The holiday season brings plenty of good times and festivities. It also brings along a lot of potential problems for employers and their employees when employers fail to respect their employees’ time and beliefs. Sometimes this happens because an employer has a particular religious belief or on the other hand does not share a particular religious belief. Other times it happens because the employer goes overboard with trying to be cautious about religion in the workplace and oversteps the law. And of course we can’t forget all the problems that arise with company parties and the social lubrication of alcohol.
Today’s post is to employees who should be on the lookout for employers violating employment laws during the holiday season. Although the holiday season ends in early January the consequences of an employment situation can last throughout the year. That’s not the kind of gift that keeps giving that you want. So here are eight issues to watch out for this holiday season:
1. Employers requiring employees to say “Merry Christmas” in the workplace.
Christmas is a tricky subject for employment because it is both a secular holiday and a religious holiday. Some people celebrate it as just a secular holiday, some as a religious holiday, many as both and some as neither. Some employers, or their managers, believe they need to protect their faith and one seemingly critical way to do that is to mandate employees say “Merry Christmas!” Requiring people who do not celebrate Christmas as a religious holiday to praise the date creates religious discrimination problems for employees who do not celebrate Christmas as a religious holiday.
Under Title VII and the Texas Labor Code an employer cannot require participation in religious practices as a condition of employment. Although merely expressing hope that a coworker or customer has a happy religious date is not necessarily participation in a religious practice, the disciplinary acts or friction with management that may occur by declining to make this statement certainly elevates the requirement to say “Merry Christmas” to a condition of employment. It is almost always the case that employers who mandate saying “Merry Christmas” do so from a religious position. That may not be true if the employer also requires employees to well-wish other major holidays like Thanksgiving, July Fourth, Labor Day and so forth with the same level of requirement.
I’ve yet to see a business do that and if yours doesn’t then you have to question why Christmas is the exception. If it isn’t for religious belief then what motivates the employer in this manner.
2. Prohibiting employees from saying “Merry Christmas!”
The other side of that coin is that employers cannot stop an employee from reasonable expressions of the employee’s faith within the workplace. The same laws that prohibit employers from forcing employees to share in their religious practices also prohibit employers from excluding employees from their religious beliefs in the workplace. Of course, this right is not absolute under the law. The employer can make reasonable restrictions evenly applied to all employees or have a non-discriminatory business explanation. For example, we would probably agree if you spent your whole shift screaming “Merry Christmas” that your employer will tell you to stop. That has nothing to do with what you say but the volume and frequency of your message.
It gets trickier in more realistic situations, such as employers requesting employees say “Happy Holidays” rather than “Merry Christmas” to customers. Here the employer is probably fine to make this requirement if the goal is to be inclusive towards customers but not acceptable if it is merely to slight one holiday over another. In this situation the employer could probably require you to end your customer interactions with “Happy Holidays” but would not be permitted to prohibit other opportunities to say “Merry Christmas” such as a customer saying “Merry Christmas” and you saying it back to them.
3. Prohibiting other reasonable expressions of a religious holiday.
Along the same lines, employers are limited in excluding other expressions of religious faith including items in your workspace, your clothing, or what you say. Employers can limit these expressions where they are business-related and evenly applied to all employees. For example, if you have a stuffed angel on your desk and your employer asks you to remove it because it is cluttering the desk and interfering with getting work on your desk that might be fine if that is the honest reason for the request and the employer does the same for any other employee who has personal items on his or her desk that interfere with performing one’s job.
4. Allowing employees to be harassed for not participating in holiday festivities.
Some people do not celebrate certain holidays or really get into any holidays. Forcing people to participate in these activities or letting those employees be harassed for not participating can create problems among the workforce. When religious holidays are involved there are religious discrimination implications with this harassment. An employee cannot be required to participate in religious practices or religious festivities. Harassment suffered for declining to participate may create a hostile work environment under Title VII and the Texas Labor Code. Again we have to look at whether the festivities have a religious aspect to them. With Christmas it’s fairly easy to find religious symbols or songs somewhere along the way.
5. Sexual harassment at the holiday party.
Alright we can get off the religious issue and talk about a different form of harassment. When alcohol flows at company parties there is a higher risk that sexual attractions become public. Sometimes not in a welcomed manner. At a company event, even off the clock, unwelcome sexual advances are unacceptable. They may create a claim for sexual harassment. This can be especially problematic for an employee when a member of management is the sexual aggressor.
6. Other forms of harassment during holiday festivities.
When alcohol makes the situation loosey-goosey among employees the conversational tone can become too casual. These could include unwelcome conversations or statements that include race, religion, ethnicity, gender or sexual orientation. This may form the basis of an unlawful hostile work environment claim. Although these conversations occur outside the normal workday the people involved are back in the office the next work day. The people who found the topic offensive have to continue working in that environment.
7. Requiring employees to attend company events without complying with wage laws.
Sometimes employers require employees to attend company holiday parties or other mandatory events. When the employer mandates participation or attendance at a company event the employer must comply with wage laws. Hourly, non-exempt employees must receive at least minimum wage for each hour of mandatory attendance. Overtime if time exceeds forty hours. Salaried, exempt employees do not require additional pay.
8. Giving preference to time off unrelated to religious activities for employees of a certain religious belief.
Let’s circle back to one more religious discrimination issue. Under Title VII and the Texas Labor Code an employer must make reasonable accommodations for an employee’s religious belief. This would be appropriate to give time off for a religious holiday or to attend a religious service. However, problems arise when employers choose to give preference for time off in the holiday season to people of one religion or another during non-religious holidays or religious activities. An employer may not distribute employment benefits with preference to one religious belief over another (or the lack of belief).
What to do if you experience one of these problems in Texas:
There is always a balance between keeping your income and standing up for fair treatment in the workplace. Not every bad act is a good opportunity to set your employer straight. Raising these issues can create long term conflict in your relationship with your manager and your employer in general. You must weigh the risks against the benefits. Once you bring this up it is difficult to take it back.