Years before most of us knew what a coronavirus was, the future of our work was already beginning to shift. Major technological advances, the proliferation of the internet, and the smartphone revolution have drastically altered how, where, and when we work.
Then, of course, we learned way more about the coronavirus than we ever wanted to. An already changing workforce (and economy) was totally upended.
A recent Ford Foundation report states that traditional employment (and, we’ll add, remote employment) now often looks more like “gig” work. For example, many jobs that went remote now grapple with nontraditional work schedules as well as what the report describes as “more precarious working conditions.” One key working condition is the issue of remote worker rights. As the workplace continues to shift, where do remote workers stand?
An important note:
We’re not lawyers. We are experts who research and report on remote work. If you have specific work-related legal questions or concerns, you should consult an attorney.
A Right to Remote Work?
As remote work becomes more commonplace, many workers wonder, Do I have a right to work from home?
Legally speaking, the answer is “it depends”—on where you live and work. In the United States, the laws vary from state to state. Thus, while employees have legal protections, for example, against health risks, being able to work remotely is not always part of those protections. (Though there is a growing call for a remote workers’ bill of rights.)
“Most employees are at will: they have no contractual rights to continued employment, let alone to particular working conditions,” University of Florida law professor Rachel Arnow-Richman explains in an article published by the American Bar Association. “If an employer does not accept a remote arrangement, the employee’s recourse is to quit. It is a bitter pill, one that seems especially unfair given how different present working conditions are from what the employee originally agreed to.”
For many of us, the future of work is likely to be a hybrid setup. According to a McKinsey study released in early 2021, roughly 90 percent of executives plan to provide some form of remote or hybrid work for their employees going forward. As an article in the August 2021 Harvard Business Review notes, however, whether this option is available may depend on the type of work you do. The HBS article goes so far as to call the hybrid model a “caste system,” in which higher-paid employees are allowed to work remotely while lower-paid employees are required to return to a physical office to do their jobs.
You May Have the Right to Request Remote Work
As part of its National Remote Work Strategy, Ireland could soon be legalizing a way for employees to request the right to work remotely. Pump the brakes before you get too excited about this pending legislation. It’s a right to request remote work, not a right to remote work. Still, it’s a start.
This move also aligns with employees’ right to request flexible work in the United Kingdom. After 26 weeks of continuous employment, employees can request flexible work. But employees may not get the okay, and they are allowed only one request every 12 months.
These overseas instances set a precedent and provide some insight into what future laws could look like. Within the next few years, it’s possible that we may see similar initiatives crop up at the state level within the United States.
Other workers’ rights geared to remote workers also could surface in the near future. Simple rights such as the right to be reimbursed for home office expenses or coworking space expenses could become a reality. Or rights to asynchronous and flexible work schedules. The legalities around remote work and the future of workers’ rights are still in their infancy, and the area, in general, is still a bit like Wild West territory—but it’s exciting and potentially progressive terrain nevertheless.
Some Reminders About the Rights You Already Have
So that’s the future. What about right now? Here’s a brief review of what you can count on today.
1. Your rights differ based on your employment classification.
Are you a freelancer/contractor, or are you an employee who works remotely? Some states require larger employers to grant full-time employees paid family and medical leave, similar to provisions in the Family and Medical Leave Act (FMLA). In most states, though, independent contractors are not covered by the FMLA and, in most cases, do not have legal rights to paid leave. That said, check out the laws in California, New York, Washington, and Massachusetts. In those states, even freelance/contract workers have access to programs that offer paid family and medical leave.
2. You DO have a right to health and safety.
You absolutely have the right to safety and health within any working environment, whether that workplace is a company office, a coworking space, a local coffee shop, a recreational vehicle, a beachside cabana, or even a dedicated corner of your bedroom.
If you feel your employer is infringing on your rights to safety and health, ask to talk with your manager. If your manager is the one infringing upon those rights, try to speak with a higher-level supervisor. If that doesn’t help, it’s time to start documenting the events and addressing those concerns in a formal letter to your supervisor, manager, or HR department so there is a record if legal action is required.
Ask your coworkers if they’ve had similar experiences. Multiple complaints can help get management’s attention—or the owner’s, if management doesn’t respond. An external escalation could include filing a formal complaint with the Occupational Safety and Health Administration, which falls within the domain of the US Department of Labor. Likewise, the US Equal Employment Opportunity Commission (EEOC) also may be another path for recourse. The federal agency recently filed a lawsuit in Georgia on behalf of an employee whose request for remote work accommodations for health reasons were not granted by her employer.
3. You have the right NOT to be harassed or discriminated against.
Remote tech workers have recently reported a rise in workplace harassment and discrimination. In particular, that increase has been felt most among women, Black, Indigenous, and People of Color (BIPOC), and trans and nonbinary individuals.
As with safety and health rights infringement, we recommend sharing your concerns first with your immediate supervisor or manager. If that doesn’t create any change, document everything and send that documentation in writing to management. You may also reach out to your company’s board or owners. Contacting an attorney is also an option. If the harassment and/or discrimination persists, you can file a formal complaint with the EEOC. Most states also have their own EEOC departments that could be more responsive.
4. You have a right to know how your employer monitors your remote work.
Employers have the legal right to monitor your hours worked and any intercompany communication. However, this does not mean you forfeit all your privacy. Your employer should provide a written statement about any remote work monitoring that you agree to and sign. If your employer doesn’t have a policy around this, suggest working with the HR department to create one.
Knowing your rights as a worker is not an option. If you’re not sure of your rights, take some time to learn about them. This knowledge will benefit you—and your employer—in the short term and long term.