In the world’s largest pilot project testing the four-day workweek, most employers and employees agree that the reduced schedule — responsible for more sleep, less stress, and an improved personal life — is king.
But that trial took place in the United Kingdom. In the Carolinas, the concept is receiving no such royal treatment.
“I really haven’t had any clients even ask about converting to a four-day workweek, so I haven’t given much thought to the issue from a legal or practical perspective,” says Stacy K. Wood of Parker Poe in Charlotte.
Likewise, no one has sought the expertise of David E. Dubberly of MaynardNexsen, in Columbia.
“No one has asked me about that, and I can’t imagine anyone asking me about that,” Dubberly says. “That would be like giving workers a big pay increase, and that would make inflation even worse than it is now.”
The results of the United Kingdom project, which included more than 2,900 employees and 61 companies, were released in February. Fifty-six companies plan to consider the four-day workweek further, while 18 plan to reduce their weekly work hours permanently (but not pay or benefits). Fifteen percent of participating employees indicated that no amount of money could lure them back into showing up to work five days a week.
Another recent study in Iceland suggests that employees working four-day weeks are happier and more productive. Employers said their goal is to improve productivity by providing a better work-life balance.
Columbia attorney M. Malissa Burnette, a certified employment and labor law specialist with Burnette, Shutt, McDaniel, says a shorter workweek could provide enough time for employees to truly rest and take care of personal matters.
“Employees may be more productive after being rested and knowing they only have to work four days,” Burnette says. “Work-life balance could improve.”
Dubberly says that while he can see potential benefits in a perfect world, he questions the concept’s feasibility, particularly in industries such as retail, manufacturing and health care. After all, when a customer, client or patient needs help, someone has to be on the clock.
“I’m assuming this is a fad with tech employers where they’re trying to recruit people in a tight labor market,” Dubberly says. “I think it might be more of a pitch than how things would really work. At the end of the day, an employer needs a certain amount of work done.”
Burnette says a few clients, including a couple of law firms, have talked with her about implementing a four-day workweek. Those firms, however, imagined staff compressing 40 hours into four days.
Maryland trial on hold
Although the more successful trials of the four-day workweek have been conducted abroad, it has not been without its due consideration in the United States. Just last year, Maryland lawmakers looked to subsidize employers that agreed to make 32 hours on the job the norm without reducing their employees’ pay or benefits.
Maryland Delegate Vaughn Stewart, a lead sponsor of the bill, told news outlets that working through the pandemic has shown that “how we work is not set in stone, but it’s something that we as citizens can control.”
The experiment was expected to be groundbreaking labor research at a state level, but the bills were ultimately withdrawn as its sponsors opted to seek money in the state budget for Maryland’s Department of Labor to study four-day workweeks. One sponsor told news outlets that the concept is just too new for many to embrace fully.
Coordination not culture
Where the 40-hour workweek was codified into U.S. law in 1938, one might conclude that it is too deeply ingrained in American culture to tamper with. But some, like Dubberly, believe it’s more a matter of common sense than culture.
“A good employer isn’t going to do something just because it’s been done that way for a long time,” Dubberly says. “So, I don’t think it’s so much culture as employers have to get a certain amount of work done, and if they could get it done in 32 hours, I’m sure they would. People who work a part-time schedule are not going to get paid a full-time compensation package — that’s just not realistic.”
Dubberly adds that if an employer pays a full-time salary to what amounts to a part-time employee, it’s going to “put a real strain on the budgets of companies.”
“It would make inflation even worse than it is right now,” he says. “If your employees are working just 32 hours a week, but you’ve got to be open 40 hours, you’ve got to go out and hire somebody else.”
Robin E. Shea of Constangy, Brooks, Smith & Prophete in Winston-Salem agrees with the inflation risk and notes other concerns. For instance, there’s the question of whether employees would be expected to perform 40 hours’ worth of work in their abbreviated time in the workplace.
“If so, the four-day workweek may be more of a burden to employees than a boon,” she says.
