the administrative costs incurred in running the business remained flat while the bottom line earnings of the company could decrease as more employees worked less time.

But what if the troubled economic times actually caused an increase in flextime or alternative working schedules?  As the cost of gasoline has risen, so has the cost of living.  The American workforce has had to become more and more cautious about their expenditures, some employees even taking second jobs to stay afloat in the rocky financial waters.

To cut the costs associated with the daily commute, employees have started carpooling, taking public transportation, and increasingly turned to more gas-efficient cars instead of the beloved SUV.  But what if these measures are not enough?  How many more alternatives can there really be for employees overwhelmed by the cost of fuel?

One idea that may surface in the not-so-distant future is an alternative work schedule.  A four-day workweek, where workers pack 10-hour workdays into the first four days of the week and have the fifth day off, could become a popular option for the cost-conscious commuter.

In that case, a flextime schedule would save travel time (as much as 2 hours a week for many employees who drive into a city from the suburbs), gas money, and would give them an opportunity to work on that "work-life balance" they've heard so much about.