Bargained-For Telework Discretion Permits Statewide Hybrid-Work Rules Without Renewed Bargaining

1. Introduction

The Vermont Supreme Court considered whether the State had to bargain again before replacing existing telework arrangements with a statewide requirement that Executive Branch employees generally attend the office at least three days each week. The Vermont State Employees’ Association (VSEA), representing three Executive Branch bargaining units, argued that the new Hybrid Work Standard altered negotiated employment conditions. The State maintained that its existing, collectively bargained Telework Policy already authorized the change.

The Vermont Labor Relations Board accepted VSEA’s position and found an unfair labor practice under 3 V.S.A. § 961. The Supreme Court reversed. Its central holding was that the negotiated policy reserved sufficiently broad discretion to the State to terminate existing telework agreements and establish the permissible scope of future telework without renewed bargaining.

The decision distinguishes a change to a negotiated employment policy from an exercise of authority that the policy already grants. It does not hold that telework falls outside collective bargaining: both parties agreed that telework is a bargainable term or condition of employment.

2. Background and Procedural History

The negotiated Telework Policy

The parties negotiated Personnel Policy Number 11.9—Telework in 2012, following Tropical Storm Irene’s disruption of state workplaces. The policy allowed employees to request regularly scheduled remote work but did not guarantee approval or continued participation.

Two provisions controlled the dispute:

“The Appointing Authority or designee has the sole discretion to approve an employee’s request for telework, and will only permit telework when consistent with the operating needs of the Agency or Department.”

“Telework is a voluntary program, provided at the sole discretion of the Appointing Authority, and may be terminated by the employee or employer at any time, with or without cause.”

The policy also called for at least two weeks’ termination notice whenever feasible. Neither the policy nor its request form prescribed a minimum number of office days. The collective bargaining agreements defined “appointing authority” as the person authorized by statute, or lawfully delegated authority, to appoint and dismiss employees.

Expansion of telework and the 2025 standard

Telework was initially uncommon. During the COVID-19 emergency, gubernatorial orders substantially expanded remote work, temporarily dispensing with ordinary telework agreements. Subsequent guidance returned employees to the policy’s request-and-approval framework while permitting applications for any number of remote days. By 2023, substantial numbers of employees were teleworking more than two days weekly.

In 2024, the Economic Services Division of the Department for Children and Families suspended telework for certain positions because of operational concerns. VSEA sought information but did not file a charge or grievance. That earlier episode later became the basis for the State’s unsuccessful waiver argument.

In 2025, the Governor announced a broader return-to-office initiative intended to improve collaboration, connection, and communication. Effective December 1, the Hybrid Work Standard rescinded existing telework agreements and generally required at least three in-office days weekly. Employees wishing to continue teleworking had to submit new requests.

The standard allowed limited exceptions where duties could be performed remotely and compelling reasons existed. Exceptions required several levels of approval, including approval by the Secretary of Administration. Separate provisions addressed disability accommodations, and some departmental or agency waivers reflected circumstances such as insufficient office space.

The Board’s ruling

After the State rejected VSEA’s demand to bargain, VSEA filed an unfair-labor-practice charge on November 17, 2025. The Board concluded that:

• The negotiated policy assigned telework decisions to appointing authorities rather than the Governor acting directly.
• A statewide office-attendance minimum and compelling-reasons exception framework introduced conditions absent from the policy.
• The State had not demonstrated operational shortcomings sufficient to justify the new approach.

The Board ordered rescission of the Hybrid Work Standard, restoration of previous telework arrangements, reinstatement of employees who had left because of the standard, and reimbursement of resulting monetary losses. The State appealed.

3. Summary of the Supreme Court’s Decision

The Supreme Court rejected the State’s preliminary argument that VSEA had waived its challenge by not contesting the earlier divisional suspension. That limited action did not sufficiently notify VSEA that the State claimed authority to impose a statewide, Governor-directed attendance requirement. The charge was timely.

