We’ve spoken to several employment experts to answer two common questions from workers: If you take a remote job, can you be forced back to an office? And can employers structure different return-to-office policies for workers who are unionized versus nonunion workers?
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Now, let’s get back to the those burning return-to-office questions.
Q: If you take a remote/hybrid work position that your employer later changes to in-office, do you have recourse?
The short answer is: It depends on what leverage a worker has and if the worker has a binding and enforceable contract. But contracts and leverage aside, employment is “at will,” meaning an employer has the legal right to switch the working arrangements of their employees at any time.
“The employer can do whatever they want,” said Mark Neuberger, labor and employment lawyer at Wisconsin-based firm Foley & Lardner. “If they say, ‘We change our minds,’ the employee is kind of stuck.”
If a worker wants to ensure a job they’re taking remains remote or hybrid (meaning working part-time from the office) for the long term, their best protection is a contract. That could be a separate contract spelling out the terms of the remote/hybrid work arrangement, it could be included in the offer letter the employee signs upon hiring or 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 their work arrangement is protected, employees should also try to negotiate an enforcement clause, like a severance provision, that will provide the worker support if the contract is broken. Otherwise, an employer would be able to terminate the contract without consequence and find a different employee for the position instead.
In some cases, that might take the form of a “good reason clause,” which gives employees some benefits even if they quit. In this case, a good reason clause would specify that if the employer changes the working arrangement, the worker would have a “good reason” to quit and therefore receive severance after doing so, for example.
Gus Sandstrom, an employment lawyer at Philadelphia-based Blank Rome, said these kinds of agreements are usually reserved for upper level and executive positions. But given the competitive job market, employees have “more leverage than any time in our lifetime,” he said. So they might as well ask.
“Employees can ask for and get things these days that a lot of employers wouldn’t have considered years ago,” he said. “Worst case [the employer] will say no. But it’s unlikely they’d retract an offer because an employee asked for greater protection.”
But employees should beware. Asking for an enforceable contract might also give employers the chance to ask for something in return, said Sharon Block, professor of practice and executive director of the Labor and Worklife Program at Harvard Law School. That could mean a guarantee that a worker will not leave for a specified amount of time, for example.
But even if employees can’t get an employer to agree to an enforceable contract, it’s still important to get the working arrangement in writing from their employers, Block said.
“Most employers want to do the right thing and will recognize they made a commitment,” she said. “For an employer, morale and recruiter costs can be significant.”
Q: Can an employer set vastly different return-to-office policies for union workers vs. nonunion workers?
Simply put: Yes. Employers are well within their rights to make different policies for non-unionized employees and unionized employees assuming it abides by the union’s contract and does not discriminate against employees based on their union membership.
This means, an employer can ultimately roll out better or worse conditions for non-unionized 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 result in their termination.
But employers probably will try to keep policies even across the board, especially if it wants to keep its workers happy. Even an anti-union employer would be wise to extend the benefits it gives its union workers to its nonunion workers, Neuberger said.
“If you treat unionized employees better than the others, everyone will just go join the union,” he said.
Conversely, if an employer creates better conditions for non-unionized employees while it drags its feet bargaining with the union, it could create a hostile environment for many workers, Sandstrom said.
“Generally, employers want to maintain good union relations,” he said. “That would be somewhat like throwing a grenade on the situation.”
Block also said employers can’t create differing conditions for the purpose of discouraging people from joining the union, as that would be a violation of the National Labor Relations Act (NLRA). If a worker or group of workers suspect that to be 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 their dissatisfaction with policies and ask for 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 or for getting together to ask.”
But it’s important that workers know that in some cases, they might be protected by a union contract even if they aren’t in the union. Patricia Campos-Medina, executive director of The Worker Institute at Cornell University, said that in “right-to-work” states, where a classification of workers unionize and solidify a contract, the agreement covers all workers within that classification regardless of whether the worker pays dues. So a nonunion nurse may be covered by a nurse’s union contract at the same hospital, for example.
Campos-Medina said the wisest thing employers can do is listen to the requests of their employees regardless of whether they’re unionized, especially as the labor shortage continues.
“If you don’t accommodate your workers, you’ll lose them,” she said. And “to attract more talent, more employers have to be more flexible.”