Changes in remote work policies implicate employers’ bargaining obligations

By Nick Ball
Barran Leibman,
Oregon law firm

As the world continues to adapt in light of the pandemic, deciding which policies to maintain as part of the “new normal” can be complex as employers weigh the unique needs of their businesses. For employers with unionized employees, this process is further complicated by the potential bargaining requirements imposed by labor laws.

Policies affecting the health and safety of employees are mandatory subjects of bargaining under the National Labor Relations Act, which means unionized employers need to assess their obligations before making any adjustments to policies enacted to deal with the pandemic. While it is well established that work conditions related to the health and safety of employees are a mandatory subject of bargaining, whether an employer must actually bargain over changes related to remote work policies can depend on a number of facts specific to an employer and its union.

When determining whether they can act unilaterally to change remote work policies, the first question employers should ask is whether remote work, or similar COVID-19-related policies, are covered by any terms of an existing Collective Bargaining Agreement (“CBA”). If an employer has a CBA that directly addresses the subject, then the analysis will likely end there, and an employer must proceed according to the terms of the CBA. If the CBA is silent on the issue of remote work, whether an employer must bargain on the issue will depend on the presence of a management rights clause in the CBA and the language of that clause. A broad management rights clause could allow employers to unilaterally change their remote work policies.

If there is not a current CBA in effect between an employer and a union, then the employer’s obligation to bargain on changes to remote work policies typically depends on their established past practices. For employers who have yet to enter into their first CBA with a certified union, a unilateral change of remote work policies is likely prohibited by the National Labor Relations Act. Before companies with unionized employees make unilateral changes to their remote work policies, we recommend that they thoroughly analyze any bargaining obligations.

For questions regarding your company’s right to make changes to employee policies, contact Nick Ball at 503-276-2150 or [email protected].

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