j0436230.pngBack by popular demand! We are reposting this blog post in time for the holidays.

The holidays are a festive time to be shared with family, friends and even co-workers.  Many employers also join in the celebrations by allowing employees to put up decorations and exchange gifts.  Employers also like to host holiday parties filled with food, music and alcohol.  However, sometimes these activities can create legal liability for the employer.  We present here a few tips that can help employers avoid liability without spoiling their employees’ holiday fun. 

Religious Holiday Accommodations

For many, the holidays are a time for religious observance.  For example, a Christian employee working the night shift may ask for the evening off to attend Christmas Eve mass or a Jewish employee may request time off to observe Hanukah.  Both federal and state discrimination laws require employers to accommodate their employees’ sincerely held religious beliefs, practices and observances.  Thus, employers who are confronted with requests for time off should try to accommodate them unless doing so would impose undue hardship.  Accommodating an employee may mean changing the employee’s schedule or allowing the employee to switch shifts with a co-worker.    

Workplace and Workspace Decorations

Before decking the halls, employers should consider the location of holiday decorations.  Employers who plan to decorate common work areas should strive to avoid the appearance of endorsing one religion over another.  For example, if a nativity scene is displayed in the reception area or lunch room, the employer may be perceived as favoring the Christian religion. Some employees may this find offensive.  Therefore, employers who wish to decorate the workplace should use non-religious, winter themed decorations such as snowflakes, candy canes, holly and gingerbread houses.

Since non-religious decorations are permissible, there is always debate over whether a Christmas tree is a religious symbol.  While  a decorated tree  may have religious connotations for some people, the U.S. Supreme Court has determined that a Christmas tree is a secular nonreligious symbol.  This view was also adopted by the EEOC.  Thus, employers may include Christmas trees among their decorations even if an employee objects.  However, for purposes of promoting positive employee relations, employers should be sensitive to the diversity of their workplace.  Thus, even if you have a  tree, ornaments with religious connotations, such as crosses, angels, or nativity references should not be allowed.

Employees who wish to decorate their own personal workspaces with Christmas, Kwanzaa or Hanukah themed decorations present a more difficult question.  Prohibiting employees from displaying religious holiday themed decorations in their own workspaces may give rise to claim of violation of free speech and religious expression.  Because the law requires employers to accommodate religious beliefs, employers should not try to suppress religious expression in an employee’s personal workspace unless it creates an undue hardship on business operations.     

Finally, mistletoe should never be allowed in any area of the workplace including individual workspaces because it could lead to sexual harassment or hostile work environment claims.

Holiday Gift Exchanges

The traditional holiday gift exchange where one “Secret Santa” employee gives a gift to a randomly assigned employee has largely been replaced by the “white elephant” gift exchange.  Employees favor this type of gift exchange because it is fun and the gifts up for grabs are often humorous.  However, this game can easily turn into blood sport as employees become competitive and even downright vicious towards each other in their quest for the best gift. 

In order to ensure fun for all employees, the announcement of a gift exchange should include language reminding employees to select gifts appropriate for the workplace.  For example, employees should be discouraged from buying items that contain profane, graphic or sexual content.  In addition, employees should be reminded that the gift exchange is a festive occasion where everyone should be treated respectfully.  A very modest limit on the cost of such gifts should be established, such as $10 or $15.

Holiday Parties

The two biggest concerns for employers about holiday parties are potential legal liability from sexual harassment and drinking and driving.  Because employees typically “let their hair down” during these events, they may not conduct themselves the same way they do at work.  Also, alcohol clouds judgment. A luncheon rather than an evening event is more prudent for all these reasons. If a festive evening is the preferred celebration, employers may want to consider taking the following preventative steps to reduce liability. 

Employees should be reminded of the employer’s discrimination, harassment and alcohol and drug policies.  In addition, employers should designate a supervisor or manager to provide discrete oversight over employees during the party.  For example, if an employee appears to have had too much to drink, a supervisor or manager can intervene and make arrangements for the employee to get home safely.  If alcohol is served, employers should limit the amount consumed by either issuing drink tickets to employees or stopping the service of alcohol well before guests start leaving the party.  Finally, if a harassment complaint is made after the party, employers should make sure they promptly investigate it.