To make sure that “the most wonderful time of the year”
stays that way, here is a quick refresher on how employers can sidestep certain
employment law minefields that are common to the holiday season.
Religious Issues
December is home to Hanukah, Christmas, Kwanzaa, and Winter
Solstice celebrations, among others. For this reason, a host of
religious-related obligations can arise for employers under federal and state
laws that prohibit religious discrimination and require reasonable religious
accommodations.
Requests
for Time Off
December is a popular time for religious accommodation
requests in the form of time-off from work. Title VII of the Civil Rights Act
of 1964 prohibits employers from discriminating
against an employee based on religion.
In addition, covered employers are required to reasonably
accommodate an
employee’s religious practices and beliefs so long as the accommodation doesn’t
impose an undue hardship on the employer. Apart from Title VII, similar obligations
may arise under state or local laws.
When an employee requests time off to observe a religious
holiday that does not coincide with the employer’s office closings, an employer
will need to grant the request unless doing so poses an undue hardship. Some reasonable
accommodation options might include allowing flexible
break schedules, voluntary shift swapping, or letting an employee come in early
or stay late to make up for hours missed. While undue hardships do sometimes
arise, an employer should tread carefully and consider getting legal advice to
ensure that any denial of a request is proper and to ensure that all potential
accommodations have been considered. Employers
should also be mindful that they cannot give preference for time off to people
of one religion over another.
Accordingly, employers should apply any religious holiday policies in an
equitable manner.
Workplace
Decorations and Religious Symbols
Many employers decorate common areas in the workplace for
the season and allow employees to decorate their workspaces. Employers are free
to ban all holiday symbols during the season, but, if they allow employees of
one religion to display religious symbols, they must do so for employees of
other faiths. Employers can limit decorations for business-related reasons, but
any limits must be applied equitably to all employees.
Employer-Sponsored
Religious or Spiritual Events
Employers are free to sponsor
religious or spiritual events, but employees cannot be required to attend them.
Accordingly, an employer should not reward employees who do attend or treat
those who do not attend adversely for failing to do so. Employers must treat
all employees equally whether or not they attend company-sponsored spiritual
events. In addition, an employer thinking of hosting a religious or spiritual
event should be thoughtful about the fact that the event may prompt others of a
different faith to request that the employer host alternative events, raising potential
equity and accommodation considerations.
Holiday Parties
Without thoughtful planning and execution, holiday parties
can result in some of the biggest human resources headaches of the year. The
following are some key strategies to put in place before a holiday party to help
an employer dodge potential problems.
Wage and Hour Issues
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 are likely being
compensated anyway, but pay is also required for off-hours parties if attendance
is mandated. In addition, any mandatory time spent at the party counts as work
time for overtime calculation purposes. The simplest way to avoid additional
pay obligations, if desired, is to plan parties for non-work hours and to
clearly communicate that attendance is optional for non-exempt employees.
Sexual Harassment
In the #MeToo era, social tolerance is lower than ever for
sex-based conduct in the employment realm. Holiday parties, particularly if
alcohol is flowing, can lead to lowered inhibitions and an increased risk of
bad behavior. To minimize risk, some employers don’t serve alcohol or have
mechanisms in place, as discussed, below, to limit the available quantity of
alcohol and to monitor employee behavior. It is also a good idea, a couple of
weeks prior to your holiday party, to remind employees about your policies
surrounding social events, employee conduct, drinking if alcohol will be
served, and sexual harassment. At the party, it is also wise to avoid
activities that could encourage poor behavior, such as hanging mistletoe or
karaoke duets of “Baby It’s Cold Outside.” An employer should also immediately
investigate any claims of sexual harassment, just as it would if the claim
arose under other circumstances and, in the event of misconduct, appropriate
action should be taken.
Alcohol Consumption
If you will allow alcohol at a party, there are a number of ways
to minimize the risks—which include increased risks of bad behavior by
employees and injuries related to falls or intoxicated driving. Some ideas
include:
- Hold the event at an off-site location that has a liquor license and professional bartenders, who are accustomed to serving alcohol and judging when it is time to stop serving someone.
- Provide transportation for employees, as appropriate, to avoid the possibility of intoxicated 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.
- Consider having designated “sober” managers at the party who are charged with monitoring attendees for any potential situations that require employer attention and action.
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