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Returning to Work Post-COVID – Handle with Care, Employers

ABSTRACT: Return-to-work policies may affect different groups differently based on race and sex. Employers should carefully craft their policies to avoid potential Title VII or Equal Pay Act claims.

COVID-19 created unprecedented situations in every type of job, industry, and profession, including the legal field.  Change, evolution, and adaptation became commonplace as everyone learned how to navigate the process of operating from both work and home. Essentially, the COVID-19 pandemic turned our working lives upside down for the better part of two years.

As more people become fully vaccinated, many are eagerly anticipating a return to “normalcy.”  For most, that includes returning to the office (whether full-time, part-time, or by remote or virtual means). But more than 100 million Americans have worked remotely (at least part-time) since the beginning of the pandemic. And many of these employees hope to work remotely permanently. However, for employers intending for their employees to return to the office, potential pitfalls await.

Employees who have learned to enjoy the work-from-home model see a variety of benefits, including:

  1. Not having to commute to work;
  2. No required dress code (unless you are on a video conferencing call, such as with a Court);
  3. The ability to take care of work/projects at home while on breaks from office work;
  4. The ability to stay home with a sick family member;
  5. The ability to more easily schedule personal appointments around work. 

But there are pitfalls to working from home, which include:

  1. Potentially having to purchase additional office equipment to effectively do work (e.g., printer/scanners, computer monitor);
  2. Taking extra precautions to keep client information safe and confidential;
  3. Blurring the lines between being present at work and being present at home;
  4. Losing some collaboration, communication, and visibility with your colleagues/team/management;
  5. More distractions at home to sidetrack you from getting your “office” work done.

Recent studies indicate that some categories of employees are less eager than others to return to the office. One such survey [Who Wants To Return To The Office? | FiveThirtyEight] indicates that women and minorities are less eager to return to in-person work, while white men are the group most eager to return to the office. In many families, women bear the load of being both the primary caregiver, as well as a full-time employee, and providing options to work from home provides potentially more time to devote to both. Another factor that may be at play is an office culture in some workplaces that has given white men a higher comfort level than other groups. Whether it’s “water cooler talk,” “the good ol’ boys club,” or the standing Friday afternoon round of golf, certain employees can feel excluded and alienated in the workplace.        

Employers should take note, as return-to-work and remote work policies may someday serve as the basis for disparate impact claims under Title VII or Equal Pay Act claims. If women and minorities are more likely to opt to work from home (or risk termination or quit when return to the office is mandated), then employers must carefully implement policies or practices to avoid violating the law.  These policies or practices should be implemented both to comply with the law, and to promote the well-being and job satisfaction of all of their employees.

Disparate Impact under Title VII

Disparate impact claims under Title VII can be tricky for employers to defend because there is no intent requirement. To state a claim of disparate impact, a plaintiff must allege a facially neutral policy that causes statistically significant disparities in employment between a favored class and a disfavored class. Here, women or minorities may be able state a claim for disparate impact where a remote work policy caused them to be disfavored.

For example, a mandatory return to the office under threat of termination may cause a disparate impact if it causes women and minorities to quit in much higher numbers than white workers or men. The policy itself does not discriminate based on race or sex, so it is facially neutral. However, if it falls more harshly on a particular group, it may support a claim.

Disparate impact claims are analyzed under a burden-shifting scheme similar to the familiar McDonnell Douglass framework. If the plaintiff makes a prima facie case, then the burden shifts to the employer to demonstrate that the policy serves a “legitimate, non-discriminatory business purpose.” Then the burden shifts back to the plaintiff to show that the articulated reason is pretextual.

Some employers may have difficulty proving a legitimate business justification for ordering employees to return to the office. Many employers have seen that productivity has remained steady or in some cases increased as more employees work from home. In some cases, it may be more expensive for employers to have workers in the office than working remotely. Therefore, employers seeking company-wide return to work should carefully consider the reasons for doing so.

Minimizing Impacts on Remote Workers

A major potential pitfall will be in promotions. Employers must be mindful of the subjective and objective criteria managers employ in determining promotions. Traditional factors such as “face time” with the boss, being seen in the office early in the morning and late at night, or overall “attitude,” “personality,” or “fit,” may disfavor remote workers. Where these factors would tend to disfavor remote workers, they may work to cause statistical disparities between male and female or white and minority workers.

Equal Pay Act

The Equal Pay Act requires that employees of opposite sexes be paid the same for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.”). In the absence of direct evidence of discriminatory intent, the court applies the familiar McDonnell Douglas burden-shifting framework. The plaintiff puts forth a prima facie case, and the employer must show that there exists a legitimate nondiscriminatory factor on which it based the wages paid. Legitimate factors include seniority systems, merit systems, piecework pay rates, for example. The burden then shifts back to the plaintiff to come forward with evidence that the proffered reason was pretextual.

Some employers may feel inclined to pay remote workers less than in-office workers. And studies indicate that some workers would be willing to take a pay cut to work from home. However, if disproportionate numbers of women intend to continue working remotely, then pay differentials could potentially support an Equal Pay Act claim. It is not a complete defense that there are also some men who work remotely at lower salaries. Likewise, it is an open question whether working from home versus working in the office would be a legitimate nondiscriminatory factor supporting pay disparities. However, if an employer saves money by having employees work remotely, it will be hard to avail themselves of that defense.

Planning and Recordkeeping Can Help Avoid Liability

In crafting a return-to-work policy that works for everyone, for purposes of potential employment-related claims, employers should consider:

  • Whether an across-the-board return to work policy is necessary or desirable.
  • If individual approval of remote work is practical. A policy should be based on specific, objective (and recorded) criteria such as seniority, performance evaluations, disciplinary history, and productivity. A copy of the determination should be placed in the employee’s file.
  • Whether to re-evaluate promotion and job performance criteria, to focus on objective work-related factors, while weeding out unintentionally discriminatory factors (such as face time with the boss, early arrival at work, etc.).
  • Whether remote work may be a reasonable accommodation for disabled workers.
  • How to ensure that remote workers have equal access to career-advancing training, mentorship, and special projects.

There is never a bad time to consider whether office culture can be made more inclusive. As more people return to the office, it is important to ask whether there are employees who are reluctant to return, and why.