BOP NEWSLETTER • December 2022

‘Tis the Season: Unwrapping HR During the Holidays

The holidays are upon us! It’s that time of year for holiday parties and offices closing for one or a few days to spend time with family and friends and to prepare for a new year. We thought it’d be a great time to revisit some common issues during this (somewhat crazy) time of year. 

Holiday Party/Event Attendance: Paid Time?

Perhaps you’re celebrating the holidays to be social (and jolly), but it’s possible a holiday event would need to be paid time for non-exempt employees. 

For any employee who is helping organize or manage the party/event, their time is paid because those activities are work duties. For employees who simply attend the event, here are three questions to ask yourself:

1. Does the event occur during any portion of normal work hours?
2. Is attendance required, or would an employee be judged negatively for non-attendance?
3. Will work concerns be part of the party? For example, presenting end-of-year summaries or forecasting next year, employee recognition presentations, or other matters of concern to the business. 

If the answer to any of those is “yes,” then any non-exempt employees attending the event may need to be paid for their attendance. 

Determining compensation for these events is really fact-specific. Each employer has a unique scenario, and one small adjustment to a planned party/event can mean the difference between being paid or unpaid, so seeking guidance on this, in advance, can make all the difference and prevent problems. 

Holiday Parties: Alcohol Yes, or No?

Any time alcohol is available, the potential for negative employee issues increases. Obviously, not serving alcohol at the party would likely solve that problem, but many employers still opt for cocktails. So, if you plan to serve alcohol at this year’s party, consider limiting the risks by utilizing the following tactics:

• Require employees to pay for drinks, or consider utilizing a drink-ticket system in which each employee is entitled to two drinks on the house and no more. 
• Choose when to have alcohol available, either pre-dinner or during dinner only. Close the bar at least one hour before the party ends. 
• Limit alcohol to beer and wine rather than hard liquor, due to reduced ABV.
• Invite families and/or clients and vendors. The presence of employees’ family members or other work-related colleagues can encourage employees to be on their best behavior. 
• Designate a person(s) to monitor employees’ behavior. Items to look for include: how much employees drink and whether they have a safe ride home; employee interactions, especially those who become “too friendly” with each other or if tempers rise; any other employee activities that may be dangerous to themselves and others. 
• Cover all transportation bases by arranging for a taxi or car service for employees to get to and from the event.
• Prepare for the possibility of pre-partying. Impose a rule that employees who arrive buzzed or drunk will not be admitted to the party, and a pre-designated driver (e.g., an employee or a taxi) will take the intoxicated employee home. 

Remind employees about your office alcohol and substance abuse policy and the rules of behavior, public intoxication, fighting, harassment, etc., that will be enforced at the party. These reminders can be done via emails or memos a few days before the party. 

Holiday Parties: Marijuana Yes, or No?

The number of states that have passed legalized recreational Marijuana is growing every year it seems. If you’re in one of those states, you may think it could be okay to bring some fun holiday edibles to the party. Like alcohol, this could backfire and is not recommended. 

The first consideration is that bringing Marijuana to a party may run afoul with your Drug & Alcohol policy. If you might test employees for being under the influence of drugs and potentially fire them for testing positive for Marijuana, what kind of message does that send if you’re the supplier of said drugs at a party?

The second consideration is that dosing with Marijuana is tricky, particularly with edibles. One holiday cookie could affect one person very differently than another, and because there is a slow build to feeling any kind of high, people could eat too much too soon causing a bigger high than originally intended, which may adversely affect that person. Not everyone responds to Marijuana the same, do you want to be responsible for causing some kind of major issue? 

Finally, like alcohol, people leaving the party under the influence are dangerous and could cause accidents to themselves or others. If this were to happen after their employer supplied the edibles, it could lead to serious liability. 

Religious Accommodations

While Christmas and New Years are the big-ticket holidays this time of year, remember that those holidays are not for everyone. Some people have different belief systems. That may mean they don’t want to celebrate holidays at all, or have different holidays they prefer. An employer generally has to reasonably accommodate employees with different religious beliefs unless doing so would cause an undue hardship, which is difficult to establish and prove. Not doing so can create liability for the employer. Here are some potential accommodations:

• Allowing observance of a different holiday. For example, taking a day off for Hanukkah. 
• Allowing an employee to not attend a holiday party/function.
• Removing holiday decorations that are religious in nature (Santa), compared to non-religious decorations (snowflakes).
• Modification of non-essential job duties.

Any accommodations that are made must be free from retaliation as well. That means employers cannot otherwise adversely affect the employment conditions of employees simply because they asked for and received a religious accommodation. 

Paid Holidays/Office Closures

Christmas and New Year’s Day are very common paid holidays. Some employers even include Christmas Eve and New Year’s Eve as paid holidays. This year, these holidays all fall on the weekend. That begs the question: are they still paid holidays?  

There is no one-size-fits-all answer to this question because it depends on your office policy. Employers may have a policy that provides holiday pay no matter when the holidays fall, or they can have a policy that only provides holiday pay when the holidays fall on the day the office is usually operating and is closed. In the former situation, employees would get extra pay for the week. In the latter, employees would get no holiday pay if the office does not typically work on Saturday or Sundays. 

It is not unusual for businesses to close either on Friday or Monday in observance of the holiday when it falls on Saturday or Sunday. In that case, the observed day off becomes the paid holiday for the week for any employees who normally work on Fridays and Mondays. 

Many businesses close entirely for a week or two during this time. Any applicable paid holidays would be applied as described above even when taking a full week or two off. For any days not covered by a paid holiday benefit, there are three choices for pay:

1. Pay their wages anyway;
2. Take the time unpaid; or
3. Allow employees to use other paid time off benefits (vacation/PTO/personal time). 

Keep in mind that employees who don’t receive pay during office closures—lasting a week or two—could file for and possibly receive unemployment insurance benefits. There are many nuances to how this works, but it is the employees’ right to file for benefits, and employers are prohibited from restricting this from happening or otherwise retaliating/discriminating/punishing them for doing so. 

Conclusion

This can be a fun time of year, but it can also be fraught with complications and issues. The best course of action is to prepare. Much like your holiday shopping – it’s best to not put this off until the last minute!