Ho, Ho, Hold on — I Can’t Do That? Avoiding Liability in the Workplace This Holiday Season

Between all the parties, the gifts, the scrumptious food, and the laughter, who doesn’t love the holidays?

But is this jubilation all that jolly in the workplace? Employers can get so caught up in the hoopla they may unknowingly set themselves up for serious legal issues.

Here are some tips to help your reduce your risk of employment-related liability this holiday season:

To Pay or Not to Pay Holiday Pay?

Most employers give employees a handful of holidays off each year. However, this can be difficult for employers in industries where year-round service is a must, such as healthcare. If your employees are required to work holidays, are you required to pay them a premium rate?

No. Federal law does not require employers to pay employees for hours the employee does not work, nor does it mandate that you observe any specific holidays unless you have made such promise in writing. Employers are free to schedule employees to work on holidays. If your business does grant time off for holidays, you are not legally obligated to pay employees for that time — though many employers do. If you opt to provide holiday pay, be sure to do so consistently to avoid any implication of unfair treatment or discrimination.

Time Off for Religious Observances

December includes spiritually significant days for a variety of religions. What should you do if an employee requests time off for religious observance? The short answer: Grant the request.

Under Title VII of the Civil Rights Act (as well as various state and local laws), it is unlawful for employers to discriminate on the basis of an employee’s religion, unless you can demonstrate that providing a reasonable accommodation causes undue hardship to your business. As a result of this protection, you may need to allow employees time off to observe religious customs to avoid potential liability.

What if granting that time off is disruptive to the workplace? Unfortunately, it is very difficult for employers to establish that granting a single request from an employee is an undue hardship. In the legal context, this is a high burden to reach. Employers should err of the side of caution and be open to these requests, even if doing so makes the holidays hectic. They may be difficult for your business, but schedule changes and shift substitutions are typically not undue hardships in the eyes of the law.

For more expert HR insights, check out the latest issue of Recruiter.com Magazine:

Holiday Parties

Now for the best part — the holiday party! Holiday parties are a time-honored tradition where employers get to show appreciation to their hardworking, loyal employees. However, these festivities — often fueled by alcohol — can be breeding grounds for poor choices, bad behavior, and even legal complications.

Here are 10 easy ways to greatly reduce your organization’s legal liability at this year’s holiday party:

1. If possible, don’t serve alcohol. This is easier to do if you simply have lunch or breakfast.
2. Invite spouses and significant others so that there will be people who can help keep an eye on your employees and, if necessary, get them home safely.
3. Always serve food if you serve alcohol, and always have plenty of nonalcoholic beverages available.
4. If your party is a dinner, consider serving only beer or wine (plus nonalcoholic alternatives) with the meal.
5. If you do serve alcohol, do not have an open bar where employees can drink as much as they want. Instead, have a cash bar or use a ticket system to limit the number of drinks. Close the bar at least one hour before you plan to end the party. Switch to coffee and soft drinks from there on.
6. Let your managers know that they will be considered “on duty” at the party. They should be instructed to keep an eye on their subordinates to ensure they do not drink too much. Instruct managers they are not to attend any afterparties.
7. Remind employees that, while you encourage everyone to have a good time, your business’s normal workplace standards of conduct will be in force at the party. It should be clear that misconduct at or after the party can result in disciplinary action.
8. Hire professional bartenders and instruct them to report anyone who appears to be inebriated. Ensure that bartenders require positive identification from guests who do not appear to be substantially over the age of 21.
9. Pay for a taxi service (or Uber/Lyft) for any employee who feels they should not drive home. At management’s discretion, be prepared to provide hotel rooms for intoxicated employees.
10. Never hang mistletoe. We’re not kidding. It happens, but it absolutely shouldn’t.

Celebrating the holidays with employees is an important part of keeping workplace morale high, but beware of the issues that may arise this December. Follow these guidelines, and you can avoid the gift that keeps on giving through the next year (or two): an employment-related lawsuit!

Emily N. Litzinger is an attorney in the Louisville office of Fisher Phillips. Contact her at elitzinger@fisherphillips.com or 502-561-3978.

This article is for informational purposes only and does not constitute legal advice.