In this episode of The Workplace podcast, CalChamber employment law expert Matthew Roberts and CalChamber HR Adviser Ellen Savage discuss the issues employers are asking about most often on the CalChamber Labor Law Helpline, including: Halloween parties, balancing religious beliefs with holiday parties, employee handbook policies, listening to music in the workplace, accommodating unprotected time off and employee privacy concerns.
Holiday parties are a fun way to provide a morale boost and create a team building experience with your workforce. However, Halloween parties in particular can create problems in the workplace, Roberts says.
One issue employers should be aware of, Savage says, is the workplace safety concerns created by costumes. Masks, for example, can obscure a person’s identity, creating a big safety issue in terms of who is in your workplace.
Roberts points out that some costumes can be incredibly elaborate, sporting long trains that can create tripping hazards. Or someone can wear big elaborate wings that can trip someone and now you’ve got a worker’s compensation claim.
Savage recommends that employers advise employees to stay away from costumes depicting violence, alcohol or drugs, and ensure that costumes are not tripping hazards. Employers also should discourage provocative and revealing costumes, and costumes that can create hostile environment issues, such as attire that plays on racial, cultural, religious or sex-based stereotypes.
Another component of holiday parties that employers should be aware of is wage and hour issues. If employees are required to attend the party, whether it’s after hours or even during the lunch break, the employer is creating a wage and hour component that requires attendance and the time is therefore compensable.
“Even if you serve a great lunch, it could trigger a meal break penalty,” Savage says.
Finally, holiday parties create alcohol-related concerns. If, for example, a Halloween party is held at the end of the workday and drinks are served, an employee may drive home intoxicated. Or, after a couple of witch‘s brew cocktails, who knows what might be said or done that would create a sexual harassment claim, Savage points out.
“Make sure that in your party invitation, you mentioned that the alcohol served at the party may be as an exception to your alcohol-free workplace policy. And make sure to control that consumption [by] issuing drink tickets or some other way,” she says.
Religious Beliefs and Holiday Parties
A question Roberts gets asked every year is what to do if an employee objects to a holiday party based on their individual religious beliefs. If one employee complains due to religious concerns, does that mean that the employer can’t have the party at all?
Savage replies that a religious accommodation can be made without having to cancel the entire party. For example, the employee can be excused from attending the party and be given some type of paid time off to go home if they so choose. Also, the employer should make available any benefit that other employees may get from the party. For example, if everyone’s name is thrown into a witch’s hat for a prize drawing, make sure that the employee who is not attending has the option to enter the drawing if they want to.
To prepare for the new laws that take effect every year, employers have to figure out which policies will need to be updated in the employee handbook. Around this time of year, Roberts says, many employers are asking about the handbook itself, such as does it need to be printed? Can employees electronically sign their acknowledgment?
Having an employee handbook is technically not a legal requirement and is a “best practice.” Savage explains that the handbook outlines the rules of the road for employees and can legally protect the employer. Because the handbook is not legally required, there’s no law that states that the handbook has to be physically printed, so employers can absolutely only make it electronically available. Likewise, acknowledgment pages can either be printed or be signed electronically.
Signed acknowledgment is important because it allows employers to discipline employees who violate the laws in the book and the acknowledgment page provides evidence that the employer received the rules and understands them, Roberts explains. But what happens if an employee refuses to sign the acknowledgment?
Savage replies that it’s up to the employer on how to handle this situation. The best and simplest way to handle it is to create a record that the employee did receive the handbook but chose not to sign an acknowledgment, even after being explained that the rules are still applicable to them, even if they don’t sign the acknowledgment.
New Laws That Should Be in Your Handbook
Not every new law that gets passed requires a change in the employee handbook. There are a couple of laws which actually state that if you have an employee handbook, you have to include a policy on this topic, Savage explains. These laws would be the state and federal family leave laws and the Pregnancy Disability Leave law. Policies that could be added to a handbook or be a standalone policy are a harassment, discrimination and retaliation prevention policy; and a lactation accommodation policy.
In terms of new 2023 laws, employers are asking about the new salary range disclosure law. Savage explains that this new law does not need to be in an employee handbook, but it’s up to the employer whether to include it.
Employers also are asking about California’s new bereavement leave law, which requires employers to provide five days of protected unpaid bereavement leave starting January 1, 2023. While the law itself does not explicitly require it to be included in an employee handbook, it should be included in the handbook since there are a lot of rules that go along with the law, in terms of documentation and pay issues.
An employer recently asked whether they should create a personal music policy that indicates what type of music an employee may listen to at the worksite, Roberts says.
Employees do not have a right to free speech at work and they don’t have a free music right either, Savage says. Employees also don’t have the right to pop in earbuds while at work. So no, a music policy is not necessarily required. An employer can decide what music must be played in the workplace.
Accommodating Unprotected Time Off
Another employer recently asked whether they must give time off to an employee to meet with his probation officer? Also, Roberts asks, must an employer rearrange an employee’s schedule because he’s only allowed supervised visits with his children?
Savage tells Roberts that while California has protected time off for an awful lot of things, such as school activities, organ donation and so on, the two circumstances he’s asking about are not legally protected in any way.
“An employer could choose to agree to them, but they certainly would not be required to,” she says.
Smelling an Employee’s Drink
In closing the podcast, Roberts shares that an employer asked whether it’s an invasion of an employee’s privacy to sniff their open Gatorade bottle while they’re away from their desk in order to determine if there was alcohol in it. The employer had reasonable suspicion the drink contained alcohol due to the lighter blue color of the liquid.
California is one of a handful of states where the right to privacy extends into the workplace.
“Anytime we’re talking about privacy, we ask ourselves, would a reasonable person expect that particular thing to be private? So like at work, I would expect that my supervisor would not be snooping around in my purse,” Savage says.
So, what about a Gatorade bottle sitting open on a desk?
Roberts replies that while there may be an expectation of privacy with foodstuffs, if there is a public policy interest or employer interest, it’s going to override that privacy. For example, was the employee noticeably intoxicated, stumbling or slurring words? Ultimately, it’s a tricky area to navigate and the employer should be cautious.