Prepared for the University of Connecticut Law Review's Conference, “Implications of the Four-Day Workweek,” this Paper examines the significance of a four-day, forty-forty work week to caregivers in need of individualized workplace accommodation. Employer interest in “four/forty” and other alternative work structures demonstrates that the current organization of market work is not inevitable and that its re-organization in ways that facilitate full participation by caregivers can sometimes be mutually beneficial. Yet it is unlikely that employers act optimally in responding to individual accommodation requests. Well-known limits on rational choice theory can impede supervisors’ ability to determine whether a particular accommodation will effectively enable the caregiver to perform her job and whether the costs entailed in adopting the accommodation will be outweighed by other savings. Thus, it is likely that some number of viable, cost-effective accommodations are not being implemented by employers. The Paper argues that the law should play a role in facilitating optimal, individualized accommodation of working caregivers. Drawing on existing and pending legislation, it argues for the creation of a statutory “right to request” that would protect workers from retaliation for seeking accommodations and would require employers to consider such requests in good faith. By encouraging workers to come forward with their requests and requiring parties to engage in an “interactive process,” the law can potentially reduce some of the biases and informational gaps that currently plague discretionary employer decisions about accommodation requests. In this way, such a law may ultimately inspire mutually beneficial changes to work structure that would not have been achieved absent legal intervention.
Rachel Arnow-Richman, Incenting Flexibility: The Relationship Between Public Law and Voluntary Action in Enhancing Work/Life Balance, 42 Conn. L. Rev. 1081 (2010)