Trump In-Office Mandate Hinges on Reading of ‘Management Rights’

President Donald Trump‘s push to force workers back into the office is fraught with labor law pitfalls and dependent on whether management has the sole discretion to set telework policy.

Initiatives to cut thousands of employees from the federal workforce rest on a directive that agencies crack down on remote work. While initial guidance from the Office of Personnel Management appeared to instruct agency heads to consider existing collective bargaining agreements with unionized workers when crafting the new policy, an updated memo issued Feb. 3 seemed to shift course.

OPM Acting Director Charles Ezell said that any provisions standing in the way of agencies mandating in-office work violated federal employment law and should be disregarded, citing “management rights” provisions of the law. Labor law has long considered the place of work to be a condition of employment in worker contracts and mandates bargaining when those conditions are changed.

“Everybody who deals with this stuff knows that a collective bargaining agreement can’t conflict with rights that belong to management by statute,” said George Chuzi, who represents federal workers with Kalijarvi, Chuzi, Newman & Fitch P.C. “But that leaves aside the question of whether telework is a management right.”

Enforcement of Ezell’s guidance will meet stiff pushback from the powerful unions representing federal workers. Groups have already sued the administration over moves to bring back an at-will classification for employees and the transfer of agency data to the new Department of Government Efficiency, battles that will make new implementation of these policies even more chaotic.

The push to force staff back into office space that might not even exist comes as the administration is also urging employees to quit with voluntary deferred resignation offers.

Management Rights, Bargaining Obligations

Ezell asserted in the follow-up OPM guidance that the agencies’ telework policy qualifies as management rights, adding that precedent from the Federal Labor Relations Authority “strongly indicates” that telework is at the discretion of the administration.

Unions can bargain over arrangements for employees whose telework arrangements are changed and for individual telework eligibility, but the amount of telework and which positions are able to telework is not up for discussion, he said.

“Provisions of collective bargaining agreements that conflict with management rights are unlawful and cannot be enforced,” Ezell wrote. “Any provisions that require agencies to provide minimum telework levels, or prevent agencies from setting maximum telework levels, are likely unlawful.”

The guidance also cites FLRA precedent that gives agencies the right to audit employees’ work unannounced and prohibits unions from negotiating over certain policies like taking home work materials.

The Federal Service Labor-Management Relations Statute, administered by the FLRA, says that management retains the authority to determine the mission, budget, and organization of an agency and carry out the mission “during emergencies,” but must allow unions to bargain over assigned duties, means of performing work, and procedures that management takes when exercising its authority.

The statute also mandates that parties engage in bargaining when a government-wide rule or regulation will have a “substantive change in any condition of employment.”

Michelle Bercovici, who represents federal employees for Alden Law Group PLLC, said it’s unlawful for agencies to override a pre-existing contract because of a presidential executive order.

“The OPM is trying to shoehorn in this policy by relying on this idea of management rights and making this overbroad claim that you can’t enforce an agreement that conflicts with management rights,” she said.

According to Chuzi, telework is still a gray area at the FLRA. The authority issued a decision in a case against the US Department of Agriculture in 2020, saying that the frequency of telework is “inherent” to management’s rights. However, the US Court of Appeals for the DC Circuit vacated the decision in 2021, calling the FLRA’s reasoning flawed.

If this was a clear-cut question, Chuzi said, agencies wouldn’t have negotiated telework in contracts previously. But many agencies did, including the Social Security Administration and the Department of Education.

“Nobody has, to my knowledge, appealed those contracts to the FLRA, which is the agency created by Congress to deal with precisely these kinds of questions,” he said. “The idea that OPM thinks it can take it upon itself to somehow supersede the FLRA’s authority in this area is interesting.”

Weakened Worker Protectors

The FLRA is the primary vehicle for federal sector unions to bring unfair labor practice claims against their employers, but it has operated in a weakened state since the first Trump administration. The agency’s been without a general counsel since 2017, meaning it can facilitate investigations and settlements but can’t issue complaints.

If unions want to challenge agencies’ actions in the coming months, they’ll instead have to go through the arbitration process. Arbitrators can issue rulings and stay personnel decisions while the challenges are pending with them, and parties can appeal those decisions up to the authority. From there, disputes go to a federal appeals court.

The Merit Systems Protection Board handles cases of alleged discrimination and charges of prohibited personnel practices, which can include coercing political activity, obstructing someone’s right to compete for employment, and retaliation for appealing a personnel decision.

MSPB decisions are appealed to the US Court of Appeals for the Federal Circuit or to a district court.

Workers also have the option to go to the Equal Opportunity Employment Commission, but it’s currently without a quorum after Trump fired two Democratic commissioners.

That landscape of key missing posts means that while federal workers have options for challenging actions taken against them, the road to resolution will be long.

The American Federation of Government Employees, the largest federal workers’ union, said in a statement Feb. 3 that OPM’s memo wouldn’t go “unchallenged.”

“We will use every option available to us to defend our contracts and support the hardworking civil servants who serve our country with honor and distinction,” AFGE National President Everett Kelley said.