Danielle Abril and Taylor Telford,
Mon, May 6, 2024
SAN FRANCISCO, CALIFORNIA - OCTOBER 27: An office sits vacant on October 27, 2022 in San Francisco, California. According to a report by commercial real estate firm CBRE, the city of San Francisco has a record 27.1 million square feet of office space available as the city struggles to rebound from the Covid-19 pandemic. The US Census Bureau reports an estimated 35% of employees in San Francisco and San Jose continue to work from home. (Photo by Justin Sullivan/Getty Images)More
After more than two years of fighting against return-to-office mandates, workers are fed up with their bosses’ inflexible policies and are taking their battle to court.
Zacchery Belval, a designer from Connecticut who has congenital heart disease and severe anxiety, was fired after refusing to return to the office. Despite submitting several doctor’s notices about his medical need to work from home, his employer denied his request citing in-person job duties. Now, he’s suing the company in the U.S. District Court of Connecticut.
“They just said either you come back … or you’re fired,” Belval said. “It was literally screaming matches with management every day saying, ‘Hey, this is about health,’ and management going, ‘We don’t care.’”
As companies across the United States increasingly take a hard-line stance on office mandates, an increasing number of workers are elevating their complaints to court and federal labor agencies like the National Labor Relations Board and the Equal Employment Opportunity Commission. Workers argue that mandates can be unjust, discriminate against people with disabilities and is a retaliatory action against unionization efforts. Employers that have backtracked from flexible work argue that being in the office is necessary as it improves company culture, collaboration and productivity. The outcomes of these cases could be critical and force employers to reevaluate their policies, some lawyers say.
“They can have a significant impact if there’s an agency or court ruling,” said Andrew Melzer, partner at civil rights law firm Sanford Heisler Sharp. It could determine “what’s considered permissible.”
Despite the corporate push, the percentage of workers who’ve returned to the office in the United States hasn’t risen substantially. In March, nearly 23 percent of workers did their jobs remotely, at least part time, compared to 19.5 percent a year prior, according to the U.S. Bureau of Labor Statistics.
Return to office “is the issue that just doesn’t seem to go away,” said Dan Kaplan, a senior client partner with Korn Ferry’s chief human resource officer practice. The landscape remains in flux, Kaplan said, in part because some companies have struggled to configure office policies that account for the burden on parents, caregivers, the immunocompromised and others who may be taxed by mandates.
Since the mandates began, employees have raised a fuss through public outcry, petitions calling for policy changes and other internal pushback. Now, “litigation seems to be their last resort,” Kaplan said.
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Escalating legal action
Workers who have resorted to filing legal action over remote work say their employers’ rejections have been shocking and unfortunate.
For Belval, 31, the issue dragged on for years, ending with his dismissal in August 2023. Now he’s seeking to recover lost wages, be reimbursed for attorney’s fees and compensated for his pain and suffering. His employer, Electric Boat, a unit of General Dynamics, declined to comment on the lawsuit.
Belval’s lawyer, Peter Goselin, said he’s seeing a rise in workers filing lawsuits against their employers to work remotely. Belval’s lawsuit boils down to whether working from the office is considered essential to his job and whether remote work is a “reasonable” accommodation, he said.
Two circuit courts have already ruled that remote work could be considered reasonable, Goselin said. A U.S. Court of Appeals made that ruling in a case where Dionne Montague, a public relations worker who has a nerve condition, requested that the U.S. Postal Service allow her to work some mornings from home and go to the office in the afternoon. And another U.S. Court of Appeals came to a similar conclusion after Joseph Mobley, a customer service worker diagnosed with multiple sclerosis, asked St. Luke’s Health System to work from home when his condition flared up.
“That [remote work] has huge significance for people with disabilities and health issues,” Goselin said.
Since the pandemic, the EEOC has received at least a handful of remote-work cases. One in Baltimore resulted in $25,000 settlement to the employee.
Lina Lucifero filed a lawsuit with the EEOC after Design & Integration refused to allow her to work remotely one day a week for a few weeks because of her anxiety and depression, much of which flared up because of job stress, she said. Instead, she alleges, the company fired her, suggesting that they wouldn’t have hired her had they known about her mental health issues.
