David Harmon: I’m David Harmon.
Mariya Gonor: And I’m Mariya Gonor.
David Harmon: And we are the Employment Strategists. Today’s episode is Holiday Cheers and HR Fears.
Mariya Gonor: On today’s podcast, we will explore the rules, and the policies as should be applicable to your holiday parties.
David Harmon: So, before we do that, we’re going to turn to our segment called In the News. The Department of Labor recently had its overtime rule struck down by a judge in Texas. The Biden administration’s Department of Labor overtime rule, which included two significant salary threshold increases, was struck down on Friday by a Texas federal court, leaving employers uncertain about their next steps. As our listeners will recall, the rule updated the salary threshold for overtime exemptions under the Fair Labor Standards Act, also known referred to as the FLSA. In July 2024, the salary threshold increased from $35,568 to $43,888 and was set for another increase to $58,656 in January 2025.
Mariya Gonor: It’s actually a huge hike because as a result of the court’s decision, the required salary now goes down quite significantly back to $35,500 some dollars as was said during the Trump administration. And the timing of this change is also important because obviously, it took place six weeks before the new hike was to take effect, leaving employers wondering what to do next. Do you continue on the path? that you were going to set? Are you switching your managers to hourly employees? What’s next?
David Harmon: Well, once again, like there are HR audits, this is a required task of all employers to take a look at their compensation and position structures and to make sure that they are in compliance.
Mariya Gonor: It is a great holiday gift though for those employers who procrastinated making any decision until the new year.
David Harmon: That’s very true. Happy holidays.
Mariya Gonor: Happy holidays on that one.
David Harmon: So, what happened in New Jersey? Something happened in New Jersey recently.
Mariya Gonor: Oh yeah huge change. So, New Jersey is joining a growing number of states that have passed a mandatory pay transparency act. So now when the New Jersey employer posts a job offer to general public or internally, they are required to disclose the pay range for the position.
David Harmon: This is very similar to what was enacted in New York.
Mariya Gonor: New York, California, a number of states have enacted similar statutes. So now that is an excellent holiday gift for the employees all over the state of New Jersey.
David Harmon: Well, absolutely. Because now They have full access in those postings, to compensation levels.
Mariya Gonor: Yes. And it’s a great negotiating tool, right? Even if you’re coming in to negotiate for a salary raise, if you see what they’re offering to a position that’s just listed or an internal promotion, that’s a nice goalpost to be able to refer to.
David Harmon: I think it’s certainly made market information more accessible and more available and allowed employees to evaluate positions on another level.
Mariya Gonor: And now that we’ve established that the legislature and the courts have gifted certain gifts to our employers and employees, let’s discuss what’s the best way to celebrate those gifts?
David Harmon: Well, it’s all about being careful, isn’t it?
Mariya Gonor: Always. Do you expect your lawyers to say. Literally anything else.
David Harmon: Yeah. We’re not going to say just go for it, whatever it is, and then call us on Monday.
Mariya Gonor: Throw caution to the wind, although that would be great advice. Throw caution to the wind, do whatever you want. Then we’ll talk to you on Monday.
David Harmon: That’s right. Well, that’s how we generate business. And now on a more serious note, turning to the title of our episode, holiday cheers and HR fears. Let’s talk about holiday parties, Mariya.
Mariya Gonor: And I think it’s an important topic to discuss and proof of that is when I was preparing research for this episode and I googled employment cases involving holiday parties, thousands, thousands of cases came up. So, whenever alcohol is involved, whenever you’re off-site, a lot of the times inhibitions get lowered, and people get themselves into trouble.
David Harmon: Sure. So, let’s first talk about attendance. Yes. Mandatory attendance and overtime issues.
Mariya Gonor: So, can an employer require employees to go? Yes. But if you’re going to require your employees to go, you have to make sure that you pay them for the time that they spend at the party. And if you’re going to caption your holiday party as a Christmas party or Hanukkah party or any kind of religious event, requiring, making it mandatory for employees to attend could present some issues. The EEOC is very, very, very strict about not requiring employees to engage in any religious activities.
