After two years of working from home, thousands of workers are being called back to the office, which has created a new point of tension between employees who want flexible work and bosses who want them back.
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 would love to hear from you about your workplace issues and help you navigate the future. To make it easy, we created a submission form for you to air your questions, concerns or thoughts about the problems you may have been encountering in the workplace. Now let us explore that tricky little thing that is the return to the office.
Q: Can you refuse to return to the office?
The simple answer is workers generally have little to no legal power to push back. But that does not mean they lack power. Let us 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 rules determined by the Occupational Safety and Health Administration, workers do not have much legal leverage to push back.
“There is no right to work wherever you want,” said Laura Reathaford, a partner in the employment practice group at California law firm Lathrop. “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 nonunion 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 and being replaced during strikes, 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, a shareholder at California law firm Weinberg Roger & Rosenfeld, which represents unions and workers. “It does not mean you do one part of the employer’s direction,” he said. “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 is “nothing like a labor shortage” to give workers a leg up.
“Employers are going to be more sensitive to employees,” said Robin Samuel a partner in the employment practice at Baker McKenzie based in California. “They don’t want to fire everybody. That will hurt them.”
Q: What power does an employer have?
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 protocol to return to the office, 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 discrimination, “you have to go work elsewhere.”
Employers can fire as many workers as they see fit for not following a policy, 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 National Labor Relations Act, 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 has seen a lot of accommodation requests as it relates to the coronavirus. 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 vulnerable relatives.
“Employers don’t automatically have to grant accommodations,” he said. Laws on the matter vary state to state, but “employers have to consider that.”
Q: How should we all handle this policy?
The key to solving this problem, some expert say, boils down to the simple solution of communication. Workers concerned with plans to return to the office should raise their issues with their managers. And they might have more influence voicing it as a group.
“It is 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 more flexible work options is to persuade management that working remotely, even part time, provides more value than at the office, Fisk said. It is also important for workers to remember they are coming from a place of strength, given the ongoing war for talent, she said. “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 pushback from workers. Not only will this keep their workers happy, it will also serve as a competitive advantage as they compete for new hires. “You may have legal rights to demand everyone come back to the office,” Spring said. “But ultimately, you are 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. Policies to return to the office 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 want to stay remote, Fisk said. Do they need a service to walk their dog or an office that accommodates their pandemic puppies? Would a change to a more casual dress code help?
It is 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 are filing a complaint, you have gotten to a place where the relationship is already broken.”