A few weeks ago, Vermont Senator Bernie Sanders announced a bill to implement a 32-hour workweek.  While such a law is a long way from becoming a reality, it does raise interesting questions concerning exactly what a 32-hour workweek would look like, especially in California.

Before engaging in this thought experiment one thing should be made clear – most jurisdictions in the United States are “at-will” employment states, meaning either party has the ability to terminate the employment relationship for any lawful purpose.  Relatedly, employers have the ability to schedule employees to work any schedule they want with very few exceptions in discrete instances.  As such, employers would generally not be required to only schedule employees to work a maximum of 32 hours during any workweek, but rather would be disincentivized to do so through overtime requirements.

Federal law currently requires that all hours worked in excess of 40 hours in a single workweek be paid at one and one-half times the employee’s regular rate of pay. California adds an additional requirement that any hours worked in excess of eight hours in a single workday must be paid at one and one-half times the employee’s regular rate of pay, and any hours worked in excess of 12 hours in a workday be paid at twice the employee’s regular rate of pay.

The proposed method of implementing a 32-hour workweek would be through reducing the overtime hours threshold from 40 hours to 32 hours, meaning that employees working over 32 hours in a workweek would be entitled to overtime pay.  While Senator Sanders’ bill does not prohibit employers from scheduling employees to work 40 hours or more, it would provide a financial disincentive for employers to do so.  Senator Sanders’s bill would also amend federal law to coincide with California’s 8 hour and 12 hour overtime rules, making overtime significantly more expensive for employers across the United States.

What would this mean for California employers?  For one, California’s legislature generally does not like being one-upped in terms of favorable employee laws.  As such, and if a law reducing the federal workweek were passed, it is almost guaranteed that California would also reduce its weekly overtime threshold from 40 hours to 32 hours (if not less).  Moreover, under a 32-hour workweek, an employee would be working an average of 6.4 hours per day.  Given this, one possible outcome is that California reduces its daily overtime threshold to be more consistent with that reduced workweek – possibly to six hours per day.

Going further, California law currently provides that employees are entitled to one meal break before the end of the fifth hour of work and a second meal break after 10 hours of work and two paid 10-minute rest periods for every four hours worked.  This break schedule could be modified if a reduced workweek were put into place – possibly with a first meal break before the end of the fourth hour of work, a second meal break after nine hours, and a paid rest break for every three hours of work.

Reducing the workweek could also cause changes in other employee benefits, including protected leaves.  For example, employees are entitled to 12-weeks of leave under both the Family and Medical Leave Act (“FMLA”) and under California’s Family Rights Act (“CFRA”).  In order to be eligible for these types of leave, an employee must have worked at least 1,250 hours in the preceding 12 months.  Under a 40-hour workweek, an employee would work approximately 2,080 hours a year, meaning that they would have a FMLA/CFRA cushion of roughly 830 hours.  A reduction in the workweek from 40 to 32 hours would result in 1,664 hours per year and a reduced “cushion” of 414 hours.  As this likely does not comport with the intent of these statutes, it’s possible that the FMLA hours requirement would be reduced and almost guaranteed that California would reduce its CFRA threshold.

As for effects on workplace policies, one significant change employers would need to make is revising their paid leave policies. Given the reduction in hours worked, employers would need to revise the rates at which employees accrue paid time-off to ensure accrual rates line up with the new proposed workweek.

The 40-hour workweek has been the hallmark of employment law for more than 80 years.  While a change anytime soon is unlikely, it’s always good for employers, especially California employers, to be prepared for anything.