how can I force my company to let me work remotely?

A reader writes:

I am the patient financial advocate for a large medical group in New Mexico. I have over two years tenure, and no one else holds this position at my company. My work has been described as excellent. No issues of any kind. Never called in sick, you get the idea.

I am engaged and plan to move to Arizona. I expressed the desire to continue my work for this company remotely.

For the past year and a half, my company had me working remotely from my home four out of every five day workweek. Remote VPN connection, encrypted emails, all the necessary HIPAA compliance met. No issues, and business as usual.

My director expressed dismay over my leaving, so I suggested this option of working remotely from Arizona. She indicated that she had no issue with it, was all about cyber-meetings and all, and would bring this to HR to review. I had also made it a point to speak with the “Big Guy” – the CEO of the company – one on one about this-beforehand. He said that as far as he was concerned, I was an asset to this company and that he had no issue with the facilitation of this arrangement. He did, however, indicate that he did not want to step on the director’s toes, and had confidence in her final decision (which is more than fair and the right thing to do).

Here’s the kicker: The director told me that HR pointed out a potentially litigious situation. Two employees had in the past asked if they could work remotely from out of state and were turned down. One had already left the company a while back. H.R. stated that there was an issue of what would be considered “partiality” if they permitted me to do this.

My argument is that the ability for an employee to work out of state is a perk that should be no different than that employee’s ability to get a pay raise. If an employee’s work performance is above and beyond and stellar, but fellow team members’ performances are not, wouldn’t the employee who outperforms be the one to get that raise, and the other team members would not? Of course. But by HR’s rationale, wouldn’t the employees who then did not get the raise be able to file a lawsuit due to “partiality”? At my company, there are certain corporate employees who use a company credit card, which enables their lunches and gas for travel be on the company’s tab. We all don’t have that privilege, so isn’t that grounds for a law suit due to “partiality”?

My belief is as follows: I got it straight from the tip top that it’s a green light for me to work remotely out of state on their end. My director’s alleged “HR concern” was
interjected with her expressing her desire and complete willingness to keep me on despite my working out of state. Is there more to this than meets the eye? Isn’t this a no-brainer?

By the way, in the more than two years that I have been with this company, not once did I ask for a raise. I pointed that out to the CEO, as well. Our company has had its share of some financially tumultuous times, corporate layoffs, chapter 11 filings, etc. I have weathered it all, and am a loyal employee who wishes to help this company get back on its feet and succeed.

I am ready to argue and dispute being turned down by HR on this – even seek legal representation if I have a leg to stand on, just to prove a point. If my request to work out of state is turned down, I have every right to request their reason for this determination in writing, do I not?

Sure, you can request their reason in writing. And they can choose to give it to you in writing, or decline. But asking for it in writing is a kind of weirdly adversarial thing to do, especially when this is 100% their call, they have the legal right to tell you no, and having it in writing won’t change any of that. What they’re doing isn’t illegal.

Here’s the deal about the “partiality” argument they’re making: There’s nothing, absolutely nothing, that says that you can’t treat different employees differently. If I want to let Jane work from home and refuse to let Horace do it, and if I want to pay Apollo five times what I’m paying Lucinda, I’m allowed to do that. But if you can show that the reason I’m doing it is because of someone’s race, sex, religion, national origin, disability, or other protected class, then it’s illegal. If I’m doing it for reasons totally unrelated to those categories, it’s allowed.

In other words, making employment decisions based on race, sex, religion, national origin, disability, another other protected class is illegal. Making them based on other factors (personal relationships, work performance, shirt color, or whatever) is legal.

However, companies often get nervous about treating employees differently even when it’s not based on a protected class, because they worry that at some point in the future someone will argue that it was. So they often go the safer route of treating similarly situated employees the same. (“Similarly situated” = all employees in a similar category. For instance, all interns, or all managers, or all people with over three years tenure, or some other obvious grouping that clearly isn’t about race, gender, religion, etc.)

It sounds like that’s what’s happening here: Your HR department is concerned that if they allow you to work remotely but haven’t allowed others, those others may at some point claim that they reason they were turned down was because of their race/sex/religion/disability/etc.

HR may have good reason to be concerned about this. Or they might be being wildly overly cautious, in a way that’s harming business objectives. Some HR departments do a lot of that.

If I were you, I’d say this to your boss: “I understand HR’s concerns. However, nothing in the law prevents us from allowing good employees to have perks that make sense for their roles. Assuming that HR is not the final decision-maker here, I’d like to push back on their take on this, and argue that retaining a strong employee makes sense in this context. Would you be willing to reconsider?”

But ultimately, it’s their call. If they choose to kowtow to HR, well, they won’t be the first company that operates that way. All you can do is lay out your case and hope that they’re swayed.

But I’d stay away from demanding reasons in writing or trying to involve a lawyer. This isn’t illegal, and doing that would make it way more contentious than it should be, make you look out of touch with how this stuff works, and probably burn what currently sounds like a very strong bridge.

{ 226 comments… read them below }

  1. KT

    I’m not really sure why you would demand it in writing or get legal representation. As Allison said, this isn’t a case of discrimination. Many employers would feel antsy about this.

    For instance, I was in a similar situation. My boss (and her boss, the Vice President) both wanted me to continue on working remotely, even though I’d be in another state. HR was the one who stepped in, citing some tax difficulties and precedence. They have a different perspective than the people working in your department day to day.

    You can present your case, but if the answer is no, you can’t go demanding it.

    1. LD

      The tax difficulties can be a real burden. If an organization doesn’t already have employees working in the other state then they have to set up tax withholding, unemployment insurance, be sure they are complying with all the particular state employment laws, etc. From some hr/finance departments that’s just an extra burden they’d prefer not to bear for only one, even a very good one, employee..

      1. SystemsLady

        Yup. The only reason I’m going to be allowed to do it is because I’m a military spouse covered by the MSRAA and have a guarantee that only one state will tax my income. I forgot how it would’ve worked if I got a job in the base state (I think the taxes still go to the “home state” but I’m not sure, either way you don’t get taxed on a two state basis).

        But anyway, HR and payroll would have been quite concerned about my working remotely if that law didn’t exist.

        (I also don’t think I will be in the base state for more than half of a given year at any time, so that helps my case)

        1. SystemsLady

          Come to think of it, I wonder if HR was the one to reject at least one of the prior out of state remote work requests, and if they used tax reasons as the basis for denying the request.

          I could see them having some very legitimate concerns about *HR* being the point of denial for one out of state remote work request and not the other.

      2. INTP

        Yep, even the format of the time sheet I fill out in my current state wouldn’t be legal in California. Lots of big and small matters to handle if an employee goes out of state. I kind of wonder if that’s HRs real issue and they thought the reason they gave the OP might be more accepted than “We don’t want to do all this extra work for you” (which is a valid reason IMO, but maybe not to employees or upper management).

    2. TBoT

      I was also allowed to work remotely after I moved to another state (and then got engaged). But there were *a lot* of hurdles to doing this. My boss wanted me to just keep doing my job without interruption, but both HR and the tax/finance departments had real issues with this, related to both employment law and tax law. It definitely was not an issue of getting approval from above and then everyone else falling into line with it, or making a case for why they couldn’t afford to let me go. All those legal and tax issues are way, way bigger than a single employee in a lot of cases.

      Having employees or property in a state gives a company nexus in that state for the purpose of tax. This can create big tax complications for the company, since if one employee works in a state, the company not only has to pay tax in that state, but also has to figure out all the nuances of how that state’s tax law is different from other states where the company already operates.

      Then there’s the issue of employment laws that vary from state to state. The company not only has to figure out what laws apply to an employee in another state and may have to go so far as to have a completely separate set of rules that take into consideration multiple states’ laws.

      Moving to an exclusively remote working situation is a really big request. Moving to an exclusively remote working situation in an entirely different state from where the company operates is an enormous request. I’ve been with my company almost a decade, and I don’t think they would have been willing to put up with all the tax/employment law hurdles for someone who had been there for only a couple of years.

      I have a feeling that “partiality” is an attempt to say no without getting into all that explanation, especially if this would be the company’s first employee in Arizona.

      1. De Minimis

        I’m guessing you’re right. The tax consequences can be huge, and it usually takes people who are specialized in that practice area to figure out how to properly deal with it. I don’t think many companies would want to take that on for the sake of a single remote employee.

      2. CAinUK

        This! If it truly is about partiality, I posted a possible response to HR down-thread. But as someone who once had to hire staff across 16 states: the headache is killer!

        That was 16 different tax filings, each with different requirements. There were also different laws about breaks, unions, etc….

        So there ARE legit reasons a company doesn’t want to deal with this stuff.

      3. KT

        Absolutely! It can open a huge can of worms and a lot of liability, and for just one person, it can overwhelm the company.

      4. Elssa

        This is really confusing to me. I live in New York City, and a big portion of professionals working here live in New Jersey, sometimes Connecticut, and even in Northern Pennsylvania. (because that IS our metropolitan area.) Surely they work from home sometimes, and other times at the office. Is it really true that all New York companies have such headaches?

        1. Elssa

          *The suburbs of New Jersey are much closer to Manhattan than the suburbs of New York State, outside of NYC, to be clear.