David Harmon: There has to be an ability to opt out of these events and to make them mandatory creates exposure.
Mariya Gonor: Yes. Now if the party is not mandatory, do you have to pay your employees for attendance?
David Harmon: No, you don’t unless it’s during the working hours of the business.
Mariya Gonor: The important thing to remember is to treat the employees that are attending the party and those that are not attending the party equally. So, there was a recent case that was published by the EEOC that involved a holiday party by assisted living facility and one of the employees decided to opt out from attending because it was against her religion. So, she filed a complaint eventually alleging that the employees who attended the party were allowed to leave and go home earlier while she was required to stay and work the two extra hours. So, she used those two extra hours of her required work as evidence of discrimination on the basis of religion. So that is just one example of how important it is for the employers to remember to treat their employees the same way, whether or not they’re attending.
David Harmon: It’s also important for employees to know what their rights are. And whether these nonexempt employees are to be compensated for required attendance if they do come. And it’s, the key thing is to have HR really clarify what the type of party is, mandatory or not.
Mariya Gonor: Yes, set clear expectations and the ability to opt-out. And also set clear expectations about whether or not the employees are going to be compensated for this time or not.
David Harmon: And as you said earlier, avoid religious exclusivity. As a means of promoting inclusivity, it’s important to use neutral holiday themes, accommodate dietary restrictions, and be mindful of religious practices. I think that all falls into the same category.
Mariya Gonor: Absolutely. So now that we’ve covered whether or not you can force people to join your festivities, the next question is, especially for employers, is where to hold the aforementioned festivities.
David Harmon: Location, location, location.
Mariya Gonor: As always.
David Harmon: So, if it’s an offsite versus an onsite, meaning in the office, that’s the key thing. If it’s an offsite party, workplace rules still apply. It’s a company sponsored event.
Mariya Gonor: Absolutely, and when you make a decision, Whether or not to have the party on-site or off-site, a number of things should be considered. The first one is whether or not you’re going to be serving alcohol. And if the alcohol is going to be served on your employment premises, will there be a bartender or will you just buy a bunch of bottles of alcohol and leave them unattended for the employees to partake?
David Harmon: What’s the best way to monitor alcohol consumption, Mariya?
Mariya Gonor: Have a trained bartender.
David Harmon: A trained bartender, someone who’s able to watch people.
Mariya Gonor: Yes.
David Harmon: And if someone’s, hitting the bar too many times, they have to cut them off.
Mariya Gonor: Make sure that employees do not get over-served or under-served.
David Harmon: True. There’s another one, or maybe change what they’re pouring.
Mariya Gonor: Yes. That’s true.
David Harmon: Gin and tonic without the gin.
Mariya Gonor: But just having unsupervised bottles of alcohol at the workplace is probably an unsafe idea.
David Harmon: Another option is for employers to have, uh, drink tickets. And that’s another way to limit the consumption.
Mariya Gonor: Yes.
David Harmon: And control it. So, Mariya, this leads us into issues concerning transportation and safety. Two critical aspects of making a successful and safe holiday party.
Mariya Gonor: Employers could consider minimizing the risk by offering reimbursement for rideshare services or providing transportation to employees themselves.
David Harmon: Including designated drivers, that’s also another option. The key thing is to prevent drunk driving situations and to limit the potential liability.
Mariya Gonor: Yeah, especially if the driving is going to be taking place in the employer owned vehicles.
David Harmon: Oh, that’s another layer of exposure. It’s also wise for employees to plan their travel arrangements in advance. In order to avoid last-minute safety issues. So, the responsibility is on both the employer and the employee in terms of transportation and safety.
Mariya Gonor: And David, as you said before, I think it’s worth stressing again that even if the party is off-site, that doesn’t mean that the employer policies, including harassment, discrimination, all of a sudden go out the window. Those policies still are very much effective because it is an employer-sponsored event. In fact, the EEOC gives us example number 53, and we all know how much you love those examples because things escalate very, very quickly in them. So, the EEOC tells us a story about Fatima, who attends a holiday party where her co-worker drinks a little too much and then he starts to hit on her. But like I said, things escalate rather quickly because after flirting with her, he immediately proceeds to attempt to grope her. And then the EEOC cautions us that even though it’s an offsite party, because it is a work environment event, the employer is still liable for any action that the employee takes, just as they would in the regular office hours.
