Culture   //   September 28, 2023

Workers are starting to sue over RTO mandates

The return to office is in full swing as summer draws to a close. Last Tuesday office occupancy hit nearly 60% — the highest level for a single day since the start of the pandemic — according to Kastle Systems, a security company that tracks badge swipes. 

But employee resentment still runs high, and some of those aggrieved have taken legal action against employers for allegedly breaching contract terms or potentially violating workplace discrimination laws as they relate to remote work.

Last week a former Astrazeneca senior director sued the drugmaker saying it breached her contract by refusing to pay her a performance bonus of more than $120,000, and stock options valued at more than $65,000, due to her working from home last year, according to the suit.

She claims her former employer retroactively changed its bonus structure to include RTO requirements which she didn’t meet while working from her South Carolina home last year, where she has since she started in the role in 2016.

She regularly met criteria to receive yearly bonuses and stock options and was paid out for meeting them in 2021, according to the suit. Astrazeneca did not respond to WorkLife’s request for comment. 

“Most people don't have a lot of control over the terms of their bonuses and how they're paid."
Peter Rahbar, employment attorney, Rahbar Group.

It comes as companies take a harder stance on RTO with some, like TikTok for instance, tracking badge swipes for attendance and saying compliance will be tied to end-of-year performance reviews. 

Senior employees typically negotiate clear agreements and expectations needed to meet performance standards, unlike those at other levels of an organization, said Peter Rahbar, an employment attorney at the Rahbar Group. 

“Most people don’t have a lot of control over the terms of their bonuses and how they’re paid,” Rahbar said.

Rank and file workers have filed class action lawsuits alleging RTO policies violate workplace discrimination laws though.

For example, last year Twitter was hit with a class-action suit for allegedly violating the Americans with Disabilities Act after new CEO Elon Musk said all employees were required to work from Twitter offices, and workers with disabilities were forced to resign. 

One of the plaintiffs started as an engineering manager in 2021 and was assured he’d be able to work remotely due to being at high risk for Covid-19 as a cancer survivor, which he brought to his manager’s attention after the mandate was announced. Shortly after though he was terminated, according to the suit. 

Figuring out who is exempt from returning to office is a major challenge for employers right now as they try to be as fair as possible. Some have turned to radius rules, requiring only those who live within a certain distance of offices to return. 

“The law doesn't require employers to keep people employed, no matter what. It requires them in general to treat them fairly and equitably and according to their own policies."
Linda Ashar, employment attorney and associate professor, American Public University System.

But a key question they need to be asking when making exceptions right now is whether an employee needs to work remotely for reasons that are covered by the Americans with Disabilities Act, said Linda Ashar, an employment attorney and associate professor at the Wallace E. Boston School of Business at American Public University System.

Remote work has traditionally been recognized as a reasonable accommodation in specific cases, Ashar said.

Another good practice for employers right now is to make changing RTO policies and penalties for not following them abundantly clear to employees, Rahbar said. 

“The law doesn’t require employers to keep people employed, no matter what,” Ashar said. “It requires them in general to treat them fairly and equitably and according to their own policies,” she said.