The Return To Office push has presented most workers with two options. Come back to the office as indicated or find another job. Then there is what’s behind door number 3, which is taking legal action. Remote workers are not a protected class so you wouldn’t think the approach wouldn’t have much to stand on. As it turns out, there are numerous potential legal arguments. Now I am not a lawyer and I don’t play one on TV. I do have a lot of experience consulting in the state unemployment world so I’ve seen what some companies have tried to get away with.
Layoffs in Disguise
There’s a common thought that comes up anytime we see a return to office push by some CEO. Do they want people to come back to the office, or do they secretly want to get rid of them, but not want to pay severance or unemployment? Every situation is different but state departments of labor are likely to ask the same questions. A lot depends on numbers. And if it affects more than 50 people, it becomes a bigger issue. The Worker Adjustment and Retraining Notification (WARN) Act is intended to give people advanced notice of mass layoffs. It’s not just a good idea, it’s the law. Companies can be fined for subverting it. If a company mandates 1000 people to come back to the office knowing only 700 will come, they may have violated the WARN Act. And what about those who don’t come back?
Constructive Dismissal
Constructive dismissal has been a term associated with wrongful termination for a while. There are lots of scenarios that fit with the term. It generally covers situations where a person is forced to leave their job not because they want to, but because of the situation. It could be dangerous working conditions, sexual harassment, a demotion, a reduction in pay, etc. The example that applies to people who lose their jobs and don’t return to the office involves forcing an employee to accept unreasonable changes to the conditions of employment without their agreement.
Changing the Rules
Not every return-to-office tactic is obvious. Some companies are simply changing the way people are paid. In-office attendance is being added as a criteria for promotions and bonuses. Recently a former AstraZeneca senior director sued her employer for refusing to pay her a performance bonus of more than $120,000, and stock options valued at more than $65,000, due to her working from home last year.
RTO Backfire
Courts are seeing through many of the return to office actions and companies are paying for it. In one case in the UK, an employee of Nationwide Building Society won a 350,000-pound settlement after being terminated for not returning to the office. The worker’s claim of indirect disability discrimination and unfair dismissal is becoming a common story on both sides of the Atlantic.
Equal Opportunities
While there are lots of arguments around remote work, Equal Opportunities is the area where most people are focused. There have been several EEOC lawsuits based on working remote as a reasonable accommodation for people with anxiety, depression, and medical or family care situations. The pandemic and working remote cast a spotlight on both our physical and mental health. Either of those can be a factor for people who don’t want to return to the office.
There are likely to be a variety of lawsuits, and there are also likely to be some new laws. The new UK Flexible Working law is one of the first to make remote work more mainstream. It’s not perfect, but will probably get better over time. Other countries are likely to follow suit. It’s unfortunate when choices come down to taking legal action. Some CEOs got the value of remote work almost immediately. They have happier workers, lower attrition, higher productivity, and lower costs. Others are still stuck in 2019. And those are the ones who will be dealing with lawsuits in the immediate future. It’s not ideal for anyone, but sometimes that’s the only way things get changed.