        2. Jessa

          Yes and years ago there was a huge fight about Connecticut vs NY tax issues (I mean a long time ago, I moved out of NY in 1986 and it happened before then.) There is now a whole lot of stuff in place regarding the NY/NJ/CT triangle of work related stuff that’s unique to that area. It’s probably harder to do elsewhere, though, and as it’s been said above if one of the states is CA, that makes it really crazy.

          The genesis of the NY/NJ/CT thing had to do with CT wanting income taxes because people were resident there and working in the other state. I do not remember how it finally got settled but all three states came to some kind of agreement in how the money would be hashed out. And it took a couple of years.

        3. Stephanie

          I’d guess New York has tax agreements with neighboring states. Also, the people are still working in NYC and just commuting back to reside out-of-state. OP would be working and residing in a completely different state.

            1. Drama Llama's Mama

              There are agreements in place here in the DC metro area as well. I don’t know all the specifics, but we live in VA and my husband works in DC; we pay VA taxes for state income tax.

        4. Darcy

          There are several states with metro areas close to another state line that do have reciprocal state tax agreements. But regardless, having an employee in another state does create these issues.

        5. Treena Kravm

          You have to file both NY taxes + state-where-you-live tax (but you don’t pay double the tax, it all works out, I can’t remember how exactly. It sounds like the agreement about how it’s split was settled in the 80’s as Jessa mentioned).

          As for working from home, my guess is that it has to do with the working from home days being frequent or rare. And most jobs that people have when they travel from outside of NY to work are exempt anyways, so a lot of the little things like breaks and OT don’t matter.

          1. doreen

            The working from home/live in another state thing can get weird- if your job is in NY, but you live in another state and telecommute some ,most or even all of the time for your own convenience then NY expects you to pay nonresident taxes on all of that income. Posting a link separately – but NY is not the only state that does this.

    3. Amanda

      Because of the tax/employment law difficulties, my company hires people who move out of state as contractors. (So, the employee quits, they move to Arizona, and then they work remotely as a contractor). Not sure if that would be an option here.

      1. Elizabeth the Ginger

        I’m not an expert, but I think that’s only legal if the company treats the worker as a contractor in other ways – allowing flexibility of schedule etc.

        1. TBoT

          This is definitely true. One of the things I suggested when I was moving was that I drop a chunk of my job responsibilities, and just keep a particular subset as a freelance worker. I could not have become a contractor and just kept doing my same job.

          (It also raises red flags if a company has multiple people who shift from getting a W-2 to a 1099 in a year.)

          1. TBoT

            My company’s tax/legal team’s interpretation of the law was that being a W-2 employee of a contract employer did not alleviate the tax/legal questions the way being a 1099 contractor would. (Not just in my case; we could have 1099 freelancers working from all but a couple of states, but we couldn’t have temporary W-2 employees working through a separate agency in states where the company did not already have nexus.)

  2. Katie the Fed

    Yeah, unfortunately this kind of risk aversion is common in my world too. People start thinking they have to treat everyone exactly the same, which is just silly. You can make allowances for one person that you don’t make for another, as long as it’s not for an illegal reason.

    Unfortunately, if your employer wants to be this risk averse, that’s their call. It’s a poor business practice and they risk losing good employees, but it’s their decision to make, not yours. You don’t have a legal leg to stand on.

    BTW, I noticed a couple of things in your letter I wanted to mention. You’re allowed to call out sick and you’re allowed to seek raises. Forgoing things that you’re allowed to do doesn’t earn you extra credit in the employer’s eyes in most cases, so I caution you to avoid thinking like that. You seem to think “well, I did them this favor, they own me one.” But really it’s not like that. It’s not a tit for tat thing. Ask for what you’re entitled to – there’s no reason not to.

    1. LBK

      Great point on that last paragraph. I’d imagine most companies won’t even notice those kinds of things – especially attendance, which I think is kind of an odd thing to consider a favor to your company. It’s not like elementary school where you get a gold star for showing up every day. You (presumably) have a paid benefits package that allows you to take sick time off; I’d consider it pretty crappy if an employer didn’t expect people to utilize that. In fact I’d be a bit perturbed that you never used it in 2 years since I’d imagine that means you’ve been working sick before, and I don’t want sick employees in the office.

      1. Dani X

        I haven’t taken a sick day in over 7 years… mainly cause I rarely get sick. Plus the OP said she works from home 4 out of 5 days right now so even if she did get sick she probably was in the office getting everyone else sick.

        1. Arbynka

          That sounds awesome. I wish I would rarely get sick. I have chronic health issue and these past couple of years I catch every single bug going around. I got things that were going around in my kids school and husband’s office – while my kids and husband stayed healthy. Sigh.

          1. JB (not in Houston)

            Right? I heard a higher up (who absolutely is allowed to work from home) talking to one of her direct reports about how she thought she maybe had the flu but came to work anyway, and I was ENRAGED. I have been out sick at least 4 times since Christmas (stomach virus, strep throat, cold, flu) because people who absolutely could stay home choose to come to work sick. And I’m not the only one who has had to miss quite a bit of work from repeatedly catching stuff. I can’t afford to get behind by being sick, and frankly I still haven’t totally bounced back from all the hits I’ve taken in such a short period. People who come to work sick with something contagious when they don’t have to make me furious.

            1. EvaR

              I do this all the time, and I’m sorry. Basically I have one of those mental disorders that counts as an “invisible disability” and my company limits sick days to a certain amount used in a specific period of time. I can totally function at work with a migraine or a bad cold. I cannot function at work if I have a really bad flare up of my disorder. So I have to pick and choose what times I can miss work, and keep in mind that if I run out, that’s it. It’s really, really difficult to make reasonable accommodations for what I need and avoid stigma at the same time. To lie and use a “sick” day rather than doing so is usually the best option unless you are important enough to qualify to be a tortured genius or something. The urge to tell people that we are making it up is really strong.

              If I do come to work sick, though, I try to avoid touching anything not in my cube, getting close to other people, etc.

          2. Noelle

            I’m lucky enough to be mostly healthy, but I get strep throat SO easily (I once got it 3 times in one year). One of my coworkers would always come to work when he was sick with strep, and I was pissed. Especially for something that you could just stay home one day, get on antibiotics, and not be contagious! I also hate when people have colds but pretend they’re allergies. My office has some pretty damn contagious “allergies.”

              1. Noelle

                Yeah, I asked the guy to go home (and get the hell out of my office immediately!) and when he wouldn’t, I talked to our manager. He did make the coworker go home, but unfortunately it was too late for me. :(

          3. KJR

            It’s the weirdest thing…I was diagnosed with SLE (Lupus) about 3 years ago. I deal with the symptoms associated with that specifically, but wouldn’t you know, the ol’ immune system, which attacks my own healthy tissue, must be fantastic at attacking everything else too! I thought for sure I would be sick all the time, but I have not had one single cold, flu, sore throat, stomach bug, etc. since then. Go figure. Now I hope I haven’t just jinxed myself!!

        2. Allison

          That sounds awesome, it must be great to never get so sick you can’t work. No one’s saying it’s somehow bad to not take sick days, BUT it’s not something that warrants praise and it’s not a goal people should strive for. Sure, people should feel encouraged to beef up their immune systems, and be able to work from home when sick, but some people will always need sick days, due to relatively weak immune systems or chronic illnesses.

          1. Arbynka

            Yes. That is why I always get annoyed by the “perfect attendance” trophies at school. I think it is awesome when people do not get sick, but not everyone is like that and while as you said, you can try to beef up the immune system (eat healthy, move around…) it is not something a person has ultimate control over.

            1. Anonsie

              It’s always grated on me like, oh ok, yeah healthy people already have it easier than people with chronic illnesses, so let’s give them awards for it and make out like the sick kids are doing something behaviorally wrong. Ok.

            2. Oryx

              Oh god, they give those out at the small college where I work. The worst was when they publically announced while handing her the award that this particular student had given birth on a Friday (a day where there are no classes) and returned to school on Monday. Is that really something we should be congratulating?

            3. Talvi

              At my school, perfect attendance was tied to unexcused absences – you were able to have something like 10 excused absences (i.e. a parent had to call in) and still be considered to have “perfect” attendance.

              1. simonthegrey

                Yeah, at my school it was called “Excellent” attendance, not perfect. You could miss five excused days (not counting school events, like sports trips – those were automatically considered excused) and still get “excellent” attendance.

                I get bronchitis every winter, so I never had excellent attendance, but at least it wasn’t as bad as never being able to miss a day.

          2. LBK

            Yeah, that’s exactly what I meant – that you shouldn’t be striving for perfect attendance, especially at the potential cost of your health. If you genuinely don’t get sick (I rarely do – I don’t think I took a single sick day in 3 years at my first job after college) then that’s fine, but not being out sick ever doesn’t seem particularly commendable to me in the workplace.

          3. nona

            +1

            And some people will always need others to use sick days, due to relatively weak immune systems or chronic illnesses.

        3. Graciosa

          A previous employer moved to a PTO bank combining vacation and sick leave. For those us who rarely use sick leave (I had one unscheduled absence in more than ten years) it was awesome. They added a bunch of time when the company converted, so I ended up with more than five weeks of vacation every year.

          And they had a use-it-or-lose-it policy on the time, so I actually took my five-plus weeks every year.

