*Reprinted from HR California Extra
The fall holidays are here — Halloween, Diwali, Dia de los Muertos and Thanksgiving, to name a few — and the winter holidays are close behind. Holidays can create HR headaches, especially when so many of them are packed into a few short months. Here are some things to consider when employees ask for religious accommodations as well as tips for making your holiday potlucks and parties run smoothly.
Holidays and Religious Accommodation
During the fall season, several cultural, spiritual and religious celebrations occur. For instance, this year, Diwali — the Hindu festival of lights symbolizing the spiritual victory of light over darkness — occurs from October 30 through November 3. During the celebrations, doorways are decorated with rangoli (colorful designs made from flower petals or colored rice or sand), gifts are exchanged, fireworks are set off and parties are held.
And then Dia de los Muertos — a Mexican holiday celebrated throughout Mexico and by people of Mexican ancestry in the United States — is held on November 1 and November 2. This holiday gathers friends and family to pray for and remember friends and family members who have died and help support their spiritual journey. Traditions include building altars, which are set with different elements depending on the religion.
These fall holidays lead into the winter holidays — such as Christmas, Hannukah and Kwanzaa — which nearly all U.S. adults (92 percent) plan to celebrate, according to the National Retail Federation. This means California employers need to be prepared to provide reasonable accommodations for employees’ religions and ensure they are implementing consistent workplace policies.
Federal and state laws offer very broad protections for religious beliefs and include all aspects of religious observance and practice, even for employees who choose not to observe any religion. This includes Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against an employee on the basis of religion, and “religion” includes all aspects of religious belief, observance and practice, including religious dress and grooming practices.
All California employers must reasonably accommodate employees’ requests to observe or practice their religion. This can include modifying dress codes to allow religious dress or attire as well as job responsibilities that may conflict with religious beliefs. California law also specifically includes observances of a sabbath or other religious holy day, and reasonable time off needed for associated travel.
Religious accommodation can help eliminate the conflict between the religious practice and the job requirement and can include job restructuring, job reassignment, modification of work practices or allowing time off to avoid a conflict with an employee’s religious observances.
While employers can demonstrate that an accommodation is unreasonable because it would impose an undue hardship, a recent U.S. Supreme Court decision clarified that undue hardship means the religious accommodation would result in “substantial increased costs in relation to the conduct of its particular business.”
Employers must engage in the interactive process with employees to determine reasonable accommodations for religious beliefs.
Furthermore, employers should have consistent policies for office decorations. Your policy shouldn’t limit decorations to only one holiday, and instead let employees bring decorations for other holidays — otherwise, you could potentially be discriminating based on religion.
For example, employees who celebrate Halloween may decorate with pumpkins, ghosts, cobwebs and skulls, and those who celebrate Dia de los Muertos may adorn their office or cubicle with sugar skulls and Muertos Papel Picado banners. Employers must remember that if an employee is allowed to decorate their workspace with Halloween-related items, then an employee who celebrates Dia de los Muertos or another holiday should also be allowed to decorate.
Potlucks and Other Lunch Events
Office potlucks may have gotten a bad reputation lately — as they can go wrong in many ways — but office potlucks are a great way for coworkers to connect over food. Typically, each coworker brings a dish to share, which allows them to show off their cooking talents or share cultural foods.
Potlucks were one COVID-19 pandemic casualty, but they’re returning, partly because they’re a budget friendly, teambuilding activity. However, potlucks come with the potential for foodborne illness if every participant doesn’t observe food safety standards. Both the Centers for Disease Control and Prevention and the California Department of Public Health have guidelines employers can share with employees, but another option is for workplaces to instead cater office events, using food safety certified caterers.
Additionally, if you host an event during the workday, make sure to observe California labor laws. Nonexempt employees who work more than five hours must take a 30-minute meal break. Additionally, a nonexempt employee whose total daily work is at least 3.5 hours must be permitted a paid 10 “net” minutes rest break for every four hours worked or major fraction thereof. If the lunchtime party is mandatory and nonexempt employees attend and then go straight back to work, they will have missed that mandatory meal break — even though they weren’t performing their typical job duties and were fed lunch. In addition to paying for the time spent in the party, employers will owe an additional one hour of pay for each nonexempt employee who was denied a meal break because the employees are still considered under the employer’s control during the meal and not provided an off-duty meal break.
The solution? Make the party a voluntary event or have employees take their meal period before the party — just remember it should come after the first rest break, but no later than 4 hours and 59 minutes into their shift. If attendance at the lunchtime party is purely voluntary and no work-related matters will be discussed, let employees know this in writing when you invite them. When attendance is voluntary, the employee then can choose whether to spend their meal break at the lunch or not.
Also keep in mind that some employees may not wish to celebrate any particular holidays for religious reasons. Because you must reasonably accommodate employees’ religious beliefs, an employee who doesn’t wish to attend a holiday luncheon or potluck for religious reasons should be excused from taking part.
Holiday Parties
Additionally, employers need to recognize that holiday parties — especially off-site, after-hours parties — present real risks, such as wage-and-hour violations or liability for harassing behaviors.
For instance, after-hours parties may be considered work time if attendance is compulsory, so nonexempt employees will be entitled to overtime pay if the party causes them to “work” for more than eight hours. Exempt employees are not due any additional wages for attending holiday parties.
But an upside to considering party time “work time” is that employers control the actions of employees while they are at work and can require the employees to act professionally. Because employees know that they’re “on the clock” at an after-hours holiday party, they’ll be less likely to engage in inappropriate conduct.
You should also be aware that alcohol can exacerbate inappropriate behavior. While having one or two drinks with dinner shouldn’t be a problem, excessive alcohol use can lead to unwelcome and excessive flirting, covert sexual contact, arguments and even physical fights and confrontations. HR should start thinking now about how they want to manage holiday parties. Even if you don’t ban alcohol altogether, you can put in place measures to lessen the risk of alcohol-related incidents, such as:
- Create and enforce a policy that prohibits employees from sneaking alcohol into a party;
- Enforce a drink ticket policy;
- Serve drinks for a limited time period;
- Serve food;
- Provide designated drivers or cab fare;
- Holding the event off-site and using experienced bartenders;
- Making sure that there are non-drinking individuals monitoring the situation;
- Closing the bar well before the event ends; and
- Reminding employees of company expectations.
Employers considering whether they should serve alcohol at company functions should consult with legal counsel given the liability risks.
Despite the potential holiday legal issues, it’s still a fun and festive time of the year — and related activities can both boost morale and encourage teamwork. With these precautions in mind, you and your employees can have a happy and safe holiday season.
