Work life | Sue your employer for not returning to the office

Two years after the pandemic, workers are taking inflexible bosses to court for not returning to the office.




Zacchery Belval, a Connecticut designer with a weak heart and severe anxiety, was fired for refusing to return in person. Several doctors had signed notices ordering him to work from home, but his employer rejected them, citing tasks that had to be completed in person. Now he’s suing the company in federal court.

“They said: ‘Either you come back or you are out,’” says Mr. Belval. “It was a shouting match every day, with me saying, “Hey, it’s my health,” and management responding, “We don’t care.” »

American employers are toughening their stance on in-person work, leading to an increase in employee complaints before the courts and the National Labor Relations Board (NLRB).

According to workers, the requirement to work in the office can be unfair, discriminatory against the disabled and even an anti-union measure. Employers who have put an end to hybrid working maintain that face-to-face work improves corporate culture, collaboration and productivity. According to some lawyers, these lawsuits could set a precedent and force employers to reevaluate their policies.

Despite the desire of companies, the proportion of employees returning to work in the United States has not increased. In March, nearly 23% of the workforce was working full or part-time virtually, up from 19.5% a year earlier, according to the U.S. Bureau of Labor Statistics.

“The issue of returning to the office is far from settled,” says Dan Kaplan, partner at Korn Ferry, an organizational consulting firm. Some companies struggle to configure policies that take into account the burden on parents, caregivers, immunocompromised people and other employees who may be disadvantaged by in-person work. Employees have expressed their dissatisfaction through various means and appear to have decided that the courts are “their last resort,” Mr. Kaplan says.

Increasing number of legal actions

Mr. Belval’s dismissal in August 2023 was the culmination of a conflict that lasted years. He is seeking his salary, his legal fees and damages for the moral damage suffered. His employer, submarine maker Electric Boat, a subsidiary of General Dynamics, declined to comment.

PHOTO TAKEN FROM THE ELECTRIC BOAT/GENERAL DYNAMICS SITE

Zacchery Belval is suing his former employer, the nuclear submarine manufacturer Electric Boat.

According to Mr. Belval’s lawyer, Peter Goselin, there are more and more lawsuits filed by workers who insist on teleworking. Mr. Belval’s trial must determine whether face-to-face work is essential for his work or whether teleworking is a “reasonable” accommodation, he said.

Two federal courts have already ruled on appeal that teleworking can be considered reasonable, says Me Goselin. One ruled in favor of Dionne Montague, a public relations employee suffering from a nervous condition, who asked the U.S. Postal Service to telework some mornings and come to the office in the afternoon. The other court ruled in favor of Joseph Mobley, a customer service employee with multiple sclerosis, who asked St. Luke’s Health System to work from home after his condition worsened.

“Teleworking is essential for disabled or sick people”, underlines Me Goselin.

Collective power

Not all complaints relate to health. Complaints for various unfair labor practices have been filed by workers in the New York TimesGoogle, Cognizant, X, Grindr and Washington Post. The allegations were diverse: retaliation to counter unionization; illegal dismissal for publicly criticizing the order to return to the office; refusal to negotiate the issue of returning face-to-face.

PHOTO HAIYUN JIANG, THE NEW YORK TIMES ARCHIVES

Labor relations deteriorated Washington Postwhere employees went on strike in December 2023.

The two daily newspapers and X did not wish to comment on the matter.

Last year, the dating app Grindr lost 45% of its employees after requiring them to move to Chicago – on two weeks’ notice – and work in the office two days a week. The workers then filed a complaint with the National Labor Relations Board.

Drew Brunning, a former Grindr engineer who lives in Middleton, Wisconsin, said he could not have moved his family and enrolled his daughter in a Chicago school within the required two-week time frame. He remembers thinking, “They’re kicking us out because we tried to unionize.”

“It’s the nuclear option, the kind of illegal action no company would try, but they did it the same way,” Mr. Brunning said.

Grindr says it ordered the return to the office to improve collaboration and productivity, adding that the decision preceded the union certification vote.

“It was only after the in-person return was announced that employees began signing union cards,” said spokesperson Sarah Bauer, adding that Grindr respects employees’ right to unionize.

YouTube Music employees say they experienced the same thing and filed a complaint with the NLRB.

PHOTO TAKEN FROM THE AFL-CIO UNION SITE

Workers at Cognizant – a Google subcontractor – went on strike before being fired. Employers then asked some workers to train subcontractors abroad, who would do their work, says a former employee.

Their employers, Google and Cognizant, announced the gradual return to face-to-face work (two days a week, then five days a week) in the office in December 2022, two months after a request for union accreditation. Employers have also eliminated the right to take unpaid leave, says employee Katie-Marie Marschner. Both measures forced her and other colleagues to give up other jobs needed to make ends meet.

“People think tech workers are spoiled,” M saidme Marschner, according to whom Google pays its employees ten times more than those of its subcontractors like Cognizant. “We cannot live on this salary, and imposing the commute to work would plunge us even further into poverty. »

The workers went on strike before being fired. Employers then asked some workers to train subcontractors abroad, who would do their jobs, Ms.me Marschner.

According to Cognizant and Google – which disputes the designation of joint employer – the layoffs took place after the normal end of a commercial contract.

Not won in advance

According to Obermayer labor relations attorney Melissa Atkins, her clients, who are employers, do not view lawsuits as a significant factor in developing their return-to-office policy.

“Changing this type of policy is a stewardship right,” said Me Atkins. “I don’t really see any legal basis to challenge these policies,” she says, unless there is a collective agreement providing for teleworking or an individual contract guaranteeing flexible working.

According to Me Atkins, employees who challenge mandatory face-to-face work in court have a long way to go.

Despite this, Mme Marschner, the former YouTube Music employee who now wants to become a union organizer, says it’s worth the effort.

“At the end of the day, it’s a balance of power,” she said. However, you have to unionize to acquire collective power. It’s the only way out of this mess. »

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reference: www.lapresse.ca

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