          I’m currently down to three, and I miss the extra time off (and yes, I know I’m incredibly lucky – but I still miss it).

          1. Jessa

            Yeh but the person who has a chronic illness now never gets to take vacation, because OMG if they get sick in November but took vacation in June, they’re stuck. I think combined banks is an awful policy. I would lose a tonne of days every year, because I’d have to worry that I’d need every one of them if I got ill.

            1. Anonsie

              This is me, all my life. I can never take time off for personal matters or vacation because it’s all eaten by doctor’s appointments and flares.

            2. Stranger than fiction

              No it’s awesome! We have it and can take it in any increment eve leaving early 15 or 30 minutes for dr apt.

              1. Stranger than fiction

                At previous kob we couldn’t take anything less than a half day for these matters so tha ate it up really quick and I can see how it would in your case too. But my kid has chronic condition with appts every month and I never come close to using all my time (3weeks per year)

            3. Nashira

              Sigh, yeah. Once I finish my bachelors, there’s a specific local employer I hope to get on with because they still do vacation AND sick as separate banks. I’ve been to work something like 3 days already this year when my autoimmune crud had me feeling like roadkill and I was powered by prescription pain meds. It would have been lovely to be able to rest.

            4. Graciosa

              We also still had disability (short and long term) and FMLA leave, so you could actually manage this (saving just enough PTO to get you through until STD kicks in) – but yes, I do understand that this can be a bit of a lottery. There are definitely winners and losers in a PTO system.

          2. Ife

            Combined banks suck. Even as a generally healthy employee you cannot use all of it and have to hold onto a day or two in case you ger sick at the end of the year. That, or weigh the consequences of going into pto debt (which could bebpretty severe if your manager or company sucks) vs going to work sick when it’s December 31st and you used all your PTO for the year…

            1. Anabelle

              We have an interesting combined PTO set up. You get X hours per year of PTO to use for sick time and vacation. You can roll over X hours per year. If your PTO bank exceeds X on Dec 31, the excess hours are transferred to a sick bank. When you leave, you get paid for the hours in your PTO bank, but not your sick bank.

      2. fluffy

        Side point, but OP is already working remotely 4 days out of 5. Sick? maybe, but probably not in the office

        1. LBK

          Yeah, I did note that after I posted my comment so it’s totally possible she could stay home sick without having to actually take sick time off, but I think the general principle still stands that perfect attendance is a desirable goal is odd.

    2. fposte

      Right, there’s the concept of the “covert contract” in relationships–that you’re owed something in return for your behavior, even though you never explicitly asked for that reward.

      You can be turned down for working from home for a dumb reason, but that still doesn’t mean they’re taking something that you’re owed from you.

      1. Katie the Fed

        “Right, there’s the concept of the “covert contract” in relationships–that you’re owed something in return for your behavior, even though you never explicitly asked for that reward.”

        Oooh marriage makes so much more sense! (I kid, I kid!)

    3. jag

      Exactly the same is a bit much, but silly is also a strong word. It’s important for morale to not have different people at roughly the same level treated very differently, even if one is a stronger performer than the other. It gives an impression of unfairness. It’s hard to say to an employee denied a perk that “Oh, that guy is a real rock star performer and we were concerned he’d leave if we didn’t let him work from home on Fridays, whereas you’re good at your job but we could easily replace you if you left.”

      Fairness/uniformity is a valid concern. It shouldn’t override everything, but it’s not silly.

      Now if there is no good reason to stop either employee from working at home, they company should loosen up. For sure.

      1. Ask a Manager Post author

        I’d argue that good managers regularly treat great people differently from non-great ones, and that indeed they should! That’s how you retain great people and keep them engaged, and it often makes a ton of sense to distinguish who will get what perks, projects, and rewards based on performance.

        Fairness matters, but fairness means being able to explain why one person is getting a perk that someone else isn’t. It doesn’t mean everyone on a team gets treated the same.

        1. Mike C.

          makes a ton of sense to distinguish who will get what perks, projects, and rewards based on performance

          This is what stupid HR departments are missing. They don’t understand that they can ensure fairness, follow the law and set results oriented criteria while at the same time rewarding people who perform well.

          It’s really not that difficult, and it’s frustrating to see so many who can’t imagine what fairness looks like outside of, “we treat every person the same”.

          1. Juli G.

            I get people in my office all the time complaining about fairness and I already think my company is too dedicated to treating everyone the same. It’s so frustrating to explain that fair=/=same.

          2. Jessa

            Yes and the flip side of rewards, friend works at a company with an incredibly lax dress policy. One person came in wearing something really incredibly inappropriate. So now the entire company has a dress code that supervisors will bang you over the head with at the slightest sneeze of a differential. All instead of sending ONE person home because geez Louise, common sense says you do not walk in with a shirt that has something offencive on it.

            1. Mike C.

              Yeah, we have this yearly training about how if you’re a liaison to the military you’re not allowed to offer a job to your military counterpart when that counterpart is in the middle of deciding which contractor to order from.

              When I first took it, it was kind of obfuscated but it stuck out from the other training I was taking. Then I shouted, “Holy crap, this actually happened!” since I was wearing headphones at the time. My coworkers thought it was hilarious.

        2. Arbynka

          “Fairness matters, but fairness means being able to explain why one person is getting a perk that someone else isn’t. It doesn’t mean everyone on a team gets treated the same.”

          This should be put on a t-shirt. Or carved into a rock. Something.

          1. Mike C.

            Indeed. I just don’t understand what is so difficult about setting a policy/rubric/whatever that draws a clear line in the sand. Too many times these sorts of decisions are made by gut instinct and what feels right at the time – which is a great way to inadvertently run afoul of the very laws they’re trying to follow.

            1. Judy

              My cynical opinion: They don’t want it written down because there will always be extenuating circumstances (whether real or just favoritism) that will make them want to give X to a person that doesn’t make the criteria and deny X to a person that does.

              A previous company had criteria about the promotion levels for engineers. We all had copies of this. We all also knew that certain people could get promoted meeting most of the items, while other people would maybe get promoted if they exceeded all of the items. They did eventually disband the HR policies that listed the promotion criteria because they were not following it.

          2. Seattle Writer Gal

            AMEN!

            I hate it when you ask a totally reasonable question and your boss tries to deflect with “you don’t know the whole story” when what they really mean is: “I can’t tell you why I’m doing this because I am embarrassed by the reason.”

            1. Beebs the Elder

              It could be that, but there are also situations in which the reasons really can’t be explained–say, for a reasonable accommodation for a disability.

            2. AcademiaNut

              I think then it comes down to the background culture.

              If an employer is normally fair, and generally has transparent reasons for the decisions they make, then if they tell you they can’t tell you something, you can trust that they have a good reason for it. If they environment is one where favouritism is rampant, standards are applied erratically, and no-one is ever told why, you’ll end up assuming the worst.

        3. HM in Atlanta

          Exactly! When people talk about fairness, I usually re-direct them to a conversation about consistency. We’re not going to treat everyone the same, but we are going to treat everyone consistently (and then be honest and direct about why you don’t get to work from home when others are allowed to).

        4. jag

          Let’s make this specific. Have you told a good but not great performer they can’t work from home, and when getting pushback, pointed out that the reason a great performer can is that they are great?

          Or something similar – where you’ve told the good performer they’re not excellent enough to get something another person is getting? Not salary.

          I’d have problems doing that, but fortunately I only manage one person……

          1. Ask a Manager Post author

            Absolutely. I don’t think that’s so strange.

            But when you’re comparing good vs great (as opposed to mediocre vs great), it tends to come up mainly around salary, and ocasionally around really out of the ordinary things like letting someone phenomenal work remote full-time or have other special arrangements in order to retain them. And then it’s “Jane’s work on X has been extraordinary and she’s earned this, but it’s not something we do as a general practice.”

      2. Katie the Fed

        See, I’ve had conversations similar to what you mention.

        “Fergus, I’m not comfortably allowing you to work a compressed work schedule until I’m more comfortable with your time management. Why did I allow Nancy? Well, I don’t want to get into a bunch of personnel details, but she’s demonstrated that she can always meet her tasks on time and yadda yadda. I’d like to see you work on X and Y and we can revisit this in 3 months.”

        1. LBK

          It’s shocking to me how many managers aren’t capable of having conversations like this. It’s somehow seen as taboo to say to an employee’s face that they don’t perform to the level of another employee (which is crazy because 95% of employees are self aware enough to know generally where they fall amongst their team).

          1. tesyaa

            It’s really that other 5% that’s the source of the problem. They’re the ones making requests that can’t be granted.

        2. Witty Nickname

          My boss’s version of this is “I don’t care where you work or what hours you work as long as your work is getting done.”

          If any of us weren’t getting our work done, she’d revisit that policy with us. We’re in the process of trying to replace someone, and they will be working in the same office as me. That means part of my getting my work done will be actually working from the office most of the time while we onboard the new person and get them up to speed. After that, if either of us would rather work from home, or Starbucks, or the park, that’s fine as long as the work is getting done.

          I work from the office most of the time anyway. I live in SoCal. It’s hot here from March to November and I’m too cheap to run the a/c all day at home. :)

          1. abby

            “I work from the office most of the time anyway. I live in SoCal. It’s hot here from March to November and I’m too cheap to run the a/c all day at home. :)”

            Too true (also in SoCal).

