HHS Loses Telework Appeal: FLRA Says a Return-to-Office Memo Can't Override Your Union Contract

The Federal Labor Relations Authority (FLRA) has denied every exception HHS raised to an arbitration award that ordered the agency to rescind its return-to-office directive and reinstate telework and remote work agreements for NTEU-represented employees. If you have been wondering whether an agency can simply set aside a union contract because of the January 2025 return-to-office memo, this decision is worth your attention.

What HHS Did

In July 2023, HHS signed a contract with NTEU. Article 26 of that contract allows HHS to end telework only for cause, such as misconduct or an organizational need that requires employees on site. After the January 2025 return-to-office memo was issued, HHS cancelled regular telework and remote work across the bargaining unit on February 7, including for people hired on remote job announcements. The agency did not point to cause. It acted because of the memo.

Why the Authority Ruled Against HHS

The memo itself says it is to be implemented "consistent with applicable law." One applicable law is 5 U.S.C. § 7116(a)(7), which makes it an unfair labor practice for an agency to enforce a rule or regulation that conflicts with a collective bargaining agreement that was already in effect. In plain terms: the contract came first, and the memo came second.

Arbitrator Michael Falvo found that HHS repudiated its contract. He ordered the agency to undo the cancellations, reinstate the telework and remote work agreements, and post a notice acknowledging the violation. HHS argued that arbitrators cannot override the President. The Authority answered that the arbitrator did what the memo itself calls for by following applicable law, and it noted that HHS never argued his reading of the memo was contrary to law. The Authority denied all of HHS's exceptions.

The Brief That Drew the Authority's Attention

The Authority also took a hard look at HHS's brief. According to the decision, 22 of 29 footnotes and 35 of 42 citations were fictitious, erroneous, or irrelevant, and the Authority wrote that it appears HHS may have used a generative AI tool in drafting. The practical lesson reaches beyond HHS: anyone filing a challenge, whether an agency or an individual, should verify every citation before filing.

What This Means for You

If you are an NTEU-represented employee at HHS, please do not expect telework to return tomorrow. NTEU says HHS has until December 21 to seek review in a federal court of appeals, so this is not yet the final word.

If you work somewhere else, the same argument may be available to your union if your contract was signed before January 2025 and says telework can end only for cause. Whether it applies depends on your contract's actual language and when it took effect, and the grievance and arbitration process belongs to your union, so talk with your steward early.

One related point: if your telework was a reasonable accommodation for a disability and it was pulled, that is a separate question under the Rehabilitation Act, not a question of contract rights alone.

Next Steps

• Find and save your signed telework agreement and the telework article in your collective bargaining agreement.
• Write down the date you were told to return to the office and who told you.
• Ask your union representative about grievance deadlines under your contract.

Legal Disclaimer: This content is for general informational purposes only and does not constitute legal advice. Federal employment situations are fact-specific and time-sensitive. Please consult a qualified federal employment attorney about your specific situation. You can contact Southworth PC at attorneysforfederalemployees.com.