September 2020 Newsletter – Community College Districts

Work from Where – The Long View on WFH Arrangements

The phrases “SARS-CoV-2,” “coronavirus,” and “COVID-19” have been burned into our collective memory, but the development of an effective vaccine and diminishment of community transmission vectors means that at some point (probably/hopefully) California will hit Stage 1 on the resilience roadmap. Workers across the state will then emerge from makeshift home offices with DIY haircuts after a year-long hibernation.

Across California and the nation, and across all sectors of employment, many workers have been displaced as a result of COVID-19. Some critical infrastructure workers proceeded with “business as usual,” albeit with social distancing protocols. But for many, particularly in schools and colleges, the option to embrace a work from home arrangement was as novel as the virus itself. Studies, both pre-pandemic and recent, suggest that work-from-home arrangements may result in higher efficiency and worker satisfaction. But a recent Harvard Business Review survey suggests that the overall success of the COVID-19 shift to remote work may be attributed to a relaxing of expectations – for both employers and employees – relating to the perception of remote work standing in comparison to office work. Workplace culture stretched to fit the new norm, resulting in (largely) successful operations despite barking dogs and Zoom-bombing toddlers.

But not unlike a student-equity oriented Punxsutawney Phil, it is foreseeable that at least a portion of a district’s workforce will have found their niche in working from home, and will steadfastly refuse to see the shadows that spell the end of work-from-home arrangements and the need to report for on-site work. What is a district employer to do?

            WFH Arrangements Are Within the Employer’s Discretion

In March 2020, public school employers turned to technology to solve the problems created by the pandemic that was forcibly introduced to a physically centralized workforce. For many, the solution was work from home – a reality enabled by relatively recent migrations to cloud-based software, remote access, and videoconferencing platforms – meaning that employees could continue to be productive from home, and perform the work necessary to support the communities and students. For many unions, the danger of these arrangements included uncompensated overtime, a de facto 24-hour on-call status, and other perceived erosions of the bargained terms and conditions of employment.

At its heart, a “work from home” arrangement simply modifies the location where an employee is required to report for work. At the Federal level, the National Labor Relations Board has cited with approval the idea that “telecommuting” is effectively a working arrangement in which “employees […] otherwise report electronically, instead of reporting physically to a fixed location.” (J&R Flooring Inc. (2010) 356 NLRB 11, fn. 10.) Similarly, PERB has found that a change to the location where an employee is expected to report for duty is a nonnegotiable management decision. (San Francisco Unified School District (2009) PERB Decision No. 2048, p. 7.) A union may, upon proper request, be entitled to bargain over foreseeable impacts and effects that such a change may have on mandatory subjects. (Id. at 8.) However, absent an explicit directive to extend or modify hours, or the loss of a stipend or differential associated with on-site work, offering “work from home” as an option doesn’t impact working conditions.

The employer has the right to evaluate a potential work-from-home arrangement and, if it is determined that the option is beneficial to its mission, implement that reporting structure.

            Turning Back Time to Pre-Pandemic Conditions, Including Work Location

The good news is that returning to on-site working operations is effectively a foregone conclusion. Following the emergency shift to work-from-home arrangements ushered in by COVID-19 and Executive Order, most orders, regulations, resolutions, policies, and negotiated agreements reached as a result of COVID-19 explicitly recognized that the emergency was a temporary condition that would revert to the status quo ante. Working on-site is a practice that has been “regular and consistent” or “historic and accepted,” and will be again. (Hacienda La Puente Unified School District (1997) PERB Decision No. 1186.) For virtually all public schools, employee’s reported to employer worksites and performed employer assignments on employer equipment in furtherance of the employer’s mission, and have done so as long as anyone can remember.

However, there may be some considerations to put in place prior to recalling 100% of an agency work-force. Under the EERA, safety conditions are a mandatory subject of bargaining. (Govt. Code § 3543.2(a).) And the District is required to cooperate and comply with the orders of public health officials. There may be some areas in which health orders and directives strain negotiated terms of employment, and district employers may be obligated to bargain in some instances. However, the actual decisions related to implementing return protocols involve a complex calculus and balance of equities that are within an employer’s exclusive discretion.

Unfortunately for the few who truly enjoyed the enforced seclusion offered by working from home, broken only by Zoom meetings, DoorDash deliveries, and virtual happy hours, the reality is that a return to the worksite is a fundamental necessity, and will occur at some point.

For more information regarding this article, please contact Joshua Taylor at jtaylor@ericksonlaw.com. For questions in general regarding this newsletter, please contact Kristina Limon at klimon@erickson.com.

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This publication was prepared solely for information purposes and should not be construed to be legal advice. If you would like further information on this matter, please contact our office.