Friday, December 7, 2018

Avoiding Workplace Holiday Headaches

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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