Can a company just agree with its staff to work four ten-hour days?

A four-day, ten-hour week is popular with everybody involved, which is precisely why this goes wrong so often. Everyone wanted it, everyone agreed to it, and the arrangement is still unlawful — because consent is not the mechanism the statute uses.

What the statute uses is an election. The proposal must be put to an identifiable work unit, adopted by at least two thirds of the affected employees voting in a secret ballot, and the results reported to the Division of Labor Standards Enforcement within 30 days of the final tally. Get that right and the unit may work up to ten hours a day within a 40-hour workweek with no daily overtime.

Get it wrong and the schedule does not become invalid — it becomes expensive. Without a valid election the ordinary rules apply, so every ninth and tenth hour was daily overtime that went unpaid. Nobody was shorted a single hour of work; they were shorted the premium on two hours a day, every scheduled day.

That is the structural danger. Most wage violations run one employee at a time. This one is adopted for a whole work unit at once and repeats every scheduled day, so the arithmetic is people times days times two hours, and it accrues quietly from the moment the schedule started.

The redeeming feature is that the requirements are procedural. A ballot, a two-thirds majority, a filing. An employer who wants a compressed week can have one lawfully; what they cannot have is one arrived at by consensus in a staff meeting.