Should 'Deskless' and Office Workers Be Treated Differently?

​With the recent focus on the return to worksites and hybrid work, employers risk overlooking "deskless" employees who never had the option to work remotely. Whether grocery store workers, factory employees, nurses, retail workers and others, many deskless employees aren't returning to worksites because they never could leave. The litigation risks in treating deskless and office workers differently are low, except when an employee claims discrimination.

"Having different policies or procedures for different job titles or departments is generally fine," said Lindsey Self, an attorney with Eastman & Smith in Toledo, Ohio.

While the pandemic reinforced the popularity of working deskless, "the employer always makes the determination about how the work is done and where," said Linda Bond Edwards, an attorney with RumbergerKirk in Tallahassee, Fla.

For example, an employer may allow the accounting department to continue working remotely even after the pandemic has subsided, while requiring manufacturing employees to come to work, just as they had during the height of the pandemic.

"While this policy treats groups of employees differently, it makes sense that the accounting employees can work effectively from home and the manufacturing employees must work on equipment in the facility, requiring their physical presence," Self said.

But the employer should continually review any differential treatment of employees to make sure that the business reason for the differential still exists, said Michele Ballard Miller and Ethan Chernin, attorneys with Cozen O'Connor in San Francisco and Santa Monica, Calif. respectively, in an e-mail.

They noted that an employer may have a workforce in which deskless workers are mostly minorities and office workers are not. In that situation, allowing office employees to work remotely but requiring deskless workers to report to work may be based on legitimate reasons during the pandemic's heights, but those reasons may wane when the pandemic subsides.

Bootstrapped Claims

To have a discrimination claim, Rob Hudock, an attorney with Hudock Employment Group in Los Angeles, said a deskless worker must show:

• A qualitative difference in positions.
• The employee was given less desirable work because of his or her protected characteristic. Under federal law, protected classes include race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age, disability, and genetic information.

Consider nurses at a hypothetical hospital. The nurses directly care for patients, are mobile much of the time and are deskless. The nurses who supervise are primarily administrative and rarely provide direct care to patients, so they are desk-based. Desk-based supervisor nurses are paid more.

"This is disparate treatment, but it is not illegal for multiple reasons," Hudock said. He explained:

• Neither deskless nor desk-based is a protected class.
• The deskless caregivers and the desk-based supervisors are not sufficiently similarly situated to create any basis for illegal disparate treatment.
• The caregiver nurses being deskless and the supervisor nurses being desk-based is coincidental and incidental to the job positions and related duties.
• The compensation difference is for the legitimate, nondiscriminatory reason that the supervisor nurse position requires more qualifications and experience and includes management duties.

Now consider only caregiver nurses at a hypothetical hospital and assume the following:

• Some nurses are constantly moving because they are caring for adult patients in hospital rooms. When working in this capacity, these nurses are deskless while others spend substantially less time in close contact with patients and most of their time at fixed nursing stations monitoring the health of patients, using computers and monitors at stations that are desk-based.
• The nurses are assigned to either a deskless area or a desk-based area, and any caregiver nurse could be assigned to either type of area.
• The terms and conditions of work in both areas are similar enough such that all caregiver nurses are considered similarly situated, regardless of assigned area.

"A nurse assigned to a desk-based area could claim that work in a deskless area is more desirable because, for example, bonus compensation is available for work," such as during the pandemic due to increased health risks, he said.

Similarly, a nurse assigned to a deskless area could claim that work in a desk-based area is more desirable because it involves less physical work.

If either of the nurses is in a protected class, such as age 40 or over, and argued the terms and conditions of the area and work were less desirable than the other type of work—and the employer assigned the employees to the less desirable area because of the worker's age—differences between deskless and desk-based work can result in a discrimination claim, Hudock said.

Employee Relations

Even if it may be difficult to make employers liable for treating deskless and desk workers differently, employers should keep employee relations considerations in mind.

"When an employer has different policies for one set of employees, others may feel undervalued in the workplace," Self said. A manufacturing employee who has strict schedules may resent office employees' greater flexibility.

Organizations may benefit from giving employees autonomy whenever they can, even in roles on the factory floor. An employer could ask for and implement process improvements for manufacturing workers to boost morale and improve productivity.

"What leaders must do is make sure that the sole focus doesn't remain on office workers exclusively," said Sandra Moran, chief marketing officer for WorkForce Software in the Detroit metropolitan area.

"It is important that management—in person, perhaps at a town hall, and in writing—let the deskless workers know how important they are," said Michael Futterman, an attorney with MARC Law in Florham Park, N.J.

[Want to learn more? Join us at the SHRM Annual Conference & Expo 2021, taking place Sept. 9-12 in Las Vegas and virtually.]