David Harmon: So, was this employee who was not behaving himself a supervisor or a colleague?
Mariya Gonor: The example is silent on that, but we can assume that it’s a supervisor.
David Harmon: Well, even if it wasn’t, though, I think the exposure would be the same.
Mariya Gonor: Sure.
David Harmon: It’s just inappropriate conduct in violation of policies.
Mariya Gonor: Of course. I mean, as we all know, and as we’ve covered in our First episode, right? If it’s just an employee, a co-worker, there is an extra step of protection for the employer to be able to take action. But I’ll say if your supervisor or your employer is observing this behavior, that extra step’s happening right then and there.
David Harmon: So let me give you another interesting fact pattern. I’m aware of a holiday party where a new employee, actually someone who was Probably worked during a vacation or summer vacation. Worked as an intern was then provided with a job opportunity and was invited to the holiday party of that particular company, and he came to that holiday party, which was offsite, but I don’t think it matters whether it was offsite or on-site. He came to the party and proceeded to get trashed. He was one of those who the bartender was not controlling how much he was consuming, but be that as it may. He drank himself into smithereens and wound up not only being offensive in terms of things he said to certain women who were employees, but he wound up groping the CEO’s wife at the party.
Mariya Gonor: That’s, that was very ambitious. He’s going straight to the top.
David Harmon: Well, he worked his way up. He started with the lower-level employees and then he wound up working his way all the way up to the CEO’s wife. However, all kidding aside, what do you think happened to him?
Mariya Gonor: I’m going to go out on a limb and say he was not promoted the next day.
David Harmon: I think it was a relatively short period of time, probably even that evening where the offer of permanent employment was withdrawn, and he was never to appear on company premises again.
Mariya Gonor: That’s a smart employer right there.
David Harmon: Right there. But that was a very stupid employee, or potential employee.
Mariya Gonor: For sure.
David Harmon: And it just shows you that policies need to be enforced. If something was not done, as it relates to this particular individual, then the policies become somewhat of a sham. You need to have policies that you are ready to enforce. That’s why you have them. They’re there to protect employees. And if they’re not enforced, then they’re meaningless. Here that was forced and he’s no he never showed up for a day one of work.
Mariya Gonor: Yeah, and as I said thousands of cases are examples of how holiday parties go wrong which then cause significant financial repercussions and also reputational repercussions for employers.
David Harmon: Absolutely, well reputational not only for employers. But if you’re that employee who’s misbehaved and then you show up in the office the next day, you become the topic of conversation that tarnish never leaves you. And you’re always part of a joke or otherwise.
Mariya Gonor: It’s a good reminder for employees to be mindful that although again, it’s time to celebrate, we have just finished a successful year and You know, the tensions are no longer high. You’re still in the employment context. You still want to act the way you would act in the office.
David Harmon: Somehow that’s analogous to what’s posted online. That’s forever. Now, while company employees may not necessarily talk about that person for years to come, it certainly is a scarlet letter that attaches to that person and will impact the person’s future job opportunities, success at the company, and otherwise. Also, it’s a test for the employer as to whether or not they’re going to impose their policies.
Mariya Gonor: Maybe this goes without saying, right, but this is a flip side of the employer liability. While the employer may be liable for the actions of their employees for events that take place offsite, the employees are subject to the policies and anti-harassment policies. And that contact policies off-site as well. So, if, even if you are a contract employee, not just at will, and you have some kind of morality clause in your contract, or just simply an at-will employee if you’re misbehaving at a party, that could be reason for the employer to terminate your employment.
David Harmon: Yeah, it goes beyond just the contract itself. I think it’s a matter of the content of the policies contained in the company’s handbook. It’s important to issue a handbook that you’re going to enforce.
