We all know that employers do not receive “time off” from applicable
employment laws during the holidays. To avoid unnecessary holiday headaches, be
mindful of the following issues as you conduct your workplace holiday staffing
and planning.
Comply with your Policies and
Collective Bargaining Agreements
Remember to abide by the applicable holiday provisions of your policies,
agreements, or collective bargaining agreements. Pay for unworked time on
recognized holidays; how time worked on holidays is computed or paid; and
eligibility requirements for receipt of holiday pay are often a matter of
policy or contract. Breaching such provisions—or disparately enforcing them—can
give rise to a claim, charge, or grievance.
Think Beyond your Holiday
Policy—Comply with Wage Laws
Be mindful of wage payment laws when you are planning office closures to
ensure that you do not run afoul of state requirements governing the time,
frequency, and method of paying earned wages. Also, remember that time worked
on a holiday should be counted as “hours worked” for purposes of overtime laws,
regardless of whether you provide a holiday premium or other benefit.
Further, be careful about making deductions from exempt employees’
salaries for time off around the holidays so as not to jeopardize the exempt
status—a company closure for the holidays is not listed among the Department of
Labor’s enumerated instances of proper reasons to make deductions under the
salary basis rules of the Fair Labor Standards Act.
No Break from Meal and Rest
Period Laws
Even if your employees are frantically setting up holiday displays or
assisting eager consumers on Black Friday, provide meal and rest periods in
accordance with state law. Many states require that employers provide meal and
break periods, and the frequency and timing of such periods are often dependent
upon the total number of hours worked in a day. For instance, Illinois
employers must allow a meal break for employees working 7.5 continuous hours or
longer within 5 hours of starting work; New York’s Department of Labor
guidelines specify requirements for a “noonday” meal period between 11:00 a.m.
and 2:00 p.m., with additional meal periods for shifts extending into specified
evening hours.
Also, while bona fide meal breaks of a sufficient duration can generally be
unpaid, beware that restrictions, duties, or parameters on such breaks might
run afoul of your state’s law and can make a meal period compensable.
A
“Blue” Christmas
If your business has operations in one of the few states that impose “Blue
Law” requirements for business operations on holidays, then be aware of
obligations or restrictions that might apply. For instance, if you operate in
Massachusetts, then you might be required to obtain a local permit and/or be
subject to extra pay or other standards for employees working on a holiday. In
Rhode Island, you might be subject to an overtime pay rate on holidays or other
requirements.
Be sure to check your state and local laws to confirm applicable standards.
Accommodate Observation of
Holidays Due to Religious Beliefs
Finally, remember that Title VII of the Civil Rights Act of 1964 and many
state or local laws require employers to reasonably accommodate employees’
sincerely held religious beliefs, unless doing so would cause an undue
hardship. “Religion” can include not only traditional, organized religions such
as Judaism, Islam, Christianity, Hinduism, and Buddhism, but also sincerely
held religious beliefs that are new, uncommon, not part of a formal church or
sect, or only held by a small number of people.
Thus, while your company may be closed on Christmas Day, you may need to
allow an employee time off to celebrate a religious holiday that your company
does not recognize. Businesses can accommodate in the form of time off,
modifications to schedules, shift substitutions, job reassignments, or other
modifications to workplace policies or practices.
To discuss your company’s holiday practices,
please contact Nora Kersten Walsh or any member of Schiff Hardin’s Labor and
Employment Group.
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