Ask Jack: Does Dictating When An Employee Must Work Create A Litigation Risk?

By Jack McCalmon, The McCalmon Group, Inc.

Dear Jack:

I own a small business. Our employees worked from home during the first year of the pandemic, but now we want to get back to the workplace. Do I run a risk if I require some employees to come to work, but allow others to remain working from home?




Dear Jim:

That's a good question.

Where an employee works is an opportunity of employment. Employers must distribute such opportunities equally.

For example, if only employees under 40 can make the choice where to work, you run the risk of an age discrimination charge. If you only require female employees to work outside the office, you run the risk of a gender discrimination claim.

A well-written job description is an important tool to help prevent discrimination claims related to opportunities of employment. A job description should describe the duties as well as the mental, physical, and emotional requirements of a position. A job description should also state where an employee has to work to accomplish his or her duties effectively.

Through a job description, you are declaring that the job determines where an employee must work.

For instance, a "customer attendant" job description may require customer attendants to work at a facility to better interact with customers. However, a job description of "bookkeeper" may allow a person to connect online from home.

Always consult your local employment counsel when creating a workplace policy.

Jack McCalmon and Leslie Zieren are attorneys with more than 50 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.

If you have a question that you would like Jack McCalmon or Leslie Zieren to consider for this column, please submit it to Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.


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