“Right away, I said, ‘This is discrimination,” Lucifero said. “I felt dehumanized and labeled … I am someone with a mental illness and was kicked out because of it.”
In addition to the payout, the settlement shows that Design & Integration was required to develop and distribute an American Disabilities Act policy to employees, provide training and post a notice of the settlement. The company did not respond to a request for comment.
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Collective power
Not all complaints center on health and disabilities. Unfair labor-practice charges have been filed with the NLRB by workers at the New York Times, Google, Cognizant, X, Grindr, and The Washington Post. Concerns span from alleged retaliation for unionization efforts, to an unlawful dismissal for publicly criticizing an office mandate, to failing to bargain over the issue.
The New York Times, The Post and X didn’t comment on the matter.
Last year, LGBTQ+ dating app Grindr lost about 45 percent of its employees after it required people to move across the country and work from assigned offices two days a week. So workers filed a charge with the NLRB.
Quinn McGee, a New York City resident and former Grindr product manager who uses they/them pronouns, said they’d have to move to either Los Angeles or the Bay Area, where Grindr had not yet set up an office, despite living close to the Brooklyn office. But the engineers McGee worked with daily were assigned to the Chicago office, so McGee would be restricted to working with colleagues on Zoom.
Management delivered the mandate two weeks after employees filed to form a union and refused to take questions, McGee said.
“This was absolutely heartbreaking,” they said. “My partner is a medical provider, and I’m a trans person who has local health care professionals I trust. We can’t just up and leave with no notice.”
Drew Brunning, a former Grinder engineer who lives in Middleton, Wis., said he wouldn’t have been able to move his family and enroll his daughter at a school in Chicago within the required two-week time frame.
“They’re firing us for trying to form a union,” he remembers thinking. “It was a nuclear option that’s supposed to be illegal and no company would try it. But they did it.”
Grindr said it implemented its policy to improve collaboration and productivity. In a statement emailed to The Post, Sarah Bauer, a spokesperson for Grindr, said the company’s decision to implement the mandate “preceded the union election petition.”
“It was only after staff knew that the transition to in-office work was underway that employees began signing union cards,” Bauer said, adding that the company supports employees’ right to unionize.
Meanwhile, a group of Austin-based YouTube Music workers say they experienced something similar and also filed an NLRB charge.
Their employers, Google and Cognizant, announced an office mandate in December 2022, two months after employees filed for a union election. The mandate required employees to return to the office starting two days a week, leading to five days a week. The employers also revoked its unpaid time off policy, said Katie-Marie Marschner, forcing her and others to give up other jobs needed to make ends meet.
“Everybody assumes we’re just spoiled tech workers,” Marschner said, adding that Google pays its employees 10 times more than those that work through subcontractors like Cognizant. “It’s not a living wage and adding the commute would force us further into poverty.”
Workers went on strike before getting laid off while appealing to the Austin City Council for help. Employers then asked workers to train contractors overseas to do their jobs, Marschner said. They were sent to work from an unfinished office, told they couldn’t have anything - including their cellphones - at their desks and weren’t given much work, she added.
Google, which is fighting its designation as a joint employer, and Cognizant said that the layoffs came after the normal end of a business contract. Cognizant said hybrid work is “the way of the future” and the Austin workers’ contracts required them to work from the office.
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An uphill battle
Melissa Atkins, a labor and employment lawyer at Obermayer, said her clients, who are employers, are not considering the potential for legal action as a major factor in shaping their return-to-office policies.
“It’s a management right to change a policy,” Atkins said. Absent a collective bargaining agreement that hinges on the ability to work from home, or employers breaking contracts guaranteeing flexible work, “I can’t really see any real legal basis to challenge these policies.”
Workers who try to challenge their employers over office mandates in court will face an uphill battle, Atkins said.
Despite the difficulty, Marschner, the former YouTube Music worker who’s now motivated to get a job as an organizer, said the fight is worth it.
“It’s really all about power,” she said. “So you have to organize to flex your collective power. That’s the only way out of this mess.”
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