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DOJ’s Return to Office Is Zero to Five Days Depending on the Job

April 21, 2022, 8:45 AM

Justice Department offices vary widely in how often they expect employees to show up once in-person work plans are scheduled to take full effect next month.

Lawyers in the Civil and Civil Rights divisions will need to be in the office twice every two weeks while lawyers in the Antitrust and Tax divisions must generally come in four days per two-week period, according to a survey by the department’s affinity group, DOJ Gender Equality Network, and internal documents explaining the policies.

Line prosecutors who largely do the same job could stay home every day—or have no telework option—depending on which U.S. attorney’s office employs them, said Adam Hanna, an advocate for assistant U.S. attorneys.

Individual DOJ components can craft their own return-to-work policies, a recognition that a uniform approach isn’t feasible for a workforce of 115,000 that includes lawyers who went fully remote during the pandemic and law enforcement personnel who never had that option.

The patchwork system is prompting calls from two DOJ employee associations for greater consistency as department leaders try to build cohesion while addressing shifting expectations about remote work.

“You see reflected in DOJ the same thing the private sector is struggling with, which is different views on the value of being in the office,” said Natalia Sorgente, an associate deputy attorney general during the Obama administration.

The Justice Department is still implementing its return to office plans with the goal of “completing implementation by May 1,” said DOJ spokesman Wyn Hornbuckle.

“We have given components broad discretion to determine strategies—including flexible telework and remote work policies—that work best for them to fully achieve their mission goals while retaining and attracting a high-caliber workforce,” Hornbuckle said. “Components may also adapt their policies going forward based on actual experience and employee feedback.”

Most Flexibility

The Office of Justice Programs—which performs grantmaking and research functions—and the Civil and Civil Rights divisions are among the components offering the most telework flexibility, the DOJ Gender Equality Network found in a survey shared with members last week.

Office of Justice Programs employees have the option of 100% telework except for extenuating circumstances, the survey showed.

“I was glad to see some components offering generous flexible work options, but unfortunately I was not surprised that there are stark inconsistencies across the Department, even between components in which employees work in very similar ways,” said Stacey Young, president of DOJ GEN, in a statement. “Too many employees will be left without the flexibilities they need.”

Nowhere are the differences more apparent than in the 94 U.S. attorney offices. Assistant U.S. attorneys are subject to anywhere from an outright ban on telework to the freedom of working at home five days per week, said Hanna, vice president of the National Association of Assistant U.S. Attorneys.

He said he’s heard from members that more than a dozen U.S. attorney offices have either eliminated telework or are authorizing it on an ad hoc basis, while most others have adopted various forms of hybrid plans.

Hanna said he’s “actually pretty pleased” by the proportion of offices that are allowing two days or more per week of telework. But for those with stricter policies, “I think people feel betrayed that after working so tirelessly during the pandemic and faithfully adhering to the rules for telework, that it would then just be yanked back like we couldn’t be trusted.”

Hanna’s advocacy group, which is funded by voluntary dues from DOJ line attorney members, has joined DOJ GEN in urging department leaders to establish guardrails, ensuring more equitable telework access.

Customized Approach

Former DOJ officials said the department’s sweeping mission necessitates customizing remote-work plans to each office’s needs.

Historically, “components and U.S. attorneys’ offices have been granted a fair amount of autonomy when it comes to the administrative aspect of managing their workforce,” said Sorgente, now a partner at Baker Botts.

Glenn Fine, DOJ’s inspector general from 2000-2011, said the department must “let individual components and individual offices work this out appropriately with some kind of guidance and oversight.”

Considerations can include whether employees are often going to court as part of a team or are working more individually, the culture of the office, and the need for in-person interviews or engagements, Fine added.

At the same time, said Fine, now a nonresident fellow at The Brookings Institution, “You don’t want to have complete inconsistency for insignificant reasons.”

Retaining Talent

The differences in telework flexibility among offices could complicate DOJ’s efforts to compete with Big Law for talent. “Offices that are taking a restrictive approach to telework are going to have problems retaining the best lawyers,” Hanna said.

Nearly three-quarters of the 100 largest U.S. law firms by gross revenue told Bloomberg Law in a survey last fall that they’re allowing some form of outside-the-office work.

Jeffrey Lowe, a legal recruiter who regularly handles personnel transitions from DOJ to private practice, said he’s yet to hear a fleeing government lawyer cite telework as a factor. But he said that could change as the department starts enforcing the new in-person mandates.

“For those on the fence who were looking at it—'maybe I’ll leave now or maybe I’ll leave a year from now,’” the more generous work-from-home policies in Big Law “could be attractive to them,” said Lowe, global leader of the law firm recruiting practice at Major, Lindsey & Africa.

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com