      3. Allison

        If a manager let a top performer work from home and a low performer couldn’t get that same perk, I think the reasoning would be more like “Dave is able to get stuff done without a lot of supervision and guidance, so we trust that he’ll be just as productive and turn out high quality work at home; on the other hand, your numbers haven’t been great, you seem to need a little more hands-on management, and we’re not confident you’ll be able to turn out good work when you’re at home, so we’d prefer to have you work in the office for the time being.” This may then be followed with a plan for how the latter employee can boost his or her performance to the point where the company may start trusting that employee to start working from home occasionally.

        A company can allow some people to work from home and not others, but they should be relatively transparent about the general criteria. Or, if it’s left to the managers, the managers should be open about what influences those decisions. It never helps to be vague in cases like this.

        1. Cassie

          The managers at my office are totally incapable of explaining rationally why top performer gets to work from home and low performer doesn’t. Because they can’t seem to find the words to explain to low performer that he/she is a low performer! Instead, it’s all about “well, if we let one person WFH, we’ll have to let everyone.” Despite the fact that some of the staff already said they wouldn’t want to telecommute even if it was an option.

      4. Jess

        I would actually consider uniform treatment of low performers and strong performers pretty detrimental to morale, at least to the morale of the stronger performers. The difficulty or awkwardness of explaining to the weaker performer why a stronger performer was allowed certain perks is not a valid argument against such perks for strong performers, and I would argue that it’s kinder to be honest with the weaker employee about why they were denied a perk that someone else received (even if it feels really harsh in the moment).

        1. LBK

          Yes, especially because the default seems to be treating everyone to the standard of the worst employees rather than the best. It’s rare that an office that operates on “fairness” just lets the perks flow freely for everyone – more often, they lock everyone down to the level of oversight and restriction that the worst employee in the department needs. It’s truly a phenomenal way to get your top performers to quit.

          1. Jessa

            Exactly and omg if a thing is not working because slowest employee can’t, then they take it away from everyone.

        2. NJ Anon

          Yeah. My favorite is when everyone gets a 2% raise regardless of their work performance. There is no incentive to do well.

    4. AnonAnalyst

      Agreed, especially with the last paragraph. I would actually caution the OP not to think her value in this way because I can almost guarantee the company doesn’t view those actions as favors or qualities of an especially excellent employee. The evaluation of someone’s value to the organization rarely includes “never takes sick time” and “never asks for a raise” as key attributes, especially in well-managed companies.

    5. some1

      & really, raise your hand if you think you’d call in sick less often if you WFH 4 days a week and wouldn’t be as inclined to ask for a raise if you were already saving a good deal of money by not commuting 4 days a week or having to buy 4 days worth of work clothes?

      1. tesyaa

        The clothing and commuting costs have nothing to do with the employee’s worth to the employer, so I wouldn’t even consider those. The fact that she didn’t ask for a raise is her own business (maybe she was concerned that a raise would also bring a requirement for more face time? who knows), and also has nothing to do with the request at hand, as others have stated.

        1. some1

          Absolutely salary should be based on value to the employer, but the LW didn’t ask for one for a reason or reasons – which may well include the fact that she is saving money by working at home.

          1. Colette

            That’s confusing the value of your work with the amount of money you’d like to spend. You should ask for raises based on the value of your work. In this case, the organization has been financially troubled, which makes it less likely you’d get a raise without significant changes in what you’re doing.

            1. some1

              I’m not disagreeing with you that salary should be tied to value, however, some people don’t ask for it simply because they don’t have an immediate need.

              I used to work in an industry that I loved but the pay was pretty bad across the board even though I did get raises and bonuses. The low salary was way easier to accept based because of other perks like a casual dress code and flex time. I don’t expect any extra credit for not asking for a raise at that job.

              1. Zillah

                Yeah, I think it’s totally fair to say that for a lot of people, enormous perks make them less likely to ask for a raise. I’d certainly press less for a raise if a company was letting me WFH four days a week/have flexible hours/whatever.

                However, the OP definitely shouldn’t see it as something she should get extra credit for.

          2. tesyaa

            I don’t get this. If you save money by switching to Geico, how does that affect whether you ask for a raise?

            1. some1

              I’m speaking to what LW’s motivation might have been for not asking for a raise — not saying she was correct to not ask for a raise if she’s saving $ by not commuting to work 4 days a week. We’ve seen people write in and want a raise because they are on their spouse’s insurance or the company moved and now there commute is longer and it’s the same answer (Your salary shouldn’t be based on choosing not use benefits or where you live), but that is still the impetus for those people wanting one.

      2. Lia

        OP mentions the company has had rough financial times — maybe not asking for a raise was more of a “why bother if they are having trouble or if they have made it clear that those requests will not really be considered”. I worked for state government with very set pay scales and raises were very rare unless someone got promoted to another grade. We got annual COL raises most years, but not performance-based ones.

        I don’t call in sick much despite working at the office 5 days a week because I very rarely get sick enough to miss work. I have co-workers who do call in more, but as long as they have the banked sick leave, it is a non-issue, UNLESS there’s a pattern.

      3. Jessa

        I would call in sick less because there are days I might be contagious but could work, but would NEVER go into an office and pass the germs around. So yeh I’d work from home gladly and not take a sick day like I would if I had to go in. I have a really suppressed immune system – going in and getting sick is normal for me because people will NOT take time off darn it. So no I will not do that. So properly managed, yes stay at home people should see a drop in call out ill for days they can work but shouldn’t come in. Also the stay at home crew is usually weather back up, so you also have less call out correllating to not being able to drive in.

    6. B

      These are all perfect points. Just because you choose not to use your sick days or ask for a raise does not mean you are then entitled to other items.

      It is every companies option whether to let someone work from home, never guaranteed. They could say A-M are allowed and N-Z are not. It is all up to them and by getting it in writing and a lawyer you are making it very contentious and will absolutely burn that bridge.

    7. Vin Packer

      This kind of overcautiousness is especially frustrating because it misunderstands what the law is for. Really, it shouldn’t be that damn hard not to make decisions based on your employees’ race/gender/etc. Acting like this provision needs constant vigilance because carrying it out successfully is basically impossible, or like these types of lawsuits are totally easy to bring about and women and POC are all just *waiting* for the opportunity to go through the expense and anguish of filing a complaint against employers is paranoid and kind of racist/sexist/etc. in its own way.

      1. Mike C.

        Yeah, this is very irritating. It’s actually very difficult and expensive to bring about suits like this.

      2. Katie the Fed

        YES! And I have definitely heard comments like that. “I can’t write so-and-so up because…you know…” No, I don’t know. Can you clarify?

      3. Green

        There could be some bad facts here though… i.e., both of the other two people who asked to work remotely were disabled, the company said it was not a reasonable accommodation to work remotely, and now OP has similar job and wants to work remotely (thereby screwing the company’s earlier argument); the previous two people were black and OP is white; the previous two people were women and OP is a man, etc. It’s not always *why* you make decisions; sometimes what it looks like matters too.

        1. Zillah

          Yeah, I agree. If the OP is a white man and the two people they’ve turned down were a white woman with a disability who experienced pushback when she asked for accommodations and a man of color who always had good performance reviews, for example… I can see why HR would get tense.

        2. INTP

          Yep. If Sally develops a disability and moves to a climate without snow to accommodate walking with a cane and this request is denied while family requests are approved, that might look bad. Or if Sally and Jane are minorities and are told that the company doesn’t allow out of state work but white male Feenix is allowed to move and keep his job, that could be an issue. I’m guessing there’s probably not a paper trail where everyone openly said the reason for refusal was quantifiable performance problems.

    8. Sunflower

      In regards to the last paragraph, it’s also worth noting that by not doing these thing, you can raise red flags too. If I was a manger, I’d be wondering if I was creating an environment where people felt they couldn’t use their benefits or ask for things they deserve. Just something to consider.

    9. Armchair Analyst

      + 1 million to your last paragraph.
      That’s on you, OP, and has no bearing on the rest of your letter or reasonable request (but take the consequences, whether it’s no extra money, or not being allowed to work remotely).

    10. Anonsie

      You’re allowed to call out sick and you’re allowed to seek raises. Forgoing things that you’re allowed to do doesn’t earn you extra credit in the employer’s eyes in most cases, so I caution you to avoid thinking like that.

      That bothered me as well. Getting sick more often does not make you a worse employee than the people who are sick less often.

      On the personal side, it’s always the people who insist on never taking a sick day and come in when they’re a complete mess who get *me* sick, and with my other health problems I go down a lot harder than they did, then I’m out with the same bug that didn’t keep Jane home. If you really don’t get sick, cool, but if you’re just refusing to stay home when you’re sick that’s very very uncool.

      1. Hlyssande

        For real. I have a coworker who hasn’t taken a sick day in 9 years and takes it as a point of pride. We are given 5 paid sick days every year. Every winter like clockwork he’s in and working with a horrible cold or something. In fact, he’s in with the same right now.

        He sits right next to someone who has a young bronchitis- and pneumonia-prone son.

        The buttfor.

  3. BRR

    Keep in mind it could be an issue of working from another state. There are tax issues.

