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Washington Times

It’s illegal to fire an employee who refuses to come to the office

By October 24, 2023No Comments

(This column originally appeared in the Washington Times)


National Labor Relations Board admonishes Elon Musk for asking workers to show up

The National Labor Relations Board, filled to the brim with President Biden’s appointees, has been busy these past few years.

Frustrated by Congress’ failure to pass a coronavirus aid bill in early 2021, which would have increased the national minimum wage to $15 an hour, changed worker classifications and given unions greater powers to organize, the board has taken matters into its own hands by expanding its activities to support workers’ rights.

Pushing its authority to the limit, the board has made it easier for unions to organize on company premises, allowed the formation of “micro-units” for smaller groups to unionize at a company, pushed through a union’s ability to hold votes quicker by using the less reliable card method to count votes. The board has supported and even rallied for unionization movements at dozens of larger companies including Starbucks and Amazon.

The board has also issued rules that disallow severance payments based on contingencies and has stepped up to publicly voice support for the Department of Labor’s pending rule to classify more independent contractors as employees in order to help unions increase their membership.

Wow, that’s a lot! But wait, there’s more. That’s because, as busy as the anti-business board has been, it’s apparently not busy enough. So why not get involved in the contentious work-from-home debate too?

That’s what the National Labor Relations Board is doing. Can you guess where the board stands on that? Spoiler alert: Not on the side of businesses. The board says that remote workers who refuse to come to the office cannot be fired for doing so. All they have to do is complain on social media. If they lose their job, an employer can be accused of “retaliatory actions.”

That’s what’s happening with Elon Musk at X. According to a report in The Wall Street Journal, the National Labor Relations Board — clearly not a supporter of Mr. Musk’s efforts to run a profitable business — last week charged Mr. Musk with violating the National Labor Relations Act because he warned his work-from-home employees, “If you can physically make it to an office and you don’t show up, resignation accepted.”

Apparently one software engineer refused to comply and complained (ironically) on X, and Mr. Musk was accused of taking retaliatory action when he did what he said he was going to do and terminated her employment.

Does this seem crazy to you? It seems crazy to me. The board is going after Elon Musk because he wanted his employee — who was capable of coming to the office — to come into the office. When the employee didn’t comply and she complained online, her termination was deemed a “violation.” Wow.

Already under the Biden administration and in the many blue states that support it, employers are forced to compensate workers for sick time and — in some states — for any time off. They’re being held responsible for the behavior of their employees both on and off their premises thanks to a new rule proposed by the Equal Employment Opportunity Commission. They’re being forced to pay higher minimum wages and provide mandated benefits if they want to do business with the government.

In California, fast-food franchisers must now pay wages as dictated by a group of appointed politicians.

And businesses can no longer use noncompete clauses to protect themselves from when an employee leaves to work for a competitor.

Now, business owners who require employees to return to the office could face scrutiny by the National Labor Relations Board if an employee refuses, complains and is fired.

The work-from-home issue is a major dilemma for my clients. While most have arrived at a compromise hybrid model that allows employees to work partially in the office and partially from their homes (and don’t get me started on those that choose to “work” from home on Mondays and Fridays), I have more than a few clients that are adamant that their employees come to the office, citing improved morale, socialization, mentoring, and the sharing of ideas as primary reasons.

Unfortunately, the board‘s recent stand interferes with how these business owners choose to run their businesses. Employees can now happily refuse to leave their furry slippers and scented candles behind, post a comment about the unfairness of it all and, if fired, sue their former employer for taking “retaliatory” action.

It’s important to ensure that workers are safe and not threatened while doing their jobs. But business owners also have a right to freely run their own businesses as they choose without the government interfering. That includes determining their compensation and workplace policies.

Most states have “at-will” employment laws, which give both employers and employees the right to terminate their relationship as they see fit. Putting aside harassment or discrimination, if an employer chooses to terminate an employee for not coming to work because it affects their performance and the profitability of the company — as Mr. Musk has done — then they should have every right to do so without being stopped by a pro-union, pro-worker arm of the current administration.

Unfortunately, this is the environment that exists today. Will that mindset change after 2024? Let’s hope so.

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