On the merits, however, the Court held that:

1. The policy’s references to “appointing authority” and “employer,” read together and in their statutory context, permitted the Governor to act directly.
2. The policy guaranteed neither a particular amount of telework nor continuation of existing agreements.
3. The three-day attendance requirement and substantive exception criteria were compatible with the discretion already negotiated.
4. The State did not have to prove operational deficiencies before terminating telework under the policy’s “with or without cause” provision.
5. The Governor’s stated management objectives were reasonable, and the Board could not replace the State’s managerial judgment with its own.

The Court reversed the Board’s decision. Because the unfair-labor-practice finding failed, it did not decide whether the Board possessed authority to grant the remedies it had ordered.

4. Analysis of the Legal Reasoning

A. Prior bargaining can authorize later managerial implementation

The decisive question was not whether telework affects employment conditions. It plainly does. The question was whether the State changed the parties’ agreement or implemented discretion contained within it.

The Court treated the original bargain as preserving a broad management choice: employees could request telework, but the employer retained control over approval and termination. The absence of an express three-day requirement did not prevent the State from adopting one. A detailed implementing rule need not amend an agreement when it falls within authority the agreement already confers.

This reasoning makes the decision contract-specific. A policy guaranteeing remote-work days, restricting termination to specified grounds, or expressly requiring renewed bargaining over attendance standards would present materially different questions.

B. “Appointing authority” did not exclude the Governor

The Board focused on the policy’s assignment of discretion to appointing authorities and the absence of the word “Governor.” The Supreme Court rejected that reading as too narrow.

The termination provision also authorized the “employer” to end telework. Under 3 V.S.A. § 902(7)(A), the employer is the State, represented by the Governor or a designee. Section 905(a) likewise identifies the Governor or designee as the employer representative in collective bargaining. Those provisions supplied important context for interpreting the policy.

The Court also emphasized the unreasonable practical result of the Board’s construction: the Governor could direct subordinate appointing authorities to revoke agreements but supposedly could not accomplish the same result directly. Reading the agreement as a whole avoided that distinction while preserving the discretion for which the State had bargained.

This was not a holding that executive authority automatically overrides negotiated restrictions. The Court grounded the Governor’s authority in this policy’s language. It expressly cautioned that “appointing authority” might have different meanings in other statutes and contractual provisions.

C. Eligibility is not an entitlement

The policy permitted telework only when consistent with an agency’s or department’s operating needs. The Board treated that language as requiring an operational justification for the statewide change.

The Court instead understood it as a threshold eligibility condition. Compatibility with operational needs makes telework potentially permissible; it does not compel approval. Even an eligible employee remained subject to the State’s sole discretion, and an existing arrangement could end with or without cause.

This distinction prevented the operational-needs language from becoming a contractual requirement that the State establish service failures or employee underperformance before withdrawing telework.

D. A statewide attendance rule could operate within individual approval discretion

Although the original policy contemplated employee requests and approvals, it promised no minimum number of remote days and prohibited no general attendance standard. The State could therefore channel its approval discretion through a uniform three-day office requirement.

The same reasoning supported the substantive exception framework. Because the State could determine the appropriate amount of telework, allowing additional remote work only for compelling reasons did not inherently conflict with the policy.

There is an important procedural limit. VSEA separately argued at oral argument that requiring an exception form itself introduced an impermissible procedural step. The Court declined to address that distinct claim because it had not been preserved before the Board. Thus, the decision resolves the substantive compatibility of the exception framework but not the unpreserved procedural-form challenge.

E. Management judgment did not require proof of service deterioration

The Board found that the State had not demonstrated how existing arrangements impaired collaboration or government services and noted evidence that teleworking employees performed well. The Supreme Court held that such proof was not required by the negotiated language.

The Court nevertheless addressed reasonableness. To the extent a rational explanation was necessary, the Governor’s concerns about connection, collaboration, and communication supplied one. The judicial role was not to decide whether the return-to-office policy was the best employment strategy.

That conclusion should not be confused with unlimited managerial immunity. The Court enforced this agreement’s broad discretion and found the stated objectives reasonable; it did not decide every possible statutory or contractual objection to telework restrictions.