    I also think raises and work from home are two different issues.

    Lastly the company might value covering themselves from other lawsuits over your contributions. It sucks but many people aren’t THAT valuable.

  4. LBK

    Ugh ugh ugh. I hate companies that do this, but I suppose I can’t blame them since the misconceptions about what constitutes illegal discrimination are so widespread. I’ve had it out a few times with friends and others about what’s illegal discrimination and what isn’t. One of my friends actually believed that if he let employees sell Girl Scout cookies in the office, he had to let anyone sell anything they wanted in the office, for example sex toys, because otherwise it would be discrimination. What!? And of course, he’s the head of HR for his company.

  5. Stephanie

    OP, the HR concerns might not totally be bunk. There might be legitimate HR reasons why it’d be tough to work in a different state. Things like workman’s comp, unemployment insurance, and taxes might make it not worth the cost to the company to have you work remotely.

    1. LBK

      It sounds like they specifically cited the “partiality” reasoning, though – it would be one thing if they listed out the other issues, but it would be weird to mention this completely illogical partiality thing without mentioning the other factors (which are arguably more pressing because they’re based on inescapable facts, not hypotheticals).

      1. Juli G.

        This actually leads me to suggest that OP go directly to HR and ask. There are so many times that I tell a manager, “No, we can’t do X because of Y. Z plays in a little as well.” The manager tells employee “We can’t do it because of Z” because the manager thinks Z is a better reason or will be better received even though it’s not the complete response.

        I’ve learned a lot about phrasing in my HR tenure.

        1. Sunflower

          I agree. If the issue is a tax thing and extended hurdles to jump through, I could totally see someone hearing that reason and saying ‘HR is just too lazy to do the extra work!’

          1. Lee

            Well, there’s lazy. And then there’s the company now owing corporate income tax to a new state, which is not about laziness.

            1. Zillah

              Right, but I think what Sunflower is saying is that the first statement could get turned into the second pretty easily, especially by someone who doesn’t like the answer.

      2. Lee

        Yes, but the reason the company might have declined the first employee to ask could be tied to the whole tax question — an employee in the state can create nexus with the state so that the company now owe corporate income tax there. Under those circumstances, then allowing another employee to do it — especially in a state with a corporate income tax — because even more problematic.

    2. Dynamic Beige

      IANAL, so I’m wondering if there might be some sort of liability or confidentiality issues due to medical records and being out of state? I mean, if you were part of a large healthcare network that was in more than one state, I would imagine that the licencing or whatever would already be in place, but if that weren’t the case, could there be some legal issue against having an employee do a job like this in another jurisdiction? Many corporations purposely locate their head offices in areas where the tax laws are low, even if the bulk of their offices or employees are in other places. I just wonder if there is some legal reason why this kind of request wouldn’t be allowed.

      Otherwise, one way HR could handle it and explain the discrepancy would be to say to anyone who asked that they were reviewing their policy on working remotely and were using OP’s situation as a test case to see if it were feasible. It might not be and OP would eventually have to find a new job, though. At OldJob, there were some people who wanted to work from home and had requested it. The requests were denied because: bums in seats! Ease of access! How will we know you’re working?! Face time! At some point, someone decided that they would test it out (this was in the late 90’s) to see how that worked, if there would be a noticeable impact etc. One of my friends who was a very good worker and had requested it several times found out one day that OtherGuy was now working from home, the company let him take a computer home, was paying for a portion of his internet — and my friend was not pleased that they were not one of the ones chosen for the test, so there’s that problem too.

  6. Anonymouse

    “If an employee’s work performance is above and beyond and stellar, but fellow team members’ performances are not, wouldn’t the employee who outperforms be the one to get that raise, and the other team members would not? Of course.”

    Not always. Sometimes the folks who should be shown the door are given the raises and promotions.

    1. LBK

      I think the point was just that employers make all sorts of decisions based on performance – raises, promotions, etc. – and don’t seem to be worried about making it equitably across everyone, but there tends to be a weird insistence on “equality” or “fairness” when it comes to things like scheduling or remote work. Most people would never tell a good employee “I can’t give you a raise because then I’d have to give everyone a raise, otherwise it could be considered discrimination”. Why are the circumstances different when it’s something other than money at stake?

      1. jag

        “Why are the circumstances different when it’s something other than money at stake?”

        Part of the reason is the amount of money is often not known by employees. If pay was as easily observable as being able to work from home or scheduling, I think there would be pressure from employees for less disparities in that domain too.

        1. Mike C.

          Which is why people should discuss their wages more often, but that’s a topic for a different time.

      2. Rebecca

        Most people. I wish my manager would learn this. It’s like Kindergarten here. “I can’t trust everyone to work from home, so no one can work from home”. “I can’t give you any more money, even though you do a great job, because there are others who don’t make as much”. I wish I was kidding.

        1. LBK

          Ugh. I knew there had to be someone out there who was doing this with raises too :( That really sucks. The limits of bad management know no bounds.

  7. Case of the Mondays

    One other thing is ADA issues. If they have an employee seeking a reasonable accommodation to work from home and they want to deny that employee, it will be difficult to say it is an unreasonable accommodation if they have let a non-disabled employee work from home.

  8. Juli G.

    But by HR’s rationale, wouldn’t the employees who then did not get their raise be able to file a lawsuit due to “partiality”?

    Well, yes, they can and some do. HR is probably less cautious about that because it’s a much bigger pool of employees.

    HR is probably being overly cautious here. My other thought is absolutely no one outside HR thought about taxes, payroll, workers’ comp, etc. before saying yes to you.

    I can’t think of one thing to be gained from you demanding a written decision or getting legal representation (it may even be difficult to find reputable legal representation). There’s a lot that you can lose though.

    1. fposte

      It sounds like you’re saying in that first sentence that employees can sue for partiality, though, and they really can’t–partiality isn’t illegal.

      1. Juli G.

        They can if they say that it’s based on their belonging to a protected class. And everyone belongs to a protected class.

        Winning is hard. Suing isn’t that hard. I’ve seen some lawsuits get dismissed quickly because they make no sense and there is no basis but an employer still has to do the work.

        1. fposte

          But then it’s not partiality, it’s discrimination. So far that’s not something the OP has stated is occurring here.

          And suing isn’t hard compared to winning, but it’s still more than just deciding to sue–you have to go through the EEOC or your state’s version. No EEOC, no lawsuit.

          1. Lyssa

            Partiality and discrimination are not mutually exclusive. And suing is not necessarily that hard. You have to start with the EEOC or state level agency, but you don’t necessarily have to stick with them. Anyone can file a lawsuit.

  9. some1

    I feel like for some people they think mentioning getting a lawyer will scare their employer into doing the right thing.

    But when the employer isn’t violating your rights, it’s much more likely to anger them than anything else. Why would you want to work for an employer that is pissed at you?

    1. Stephanie

      Well, that…and the employer can probably afford better lawyers (unless you’ve got some slam-dunk or potentially high-profile case) and has in-house attorneys.

      1. Meg Murry

        Yes – everywhere I’ve worked has had lawyers on staff or on retainer that could stall a case forever, in the hopes that the employee will just run out of money for legal fees before the case gets anywhere. And OP’s case is not that strong, especially since the company isn’t actually firing her – they are saying “stay and work here, or move out of state and quit”.

        OP, a lawyer isn’t going to do you any good. At best, your boss could suggest that HR talk to the legal team/lawyer on retainer about whether this is actually a real legal issue, or whether it is just one thing they need to think about for a minute. But if HR says “no, we’re not willing to chance the legal trouble” and your boss isn’t able to convince them otherwise or to do more research, then that pretty much is that.

        One thing for you and your boss to consider when making a further case: were the other employees in your same job role? Were they also already WFH employees like you are? If not, it is potentially valid to argue why your case is different -but that doesn’t mean you will win, as was discussed yesterday there is a whole other set of issues that come from people working in a different state if your company doesn’t already have a presence in that state.

        1. Ask a Manager Post author

          I’d go beyond that to say that it’s not just the the OP’s case isn’t strong, but rather that there is no case at all; there’s absolutely nothing illegal about declining to let people work from another state.

          1. Meg Murry

            Yes, I agree – pretty much no case. But on the off chance OP could find a lawyer to take it, I suspect that the company lawyers would drag it out forever, not letting it actually hit a courtroom. Although I suppose it might be cheaper for everyone to have a judge throw it out, who knows.

            1. NJ Anon

              No lawyer worth their salt would take this case. Certainly not on contingency because, as AAM said, there is no case. They would charge the LW regardless if they won or lost.

          2. LBK

            My impression was that the OP intended to retain a lawyer to confirm that the company’s legal worries about partiality were misguided – essentially get someone official to tell the company “It’s not illegal to approve this request.” I didn’t think she wanted to sue the company for declining the request, but I suppose it’s open to interpretation since the purpose of the lawyer isn’t really clarified.

        2. fposte

          Yes, I’m thinking that the state issue quite likely the real problem here, whatever the OP was told.

      2. some1

        Great point. My former employer had a couple dozen attys in their legal dept and they had their General Counsel rep them on UI hearings for former employees making < $40k.

