After two years of working from home, thousands of white-collar workers are being called back to the office creating a new point of tension between employees who want flexible work and bosses who want them back.
Ask Help Desk: What happens if you refuse to go back to the office?
We’ve been following the numerous stories about your return to the office. Some people hate it, some people love it, some people want more flexibility. There is no consensus that makes everyone happy 100 percent of the time. But there are ways workers and employers can leverage their power to reach an agreement that may be more palatable for all, labor law experts told us.
Before we jump into the issue, we’d love to hear from you about your workplace issues and help you navigate the future of work. To make it easy, we’ve created a submission form for you to air your questions, concerns or thoughts about the problems you’re encountering in the workplace.
That said, let’s explore that tricky little thing that is the return to the office.
Q: Can you say no if your company asks you to return to the office?
The simple answer is workers generally have little to no legal power to push back. But that doesn’t mean they’re powerless.
Let’s unpack individual legal power first. Workplaces have the right to set their own work policies, which may include when and where people work. As long as employers follow safety guidelines and requirements determined by the Occupational Safety and Health Administration, workers don’t have much legal leverage to push back.
“There’s no right to work wherever you want,” said Laura Reathaford, a Los-Angeles based partner at the law firm Lathrop GPM. “If employees don’t want [to work on-site], they have the right to work for someone else.”
But workers do have power in numbers — both legally protected power and collective pressure. Work strikes, both from unions and non-unionized workers, are concerted activities protected by the National Labor Relations Act, said Catherine Fisk, faculty director of the Berkeley Center for Law and Work. But workers could face consequences such as going without pay during the strike and being replaced, she added.
Those protections could disappear without a full strike, lawyers say. In other words, if workers choose not to return to the office and instead continue working from home, their actions could be deemed insubordination, an offense that could result in termination.
“Labor laws say you can strike, but you withhold all of your labor,” said David Rosenfeld, shareholder at California-based law firm Weinberg, Roger & Rosenfeld, which specializes in representing unions and workers. “It doesn’t mean you do one part of the employer’s direction … Partial strikes are not protected.”
Labor law aside, the hot job market also gives workers more power. As employers struggle to hire and retain talent, workers could use the moment to influence office policies. As Fisk said, there’s “nothing like a labor shortage” to give employees a leg up.
“Employers are going to be more sensitive to employees [right now],” said Robin Samuel a partner in Baker McKenzie’s employment and compensation practice. “They don’t want to fire everybody — that will hurt them, too.”
Q: What power does an employer have in enforcing its policies?
Labor laws, though they differ by state, often give employers most of the power when it comes to enforcing their own workplace policies. While it may not be in the best interest for an employer to fire the 50 percent of employees who don’t follow return-to-office protocol, legally, the company has every right to do so.
“It’s not that much different from saying, ‘You don’t have a corner office anymore,’” said Mark Spring, a group chair at the employment firm CDF Labor Law. “Unless you can prove [the decision] is based on race, religion or [another protected category], you have to go work elsewhere.”
Employers can fire as many workers as they see fit for not following new policies, but they can’t fire workers for speaking against the policy or for banding together to collectively denounce it or strike. They also can’t fire the leaders of any worker movement against a policy, as it would violate the NLRA, Fisk said. That said, firing can get really hairy really fast.
“There are a lot of cases in which the allegation is the company fired the ring leaders and also five others to make it hard to prove ring leaders were singled out,” she said. “If employees can prove it, then firing any of them is illegal.”
But employers also bear the responsibility providing reasonable accommodations for workers who may need it. Samuel said he’s seen a lot of accommodation requests as it relates to covid. Some workers may not feel comfortable working in proximity to others if they have children who are too young to be vaccinated. Others may have underlying health conditions or live with immunocompromised relatives.
“Employers don’t automatically have auto grant accommodations,” he said, adding that laws on the matter vary state to state. But “employers have to consider that.”
Q: How should workers and employers best handle return-to-office policies?
The key to solving this problem, some expert say, boils down to one simple solution: Communication.
Workers who are concerned with their return-to-office plans should raise their issues with their managers. And they might have more influence voicing it as a group.
“It’s important for employees to have discussions with their supervisors and raise any concerns before it gets to the point of leaving the job,” Reathaford said. “Communication is very helpful in resolving issues.”
The best way to champion for more flexible work options is to persuade management that working remotely, even part-time, provides more value than at the office, Fisk said. She also said it’s important for workers to remember they’re coming from a place of strength, given the ongoing war for talent.
“Get them to see the wisdom of allowing remote work,” she said. “Or persuade them of the wisdom of splitting the difference.”
Employers, on the other hand, may want to consider adopting more flexible policies if they hear a lot of push back from workers. Not only will this keep their workers happy, but also serve as a competitive advantage as they compete for new hires.
“You may have full [legal] rights to demand everyone come back to the office,” Spring said. “But ultimately, you’re better off with a happy worker than an unhappy worker or no worker at all.”
Reathaford agrees, saying she often advises employers to consider whether they want to retain talent or the high cost related to turnover. Return-to-office policies could very well play a role in that, she said. And for employers, sometimes compromising with workers can mean addressing the root of why workers don’t want to return, Fisk said. Do they need a dog walking service to walk their dog or a dog-friendly workplace to accommodate their pandemic puppies? Would a change in dress code help?
Ultimately, it’s best for both parties to try to avoid legal action or official labor complaints unless absolutely necessary, Samuel said. More often than not, those relationships become irreparable.
“Litigation rarely results in people being happy,” he said. “If you’re filing a complaint … you’ve gotten to a place where the relationship is already broken.”
Source: WP
