In this episode of our Cross-Border Catch-Up podcast series, Shirin Aboujawde (New York) and Goli Rahimi (Chicago) discuss the complexities of reversing work-from-home policies from an international employment law perspective. Goli and Shirin review the legal intricacies and potential challenges global employers may face when asking employees to return to the office, highlighting the differences between U.S. and international practices and the importance of careful planning and consultation.
Transcript
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Goli Rahimi: Welcome to the Cross-Border Catch-Up, the podcast for global employers who want to stay in the know about cutting-edge employment issues worldwide. My name is Goli Rahimi, and I’m here with my colleague Shirin Aboujawde. We are Cross-Border attorneys here at Ogletree, and today we’re going to talk about reversing work-from-home policies from an international employment law perspective. Shirin, thank you so much for joining us today.
Shirin Aboujawde: Thanks for having me, Goli.
Goli Rahimi: All right, so let’s get into it. So, what we’ve been seeing, but especially post-COVID, a lot of companies and employers are doing essentially an about-face on the whole work-from-home revolution. So, employees who were previously allowed to work remotely are now being asked to come back physically into the office. In the U.S., this is legally simple, even if it’s not great from an employee relations standpoint. Essentially what U.S. companies are doing are just informing the employees that they need to come back into the office, whether that’s on a part-time basis or five days a week. But what we’re going to talk about today is that outside the U.S., it’s not as simple as that, is it?
Shirin Aboujawde: No, Goli, it’s not. You’re absolutely right. Outside of the U.S., once you’ve engaged in a custom and practice over a prolonged period of time. So, for example, if after COVID you allowed employees to continue to just work from home or only required employees to come out into the office two times a week, then it can, in certain circumstances, become an implied term and condition of employment
Goli Rahimi: Implied term and condition. So, what does that mean?
Shirin Aboujawde: Well, as you know, at-will employment in the U.S. is the only place where it exists, right? At-will, meaning that at any time, the employer can decide they don’t want you, they don’t need you, and your employment’s done. Outside of the U.S., employment relationships are contractual. So, most countries actually mandate that you have a physical written agreement that states the terms and conditions of employment between you and your employer, and those are express terms and conditions of employment, right? They’re written down in black and white, but outside of the U.S., when an employer has a custom and practice of doing something like for example, allowing employees to work from home two days a week, even though it’s not written in the contract, it becomes implied, an implied contractual term.
Goli Rahimi: Oh, my goodness. Okay. So, it’s not an actual contractual term, but it’s become implied. So, if that is the case, then, can the employers just, I guess, maybe attach just like an amendment to the contract, or have the employee receive some kind of notice? How would that work?
Shirin Aboujawde: Yeah, so you’re absolutely right. A contractual amendment is a great solution, but the employee needs to consent to it. They actually need to sign the contractual amendment and agree to it because it’s considered a detrimental change to the terms and conditions of employment. So, employers can’t unilaterally change it because they want employees to come back to the office.
Goli Rahimi: Okay, so that makes sense. Now what I’m thinking is what if, I guess pre-COVID, these employees were working from the office, right? They were in the office five days a week, and then just because of COVID, they moved remotely. Do we still need to go through this whole process to get them to come back into the office?
Shirin Aboujawde: But potentially, yes, because if your practice of allowing employees to work from home, either all or part of the time, has been in place for long enough than what they were doing a few years ago… I mean, COVID is now almost four years ago. The restrictions, then, what your previous practice was four years ago, might be too long.
Goli Rahimi: Interesting. Now I’m wondering: why would an employee agree to that? A lot of us have become really accustomed to working remotely or working from home. So, wouldn’t this be considered a detrimental change for many of these workers?
Shirin Aboujawde: Yeah, it would. That’s exactly right. And so, getting employee consents to amend their contracts to return to the office can be really tricky. Many employees are going to be hesitant to agree to an amendment, and in some countries, you’re even going to need to go through a consultation process with employees before you even ask for their consent or get an amendment done.
Goli Rahimi: Oh, my goodness. So, what would the consultation process involve?
Shirin Aboujawde: Well, it depends on the country, but to engage in a consultation process with employees, you generally have to propose the change you want to make and invite them to provide feedback, either through going through individual meetings, group meetings, or individual submissions. You then need to consider all of the feedback that was provided. Take that into consideration in your analysis on whether to make the change or not. And only after you’ve shown that you’ve gone through all of the feedback, you’ve taken it into consideration and you’ve carried out a thoughtful consultation process, which can take anywhere from two to four weeks, could you try to finalize the change by notifying employees of the decision to change the work from home structure and then asking them to sign a contractual amendment with new terms and conditions of employment.
Goli Rahimi: So, what I’m hearing from you is this is a very involved process, right? It’s very different from what we’re used to in the U.S., where we see companies making the announcement and requiring employees to come back. So, if we’re going to be engaged in a very lengthy or somewhat lengthy consultation process, the goal is going to be to get the employees to agree. So, would you recommend, or is there anything that employers can do to help facilitate a smooth consultation process so that they can get the employees to agree?
Shirin Aboujawde: Yeah, so employers can try to align what would be considered detrimental changes to a work-from-home policy with other more beneficial changes. So, if an employer wanted to provide more beneficial changes, for example, like a one-time bonus, better medical or pension plans or new or enhanced global parental leave entitlement, they could try and pair those beneficial changes with more detrimental changes like a return to the office policy in order to persuade employees to agree to all of the changes as part of the same initiative.
Goli Rahimi: What would typically happen if the consultation process or the implementation of the return-to-work change is not handled correctly?
Shirin Aboujawde: Well, it could result in legal claims for breach of contract or even constructive dismissal. The key is understanding that employment outside of the U.S. often operates under statutory frameworks and individual agreements, and employees will have the ability to make these kinds of claims in local labor courts.
Goli Rahimi: Got it. Yeah, that makes sense. And typically, what we would see here as well in the States, is there anything else that employers should be looking to do if they want to reverse the work from home policies that they should be aware of?
Shirin Aboujawde: Yeah, employers should review what their statutory obligations are with regard to flexible working requests as well. In many countries, employees have the right to make a flexible working request, which can include things like working from home. And depending on the jurisdiction, employers might not be able to refuse a request that’s made.
Goli Rahimi: Okay. So, what you’re saying is that even if a company goes through this whole consultation process to change the contract and implement the change, that employee could still make a flexible working request in some countries, and the employer might have to approve it.
Shirin Aboujawde: That’s exactly right. So, even if employers go through everything we’ve just discussed to lawfully change their work-from-home policy and even get employee consent on it, they might not be out of the woods just yet.
Goli Rahimi: How would this apply to…or, I guess, would it apply only to certain employees, for example, somebody who’s returning from parental leave or maternity leave?
Shirin Aboujawde: It really depends on the jurisdiction. Some countries provide the right to make a flexible working request to all employees on day one of employment. Other countries have waiting periods, service requirements, or only permit certain classes of employees to make these requests. But it’s really very jurisdiction-specific.
Goli Rahimi: Got it. So, there’s a lot to think about before multinational, international employers want to move forward with reversing their work-from-home policies and bringing employees back to the office.
Shirin Aboujawde: Absolutely.
Goli Rahimi: Well, you’ve definitely left employers who are considering changing their policies with a lot to think about and a lot to plan for. To everyone, thank you so much for joining us for today’s Cross-Border Catch-Up. Please follow us to stay in the know about cutting-edge employment issues worldwide.
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