‘Tis The Season To Be Wary

As we look forward to the upcoming holiday season, it is important to remember that with the joyous occasions there can also be some potentially disastrous pitfalls for employers that can quickly turn the holiday fun into complaints and lawsuits. This blog covers some of these liability risks and offers suggestions and guidelines for employers to help minimize these risks.

Part 1: Deck the Halls … With Some Carefully Considered Decorations

The upcoming holiday season can be an especially tricky time when it comes to religious discrimination. Many employees are celebrating and observing different religious holidays and some may not be celebrating any holiday at all. It is important for an employer to be sensitive to all of these varying beliefs, not just out of political correctness and tolerance, but to avoid a potential discrimination claim. When it comes to anti-discrimination laws, religion is a protected class in the United States. This means that it is against the law for an employer to discriminate in any way against an employee based on religion or religious beliefs (or lack thereof). An employer may not even realize that something at work is making an employee feel discriminated against and may be genuinely surprised when that employee complains or files a lawsuit.

Discrimination claims comes in all shapes and sizes. An employee may feel discriminated against because he is the only non-Christian in an office decked out in Christmas decorations. Or he may feel discriminated against because he was told to remove the mini nativity scene from his desk. Or maybe he takes offense to being invited to a Christmas party or partake in a Secret Santa gift exchange when he is Jewish. Or perhaps you have gone out of your way to represent all major world religions in your holiday decorations and, in doing so, have unwittingly offended your one employee who you did not realize observes no religion.

Outlined below are some measures employers can take to help ensure that no employee feels discriminated against on the basis of religion. Following these simple steps can decrease the likelihood of your company being hit with a religious discrimination lawsuit.

• Avoid religious decorations in the office. If you want to decorate your office in celebration of the season, stick to non-religious decorations, like winter scenes and snowmen. Avoid overtly religious symbols like crucifixes and nativity scenes. If you do decide to have some “moderate” religious decorations, like wreaths or Christmas trees, try to include symbols of other religions represented in the office, like a menorah or dreidel if you have (or think you may have) any Jewish employees. You may also want to consider having decorations during other non-religious holiday times (such as Valentine’s Day, Independence Day, and Thanksgiving) to lesson the appearance of a religious undertone during the Christmas season. Although there is no federal law that bans private employers from putting up religious decorations in the common areas, you do not want to be seen as “endorsing” a particular religion and risk offending people who do not subscribe to that religion. You also want to be careful about prohibiting employees, who might normally be permitted to display family photos and artwork, from decorating their own personal office spaces with religious decorations, as that could be interpreted as religious discrimination. Any policies about displaying holiday decorations in personal office spaces should be carefully considered before being issued.

• Avoid using the term “Christmas” (or any other religious holiday) with respect to any employer sanctioned event or program. For example, do not call your annual party a Christmas Party, your annual gift exchange a Secret Santa, or your annual bonus a Christmas Bonus. Instead, refer to them as a Holiday Party or End of Year Party, a Secret Gift Exchange or White Elephant Gift Swap, and a Holiday Bonus or Annual Bonus.

• If your place of business is closed for Christmas (as most offices and many retail establishments are), make sure to also respect the wishes of non-Christian employees to take off to observe their holidays. If your company is open for Christmas, make an effort to accommodate those employees who want to request the day off. While the law does not obligate you to accommodate all such requests if it would cause undue hardship to your company, reasonable accommodations should be made as much as reasonably possible to accommodate an employee’s religious beliefs. For example, if all of your employees observe Christmas and wish to have the day off, have and enforce a policy to decide which employees get the day off, such as one based on seniority or a lottery system, and perhaps offer those employee who must work on Christmas an extra two vacation days in exchange. You may find that by simply offering two extra vacation days, some employees are willing to work on Christmas.

• Be supportive of an employee’s unease. For example, if an employee expresses discomfort over any holiday decorations in the office, do not ridicule the employee for her concerns. Instead, listen respectfully to the employee and do your best to accommodate her concerns, perhaps by removing Christmas decorations from her work space and/or placing a decoration of her own religion in the office. If the employee sees that you are understanding of her religious (or non-religious) beliefs and are making an effort to accommodate her concerns, she will be less likely to feel discriminated against.

Part 2: O Holy (What a) Night!

The month of December is considered the “holiday season” because of so many holidays of various religions falling during December. Offices often use this opportunity to throw an annual office party in an effort to gather all of its employees together for a fun and festive occasion. A common feature at these parties is alcohol. It is served to increase the festive mood and “loosen up” stressed-out employees after a year’s worth of hard work. Unfortunately, when it comes to employer liability, alcohol is like a loaded gun aimed straight at the good cheer.

If one of your employees becomes intoxicated at your office party, you could be held liable for any injuries that employee causes to himself or others. An extreme example, but one that, unfortunately, does happen, is if one of your employees drinks at your holiday party, drives home, and kills himself or someone else in a drunk driving accident. There is a possibility that your company could be held liable for that person’s death. Even if your company is located in a state that does not impose liability on employers serving alcohol to adults (so-called “social host” liability), your company could still be held liable for third party injuries on the theory that the employees are acting within the scope of their employment.

