We recently had a member ask, “If an employer changes expectations of working in the office versus remote for our company, would this impact eligibility for unemployment benefits?” Many employers are facing the difficult decision on whether to have employees return to the office after allowing remote work as a result of the pandemic.
There is a high risk that remote capable workers (those who can do their jobs remotely from home) who are asked to return to the office may leave. A 2022 Gallup Poll revealed that 60% of fully remote workers are extremely likely to look for opportunities for employment with other organizations if their employer did not offer remote work for some or all of the time. Nearly 30% of hybrid workers said they would be extremely likely to look elsewhere. When there is such a high risk of turnover, it is a good idea to factor in the impact of possible unemployment benefit costs when making the decision to return to the office.
Burden of Proof
Traditionally, the burden of proof falls on the claimant in a voluntary quit situation. All states deny unemployment benefits to workers who quit unless they have a good cause for quitting. This begs the question – does asking an employee to return to the office constitute a good cause attributable to the employer?
The National Employment Law Project (NELP) reports, “There is one federal guardrail on quits known as the “prevailing conditions of work standard” or the “labor standard”. States are not allowed to deny unemployment insurance (UI) to a worker “for refusing to accept new work . . . if the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.” The United States Department of Labor (USDOL) has interpreted “new work” to include workers who quit their employment because of a substantial switch in duties or terms and conditions of employment than originally agreed upon”.
This federal guardrail could indicate that asking an employee to return to the office could be considered a substantial switch in the terms and conditions of employment. To understand this better, we reached out to our contacts at the state workforce agencies to better understand how they would view these cases.
Just like any other claim, states will review each claim on a case-by-case basis and make a determination. Some factors that state adjudicators may be looking for are:
- What is the hiring/working agreement?
- What is the distance of the commute?
- What is documented in the company policy?
- What would a reasonable person do in this situation?
There is no one-size-fits-all for this situation and understanding what adjudicators are looking for will help you determine how to best prepare for this scenario.
Factors To Be Considered
Was this individual initially hired as an in-office or remote employee? Having this information documented can help you make the best case in the event of a claim. If the individual was hired as a remote employee, check to see if your policy has any provisions stating that this arrangement can change in the future.
Distance of Commute
Does the employee live 20 minutes from the office or on the other side of the country? The distance of the commute could factor into how the state rules in a case. If the distance of the commute is standard for the region, it may not be a contributing factor in the unemployment case.
Does your company policy state that employees with performance issues need to report onsite more frequently or anytime management requires them to report to the office? Having a policy that clearly spells out the expectations for working remotely versus in the office can help provide details to the state on the arrangement that can be used to prove your side of the story.
What would a reasonable person do in a similar situation? While more subjective, many states will consider what a reasonable person would do in a similar situation when making a determination. For example, quitting a job because you are asked to come into the office 2 days a week may be outside the reactions that a reasonable person would have.
What about a person who returns to the office, works for a few weeks, and then quits? The state will look at this as they accepted your terms and then voluntarily quit. This puts the burden of proof back on the claimant. The state will most likely look at the working conditions to see if they were a contributing factor in the claimant’s decision to quit. It is best to document the working conditions so you can answer any questions that might arise in this instance.
Provided by our friend, Michele Heckmann, Director of Customer Insights, at Thomas & Company.