Friday, December 9, 2016

Employment Law Tips for the Holiday Season

The December holiday season is, in many ways, a wonderful time of year. To make sure it stays that way, here is a quick refresher for employers on how to sidestep the panoply of employment law minefields that can crop up during the holiday season.

Religious Discrimination and Accommodations

December is home to multiple religious holidays, including Hanukkah, Christmas, Kwanzaa, and the Winter Solstice, among others. For this reason, it is important to remember that federal law and many states prohibit religious discrimination in employment and require religious accommodations for sincerely held religious beliefs. December can be a popular time of year for the following types of religious accommodation requests or religious equity issues to arise:

Requests for Time Off for Religious Reasons: Title VII of the Civil Rights Act of 1964 requires that employers grant reasonable religious accommodations that don’t pose an undue hardship on the employer. While many employers have paid holiday schedules that account for Christmas, some employees may need different religious holidays off. When an employee requests time off to observe a religious holiday, some reasonable accommodation options include allowing holiday time substitutions, flexible break schedules, voluntary shift swapping, or letting employees come in early or stay late to make up for hours missed.  Be mindful, in deciding on an approach, that employers cannot give preference for time off to people of one religion over another and should apply any religious holiday policies equitably throughout the year.

Decorations and Religious Symbols: In December, many employers decorate common areas for the season and allow employees to decorate their work areas. Employers are free to ban all holiday symbols during the season, but, if employees of one religion are allowed to display religious symbols, employees of all other faiths must be allowed to do so.

Employer-Sponsored Events: While employers often sponsor holiday events, they should be mindful that attendees may have different religious beliefs. Secular events are usually the best approach. That being said, employers may sponsor events that include a religious component, such as a Christmas party, but employees cannot be required to attend an event that contradicts their religious beliefs. In addition, employees who do attend should not be rewarded for attending. Employers should treat all employees equally, whether or not they attend company-sponsored spiritual events.

Holiday Parties

Apart from religious issues, holiday parties also raise other employment obligations and can provide big HR headaches if they result in employee misconduct.  Having a few key avoidance strategies, like the following, firmly in place before a holiday party can help an employer dodge potential problems:

Wage & Hour Issues: Simply put, if you require non-exempt employees to attend a holiday party, you must compensate them for the time they spend there. If the party occurs during normal work hours, non-exempt employees can attend “on the clock” during their regular work hours. If the party takes place outside of work hours and attendance is mandated, non-exempt employees must still be paid and time spent at the party must be counted as work hours for determining any overtime hours and pay. The simplest way to avoid added wage and hour obligations is to make party attendance purely voluntary, although it often makes sense, when a party is during work hours, to still pay any non-exempt employees.

Sexual Harassment: We’ve all heard horror stories of holiday parties gone awry on the sexual harassment front. It is wise, a couple of weeks prior to your holiday party, to send a general reminder to employees about your workplace policies surrounding social events, employee conduct, and sexual harassment. In addition, employers should avoid party activities that might increase the chances of potential misconduct, such as hanging mistletoe or having romantic song duets, like “Baby It’s Cold Outside.” If something does go awry, an employer should immediately investigate just like it would for harassment complaints arising out of regular workday settings and take corrective action if necessary.  

Alcohol Consumption: When holiday parties do go awry, alcohol is often to blame. There are a number of ways employers may potentially be held liable for injuries caused by employees who consume too much alcohol at company functions. If you will be serving alcohol at your holiday function, here are a few ways to minimize liability risks:
  • Hold the event at an off-site location that has a liquor license and professional bartenders, who are accustomed to serving alcohol and judging those who have over-imbibed;
  • Provide transportation for employees to avoid the possibility of intoxicated employees driving;
  • Limit the amount of alcohol served by not offering an open bar, or if you do, providing employees with a limited number of drink tickets; and
  • Designate sober managers to keep an eye out for excessive drinking and to intervene appropriately to assist an employee who may have had too much to drink.

Happy holiday season and stay safe out there!

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