Dear Littler,

 We are a professional services company with employees in various states. During the pandemic we shifted to fully remote work. As the pandemic subsided, we still leaned into remote work to attract and retain talent who preferred remote work. We also shifted our focus almost exclusively to digital services that did not require an in-person presence since our clients were also remote. We kept most of our physical offices intact but downsized some square footage to reduce our overhead.

Things have changed dramatically in the past year. The majority of our clients returned to the office and now require in-person services. Some of our seasoned employees are approaching retirement and our newer employees have struggled to find meaningful opportunities to learn from these more seasoned employees during remote work. While we tried to do our best to build a strong culture during remote work, our efforts fell flat. Employee engagement and collaboration declined since the pandemic.

We have decided to implement a return-to-office policy. We want to know what our options are, what pitfalls to avoid, and how best to prepare for some anticipated employee pushback. What should we prepare for and consider in implementing our return-to-office policy?

—Returning to Office

Dear Returning to Office,

You are not alone. Littler’s 2024 Annual Employer Survey revealed that 88% of organizations have implemented a return-to-office policy. By contrast, Littler’s 2022 Annual Employer Survey revealed that only 54% of organizations had implemented such a policy.

There are many things to consider and prepare for when requiring remote employees to return to the office. With the right guidance and planning, the company can tailor its return-to-office policy to fit its needs, limit employee discontent, and address employee pushback head-on.

First, the company should consider what type of return-to-office protocol best suits its needs (i.e., hybrid or fully in-person) and whether it should vary depending upon the department or job class. For some, a one-size-fits-all approach may be best. For others, it might make sense to adopt a more tailored approach. Factors such as customer expectations, job duties, hiring and retention for indispensable roles, and limited office space should all be considered. For example, IT personnel may be able to complete their duties remotely, whereas in-person sales personnel may need to be face-to-face with clients who returned to office. When implementing a hybrid approach, you might consider scheduling in-person days for each team to increase collaboration by ensuring everyone is in-office on the same day rather than a scattershot approach.

Second, whatever type of return you decide upon, it should be documented and announced in a written return-to-office policy. The policy should clearly explain return-to-office expectations, enforcement, and the disciplinary consequences for failure to return to the office. The policy should be equally enforced to avoid prospective claims for discrimination based on a protected class. 

Third, if the company is going to enforce its return-to-office policy it should consider tracking employee compliance. Performance management for policy violations should be supported by documentation and applied equally to avoid discrimination. In the case of return-to-office, there are many ways employers track in-person attendance—badge swipes, computer or WiFi logins, time clock systems, and self-reporting to name a few. When selecting a tracking method, the company should consider the availability and accuracy of the data, collection and storage, and training. Depending on the state, employers should consult data privacy laws before tracking employees via biometrics, mobile phone or geolocation, or video surveillance. Separate policies and procedures may need to be implemented for data privacy compliance.

Fourth, expect a significant increase in employee requests for leaves of absence or remote work accommodations due to anxiety and other mental health conditions. The company should develop a plan to address this influx of requests and familiarize itself with its obligations under the Americans with Disabilities Act, Family Medical Leave Act, and more stringent state and local disability and leave laws. While the company may be tempted to discount the validity of requests that emerge shortly after announcing the return to office, it should still follow its legal obligations, including engaging in the interactive process when necessary. Vetting these requests and avoiding violations of federal and state leave and disability laws may require significant time and attention.

Fifth, expect some employees to assert claims for breach of contract, fraud, or promissory estoppel. In the past few years there have been a significant increase in employees filing civil lawsuits asserting these claims based on alleged promises or representations of remote work when faced with return-to-office requirements. The company may want to evaluate its past representations to employees as well as any written employment agreements to evaluate such claims.

Sixth, if the company has a unionized workforce it should consult its collective bargaining agreement and union before unilaterally implementing return-to-office requirements. In at least one case, the National Labor Relations Board held that an employer’s unilateral implementation of a return-to-office policy for bargaining unit employees without first bargaining with the union to an overall good faith impasse violated Section 8(a)(5) and (1) of the National Labor Relations Act. Unilaterally changing the full-time remote work status of an employee without first notifying and bargaining with the union and discharging the employee when he failed to report to work on campus was also deemed a separate violation.

In addition to the highlighted topics, employers may need to consider the impact on staffing from turnover and prepare for a smaller candidate pool as many employees and applicants prefer remote work. Planning and preparation before implementing a return-to-office policy allows employers to best support their workforces and the stability of their businesses before problems arise.