Because ’tis the season to give, The In-House Advisor would like to give in-house counsel the following reminders so as to limit their companies’ holiday exposure:
Tip 1: Religious discrimination and accommodations
As we all know, while the “holiday” season in December often refers to Christmas, there are many other religious holidays celebrated by workers, both now and throughout the year. In-house counsel may wish to take the opportunity now to advise their companies’ managers to allow, and not interfere with, an employee’s observance of religious obligations. For purposes of employment discrimination laws, the definition of “religion” is much broader than one might think and is not limited to major, organized religions. Rather, “religious beliefs” protected by discrimination laws is defined as:
Moral or ethical beliefs about right and wrong that are sincerely held with the strength of traditional religious views.
It would behoove employers to carefully consider scheduling of work on holidays and planning and scheduling of holiday celebrations with an eye towards religious considerations. Likewise, being mindful of the religions practiced by company employees may avoid issues with respect to holiday parties. For instance, depending upon the make-up of your workforce, scheduling a party for Friday night or making alcohol consumption a primary or central point of the festivities could offend a number workers of various religions. Managers and supervisors should be reminded of their obligations to respect individual religious beliefs and focus on job performance (and not an employee’s participation in holiday festivities) in determining terms and conditions of employment.
Tip 2: Remind employees of your anti-harassment policy
Because many companies thank their employees during the holidays with celebratory gatherings, it is a particularly appropriate time of year to also remind employees of your company’s anti-harassment policy. More importantly, managers and supervisors should be reminded that their actions are attributable to the company and should not engage in any conduct that could expose the company to sexual or other harassment claims. Additionally, employers would be well–served to remind managers and supervisors how to handle reports of alleged sexual or other harassment. Specifically, managers and supervisors should not:
Ignore or discourage an employee from reporting any allegation of sexual or other harassment;
Promise an employee that any allegation of sexual or other harassment will be kept completely confidential;
Attempt to investigate on their own without the involvement of human resources or other higher level supervisors designated in the company’s anti-harassment policy;
Retaliate against an employee for having made, or participated in the investigation of, an allegation of sexual or other harassment.
Tip 3: Make sure that managers are truly managers
Retail store managers and assistant managers are likely not exempt from minimum wage and overtime laws if they spend too much of their time, especially during the busy holiday season, helping to stock shelves, run cash registers, clean up, unpack trucks and the like. Unfortunately, when workers are pitching in to ensure fast service and availability of products to meet customer demands, no employer wants to tell them to stop and only engage in managerial duties. Be mindful, however, that if supposed managers are performing “primarily” non-managerial responsibilities, they may be entitled to overtime under state and federal laws. As such, and to limit the risk of running afoul of wage and hour laws, it is prudent to track not only the hours worked by managers and assistant managers, but also they types of work they actually perform.
A little preventative thinking will ensure a happier holiday (and post-holiday) season!