By: FEDweek Staff
Published: October 22, 2026
https://www.fedweek.com/federal-managers-daily-report/flra-sides-with-union-in-key-telework-case-says-sloppy-legal-work-by-hhs-smells-of-ai/
In a key decision in one of the many disputes over the widespread cancellation of telework, the FLRA has found that HHS violated a contract with the NTEU union, meanwhile criticizing the department for presenting “fictitious, erroneous, or irrelevant” legal arguments that seemed to be AI-generated.
The case is one of several in which arbitrators have ruled that the administration’s return-to-office policy, set by an early 2025 presidential memo, does not override telework-related provisions in negotiated contracts, which for example set standards for when it may be canceled.
The memo directed that the policy be “implemented consistent with applicable law,” which includes federal labor-management law stating that an agency may not “enforce any rule or regulation . . . which is in conflict with any applicable collective[-]bargaining agreement if the agreement was in effect before the rule or regulation was prescribed,” the decision said.
The FLRA rejected the department’s argument that it complied with the contract by notifying the union and employees of the impending telework changes and that the union had failed to request bargaining.
It found that that HHS failed to support its arguments with facts, and that 10 of the legal citations in the agency’s legal filings were “fictitious,” 14 “did not support the propositions for which they are cited” and 10 are partially incorrect and also do not support the department’s arguments.
“Overall, twenty-two of the exceptions brief’s twenty-nine footnotes – and thirty-five of the forty-two legal or record citations – are fictitious, erroneous, or irrelevant. Based on the nature and scope of these errors, it appears that the Agency may have used a generative artificial-intelligence (AI) tool in drafting its brief,” the FLRA wrote.
“While nothing prohibits parties from using AI tools when preparing filings for submission to the Authority, we caution those who do so to be aware that AI continues to present significant risks of error. Therefore, parties should take steps to verify the accuracy of any AI-generated material and ensure that their filings satisfy all regulatory requirements,” it added.
The arbitrators’ orders in this case and others—requiring agencies to reinstate prior offsite work practices and follow the contract provisions in effect at the time—have been stayed as agencies have been appealing them to the FLRA.
The NTEU called the decision a “big win for telework rights” but added that “HHS employees are, unfortunately, unlikely to see immediate changes to their telework arrangements because HHS has until December 21 to appeal the FLRA’s decision to a federal appellate court.”
Meanwhile, legislation introduced into the House (HR-10,713) would restore some policies in effect before the second Trump administration—including during Trump’s first term—while addressing some issues that have arisen recently regarding use of telework as an accommodation for medical or disabling conditions. The primary impact of the bill would be to override the a memo that largely ended offsite work arrangements, while leaving room for exceptions such as for accommodations.