Thinking of giving up the office for good? Here’s what to consider before going completely remote.
We spoke to several employment experts to answer two common worker questions: If you accept a remote job, can you be forced back into an office? And can employers structure different return-to-work policies for unionized workers versus non-unionized workers?
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Now back to those burning questions back at the office.
Q: If you accept a remote/hybrid work position that your employer later converts to an office position, do you have any recourse?
The short answer is: it depends on how influential a worker is and whether the worker has a binding and enforceable contract. But aside from contracts and leverage, employment is “at will,” which means an employer has the legal right to change the working arrangements of their employees at any time.
“The employer can do whatever they want,” said Mark Neuberger, labor and employment attorney at Wisconsin-based Foley & Lardner. “If they say, ‘We change our minds,’ the employee is a bit stuck.”
If a worker wants to ensure that a job they do remains remote or hybrid (i.e. working part-time from the office) for the long term, their best protection is a contract. This could be a separate contract setting out the terms of the remote/hybrid work agreement, it could be included in the letter of offer the employee signs upon hiring or be part of a union contract. (Note: a job description is not considered a contract, and some states may differ in what they consider a legally binding contract.)
But a contract alone may not be enough. To ensure that their work arrangement is protected, employees should also try to negotiate an enforcement clause, such as a severance clause, which will provide support to the worker if the contract is breached. Otherwise, an employer could terminate the contract without consequence and find another employee for the position instead.
In some cases, this may take the form of a “good cause clause,” which gives employees certain benefits even if they quit. In this case, a just cause clause would specify that if the employer changes the working conditions, the worker would have “just cause” to quit and would therefore receive severance pay after doing so, for example.
Gus Sandstrom, an employment law attorney with Philadelphia-based Blank Rome, said these types of agreements are typically reserved for higher-level and management positions. But given the competitive job market, employees carry “more weight than at any point in our lives,” he said. So they might as well ask.
“Employees can ask for and get things these days that many employers wouldn’t have considered years ago,” he said. “Worst case [the employer] will say no. But they are unlikely to withdraw an offer because an employee asked for greater protection.
But employees should beware. Asking for an enforceable contract could also give employers a chance to ask for something in return, said Sharon Block, professor of practice and executive director of the Labor and Life Program at Harvard Law School. This could mean a guarantee that a worker won’t leave for a certain period of time, for example.
But even if employees can’t convince an employer to agree to an enforceable contract, it’s still important to get their employers’ terms of employment in writing, Block said.
“Most employers want to do the right thing and will recognize that they are committed,” she said. “For an employer, morale and recruiting costs can be significant.”
Q: Can an employer set very different return-to-work policies for unionized and non-unionized workers?
Simply put: Yes. Employers have every right to establish different policies for non-union and union employees assuming they are upholding the union contract and not discriminating against employees because of their membership. union.
This means that an employer can ultimately offer better or worse conditions for non-union employees at any time. Employees can agree to the terms, raise concerns, or look elsewhere. But if they decide not to follow the new rules, it could lead to their termination.
Ask the helpdesk: what happens if you refuse to return to the office?
But employers will likely try to maintain uniform policies across the board, especially if they want to keep their workers happy. Even an anti-union employer would be wise to extend the benefits it gives its union workers to its non-union workers, Neuberger said.
“If you treat union employees better than everyone else, everyone will just unionize,” he said.
Conversely, if an employer creates better conditions for non-union employees while dragging its feet in negotiations with the union, it could create a hostile environment for many workers, Sandstrom said.
“Generally, employers want to maintain good labor relations,” he said. “It would be a bit like throwing a grenade at the situation.”
Block also said employers cannot create different terms in an effort to discourage people from unionizing because it would be a violation of the National Labor Relations Act (NLRA). If a worker or group of workers suspects that this is the case, they can file a complaint with the National Labor Relations Board.
Employees are also protected by the NLRA to collectively approach the employer, express dissatisfaction with policies and demand different working conditions.
“The employer has no obligation to negotiate with them to do what they ask,” she said. “But the employer cannot retaliate against them for asking to meet and ask.”
But it is important for workers to know that in some cases they can be protected by a union contract even if they are not unionized. Patricia Campos-Medina, executive director of Cornell University’s Labor Institute, said that in “right to work” states, where a classification of workers unionizes and solidifies a contract, the agreement covers all workers of this classification, that the worker pays the contributions. Thus, a non-unionized nurse may be covered by the contract of a nursing union in the same hospital, for example.
Campos-Medina said the wisest thing employers can do is listen to the demands of their employees, whether unionized or not, especially as the labor shortage continues.
“If you don’t house your workers, you will lose them,” she said. And “to attract more talent, more employers need to be more flexible”.