MONTPELIER — The state of Vermont and the Vermont State Employees’ Association presented oral arguments to the Vermont Supreme Court Thursday over whether the state had the right to change employees’ telework arrangements without bargaining with the union first.
The debate represented the culmination of 10 months of union activism and legal challenges against Gov. Phil Scott’s three days per week return-to-office order.
The 8,000 unionized state employees are awaiting the Supreme Court’s word for “what their rights will look like on the other side of this decision,” said the union’s attorney, Alfred Gordon O’Connell, at the hearing.
Scott first announced in August that state employees would be required to come in person to state offices three days per week starting in December. Many had begun working from home during the Covid-19 pandemic, and flooding of state offices further normalized working from home for many employees.
But in April, the Vermont Labor Relations Board ruled in favor of the union, saying that the state should have bargained with the union before making that change. The state appealed the decision, leading the state Supreme Court to take up the case.
Lauren Jandl, chief of staff to Vermont Attorney General Charity Clark, said via email, “We appreciate the Court hearing this case today and the thoughtful questions to both sides. We look forward to the Court’s ruling.”
Steve Howard, the state employees’ association executive director, said the union was “confident” the court would rule in its favor, citing the labor board’s decision that Scott “has to respect collective bargaining rights.”
“We’re pretty sure the Supreme Court will agree with … the finding, which was unanimous by three Scott appointees,” he said, referencing the labor board ruling.
State employees wearing union t-shirts and buttons filled the Supreme Court chambers to hear attorneys for both sides present their case to the court’s five justices.
Within 30 seconds of Vermont Solicitor General Jonathan Rose beginning his argument on behalf of the state, Justice Nancy Waples interrupted him to ask a question about how much deference the Supreme Court should have to the labor board’s authority.
Over the course of the next half hour, the justices asked 10 questions of Rose and eight questions of O’Connell, sometimes going back and forth with the lawyers. Waples, Justice Christina Nolan and Justice Michael Drescher asked the most questions of both sides.
Among the key issues the attorneys discussed were whether a 2012 teleworking policy, the most recent one in effect, gave the governor “sole discretion” to change teleworking arrangements, rather than requiring bargaining.
O’Connell said the state’s discretion is not “unbounded” just “because of the words ‘sole discretion,’” and that the term applied only to individual teleworking agreements. “If Scott sat down and looked at each employee’s circumstance,” that would be a completely different case, he said.
Rose said the governor had in fact terminated individual agreements with his return-to-office mandate. “What the governor did was he terminated existing agreements, said they’ll do new agreements, new agreements that, as a default, gave employees more telework than they were entitled to under the policy,” he said.
Nolan told O’Connell that his brief was “a very good argument,” but asked whether a previous agreement to allow Department for Children and Families Economic Services Division to compel employees to come back to the office should serve as precedent in this case.
O’Connell said it should not, since it was still specific to a single job title, which limited its applicability.
“The determination was that everyone who held that particular position could no longer do so by telework, because the teleworking of that one classification was interfering with the business operations,” he said.
With just a few of the allotted minutes left, Waples asked Rose a final question: “Is the change in the policy from five days’ ability to work remotely to only two under the hybrid (schedule), is that a fundamental change? And should that have been subject to collective bargaining?”
“No, it shouldn’t have, your honor,” Rose responded.
“There was no right to five days of telework under the policy,” he said. “The board’s decision fundamentally changes the policy by effectively giving employees a right to telework.”
The hearing also came on the same day the state announced to employees that it would implement a new teleworking policy in response to the labor board’s April ruling.
“We understand this may create further disruption and uncertainty as we await a final decision on our appeal, but it is required to implement the Board’s order,” Sarah Clark, the state administration secretary, wrote in an email to state workers.
According to the new policy, all employees hired prior to December 2025 would return to the teleworking arrangement in effect for them before Scott’s announcement, although some would be required to fill out a new teleworking request form. Clark said the agency planned to reevaluate the policy after the Supreme Court ruled on the appeal. There is no timeline for when the high court will issue a decision.
