Holiday Issues

Author: Beth P. Zoller, XpertHR Legal Editor

With holiday time fast approaching, there are many issues an employer should consider. From providing employees with time off to celebrate, to hosting a holiday party, to decorating the workplace, to hiring seasonal employees, if an employer is not careful, it may find itself facing claims of unpaid wages, religious discrimination, sexual harassment and unfair treatment. Thus, it is important to carefully address holiday issues to minimize the risk of employer liability.

The following are some issues to consider:

1. Carefully Plan Any Holiday Party or Celebration

While a holiday party may be a good idea to thank your workforce for a job well done and encourage camaraderie, an employer should carefully plan any holiday party and make sure to avoid liability. Attendance at a workplace holiday celebration should not be mandatory, as this could create wage and hour issues and may entitle nonexempt employees to overtime. Additionally, some employees may not celebrate the season and the employer may open itself up to a religious discrimination or harassment claim. Further, it is critical to highlight to all employees that the employer's discrimination, harassment and employee conduct policies will remain in effect during the holiday party so that employees and supervisors are on notice and avoid any unprofessional behavior. The party should be inclusive, and all employees should be included in the celebration, even those who are remote or telecommute, as this may be an opportunity to bond with co-workers. An employer should be careful when choosing any food and entertainment and make sure to appeal to a wide variety of employees and take employee dietary needs and allergies into account. Also, it is essential to monitor the consumption of alcohol and make sure all individuals are sober before driving home, have a designated driver or take a taxicab or public transportation. Otherwise, the employer may be liable for any subsequent injuries.

2. Provide Employees With Time Off

While many employers like to provide employees with time off during the holidays in order to observe the holiday and spend time with family, an employer often still needs to keep its business up and running to serve clients and customers. In fact, there is no federal law requiring an employer to provide time off, paid or otherwise, to employees on nationally recognized holidays. Holidays are also considered regular workdays. An employer is not obligated to provide additional pay to those who are working unless it voluntarily chooses to do so. An employer may handle employee time off during the holidays in numerous ways, but the key is to be flexible and plan well in advance so that schedules are set and the employer's business needs are met. An employer may choose to implement a holiday policy providing employees with specific days off or a floating holiday policy allowing employees to pick and choose the days which an employee wishes to be absent. Alternatively, the employer may provide employees with paid time off days to use to observe holidays. When providing time off for the holidays, an employer may want to implement a policy of first come, first served, and provide benefits or additional incentives for the employees who volunteer to work on such holidays. Lastly, an employer may want to consider permitting employees to telecommute or keeping a pool of part-time workers and floaters who can easily fill in for full-time employees who may be absent.

3. Be Wary of Alcohol and Other Substance Abuse

An employer needs to be particularly careful about alcohol, drinking and other substance abuse while at holiday parties or during holiday lunches, as this could create significant liability. If an employee is drinking during working hours or at an employer-sponsored holiday party and gets in a subsequent drunk driving accident, injuring himself, coworkers or third parties, the employer could be liable. Therefore, it is important to designate a management employee to monitor employee alcohol intake. Further, employee alcohol consumption should be limited by restricting the number of drinks and closely monitoring behavior. Employees who have had prior issues with drugs and alcohol should be closely watched.

4. Keep the Focus Off of a Particular Religion and Celebrate the Season

When it comes to decorating the office, the workplace or setting the tone for a holiday party, it is important to keep the focus off of Christmas and celebrate the holidays by focusing on the spirit of the season. One option is for the employer to highlight the spirit of the season and celebrate winter with decorations of icicles and snowflakes. Another is to celebrate different religious holidays such as Chanukah and Kwanzaa with their religious symbols. If an employee seeks to decorate his or her work station or personal office with religious imagery, an employer should provide firm guidelines via a workplace office decorations policy and make sure all employees are treated equally. Whatever the approach, an employer should aim to reduce the risk of a religious discrimination or harassment claim.

5. Approach Gift Giving Carefully

Exchanging gifts with co-workers, clients, and third parties can be a good way to show appreciation and goodwill during the holiday season. However, it is important to establish parameters and guidelines designating to whom gifts may be given and potentially how much they should cost. Employees and supervisors should also make sure to abide by any gift-giving policies, as set forth in an employee code of conduct. It is also important to make sure that all gifts are professional and appropriate. Gifts that are overly expensive or personal, such as jewelry, perfume and lingerie, should be avoided. A better and safer choice may be non-personal items, such as gift cards, picture frames, albums, books and mugs. Religious and cultural items should be avoided, and alcohol should be provided only if appropriate. It may be a good idea to consider group gifts such as chocolates, a cookie tin, or a fruit tray that the entire workplace can enjoy. The work environment will aid in setting the tone and determining whether a particular gift is appropriate.

6. Be Careful With Seasonal Employees

If hiring seasonal employees, an employer should exercise caution and make sure that employees are receiving the proper treatment and employment protections. If hiring minors, an employer should be aware of federal and state laws restricting the times, days and hours during which a minor may work, as well as the occupations in which a minor may work. Further, if hiring interns, make sure that they are truly working in an internship capacity and not really employees. An employer should also be aware that in some instances seasonal employees may be included in coverage threshold for various laws (i.e., antidiscrimination laws, leave laws), and such employees may be entitled to protection. Even if hiring a seasonal worker from a temporary staffing agency, the employer may be considered a joint employer under the National Labor Relations Act (NLRA), the Occupational Safety and Health Act (OSHA) or other federal, state and local laws. Lastly, an employer should carefully onboard employees and collect the requisite new hire paperwork, such as I-9s and W-4s. Also consider conducting orientation sessions regarding work rules and employee conduct so that seasonal employees know what is expected of them.