    2. AnonAnalyst

      This was my other thought while reading this letter. Even if the OP were to win, I can’t imagine a good outcome from forcing a company to let you work remotely. That definitely does not seem like a long term solution, since it will piss off at least some people in the organization, and those people may ultimately have more influence in the OP’s future with the company than the OP’s director.

  10. Celeste

    I don’t think you have any leverage to force them. It’s not like you are going to quit unless they pay you more–you are already leaving the area. I like AAM’s advice to try again gently, but be prepared to accept a no.

    Force in relationships is a tough thing. Sometimes you win the battle, but you lose war–there is never the same goodwill going forward.

    1. Sunflower

      Yes I’m in this camp. Certainty try again but it’s 100% not worth burning a bridge over, especially when most people would agree that your employer is not being terribly unreasonable here.

  11. Kat

    Wow. This letter read as really entitled. They do not owe you anything. Period.

    someone above mentioned tax liability and extra stuff that makes it harder and more expensive for them.

    You cannot force them to bend to your will. Hiring a lawyer to make a point makes me picture a tantrum from a kid that didnt get what they wanted. Find a new job in AZ. If you force this issue, especially by trying to sue, your reputation will go from “stellar employee” to “person that sues/threatens to sue to get her way”. No one wants THAT person as an employee.

    Frankly, I think you are being ridiculous.

      1. illini02

        I don’t think so. She thinks she is “entitled” to get her way here. So I think its a perfectly valid term.

      2. Laurel Gray

        TBH, I can understand where someone is seeing the entitlement. The OP is a great employee and is engaged and will be relocating. She is trying to make her current job work around her life changes. Life doesn’t normally work like that. We get letters and comments here from similar people – great employees at their current company, who will have to relocate for whatever reason – marriage, care of a sick parent, spouse’s relocation – should everyone ever in the OP’s shoes be able to make a case and potentially “fight” for the right to work remotely because they are great?

        My comments are only about the word “entitlement”. I totally believe in flexibility, if possible, for great employees (I think in some cases it creates great employees)

    1. Katie the Fed

      I don’t know. I’d be legitimately annoyed if I was being told I was denied something that the CEO approved because of a reason like this. This is the work equivalent of “you can’t eat that brownie unless you brought enough to share with everyone.”

      But, unfair doesn’t mean illegal.

      1. Jess

        I agree with this, and I know I’d feel the same way if I were given the excuse OP heard for why she couldn’t work remotely. (I’d prob be pretty annoyed even if I fully knew they were just feeding me a line and that the real reason was something more like cross-state taxes & regulations – although my annoyance then would be entirely b/c of the flippancy & dishonesty of the excuse.)

        That being said, I also agree that there was something off-putting, possibly entitled (although I’m not sure that’s the right word here), in the tone of the letter. If I were in OP’s situation, I’d be making similar arguments (minus the part about getting the justification in writing or consulting a lawyer)…but yet, there was something a bit too adversarial in the tone than would seem warranted by the circumstances.

    2. badger_doc

      I didn’t get the “entitled” vibe from the letter. The OP seemed very confident in her abilities and was rationally explaining why she deserved an extra perk–much how I would approach it if I, personally, was asking for a raise. Her arguments were well thought out and if she is truly a high performer, it is a solid case for this perk of working from home (tax implications aside for the moment).

      1. badger_doc

        Of course, I also agree with you about the in writing/legal threat. Definitely do not do that, but keep with your original argument of how much value you bring to the company and keep an open mind about their challenge back.

      2. JB (not in Houston)

        I think saying entitled is a bit of stretch, but I don’t think Kat meant that wanting to work remotely made her entitled, it was her wanting to bring lawyers into it and force the company to agree to it. While I don’t think it shows entitlement exactly, it’s a step beyond just wondering how to negotiate for a perk.

          1. badger_doc

            Ah! Got it! In that case, I agree, just not with the word choice. She seems ignorant of the process of putting something like this in writing and bringing a lawyer into the mess. I don’t think that speaks to “entitlement” but it certainly doesn’t sit well. I can’t think of the right word to describe that…

    3. LBK

      I don’t see it as entitlement as much as quid pro quo. Sure, no one is ever entitled to anything in the workplace, but you’d like to believe that hard work and dedication affords you some level of reward. It’s not unreasonable or unusual to be frustrated when you feel like you’re not being treated with the level of respect or trust that you believe your work has merited.

      1. Mike C.

        This is where I’m at. We’re all told that hard work and sacrifice are supposed to mean something and to be thwarted by HR for a stupid reason would reasonably upset anyone.

        Bringing in a lawyer is the wrong thing to do here, but I think folks need to quit bristling over the idea of someone wondering if they need to legally protect themselves. You never need a lawyer until you do, and when you do you need one in a huge way.

        1. Ask a Manager Post author

          But there are concerns in the world other than “are my legal rights being violated”? There’s also relationships, common sense, sense of proportion, likely outcomes, and other considerations. I think it’s okay to call people out on jumping straight to an adversarial and litigious stance when the situation doesn’t warrant it.

      2. Kat

        Ok, but how reasonable is it to expect a company to let you work remotely from another state just because you are moving? I know in some companies it’s accepted and normal, but this doesnt seem to be one.

        It’s a Big Deal. And when they brought up concerns, she immediately dismissed them and started asking how to force them into doing what she wanted anyway. That isnt reasonable.

        She is moving to another state. She should be looking for a local job instead of trying to sue them. She’s taking the nuclear option over something that is normal (you move, you find a new job) because she didnt get what she wanted.

        My kids did this when they were 3/4 yrs old and were told no to unreasonable requests. They’d throw a fit and go ask dad for it, thinking he would go against my reasonable answer.

        Just because she doesnt think it’s reasonable, doesnt mean there isnt a good reason. It may have been miscommunicated, but it’s not up to her. If she were my employee and I caught wind of her considering suing to force me into what she wants, she would be gone. She says she’s a stellar employee, but is she? I know a lot of managers that act bummed when crappy employees give their notice. They are glad to see them go, but cant show it.

        1. LBK

          I would agree with all of that if she weren’t already working from home 4 out of 5 days a week. This is barely a change to the existing arrangement. It’s not as crazy as someone who never works from home or only does it on an ad hoc basis making the request; I don’t see it as a “nuclear option” in this case. I’m also still not sure that she wants to sue them – I got the impression that the legal council was intended to prove that it wouldn’t be illegal for the company to allow her a special exception, but it’s not really clear from the letter.

          I also don’t think it’s ever unreasonable to try to make a current job work when you move as the first option and then only starting to job search as a second option if that doesn’t work out. I’d think most people would do that rather than assuming it’s not a possibility, especially if they were already spending 80% of their time working remotely.

  12. LQ

    What do you think you would get out of filing a suit against them? Would you sue them to get to keep your job? A settlement? Set a precedent that other people at other companies are not allowed to discriminate against people movie? Something else? It is always important to consider what you expect the outcome of a lawsuit to be.

    Other: You may depending on your state be eligible for unemployment when you quit if you are moving with a spouse. But that varies based on the state, I don’t know NM laws.

  13. Omne

    There’s too much we don’t know, mainly what were the circumstances surrounding the two prior denials. For all the OP knows there could have been an EEOC complaint from one of the employees that was denied and this would simply bring it up again, perhaps with a stronger case.

    1. some1

      This is a good point. HR may have good reason to believe one of the people turned down would try to take action on this based on their prior behavior, which wouldn’t (and shouldn’t) necessarily be something the LW or her boss would be privy to.

  14. Brett

    Also worth noting that the EEOC looks at actual impact rather than reason for the impact. If your compensation strategy results in white males receiving statistically significant higher salaries than females and non-whites, then you are breaking the law. (Check out Fisher’s Exact Test to see how this is tested; it does work for small numbers of employees.)

    As an example, the high school you attended ends up having a strong impact on your career earnings at my employer. Applicants from certain high schools end up getting higher starting salaries (mostly because their hiring managers attended the same high school). Since all employees receive equal raises, hiring salary ends up strongly dictating your lifetime earnings. The problem with this is that most of the hiring managers attend all male Catholic private schools from this region that happen to be 90%+ white. So, even though none of the original policies are meant to be illegal discrimination (equal raises, influence of high school on starting pay), there is a strong disparate impact because high school correlates so strongly with race, ethnicity, gender, and religion.

    End result of problems like this, companies get leery of treating employees differently without clear connections to essential work functions.

    1. Observer

      Sure. But in this case, there IS a “clear connection to essential work functions.” Replacing high performing employees is expensive. This employee is not only high performing but she has proven that she can work effectively remotely, which benefits the employer in this case. Retaining a high performing employee who meets fairly strict (legal) criteria is definitely a sound business decision.

      Also, it is not entirely true that impact is all that counts. It’s only true if the initial reason is not tied to a “bona fide operating qualification.” In other words, if the impact is caused by something that is genuinely useful to a company (and is not illegal on its own), then even if there is a disparate impact, it’s still legal.

      1. Brett

        Yes, it is much more complicated than just disparate impact. But if an employer is also struggling this badly to explain their fear of litigation, they are probably going to struggle badly to explain their bona fide operating qualification that results in the disparate impact too. And that leads to even more fear of litigation.

      2. Zillah

        But the OP didn’t say anything about the other employees who were turned down for this – they may have also been high performing, and yet it was worth the expense to replace them.

        I’m not saying HR is right, but I can see where the predicament really could be a problem.

  15. CAinUK

    Just go to HR directly and ask them to clarify, and (gently) make your case. Using your director or CEO as an intermediary makes this feel drama-ish since they already asked, and so your question is no about the policy itself.

    You: “Hey, HR, I understand that you’re hesitant about law suits if I get to work remotely but other employees weren’t?”
    HR: “Yup”
    You: “Okay. I understand your concern, but is there another way to look at this? Those other employees didn’t have the same job as me – and I already work remotely so it’s not a precedent. My understanding is we can offer different working arrangements to different people, so long as it isn’t based on protected classes? I just wanted to clarify, because I’m a bit confused and everyone seemed on-board.”

    And if they just say “Well, we are still not comfy with it” you will need to drop it, be gracious, and ensure you keep what should be great references.

  16. illini02

    While I understand the frustration, there seems to be a definite sense of entitlement going on. I get you are a great employee, but that doesn’t mean they have to acquiesce to your demands of working from another state. I don’t care that you never asked for a raise or took a sick day. That was your choice. This is their choice. They don’t even really need to give you a reason, so the fact that you don’t like the reason so want to involve a lawyer seems a bit childish.

    Plus, maybe their concerns aren’t unfounded. If 2 people who asked to do that before were some other minority, and then you as a white woman (not assuming, just putting a possibility out there) then get to do that, it could look really bad on their end, especially if other people are aware of this.

    In essence, HR made their choice. You don’t have to like it, and you can fight it, but you may just need to find a new job. I’m sure if the CEO wanted to, he could intervene on your behalf, and maybe he will. But threatening them with legal action will probably remove him from your corner as well.

    1. Laurel Gray

      Great points. The thing is, no matter what HR explains to the OP, we really do not know the whole story. And even if the CEO is on board, it doesn’t mean it is the best decision for the company, and maybe HR has more of an idea why. It could also be them just being overly cautious, and while annoying, it is not unusual. I think the OP should take any “no” as a sign that she should begin to start looking for work in AZ.

    2. Sunflower

      I think good CEO also understands that he might not be the best person to make every decision in an organization. Sounds like this CEO is aware of that and made a good call saying ‘I’m not going to go over anyone’s head’ because he acknowledges that even though he’s the CEO, it doesn’t mean he’s the best person to make the call in this case.

      1. JMegan

        I was thinking about this yesterday, when we were doing a simulated Incident Management exercise. The (actual) CEO was participating in the exercise, and he deferred most of the decisions to people who knew more about the topic at hand than he did. Costing or procurement question? Ask the Finance people. Want to know if we have enough staff on the ground? Talk to Logistics.

        The CEO is the ultimate authority, of course, but often that authority includes “knowing what you don’t know” and going to the experts to find out. In this case, the expert is HR, who probably knows more about tax laws and managing remote employees than the CEO.

    3. LBK

      I touched on this above, but I don’t think it’s wrong to hope that a company you’ve done good work for would be willing to repay that on some level (beyond direct compensation). I don’t think it should ever be assumed, for sure, but it rings false to me to basically say that no one ever deserves anything good because of their hard work. Don’t expect it, sure, but I don’t think it’s invalid to be annoyed or disappointed if a company doesn’t take your performance into consideration when it comes to accommodating you. And ultimately it can be better for the company in the long run, too – as long as the accommodation doesn’t have any detrimental impact on business operations, it’s almost always better to retain someone good than hire someone new.

      1. illini02

        I’m not saying hard work shouldn’t be rewarded, but at the same time, just because you never got sick and decided not to ask for a raise, doesn’t mean they can redo their entire work structure for you either.

        1. LBK

          Oh, I completely agree that those aren’t valid measures of the employee’s performance. I was assuming that since the company has had her on for 2 years and allowed her to work almost entirely from home, they trust her and like her performance, attendance or raises notwithstanding.

      2. Zillah

        I agree, but I think that requesting to work out-of-state – which carries a lot of legal and tax complications – is a pretty huge accommodation, and the OP hasn’t been there that long.

  17. KimmieSue

    HR may not want to deal with the potential fall out (not legal fall out but morale fall out) from other employees who would also like to work remotely. Perhaps others have also asked and been denied?

    Some times we have this risk aversion to the employee relations issues that might arise. Not stemming from a legal perspective. I’ve seen employees get ticked and loud over things liking changing the candy machine vendor or halting the free water cooler and coffee service. Having lived through some of those situations, I’d be hesitant to set precedence for one employee (especially if there are others that would also like to work from home). Whether it’s right or not (it’s not)…employee’s perceptions are something that need to be managed.

  18. Nerdling

    Let’s say you were successful at forcing their hand for a moment. My question is do you think you’ll be able to have a decent working relationship with a company where you’ve forced them to give you what you want? Without getting into the legality or the tax implications, how do you think you’re going to come across on a personal/professional level if you strong-arm/lawyer them into letting you work out of state? What is that going to do to your reputation with the company and future promotion potential? What about your relationships with other co-workers? Are they or management going to be leery of disagreeing with you for fear you’ll whip out the lawyers again?

    1. Allison

      That’s a good point. Fighting them on this is going to take a lot of time, effort, energy, and money, and at a certain point it’s probably better to just give up, leave on amicable terms, and find a new job in Arizona.

  19. Lee

    Taxes. I mean, I hate to go off in this direction but I wonder if that was the reason behind not allowing any employee to work in another state. Corporate income taxes. With an employee working full time in the state, the company has nexus with Arizona for corporate income tax purposes.

  20. Allison

    I will say that if I were in a similar situation, where I found myself relocating to a new state due to a partner’s career change, I may tell my manager “Look, I have to move to a new state, but I really want to keep working here, is there any way I can work remotely from that state?” In my case, I’d probably argue that my team already has people working in other states, and if that wasn’t the case I may not expect much. Really, I’d be giving them this option as a way to keep me, and either they value me enough to make that happen or they don’t. If they gave me some schpiel about fairness, and how they can’t allow it because they’d already said no to others and they worry about a lawsuit, I may push back, but I think it’d be extreme to try to force them to let me do this if it’s not the norm for the company.

  21. Observer

    It sounds to me like someone is being fairly stupid here.

    I see four possibilities:

    HR actually thinks that “partiality” is a real problem here. That’s incompetent – there is neither a legal nor management reason for there to be any real risk to the organization (assuming that HR has been doing it’s job.)

    HR actually doesn’t think “partiality” is a problem, but chose to say that rather than stating the real problem. Treating your staff like idiots or like they are not capable of dealing with the truth is not a good way to manage. It’s not just the OP who is being treated this way, but her manager.

    HR actually doesn’t think “partiality” is a significant problem, and told the manager that. However, the manager chose to go with that rather than telling the truth about HR’s concerns. That’s a really stupid way to manage. You don’t have to share what HR said, if you have reasons not to, but whatever you say should be true. “I’m really sorry about this, but HR has raised some concerns that I really need to take seriously. I don’t think this is going to work.” is fine if there really is a reason to not share the reason. (And given the OP’s reaction, just wanting to avoid a confrontation might be a good reason, by itself.)

    HR actually doesn’t think “partiality” is a significant problem, and told the manager that. The manager, however, is having second thoughts, but doesn’t want to admit it. See above.

    Having said that, I do agree that the OP’s response is way too adversarial and does come across as somewhat adversarial. Not a good way to operate.

  22. HR Generalist

    I hate seeing “I’ve never called in sick” as evidence that you’re a good employee. Being ill =/= bad employee. And often employees who use their sick leave end up being better contributors (because they’re 100% there when they’re present, rather than 75% there and 25% thinking about being home in bed) and they don’t spread germs around.

    Saying things like that just increases the stigma for people with mental or chronic health issues and it’s not fair (coming from an HR rep who is consistently insisting that employees go home/take paid sick leave before they make a serious mistake or infect others).

    1. Laurel Gray

      Thank you for this. At the part of the letter when the OP was making her case with these examples I was rolling my eyes into Sunday.

    2. nona

      Thank you for that. Also, people who don’t stay home can give their flu or strep or something to somebody whose immune system isn’t as strong.

  23. Sunflower

    I think you misunderstood what your company meant when they said they didn’t want to do things due to ‘partiality’. They’re not talking about lawsuits, they’re talking about employee morale and not wanting to deal with the consequences of upset employees. I’m on the boat that this probably a tax issue. It’s important to remember that working from home is not the same as working out of state. Maybe they don’t care if people ask to work from home but if they have people wanting to ask to work all over the country, that can be a nightmare. Remote working is a topic that elicits strong emotions and often times, the employee has 100% confidence they can do it and the company feels the opposite. Sometimes the reason is simply ‘sorry we just don’t want people doing it’. That can be a tough pill to swallow for employees, esp at similar performance levels, when they see others getting to do it and I can definitely see employees looking elsewhere over it.

    Also:
    ‘At my company, there are certain corporate employees who use a company credit card, which enables their lunches and gas for travel be on the company’s tab’

    If someone is traveling for work, the company is required to cover travel expenses and meals. Just because someone has a company card, doesn’t mean they are able to put whatever they want on it. Also, if they are in a role that requires meeting with clients frequently, it’s not at all strange that they would put client lunches on a company tab.