Another issue that often accompanies alcohol consumption is inappropriate behavior. Claims of sexual harassment are often an unfortunate outcome following an office party where the alcohol was flowing a little too freely.

There are steps you can take to prevent these kinds of tragedies and inappropriate behaviors from occurring and minimize your company’s liability. The obvious one is to not serve any alcohol. However, if you decide to serve alcohol, there are measures you can take to decrease the risks. Some suggestions are outlined below.

• Have someone in a supervisory position be in change of serving alcohol, rather than allowing employees to self-serve. Better yet, hire a professional bartender.

• Designate some or all supervisors as non-drinkers to be on the look out for inappropriate behavior and have a plan of intervention for such supervisors to follow if they see someone behaving inappropriately or appearing intoxicated. Ideally, there should be at least a couple of designated non-drinkers to keep an eye on things and take care of anyone who has had too much to drink.

• Instruct those serving alcohol to refuse to serve anyone who is visibly intoxicated and to report it to a designated non-drinker.

• Limit the number of drinks each person can have by giving each person two drink tickets with the employees’ names on their tickets. Instruct employees that ticket-swapping or “purchasing” a drink for someone else is prohibited.

• Limit the amount of time alcohol is served (e.g. have a cocktail hour before dinner and then do not offer any more alcohol once dinner is served).

• Check personnel records to ensure that no one under 21 is permitted to drink. (This is particularly important from a liability standpoint as most states, including Pennsylvania, do impose liability on “social hosts” who serve alcohol to those under the legal drinking age.)

• Arrange transportation to take employees home, either with designated drivers, car services, or a van.

• Hold the party on a Sunday afternoon or during lunch. (Times when people are less likely to overindulge in alcohol).

• Make the party a family affair by including spouses and children. People tend to be less likely to act inappropriately when their family is present.

• Be sure to have plenty of non-alcoholic beverages and food available.

• Lead by example. Even if you don’t have designated non-drinkers, encourage supervisors and all members of upper management to set the tone by either voluntarily not drinking or drinking in moderation. 

• Send a memo to all employees in advance of the party warning them not to drink too much and advising them of the measures the company is taking to ensure everyone’s safety, such as providing for free transportation home. Remind them that while the party is a time to have fun, it is still important to maintain a level of professionalism and the company will not look kindly upon anyone who drinks too much. You may even want to consider having employees sign a form promising to moderate their drinking and behavior and releasing the company of liability.

• Check your company’s general liability policies to determine what, if any, kind of coverage you have for this kind of event. Many policies specifically exclude coverage for events where alcohol is served. If your policies do not cover your holiday party, you may want to consider purchasing a “special events” or “dram shop” policy to cover the event.

Taking the time now, before the decorations go up, bonuses are paid, and the holiday party is planned, can make the holiday season fun and safe for your company and for all of your employees.

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The Basics of US Employment Law Part I: Protected Class Discrimination at the Federal, State, and Local Levels

For the next few weeks I will be doing a blog series on some of the key elements of United States employment law and how they differ from European employment law. This blog series is meant to familiarize Europeans (and others) who may be breaking into the US market and employing people in the United States. Topics covered in this series will include whether and how employees can be fired, vacation time, group benefit plans, and overtime pay.

Employment law in the United States is quite different than in most European countries. In general, the laws in Europe are considered much more protective of employees. For example, it is generally more difficult to fire an employee in most European countries than it is in the United States. While this may appear to benefit European employees, there is a flip side: an employer who does not have the ability to easily fire someone, may be more reluctant to hire in the first place, making the job market more competitive for employees. When employees are less willing to leave one job in search for another, the result is a more stagnant job market. While this may be great for people with good jobs, it may not be so great for those trying to break into the job market or make career changes. Proponents of United States employment law might argue that our less restrictive employment laws create a more productive work force as well as more job opportunities for the American worker. However, this blog series is not meant to be a commentary on the merits of one country’s employment laws over another’s. The purpose of this series is to explore some of the core principles of United States employment law.

One of the first concepts to understanding employment law in the United States is to understand that employment law is governed by both federal and state law. Accordingly, an employer located in Pennsylvania will be governed by both Pennsylvania employment law and United States federal law. In addition to state laws, there may be additional laws and ordinances for the city or township in which your business is located. While cities and states have a significant amount of authority to govern the laws that employers and employees are subject to, there are certain federal laws that trump any state or local law. The general rule of thumb is that while state and local laws can and often do provide additional protections for employees, state and local laws are not going to be less protective of employees than federal law.

One of the most notable categories of federal laws that apply to all employers and employees regardless of the state in which the business is located are the laws that protect employees against discrimination on the basis of certain protected classifications. These classifications include race, gender, religion, national origin, disability, and age. Accordingly, no state law can permit an employer to fire an employee, or chose not to hire a job applicant, on the basis of any of these protected classifications. State and local law can, and often do, go further and provide additional protections to employees. For example, while federal law does not prohibit private employers from discriminating against an employee on the basis of sexual orientation, many states and cities have enacted such prohibitions. Pennsylvania does not include sexual orientation in its listing of protected classes, but the City of Philadelphia (along with Pittsburgh and several other Pennsylvania cities) does prohibit employment discrimination on the basis of sexual orientation.

The next blog will examine the concept of employment at will.

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