• Check the checks: Does the employer regularly perform background checks on applicants? Does the employer regularly check an applicant’s references? If the answer is yes, to the extent practicable, the employer should perform background checks and reference checks on seasonal, nontraditional employees.
• Are “regular” employees subject to taking and passing drug tests? If yes, employers should continue to follow state or federal statutes and guidelines for drug testing with respect to nontraditional employees as well as those employees who work all year round, to the extent applicable.
• What are the employer’s record-keeping requirements? These obligations do not change simply because the individual will only be employed a short while. All employees must have I-9s and W-4s. Additionally, does the company have any obligation to collect demographic information on applicants and employees? Does the company have any other record-keeping requirements with respect to applicants or employees?
• Does the employer have an employee handbook? Are new employees required to sign an acknowledgment that they received and read a copy of the handbook? If yes, make sure nontraditional and seasonal employees receive a copy of the handbook and sign the acknowledgment.
• Does the employer require employees to sign a nondiscrimination or nonharassment policy? If yes, make sure the nontraditional employees sign this policy.
• What kind of training does the employer provide to “regular” employees? When it comes to seasonal hires, it may not be reasonable to expect that nontraditional employees will know the ins and outs of the business as well as those working all year long do, but it is important for employers to continue to provide appropriate training for all employees to the extent practicable. This training should include both substantive job training and training on the employer’s policies and procedures, including those on nondiscrimination and workplace harassment.
• Show them the money: Holiday shopping season often means long hours and overtime for seasonal employees. Employers must make sure to pay wages consistent with federal and state wage payment and overtime statutes. Employers should take a minute and make sure all applicable state federal laws are posted in common areas as required.
In addition to general wage-payment statutes, employers should remember that holiday bonuses or other monetary gifts may need to be factored into an employee’s regular rate of pay for calculation of overtime.
Nondiscretionary bonuses must be included in the overtime calculation. That is, if the employer pays its employees a bonus each holiday or the employer announces its employees will receive a holiday bonus, it is expected by the employees and must be added to the employees’ wages for employers to calculate time and a half for overtime.
Not all employees celebrate Christmas. Employers should respect the religious differences among their employees and should be aware of and prepared to accommodate employees with different religious beliefs to the extent required by law. If it does not create an undue burden, employers should grant employees time off to worship in accordance with their sincerely held beliefs.
One of the biggest hurdles of the holiday season is the company holiday party. The office holiday party is a time for revelry, a time for employees trapped behind counters or the confines of their cubicles the rest of the year to let their hair down and have some fun. But it can also mean claims of harassment or discrimination, drunk driving charges, and big trouble for employers. Here are some pointers for avoiding claims following a holiday party:
• If the employer plans to hold a company-sponsored gift exchange, remind employees of the harassment and discrimination polices. All employees should avoid inappropriate and distasteful gifts.
• Enforce your sexual harassment and discrimination policy at the party and at any afterparty. Make sure employees know the policy applies even though the party is not in the office. Employees and supervisors should be trained regarding preventing and reporting harassment.
• Remind supervisors that they remain supervisors at the holiday party and the afterparty.
• Be aware of employees’ consumption of alcohol, and watch out for employees who have had too much to drink. Alcohol limits inhibitions and can lead to awkward, inappropriate, and even illegal conduct.
• Do not have employees serve alcohol. Hire bartenders and instruct them to alert supervisors or designated individuals when they believe someone has had too much to drink.
• Invite spouses or family. Those individuals can help keep tabs on the employees’ alcohol consumption.
• Consider a cash bar or a limited number of drink tickets in place of an open bar.
• If you do serve alcohol, make sure there are plenty of nonalcoholic beverages and food available.
• Provide safe, free transportation for employees. Remember, employers can be held liable for injuries (or deaths) resulting from an alcohol-related accident at a company-sponsored or -sanctioned event.
It is possible for everyone to have fun and avoid litigation at the same time. Here’s wishing you and yours a healthy, happy holiday and a litigation-free 2008.
Emily Hargrove is a labor and employment associate in the Washington, D.C., office of Nixon Peabody.