    1. Laurel Gray

      I took working remotely 4 out of 5 days a week meaning the OP was still available to come to meetings in person. Her boss says she can move and they can just do the meetings via teleconference. One thing I wondered is, what if there are other jobs where people do not need to be in the office space to do them – couldn’t they now use the OP as a template for why they should be able to work from home?

      The OP uses some dare I say silly examples to make her case – not asking for a raise, never being sick, colleagues with company credit cards expensing their lunch while traveling. Couldn’t someone make a case for why they should either receive a raise or be able to work from home because of the amount of money they would save on gas, car wear and tear, parking and laundering their professional clothes – OP saves in these areas.

    2. Anonymous Educator

      I used to work at a place that seriously frowned on not only work-out-of-state but even work-from-home, despite the work being easily remote work. When I left to move out of state, they offered (unsolicited) to allow me to continue working out of state instead of looking for another job. I was seriously shocked by this offer! I almost wish I’d taken it, though, because I could have worked from home, and it really would have shaken up the office culture. With me working out of state, it would have been very difficult for management to keep up morale while continuing to disallow people from working at home (even just one or two days a week).

    3. doreen

      “If someone is traveling for work, the company is required to cover travel expenses and meals. Just because someone has a company card, doesn’t mean they are able to put whatever they want on it. ”

      I’m sure most employers cover these expenses in some fashion (although it might just be a higher salary than jobs that don’t involve travel) but I doubt if it’s required in the US. If it were, there wouldn’t be a way to deduct employee business expenses on your tax return which my husband has to do every year. He gets more salary than he would if he didn’t drive around all day, but it’s income and taxable, not a reimbursement. And he then deducts the car expenses and meals and gifts to customers etc.

  24. Jake

    My home office is in Mississippi and my work location is a construction site in Pennsylvania. Plus we have a guy whose permanent residence is in Kentucky Working for a company based out of Mississippi in Pennsylvania.

    The tax implications of this are horriblely convoluted, however, saying no to OP’s request because of that would be a huge problem for me. 1000s of companies figure out how to make it work, why can’t they?

      1. Jake

        We have 100 employees with roughly 60 completely unique combinations of state residency and state worked in. It sucks, but it’s not bad enough that I’d consider it a road block, more like a speed bump.

        1. Meg Murry

          But your company is used to that now, so it’s an acceptable level of complexity, and has reached the level of “speed bump” now. If all of OP’s co-workers currently work in one state, it may not be worth it for HR and payroll to try to figure out all the tax and employer regulations surrounding a second state for just one employee – and that is totally their right.

          1. Jake

            It is their right, however it is also OP’s right to take their lack of willingness to pass a speed bump (for our company it might as well be a pebble in the road) into account when considering how to evaluate this company.

            I’d be miffed if taxes were their only reason because it is not that much additional work for the company.

            1. Ask a Manager Post author

              Sure, of course it’s her right — but it’s worth pointing out that it would probably be unwarranted. It can be a huge deal depending on the state, if you’re not already set up for it. Differing labor laws alone can be a reason not to do it.

  25. Mena

    Um, you can’t force them to allow this for you. You’ve built up your rationale but it may not be enough. And they may be willing to live without you in which case, you’ll move to AZ and be replaced.

  26. Dana

    I hate to be negative Nancy over here, but let’s say OP’s marriage doesn’t work out. Wouldn’t it be better to be able to move back home to a company that welcomes you back with open arms than to have burned bridges while pestering them about keeping you on in a different state? If they won’t let you do it, that’s it. End of discussion. Good luck in AZ.

    1. LBK

      I don’t think that’s any more reasonable a possibility than, say, convincing her fiance to stay in NM and then the company firing her tomorrow. Sure, it could happen, but the likelihood means the level of consideration it should be given is minimal.

    2. baseballfan

      I can’t imagine living in a world where all my decisions were prefaced by “but what if my marriage doesn’t work out?”

      I agree this is not a bridge to be burned, but the above seems a very odd way of looking at it.

      1. tesyaa

        It’s about retaining options, and it doesn’t have to be about the end of a marriage. What if the husband gets a job offer in NM? What if she hates Arizona and they make the mutual decision to come back to NM?

        1. baseballfan

          I’m all about retaining options; that’s a different conversation than planning your every move as if you could be single in the next few months. That’s all I’m saying.

          1. some1

            There’s a difference between “planning your every move as if you could be single in a few months” and deciding not to burn bridges at an employer in case she ever moves back for whatever reason. The former is paranoid; the latter is good sense.

      2. some1

        I think Dana’s point is the LW shouldn’t push back on this so hard just because she is moving out of state and she thinks it won’t matter.

        It could be just as likely that she starts working for a company in AZ that merges with her present company — you just never know.

      3. Katie the Fed

        I don’t know; when we were registering I told my husband I get the Le Creuset if the marriage doesn’t make it :/

      4. Artemesia

        I once said ‘oh please don’t do this, he will be long gone and we will end up with her’ when a cushy job deal was cut for the wife of a VIP appointment. Later I was able to say I told you so. He was long gone and there she was.

  27. SystemsLady

    OP, if I were you, I’d be mixing in talks about whether some of these higher-ups have contacts in Arizona along with what Alison suggests. You clearly have a good relationship with the CEO and other higher-ups, are currently working at a large company in New Mexico, and could potentially have to job search in Arizona. Those people would most likely be eager to recommend you if you weren’t able to work remotely due to HR reasons, and due to your location I would be surprised if none of them had contacts in Arizona.

    I had a backup option through this route when I asked to work remotely out of state (also because of a spouse) and it really helped take the anxiety and the feeling that it has to happen out of the process.

    (I realize you might just really want to keep this job, but there’s not much you can do about that part)

    1. SystemsLady

      I should probably mention I work in a high turnover and highly connected industry, so my chances at getting a job through my boss would’ve been higher than it might be in other industries. But having contacts and strong recommendations is valuable to a job search in any industry.

  28. NickelandDime

    It sounds like the OP is a hard worker and she likes her job and her company. It seems her manager will be sad to see her go.

    I say, go out on a strong note. Ensure you have an awesome reference in your manager – that when you start job searching in your new city, hiring managers can call old manager and the old manager will have fantastic things to say. Maybe she can give you some leads as well, or knows someone that can. Make sure you leave lots of documentation for the new person.

    OP, you’re getting married and starting a new, exciting life. This sometimes means closing some doors. Others will open for you. This job, this company, isn’t all that’s out there for you. See all of this as a blessing and not a loss.

    1. Celeste

      Yes, every word of this. Also, to the OP: the next place you work, ask for a raise, and take a sick day if you need one. Don’t put yourself in the headspace of going without so you can get leverage for something an employer doesn’t want to give.

      1. Andrea

        I worry that the OP has already poisoned the well and lost the good reputation from his/her years of working there. They don’t owe you anything. They paid you to work there. Your acting like they need to continue employing you when you are moving away is a bit insane.

  29. NS

    As an employer, it’s not totally cut and dry to have an out-of-state employee if you are not already set up to do business in that state. To have an employee located in another state, you have to set up business, handle another set of state taxes and reporting, deal with another state’s labor laws, etc. This sounds like a larger company, so maybe it’s not as big of an issue for them, but this is not necessarily a small request.

  30. Laura

    I went through this same exact issue– 2 years at a company, great performance, and my job was something that could have been done from anywhere. I asked about working remotely when my husband and I moved for his job, they said no and I let it go. It’s really not worth the trouble of getting it in writing/getting litigious when the company isn’t at fault. Get married, move and look for a new job.

  31. nm

    This seems as good a place for my comment as any! I don’t get the two years being the magic number. That’s kind of the minimum for employees in my field, nothing special.

    1. ilovejoshlyman

      I think it is kind of the minimum anywhere to not look like a job hopper. Of course, there are some fields where that is different (international development in the field, academia prior to a tenure-track position, etc). But, for the normal office job? Two years is nothing. Unless you’re 20..and frankly, the way the OP is behaving makes me wonder if maybe she is.

  32. ilovejoshlyman

    The level of entitlement OP has is impressive. Yes, she was told it was okay and then it was nixed – that sucks, and really is rather unfair. It is a crappy way for an employer to treat their employees. But, her response is very similar to the response my nephew sometimes has when plans are changed: stopping his feet and crying about how it isn’t fair.

    Perhaps the CEO spoke before consulting the tax/finance people, and wasn’t aware of the tax/legal ramifications of having an out-of-state employee? Perhaps there are other considerations that the CEO wasn’t aware of. Believe it or not, CEOs aren’t all knowing – they often have to defer to people below them when it comes to such decisions, because they aren’t always involved in the minutiae of the company.

    For what its worth: I work from home as well, and I never call in sick. Know why? Because if I’m feeling crappy, I can skip a shower/morning routine and work bundled up on my couch and take care of easier/less concentration-related tasks that day. People RARELY call in sick at my work because we all work remotely, and that makes it easier to work when we’re feeling less than 100%. It is actually one of the benefits of having remote employees.

    Also, two years? Isn’t that how long someone should stay to avoid looking like a job hopper on their CV/Resume? I wasn’t aware that was a *long* time. I thought that was the bare minimum someone should stay….

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