Wednesday, February 29, 2012

Is February 29th a "Free Day" for Employers?

In a previous life, I was an IT consultant. One year, I had to work on February 29th. Always the team player, I took it in stride. But in my head, I thought "what a ripoff! Here I am, working on this extra day, and I'm not getting paid any extra!"

Two of my fellow employment law bloggers have explained this phenomenon in employment law terms: Dan Schwartz (here) and Jon Hyman (here). As they correctly note, employers don't need to pay salaried, nonexempt employees any extra money for the time they work on February 29th - a free day!

Not so fast! I can think of three reasons why this "free day" is just our collective imaginations:

1. Leap Year is Frequent and Predictable. We have a February 29th once every four years (technically, there are a few exceptions, but not worth the trouble to address). Employers know this when they make salary offers. Employees know this when they accept job offers. Accordingly, February 29th should be "priced in" to the employment agreement.

2. Salaried Employees Work Flexible Hours All the Time. Salaried employees don't get paid any overtime. So, in the non-leap years, employers can just assign approximately one extra day of work per year (spread out across the year). Employees will put in the same time commitment as if they came in that extra day on the 29th. The point here, is that it's not clear whether salaried employees are actually expected to put in an extra day's worth of work on leap years or not.

3. What Extra Day? Most salaried employees work on weekdays. According to this handy tool, 2010 had 261 weekdays. Wanna guess how many weekdays (including February 29th) in 2012? Yup, 261. I will concede, however, that last leap year (2008) had 262 weekdays, and 2011 only had 260 days - so there are some "extra" weekdays here and there.

So, next time you feel like you're getting ripped off by working on leap year (which I'm guessing will be 4 years from now), just remember: Your salary probably includes this day - in fact, you're probably getting "overpaid" in non-leap years; maybe you're working an extra day's worth of work in non-leap years but it's just spread out (instead of all on February 29th on leap years); and you often get that extra workday back in the form of an "extra" weekend day in non-leap years.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.