Ho, ho, ho. Santa's on his way. And whether you've been good or bad, if you're an employer, Santa may be bringing you a stocking full of holiday headaches. Fortunately, the employment law elves have prepared this list of common holiday issues for you to consider ahead of time, to help employers keep their holiday season merry and bright.
Before you deck the halls only with boughs of holly, consider your employees' religious beliefs. Instead of limiting decorations to the usual Christmas tree and Santa motif, invite all employees to bring decorations for their winter holidays as well. Make room for a Hanukkah menorah, the red, green and black candles of the Kwanzaa kinara, and any other winter holiday decorations employees would like to contribute to office decor.
Holiday frivolity can easily become holiday liability when employees and managers get together for the traditional company party. The main culprit in this transformation is, of course, alcohol. Employers have been held liable when employees drank too much at a company party and as a result were involved in serious auto accidents. If you plan to throw a company holiday party, consider serving only non-alcoholic beverages. If you choose to serve alcohol, give each employee a limited number of drink tickets. If an employee or guest is inebriated, pay for a cab or arrange another ride home. Enlist the help of company managers to keep an eye on how much employees are drinking and whether anyone's behavior is getting out of control.
A party with too much alcohol is also the perfect breeding ground for sexual harassment claims. Remind employees beforehand that their liability for sexual harassment applies at all times, including during the party. Make sure your supervisors' sexual harassment training is up to date, and you may want to redistribute the company's sexual harassment and substance abuse policies to everyone a week or so before the party. Finally, even though there's no work involved, an employee who gets hurt at the party can file a workers' compensation claim - unless you've made it clear that attendance at the event is strictly voluntary. Include a note on the party invitation to let employees know that attending the company holiday party is not mandatory.
While most employers close down and give everyone Christmas and New Year's days off, some employers must keep the doors open. Choosing which employees must work on Christmas and New Year's Day can make you look like the company Grinch. Instead, consider first asking employees to volunteer to work the holidays, sweetening the pot by giving premium pay to those who do. If there are not enough volunteers, ask employees to draw straws to determine who works the holiday, or use a rotating system where all employees work a certain number of holidays per year. While seniority is a convenient method to determinine who must work the holidays, employees may feel it is unfair that the same people get the holidays off each year;
In terms of wage and hour laws, holidays are not holy. Holiday workers may be paid the same as workers on any other day of the year, with no special requirements for premium pay. Therefore it is up to employers to set their own policy about holidays. If you choose not to provide paid holidays, employees may be scheduled to work on a holiday at their regular rate of pay. You may close on a holiday without being obligated to pay your non-exempt employees for the day. You must pay exempt employees for the full week when you close down for a holiday if they have performed any work in that workweek.
If you choose to grant paid holidays, questions may arise about how to compensate employees when they are required to work on a day the employer has designated as a holiday. There are two choices: A. Pay the employee his/her regular rate for all hours worked on the holiday, plus one day of holiday pay. (If this puts the employee at more than 40 hours of pay for the week, the employee is not owed overtime because the holiday pay does not count as time worked.) B. Pay the employee his/her regular rate for hours worked on the holiday, then grant the employee another day off with pay. While the law does not require you to give employees a day off on a holiday, accommodation of an employee's request to take time off for religious holidays is required unless it would cause the employer undue hardship.
If an employer is closed on a payday that falls on Thanksgiving, the Friday after Thanksgiving, Christmas or New Year's Day, the employer may pay wages on the next business day.
Some employers shut down for a week between the Christmas and New Year's holidays. How employees are paid depends on whether they are exempt or non-exempt. Non-exempt employees do not need to be paid for this week, although they may choose to use accrued time off. Exempt employees generally do not need to be paid for any week in which they do not perform work. However, if the employer shuts down for the week between Christmas and New Year's, this general rule does not always apply.
Remember your defined "workweek," which the California Labor Commissioner will presume is 12:01 a.m. Sunday to midnight on Saturday, unless you define it otherwise. For example, assume Christmas Day and New Year's Day both fall on a Thursday. If your workweek runs Sunday through Saturday and you shut down from Christmas Eve Day (a Wednesday) through New Year's Day (the following Thursday), exempt employees will still perform work in both workweeks, so they must be paid for both. However, if you choose to shut down from Christmas Eve Day (a Wednesday) through January 2 of the next year (a Friday), exempt employees will not have performed any work for one full week (Sunday, December 28, through Saturday, January 3) and they do not have to be paid, but they must be paid for the previous week during which Christmas occurs if they work at all in that workweek.
Keep in mind too, that if you require exempt employees to use accrued vacation or PTO during a planned shutdown, the DLSE strongly advises you give a minimum of 90-days notice of this requirement.
By: HRC/Cal Chamber