F. Deference to the Board has limits

The Court acknowledged the Board’s expertise in employment contracts and collective bargaining agreements. It nevertheless distinguished specialized labor-relations judgments from an interpretation resting principally on ordinary contract-law tools.

The Board’s analysis received less deference in that setting. Moreover, even a deferential standard did not require acceptance of an interpretation that unreasonably diminished express contractual discretion or allowed the Board to substitute its management preferences for the employer’s.

5. Precedents Cited and Their Influence

A. Administrative expertise and management authority

Vt. State Emps.' Ass'n v. State, 2009 VT 21

This decision supplied the starting rule that Board decisions within its expertise receive substantial deference and are presumed correct, valid, and reasonable. It also supported deference to employment-contract interpretation. The present Court used that framework while distinguishing this dispute’s reliance on general contract interpretation from specialized labor-law analysis.

In re VSEA, Inc., 143 Vt. 636 (1983)

This case reinforced the presumption favoring Board decisions within its expertise, including the requirement of a clear and convincing showing to overcome that presumption. Its importance lies in demonstrating that the reversal occurred against a generally deferential background, not through routine substitution of judicial judgment for administrative judgment.

In re Carnelli, 2020 VT 12

The Court relied on this precedent for several connected propositions: deference has limits when the Board exceeds its authority; its contractual interpretation must be reasonable; and reasonable exercises of the State’s management function should be sustained. It provided the principal bridge between contractual discretion and protection of managerial workforce decisions.

In re Jewett, 2009 VT 67

This employee-dismissal case illustrated improper substitution of the Board’s judgment for the State’s reasonable employer judgment. The Court applied that institutional principle to telework management. The comparison concerned the Board’s proper reviewing role, not an equivalence between dismissal and remote-work restrictions.

Wood v. Wallin, 2024 VT 21

This case confirmed that administrative deference is not absolute, including where an agency’s decision is irrational or lacks sufficiently clear guidance. It reinforced the Court’s conclusion that expertise could not save an unreasonable reading of the Telework Policy.

B. Construction of collective bargaining agreements

In re West, 165 Vt. 445 (1996)

This precedent served several functions. It recognized the Board’s expertise, directed courts to consider whether findings support the ultimate conclusion, and established that traditional contract principles govern collective bargaining agreements. Its prohibition against interpretations rendering provisions meaningless supported preserving the practical effect of “sole discretion” and “with or without cause.”

In re Welch, 2020 VT 72

This case required enforcement of clear, unambiguous contractual language as written. It supported the Court’s refusal to add a guarantee of continued telework or a proof-of-operational-need requirement absent from the negotiated policy.

In re State Airport Hangar Lease Disps., 2025 VT 21

Although involving a different administrative setting, this decision distinguished agency expertise from legal contract interpretation, which is reviewed de novo. It supported reduced deference where the Board’s reasoning depended mainly on ordinary interpretation of contractual text.

In re Gorruso, 150 Vt. 139 (1988)

This case instructed courts, where contractual language admits multiple interpretations, to consider the parties’ situation and motives, the subject matter, and the agreement’s objective. It also directed avoidance of unequal, unreasonable, or improbable results where consistent with the text. Those principles supported reading the policy as preserving employer flexibility rather than isolating subordinate decision-makers from gubernatorial direction.

In re Gregoire, 166 Vt. 66 (1996)

This decision similarly required reasonable construction of collective bargaining agreements. It directly reinforced rejection of the improbable distinction under which subordinate officials could terminate telework while the Governor could not act directly.

C. Timeliness and waiver of bargaining rights

Milton Educ. & Support Ass'n v. Milton Bd. of Sch. Trs., 171 Vt. 64 (2000)

This precedent supported dismissal when an unfair-labor-practice claim is not timely asserted. It framed the State’s argument under the six-month filing period in 3 V.S.A. § 965(a), but did not establish that the earlier divisional suspension started the clock for the later statewide action.

Loc. 2787, AFSCME v. City of Montpelier, 161 Vt. 567 (1993) (mem.)

