The Modern Workplace

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.

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.

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 discriminatingagainst an employee based on religion. In addition, covered employers are required to reasonably accommodate an employees religious practices and beliefs so long as the accommodation doesnt 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 employers 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. 

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.   

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.

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.

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 dont 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 Its 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.

If you will allow alcohol at a party, there are a number of ways to minimize the riskswhich include increased risks of bad behavior by employees and injuries related to falls or intoxicated driving. Some ideas include: