13 Of The Most Common Employer Holiday Hassles
Elsa G. Ramos
The holiday season is full of fun and festive activities, both at home and at work. However, often this is also the season for employers to encounter a myriad of questions surrounding all sorts of workplace issues, many unique to the holidays.
Hopefully, the baker’s dozen of common issues addressed below will provide employers with helpful tips to successfully navigate the holiday waters through the end of the year and the beginning of the next.
1. Paid Holidays
No federal or Texas law requires employers to provide any paid holidays to employees.
Paying employees for holidays, whether worked or unworked, is a matter of policy for each employer, which means that employers are free to make all decisions about this issue. Learn more: https://twc.texas.gov/news/efte/holiday_policies.html
2. Requests For Time Off
Requests for time off during the holidays are not unusual. Since no general law requires employers to grant requests for time off, granting or denying these requests is usually a matter of employer policy. However, depending on the reason for the request, certain legal protections may apply.
For example, around the holidays, religious considerations are common. For employers with at least 15 employees, the law requires that they reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business.
According to the Equal Employment Opportunity Commission (EEOC) guidance, common religious accommodations related to requests for time off include flexible scheduling and voluntary shift substitutions.
Learn more: https://www.eeoc.gov/laws/types/religion.cfm
3. Seasonal Employees
Many employers find themselves busier during the holiday months and hire short-term or seasonal workers to handle the extra work.
Employers should note that these seasonal employees are treated the same as regular employees for purposes of new hire paperwork and tax liability.
This means that in Texas, employers must satisfy all of the usual new hire requirements and report wages to the Texas Workforce Commission and the Internal Revenue Service.
4. Holiday Bonuses
Many employees look forward to a holiday or end of year bonus. While not required by law, if employers choose to give monetary or non-monetary gifts or bonuses, the general rule is that, whether cash or not, they are considered additional W-2 wages and subject to payroll and income taxes.
Cash, regardless of the amount, is always considered wages subject to payroll taxes. The same is true for gift certificates and gift cards with a cash equivalent.
Some non-cash gifts and awards can be tax-free if they are considered a “de minimus” fringe benefit deemed to have little value. For more information, review the 2016 4th quarter issue of the Texas Business Today newsletter.
5. Seasonal Decor
Decking the halls may be half the fun of the holiday season, but employers should ensure that common sense is followed by all.
Employers can place limits on when, where, and the general type of decorations employees may display in their individual workspaces.
If employees bring items with religious or cultural connotations, employers should not discriminate against employees based on religion, race, or national origin.
As to common areas that are used by all employees, if employers choose to decorate these areas, it might be best to avoid the appearance of favoring or endorsing only one religion.
Finally, as to that holiday perennial–mistletoe–a strict prohibition is recommended to avoid sexual harassment claims.
6. Holiday Parties
Holiday celebrations may be a great way to foster team building and camaraderie in the workplace.
However, employers will want to be sensitive to religious and cultural differences among employees. Making attendance at holiday parties strictly voluntary is a best practice, and avoids certain liabilities for employers.
For example, even if a company party occurs after hours, if attendance is required, then the time spent at the party is compensable time for which hourly employees must be paid.
In addition, depending on the religious nature of the event, compulsory attendance may lead to a claim of religious discrimination.
And one last thing, as illustrated in the accompanying “Twas the Eve of the Party” on page 8, serving alcohol at employer-sponsored parties is not recommended.
7. Weather-Related Absences
Winter weather can be severe in all parts of Texas and may result in employees missing work because of it.
The requirements for paying employees for weather-related absences depend on the type of employee. For hourly employees, employers are required to pay only for those hours worked.
For salaried exempt employees, employers may deduct a full day’s absence from the employee’s pay if an employee chooses not to come into work because of inclement weather on a day when the employer is open for business.
However, deductions from salaried exempt employees’ salaries are tricky, so a careful review of this topic is important.
8. Business Closures
During this time of year, temporary business closures are common for a couple of reasons: 1) involuntarily due to an inclement weather event, or 2) voluntarily because the employer closes its doors in observance of a holiday.
Are employers responsible for paying their employees for these days off? The answer depends on the type of employees. Employers are required to pay their hourly employees only for time worked.
Of course, an employer may choose to pay or allow employees to use available paid time off hours to compensate them for the time they missed.
As for salaried exempt employees who have worked any part of the week containing the closure dates, employers are required to pay them for the days not worked.
9. Extra Holiday Pay/Hours
Since no federal or Texas law requires employers to observe or celebrate any holidays, there is no requirement that employees receive extra or premium pay for working on a holiday.
That is a matter of policy for employers, which means that employers make the rules on this issue.
Employers with policies outlining special rules on holiday pay should follow the policy, as under Texas Payday Law, a wage agreement will be enforced as written.
10. Flu Season
The traditional holiday season happens to coincide with the cold and flu season. To minimize absences, some employers may choose to require that employees get vaccinated for the flu.
While allowed under the at-will doctrine in Texas, such a mandate could expose employers to liability under various laws.
For example, for employers with at least 15 employees, an employee who refuses to comply with the flu shot requirement based on a religious belief or a medical reason may be protected under Title VII of the Civil Rights Act of 1964.
For more information, review the 2018 1st quarter issue of the Texas Business Today newsletter. Bottom line: mandating the flu shot is not recommended.
If despite everyone’s best efforts, an employee falls victim to the flu, employers may require medical documentation excusing an employee’s absences or releasing an employee to return to work.
11. Gift Exchanges
At this time of year, it is better to give than to receive, unless an employee does not wish to participate in a workplace gift exchange.
Holiday gift exchanges are common, and enjoyed by many. However, due to some of the reasons discussed herein, such as religious or cultural differences, some employees would prefer to opt-out of participation.
Gift exchanges should be voluntary, and those who choose not to participate should suffer no negative repercussions for their choice.
In addition to potential discrimination claims, requiring employees who are paid at minimum wage, or close to minimum wage, to participate in a gift exchange could have the effect of reducing the employees’ pay below minimum wage, which is a violation of the Fair Labor Standards Act.
As for those who choose to participate in some form of gift-giving at work, employers should stress the use of common sense and good judgment when making gift selections for co-workers in a culturally diverse and inclusive work setting to avoid claims of harassment.
12. Dress Code and Grooming Standards
The ugly holiday sweater is practically a holiday staple nowadays. Employers may allow, or even encourage, festive dress during this time of year.
However, as with gift exchanges herein, it is important for employers to insist that employees use common sense and good judgment when expressing holiday spirit by way of their wardrobe.
This helps prevent harassment claims and ensures that all feel comfortable at work.
13. Toy Drives/Charity Drives
Rather than engaging in gift exchanges, and sometimes in addition to them, some businesses choose to contribute to charitable organizations during this time of year by organizing toy drives, food drives, or other similar enterprises to help others in need.
The sentiment is admirable, and many employees may want to contribute, but for the reasons mentioned under gift exchanges, it is best to make participation voluntary, not mandatory.
Finally, these thirteen tidbits briefly address only some of the common scenarios that employers experience during the holidays.
For questions about these or other employee-related topics, do not hesitate to call the employer hotline at 1-800-832-9394, option 4, to speak to one of our staff attorneys.
Source: Texas Workforce Solutions – Texas Business Today | Elsa G. Ramos is the legal counsel to Texas Workforce Commissioner Aaron S. Demerson