This case established that waiver of statutory bargaining rights is not lightly inferred and that expectations generated by the opposing party’s conduct matter. It supported treating the limited, operationally justified divisional suspension as insufficient notice of the State’s asserted authority to impose the later statewide standard.

Local 98, IUOE, AFL-CIO v. Town of Rockingham, 7 VLRB 363 (1984)

This Board decision required conscious and explicit waiver of bargaining rights. The Supreme Court relied on that standard in sustaining the finding that VSEA’s earlier nonchallenge did not intentionally relinquish its right to contest the Hybrid Work Standard.

D. Preservation of arguments

In re Amend. #1 to FY23 Accountable Care Org. Budget Ord., 2024 VT 38

This precedent generally limits administrative appeals to arguments preserved before the agency. It explained why the Court did not reach VSEA’s separate objection to the newly required exception form.

Vt. Nat'l Tel. Co. v. Dep't of Taxes, 2020 VT 83

This case emphasized that an argument must be presented to the administrative agency with specificity and clarity. It reinforced that raising a broad challenge to the standard did not necessarily preserve every distinct procedural objection to its implementation.

6. Potential Impact and Limits

Future telework disputes will turn on negotiated language

The decision provides substantial support for statewide telework restrictions where an agreement reserves sole approval discretion and allows termination without cause. It also gives unions a clear drafting lesson: protection of remote-work arrangements requires affirmative language addressing duration, minimum remote days, termination grounds, decision-making authority, or future bargaining obligations.

More demanding judicial scrutiny of contract-based agency reasoning

Future litigants may invoke the distinction between specialized administrative expertise and ordinary contract interpretation. The opinion nevertheless preserves the general rule of Board deference; it does not establish unrestricted judicial reconsideration of labor-relations decisions.

Limited acquiescence does not establish blanket waiver

The waiver ruling protects the ability to distinguish a later, materially broader employer action from an earlier localized measure. That procedural protection remains significant even though VSEA lost on the merits.

Questions left unresolved

• Flexible Working Arrangements Act: Compliance with 21 V.S.A. § 309 was outside the Board’s jurisdiction and the appeal’s scope. The decision therefore does not establish compliance with that statute.
• Independent accommodation rights: The standard contemplated disability accommodations, but the Court did not adjudicate individual accommodation claims.
• Exception-form procedure: The distinct procedural objection was unpreserved.
• Remedial authority: The Court did not decide whether the Board could order reinstatement and monetary reimbursement in an otherwise established violation.
• Past practice: The Court did not need to decide whether pandemic-era gubernatorial actions and VSEA’s acquiescence independently supported the State’s interpretation.
• Other uses of “appointing authority”: The interpretation was expressly confined to the context presented.

7. Complex Concepts Simplified

Unfair labor practice

A violation of duties imposed by labor-relations law. Here, the alleged violation was changing a negotiated employment condition without bargaining.

Reserved discretion

Decision-making authority retained through the negotiated agreement. Exercising that authority is different from changing the agreement itself.

Eligibility versus entitlement

Eligibility means an employee may qualify for consideration. Entitlement means the employee has a right to receive the benefit. This policy created the former, not the latter.

Administrative deference

Judicial respect for an agency’s expertise. It does not require acceptance of an unreasonable interpretation or action outside the agency’s authority.

De novo review

Independent judicial determination of a legal question, rather than acceptance of the agency’s answer merely because the agency reached it.

Waiver and preservation

Waiver concerns intentional relinquishment of a right. Preservation concerns whether a specific argument was raised properly before the tribunal whose decision is being appealed.

8. Conclusion

The opinion’s central contribution is a contract-specific distinction between altering telework rights and exercising previously negotiated discretion. Because the Telework Policy guaranteed no remote-work minimum and permitted termination without cause, the State could implement the Hybrid Work Standard without renewed bargaining.

The decision strengthens enforcement of express management reservations while preserving important boundaries: bargaining rights are not lightly waived, agency deference remains meaningful, and statutory or procedural questions outside the appeal remain unresolved. The practical lesson is that the durability of telework arrangements depends heavily on the precise protections secured in collective bargaining.