Transitioning Remote Employees Back to the Office: 7 Key Insights for Global Employers

00:00

24:53

Quick Hits

• In the United States, non-unionized companies can mandate a return to the office due to at-will employment norms, but this may strain employee relations.
• Internationally, long-term remote work can become an implied term of employment, requiring employee consent to mandate a return to the office.
• Pairing return-to-office policies with beneficial changes may help encourage employee consent and mitigate legal risks.

Key Insights

1. U.S. vs. International

In the United States, where at-will employment is the employment doctrine in all states but Montana, companies can simply inform employees that they need to return to the office, whether part-time or full-time. Employees who do not comply can be dismissed. This is legally straightforward, though it may not be ideal for employee relations.

Outside the United States, the situation is more complicated. Long-term remote work can become an implied term and condition of employment, making it difficult to mandate a return to the office without employee consent.

2. Implied Terms and Conditions

In many countries, employment relationships are contractual and require a written contract stating the terms and conditions of employment. Even if remote work is not explicitly stated in the contract, it can become an implied term if it has been a consistent practice.

This means that employers cannot unilaterally change the terms and conditions of employment. They need to obtain employee consent for any amendments. For example, when an employer has a custom and practice of allowing employees to work from home two days a week, even though it is not written in the contract, it becomes an implied contractual term.

3. Contractual Amendments

Employers can propose a contractual amendment to bring employees back to the office, but employees must consent to it. Since employees have become accustomed to working remotely or from home, this is considered a detrimental change. Many employees will likely be hesitant to agree to an amendment.

If remote work has been in place for a significant period, such as from the onset of the COVID-19 pandemic, it may be challenging to revert to pre-pandemic office requirements, and will require careful handling. In some countries, employers will need to go through a consultation process with employees before they can ask for their consent to an amendment.

4. Consultation Process

Many jurisdictions consider consultations with employees a best practice (with the failure to do so creating exposure to legal challenges). Employers may want to propose the change to an in-office policy and then gather feedback from employees. This process can take several weeks and requires thorough documentation and consideration of employee input.

The feedback is essential to helping employers decide whether to make the change. When results indicate a return-to-the-office structure is warranted, employers can then attempt to finalize the change by notifying employees and asking them to sign a contractual amendment with new terms and conditions of employment.

5. Facilitating a Smooth Transition

Employers can pair detrimental changes, like a return-to-office policy, with beneficial changes such as a one-time bonus, improved medical or retirement plans, or enhanced parental leave.

The goal is to make the overall package attractive enough for employees to consent to all the changes. If not handled correctly, employers may face legal risks.

6. Legal Risks

Mishandling the process can lead to legal claims for breach of contract or constructive dismissal. Depending on the jurisdiction, employees have the right to make these kinds of claims in local labor courts.

7. Jurisdiction-Specific Considerations

The right to make flexible working requests varies by country. Some jurisdictions allow all employees to make these requests from day one, while others have specific requirements or limitations, such as waiting periods and/or service length. So even a legally-compliant process to bring employees back to the office could be thwarted by employees exercising their statutory right to make flexible working requests.

Key Takeaways

Assessing contractual obligations, consultation processes, and jurisdiction-specific regulations are important steps for multinational companies interested in reversing their work-from-home policies. By carefully planning and considering employee perspectives, companies can manage this transition effectively.

Ogletree Deakins’ Cross-Border Practice Group and Global Reorganizations Practice Group will continue to monitor developments and will post updates on the Cross-Border and Global Reorganizations blogs as additional information becomes available.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts