?With the increasing popularity of schedule flexibility, some employers are choosing an option that strikes a balance between the regular five-day workweek and the four-day workweek: granting workers every other Friday off. Here are some practical and legal tips on adopting such a schedule.
This schedule—also known as 9/80, or 80 hours of work in nine days—has the advantage of giving employees a Friday off every other week while allowing employees to continue working full time so they have no loss of income or benefits, said Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C.
The typical 9/80 schedule is nine hours a day Monday through Thursday, with four morning hours on the first Friday charged to Week 1, followed by the four afternoon hours on Friday of Week 1 charged to Week 2, plus nine hours a day Monday through Thursday, with the second Friday off, Shea said. “If employees stick to that schedule, their hours will not exceed 40 in either workweek,” she explained.
But despite the appeal to many employees of getting every other Friday off, the schedule comes with some practical disadvantages and legal risks, Shea cautioned.
Practical Difficulties
“The downsides are that the longer workdays the rest of the week may make it difficult for employees to handle other personal responsibilities,” Shea said.
In addition, there might be a loss of productivity in the last hour of the longer days, simply because employees are in the habit of running out of steam at the eight-hour point, she added.
Some other potential disadvantages may include difficulty in scheduling meetings and potential understaffing during peak periods or in the event of an emergent or time-sensitive business need, said Laura Fant, an attorney with Proskauer in New York City.
But Fant also noted workers might spend less time during work hours on personal tasks if they have a Friday free every other week.
Wage and Hour Legal Risks
Shea cautioned that when employers use a 9/80 schedule, the Fair Labor Standards Act (FLSA) and state wage and hour laws pose a legal risk, particularly with nonexempt workers.
“With nonexempt employees, employers have to make sure they stick to the schedule exactly so that they don’t work more than 40 hours in each workweek,” Shea said.
The employer would have to change its workweek to run from noon Friday to 11:59 a.m. the following Friday; otherwise, employees would have four hours of overtime in Week 1, she said.
The FLSA regulations let employers choose their workweeks. “The workweek can begin on any day and at any hour of the day—any change to the work must be intended to be permanent and not designed to evade the overtime requirements of the FLSA,” Shea cautioned. “I think there is at least an argument that changing to a workweek that starts in the middle of the typical employee’s workday might be considered an evasion.”
“And then, there is California, which has daily overtime, which means that even if the employer did properly change its workweek, employees would still have an hour of overtime on Monday, Tuesday, Wednesday and Thursday of both weeks,” Shea noted.
Steven Suflas, an attorney with Holland & Hart in Salt Lake City, added that the overtime pay entitlement is calculated on a workweek basis—that is, overtime hours worked in Week 1 cannot be offset by scheduling fewer work hours in Week 2.
As for exempt employees, there may be no proration of the fixed weekly salary or the minimum salary for exemption in the first week, so the employer must ensure exempt employees are receiving the same salary for both four-day and five-day weeks, said Allan Bloom, an attorney with Proskauer in New York City.
Leave Considerations
Employers also need to be cognizant of how leave time may be counted in the context of a 9/80 schedule, Fant said.
Under the Family and Medical Leave Act (FMLA), if an employee has been designated for a full workweek of FMLA leave, the fact that they would not be expected to work on Friday has no impact. The employer can still count the entire workweek against the worker’s FMLA balance, she noted.
“However, if an employee is using FMLA leave in intermittent increments of less than one week, the employer cannot count the off day against the employee’s FMLA entitlement because the employee would not otherwise be scheduled and expected to work on such day,” Fant explained.
Be aware of how any applicable federal, state and local leave laws address variable schedules.
[SHRM members-only toolkit: Managing Flexible Work Arrangements]
Trial Run
An employer could announce that it was considering switching to a 9/80 schedule and wanted to try it out. The employer should strongly emphasize in employee communications that it is being done on a trial basis only, Shea said.
“Apart from that, the employer could start with one or two departments based on its judgment as to where it would work best and gradually expand from there, depending on the results,” she said. “For wage and hour reasons, it might be preferable to include only FLSA-exempt employees in the pilot program.”
This type of schedule might be easier to manage with office workers and with most members of management, Shea said, adding that manufacturing workers may have less flexibility because of the need to keep machines running and to meet production demands. She doubted there would be morale problems for such varying schedules because office work is generally more flexible than manufacturing.
However, Fant said differences in schedules “could give rise to employee relations concerns,” if there is a perceived imbalance in how the scheduling is offered or the workload given to those working a 9/80 schedule.
That said—she noted that employers may implement varying scheduling methods for different categories of workers so long as the differentiation is based on legitimate business reasons and is not discriminatory based on any protected characteristic. Different categories of employees might include exempt versus nonexempt employees, employees with different levels of seniority or workers with different job types, such as office staff versus warehouse workers, she noted.