Mariya Gonor: Of course.
David Harmon: And here’s a great example because this is where employees and employers get in trouble.
Mariya Gonor: All right. The next topic we’re going to cover today concerns gift-giving. And not just from the perspective of what kind of gifts an employer can give employees because I think we all understand what kind of gifts employees prefer, which is money and bonuses.
David Harmon: Cash.
Mariya Gonor: Cash. Cash is king. But a lot of the times employers will have gift-giving games like Secret Santa or White Elephant or Yankee Swap, whatever the name is. It’s important for employers to issue guidelines on that as well, and for employees to be mindful that a particular gift could create an unintentional bias or an awkward situation.
David Harmon: I think there has to be some cultural awareness, religious awareness, and you want to make sure that program prevents favoritism or perceptions of inequality.
Mariya Gonor: It’s similar to what we’ve covered during our Halloween episode. Some of the things could be unintentional and someone might mean it to be all in good fun, but it could be perceived in a very negative and hurtful way.
David Harmon: Or political in any way. So, I think another thing to think about, certainly for both employers and employees, is that the gifts Should not be overly personal. And that they should not be inappropriate in any way.
Mariya Gonor: Yes, you want to make sure that you prevent a perception of favoritism as well or perception of inequity if a manager is giving us a specific Secret Santa gift to a particular employee.
David Harmon: Sure. I mean you don’t want the supervisor to line people up, five employees. And then all, the first four get one level of gift, and then the fifth person gets some over-the-top crazy gift. That’s not good for morale.
Mariya Gonor: It’s a good idea for HR to issue a policy in advance of the event, addressing how to engage in gift exchanges professionally.
David Harmon: Right, with a description of the spectrum of the gifts, the rules of the road for the gift giving at that time.
Mariya Gonor: All right, so after the gifts, our final topic for today’s episode is going to be dress code.
David Harmon: Well, as we said in our Halloween episode, it has to be appropriate and professional.
Mariya Gonor: You’re not permitted to go as a risqué Santa, is that what you’re suggesting?
David Harmon: I’m suggesting that’s not a good career move, notwithstanding the fact that Santa just plays such an important role at the holidays. So Mariya, as we do in each episode, now is the time for us to discuss strategies for both employers and employees.
Mariya Gonor: I think our listeners can probably figure out what our employer strategy is at this point, and that is issuing an HR policy well in advance of the event, and explaining to the employees what the expectations are, and reminding them that The rules of conduct must be followed during the party, reminding them about the dress code and reminding them about the gift-giving guidelines.
David Harmon: It can also go out when some company sends out a save the date. It can be attached to that.
Mariya Gonor: Yes.
David Harmon: As well as, uh, the actual invitation. And maybe to attach some sort of confirmation or acknowledgment of those rules of the road when someone sends back an RSVP.
Mariya Gonor: Oh, that’s a great idea. Have the check mark that you’ve reviewed it. A check next to each and every rule that you’ve imposed to make sure that the employee actually read it.
David Harmon: Sure. Well, it’s just the same theory that someone signs of receipt and acknowledgment when given an employee handbook or a newly issued policy.
Mariya Gonor: Yeah, that’s a great idea.
David Harmon: So, for employees, remember, keep your head on your shoulders. Act professionally. Don’t expose yourself to being the talk of the company on the Monday following the party. And if you’re subjected to any type of inappropriate conduct or harassment, don’t hesitate to complain. That’s why those policies are in place.
Mariya Gonor: And don’t forget to invite your attorneys to your holiday parties. That’s how I ascertain whether my clients like me this year or not, if I get invites to their holiday parties.
David Harmon: Well, I certainly hope you’re invited to a lot of parties, Mariya.
Mariya Gonor: Thank you.
David Harmon: But for our listeners, we hope that your holidays are happy, Safe, and festive.
Mariya Gonor: And as always, while we hope that you found our time together entertaining and educational, please remember that this is not legal advice and should not be taken as such.
David Harmon: If you wish to continue the discussion, you can contact us at theemploymentstrategists@norris-law.com.