And if the employer is looking only for four days’ worth of work, “will the reduced work schedule allow the employer to meet its legitimate business needs?”
Shea also notes that under some circumstances, a four-day workweek could make it more difficult for employees to coordinate with other important schedules, such as appointments or picking up children from school.
“On the positive side, the idea of a four-day workweek seems to be popular with employees, and it might be a good recruitment tool for employers,” she says. “It might also result in some cost savings — for example, being able to turn off the air conditioning in the building for three days instead of only two.”
That aligns with a Japanese trial that Microsoft said resulted in a nearly 40 percent increase in productivity while electricity costs decreased by 23 percent. Workers also printed out nearly 60 percent less.
Burnette notes that while there is nothing wrong with hard work, the notion that lawyers must constantly be bustling has driven the industry to one of the highest rates of depression and substance abuse of any profession.
“Many other countries learned long ago the value of time off for renewing the soul, for parenting, and for taking care of one’s health,” Burnette says. “We could work smarter and with far less anxiety but for the false narratives we tell ourselves.”
Shea points to surveys indicating that employees enjoy the benefits of a four-day workweek, noting that they report being less stressed, sleeping better, and more efficiently managing their non-work-related responsibilities.
“Employers should also be cautioned, though, that any advantages associated with the improved employee satisfaction and better recruiting will fade if the majority of employers go to a four-day workweek model,” she says.
Another option emerges
Another option has emerged between the standard five-day and four-day workweek: the 9/80 schedule providing every other Friday off.
Shea says the 9/80 schedule allows employees to work full time and maintain full pay and benefits while having an extra day off every other week. It takes place over two weeks rather than one week.
In a 9/80 schedule, employees work nine hours daily, Monday through Thursday, in week one. They work eight hours on Friday, but four are charged to week 1, and four are charged to week 2. They then work nine hours a day the following Monday through Thursday — for a total of 80 hours — and have Friday off.
“In other words, the employee gets a three-day weekend every two weeks,” Shea says.
Shea notes potential risks under the Fair Labor Standards Act for non-exempt employees, as they would technically work more than 40 hours in the first week of the 9/80 schedule.
“So, if the employee is non-exempt, the employee would have to receive overtime pay for the hours worked in excess of 40 hours in a given workweek, even though the employee is working fewer than 40 hours the following week,” she says.
While the jury is out on whether a modified work schedule is appropriate for many industries, it seems more established that it would not work well across the legal field. Dubberly makes clear that firms are sensitive to the needs of their lawyers, willing to modify schedules and work models when necessary, but that being an attorney is not a part-time gig.
“If you’re in private practice, you’re available 24/7 if you’re a good lawyer,” he says.
Shea points out that litigators are somewhat at the mercy of the court.
“If a case is scheduled for a one-week trial, counsel could not very well tell the judge, ‘We have to adjourn on Friday because we only work a four-day workweek,’” she says.
Shea believes that attorneys in more advisory or counseling roles could potentially manage a four-day workweek. And Dubberly concedes that staff or in-house counsel might also be able to make the jump. But don’t expect to see lawyers moving to part time anytime soon.
“Americans — and especially lawyers — cling to the notion that the harder and longer you work, the more happiness, success and wealth you will earn,” Burnette says. “The law firms who requested advice envisioned a four-day, 10-hours-per-day workweek for staff. Likely the lawyers are already working 10-hour days five or more days per week.”
For years now, employment attorneys have counseled clients regarding alternative work schedules and models, primarily due to circumstances presented by COVID-19. The pandemic and advancing technology have helped create a climate in which many employers have become more accommodating and trusting of their employees. Work-from-home and hybrid models have allowed business to be conducted even under unprecedented circumstances, but paying full-time compensation for part-time work might be more than employers are willing to do at this point.
“Most employers are not quite sold on the idea yet,” Burnette says.
Especially those who employ attorneys.
“Since many clients expect their lawyers to be available for legal advice 24/7, it’s hard for me to envision a scenario where a law firm could legitimately say to those clients, ‘We’re here for you, but only Monday to Thursday,’” Wood says.