The push and pull continues between management and staff about returning to the office. And in some cases it’s becoming more acrimonious.
But if push comes to shove — specifically, a company shove back to the office — workers likely do not have many ways to challenge the directive in court, employment lawyers say.
“With few exceptions, the employer has every right to call people back to the office,” said Mark Hanna, a partner at Murphy Anderson, a Washington D.C.-based law firm representing workers.
Those exceptions include a contract that stipulates a specific work arrangement like remote work, he said. Two other exceptions include a union’s collective bargaining agreement that allows for remote work and an individual’s arrangement for remote work due to a disability, Hanna noted.
The issue is only going to gain importance in the months ahead, studies show. Seven in ten employers told the employer-side law firm Littler Mendelson that hybrid work best described their staff’s working arrangements. But nearly half of the companies allowing some at-home work said they would be requiring more in-office work in 2023 compared to 2022, according to the May report.
As someone who represents unions in the bargaining process, the amount of remote work “is an increasingly common point of contention between workers and management,” he said.
More companies are insisting on the in-person show up. Farmers Group is facing worker discontent, according to the Wall Street Journal. That’s after the insurer switched from a remote-work policy for many to a requirement for in-office attendance three days a week. Farmers did not respond to a request for comment.
“We’re always listening and will continue to do so, but we’re happy with how the first month of having more people back in the office has been,” said Amazon spokesman Brad Glasser. “There’s more energy, collaboration, and connections happening, and we’ve heard this from lots of employees and the businesses that surround our offices,” he said. But the company also acknowledged it would take adjusting to more time back in the office.
Remote and hybrid work first gained widespread traction for white-collar jobs during the pandemic. Now that COVID-19 has receded as a public-health crisis, the question is how much remote and hybrid work recedes with it.
A winning legal fight over a return to the office would be an “uphill battle” but it’s not impossible, said Kamran Shahabi, a partner at Valiant Law.
For workers to win a case about empty promises of remote work, they would have to show “justifiable reliance” on what their company was telling them, said Shahabi, who represents management and staffers in employment-law disputes.
The person would have to show they were economically hurt, believing what their employer told them — like taking a pay cut to work remotely from a place where the cost of living was cheaper.
Employers could fight back by arguing the change in workplace policies had to do with unforeseen changes in the business environment, he said. A successful case would have to show that company managers knew or should have known that work policies were about to change, Shahabi said.
What if an employee or employees believed the plan to call workers back to the office was unjustified? “If a plaintiff’s attorney got facts, testimony and evidence that this was planned weeks ahead of time and you still went ahead, the implication is you didn’t care and you wanted the employee at any cost. And there’s a sense of unfairness to that,” he said.
Juries might even relate to the worker in a way they couldn’t have before the pandemic, he added.
Suppose a worker doesn’t have a contract, and many people do not work with contracts, Hanna noted. If the person has an offer letter “with definitive remote-work terms,” and if that offer letter sets out a fixed length of employment, Hanna said it could be the basis of a successful case.
In that circumstance, “a court could very well find that an employer broke the contract by mandating in-office work,” he said.
Others are not convinced. It would be a “stretch” to press a case from an offer letter, said Patricia Pryor of Jackson Lewis, a national firm representing employers.
“Oftentimes, the offer letter will have language that makes it clear it’s not a contract,” she said.
“At will” employment, instead of contract worker, is the reality for most workers in America, said Pryor, office managing principal of several firm offices in Ohio and Kentucky. That means employers can change the terms of employment at will — and conversely it also means workers can leave their job at will, she said.
Pryor said she often talks with employer clients about how to dial up the return to office in a job market that’s still tight. “They are starting to recognize what’s missing. It’s that collegiality, that creativity.”
The clearest way to fight back against a company work policy would be looking for a new job, Pryor said. “That’s the biggest bargaining power any employee has, which is to get another job,” she noted.
The recent jobs report showed the economy adding 339,000 jobs last month.
The job market is still favorable for people who are looking, Paul McDonald, senior executive director for Robert Half International
Leaving for another job, however, might not pay the way it did recently. Compared to a year ago, data shows the wage growth for job switchers is slowing. A job switcher’s hourly wages grew by 6.9% year over year in April compared to the 5.7% for those who stayed at their job, according to the Federal Reserve Bank of Atlanta. That compares to .5% for job switchers in July 2022 and 5.9% for job stayers.
The bottom line: If more companies want their people in the office more often, remote work loses its force as a bargaining chip, Prior said.