Happy Leap Day (or, Happy Exempt Employees Work Free Day)

By Jon Hyman

Feb. 29, 2016

Today is leap day, an every-fourth-year occurrence that adjusts for the astronomical anomaly that it takes the Earth 365.25 days, and not 365, to circumnavigate the sun.

What does this have to do with employment law, you might ask?

As Dan Schwartz pointed out on this day four years ago, and CBS news pointed out more recently, employers calculate the salary of exempt employees based on fractions of 365, not 366.

Thus, on this quadrennial quirk, an exempt employee technically misses out on some small fraction of their annual salary. Aggregated across all employees, CBS News estimates employers would need to pay an additional $5 billion to cover this added work day.


But, do we really care, or is this just interesting fodder for bloggers to write about?

We ask an extraordinary amount from our exempt employees. The 40-hour workweek is a rarity.

Often, exempt employees work more than 40 hours, and, in exchange, we should be permitting the flexibility of workweeks of less than 40 hours. What I’m trying to say is that the math never works out evenly when trying to calculate an hourly,  daily or weekly rate of pay for exempt employees.

They are paid a weekly salary for any hours worked, period. The fact that today’s leap day adds a fraction of time every four years should not make a difference.

So, enjoy the leap day. It signifies the Summer Olympics are on their way. Wait, Brazil has Zika and polluted water.

Well, maybe forget about the Summer Olympics. How about the presidential election? Not a good example either. Let’s just say we have an extra day to enjoy all that 2016 will bring us. Now I’m off to work.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at

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