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With the month-long Christmas/New Year holiday season just getting underway, it’s time to review a few guidelines to keep the holiday a happy one and avoid any related HR problems. Although the most typical and certainly biggest topic you may hear about concerning holiday practices involves the company-sponsored holiday party and serving alcohol,
there are several other areas, in addition to holiday parties, that we want to cover with this article.

THE HOLIDAY PARTY. Given the continued up and down economic times as well as increased liability stemming from court cases over the past several years, one would think most companies would stop having holiday parties altogether. Although the popularity of holding holiday parties has indeed gone down from a pre-recession level (2007) of 90%, today there
still remains a healthy 70% of employers holding them according to a recent survey by Challenger, Gray & Christmas. And of this number, only 30% will hold them on-site. Since the 30% of on-site events are pretty much assumed to be without alcohol, we’re still talking a healthy 40% of employers who are holding off-site holiday parties with alcohol being served. Thus, this is the biggest issue to discuss.

Most of the potential liability dealing with serving alcohol at company parties has grown out of such legal theories as respondeat superior, which holds employers responsible for the acts of employees undertaken in the course of their employment; and social host liability, which holds the provider of alcoholic beverages who served alcohol to visibly intoxicated individuals liable for injuries those individuals may cause while intoxicated.

The basic rule to remember with these liabilities is that employers aren’t responsible in the event where alcohol is served for purely social reasons. However, if business activities are involved, an employer may be implicated and possibly held responsible. There are several factors that courts look at to determine an employer’s liability which includes where the event is held; whether employees are required to attend; whether spouses, customers or clients are invited; whether speeches were given or company business discussed; and whether the event was organized and sponsored by the company or employees independently arranged it. Thus, the best practices to consider include:

  1. To Serve or Not Serve Alcohol. Since this is the biggest issue, if you don’t serve alcohol, you reduce your liability risk down to almost nothing. However, not serving alcohol at an off-site company party isn’t very realistic unless you’re prepared to deal with a great deal of complaining about your
  2. Limit Alcohol Consumption. Thus, if you are going to serve alcohol, the best practice is to limit the amount people drink by doing such things as having a cash bar, providing limited drink tickets, and operating the bar for only a set period of time. It’s always a good idea to have plenty of non-alcoholic drinks and food available.
  3. Hold the Party Off-Site & Not During Regular Business Hours. It’s best to hold the event after regular business hours at a restaurant or off-site venue not owned or operated by the employer and where there are professional bartenders, not employees, to dispense the drinks.
  4. Make the Party Voluntary. Make attendance voluntary. Remember that there are people who don’t celebrate the holidays or drink. Don’t keep any records of who attends or doesn’t attend.
  5. Keep the Party Social. Do invite spouses but don’t invite customers. In addition, don’t make business-related speeches or hand out awards or bonuses. Simply put, don’t conduct anything that even looks vaguely like business.
  6. Remind Employees of Certain Policies.  Remind employees of your policies related alcohol use, sexual harassment and dress codes by sending out a memo prior to the party. It’s recommended to send a memo to employees before the holidays reminding them that the company’s dress and behavior code, as well as harassment policies, still apply to an off-site after hours company-sponsored event.
  7. Designate a Monitor & Have Transportation Alternatives.  Appoint a designated monitor, or even better, a few supervisors to refrain from drinking, and monitor for inappropriate
    behavior as well as anyone that gets intoxicated or impaired getting into a car to drive. In addition, make taxi vouchers available as an option as there will be a high chance that a few employees will need alternative transportation to get home.

HARASSMENT CLAIMS. The next biggest problem for employers after personal injury claims is that of harassment claims when intoxicated employees make inappropriate advances toward co-workers. The combination of lowered inhibitions, impaired judgment, and a festive atmosphere can lead to harassment claims. At this point in time, there are countless lawsuits involving sexual harassment at office parties. If you care to look up a few, they include: EEOC v. Lenscrafter, Civil Action No. 1:09 CV-12694, MI, 2011; Whited v. Tennessee,
781 F. Supp. 2d 621, 623, M.D. Tenn. 2011; EEOC v. Rose Casual Dining, L.P. (dba Applebee’s), E.D. PA 2004; and Russ v. Van Scoyoc Assoc., Inc., 122 F. Supp. 2d 29, 31, D.D.C. 2000. Best practices to consider, in addition to those already explained above, include:

  1.  Distribute the Company’s Harassment Policy.  Prior to the company holiday party, redistribute the company’s harassment policy, making sure that employee’s read it and submit notification of having done so.
  2. Manager Training. Managers and supervisors should be trained on proper conduct for the holiday party and should provide a visible and positive presence as well as set a professional example. In addition, management should be instructed to not invite employees to an “after party” at their house or local pubs. After parties have also been known to create harassment incidents.
  3. DressCode.  Suggest a dress code for the holiday party that keeps things professional. Avoiding provocative dress can help reduce some forms of harassment.
  4. Release for company-sponsored extracurricular activities.  Consider having employees sign a release that limits the company’s liability for employee participation in a
    company-sponsored extracurricular activity. While such a release doesn’t provide absolute protection to an employer, it can provide some limited liability as well as provide a reminder to employees to conduct themselves appropriately.

WAGE/HOUR ISSUES. Another issue that has surfaced over the past several years is that of non-exempt employees working off the time clock to help with an event preparation. For example, if you send a non-exempt employee out to buy party supplies during their unpaid lunch hour, by law youshould be paying them. As a matter of wage and hour law, if employees are engaged in work, then they should be paid. Although this may seem like a small issue, it’s not as wage and hour lawsuits have exploded throughout the U.S. over the past few years.

HOLIDAY DECORATIONS. It’s important to remember that an employer cannot treat persons of different religions differently. This shouldn’t be forgotten when dealing with holiday decorations. In general, you should exclude religious symbolism from decorations and entertainment.  The best advice is to decorate the office with non-religious decorations that include winter/snow scenes, candy canes and strings of lights and steer clear of anything religious such as the manger scene. The laws prohibiting discrimination don not require
an employer to avoid trees and wreaths so long as the decorations are secular.  This concept goes back to when the EEOC acknowledged the U.S. Supreme Court’s determination (County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 1989) that wreaths and Christmas trees are considered “secular” symbols. Thus, an employer can hang wreaths on its premises or have a tree in a building lobby, even if an employee objects to such decorations.
wreaths around t

RELIGIOUS OBSERVANCE ACCOMMODATION. Title VII of the Civil Rights Act states that employers may not discriminate against employees on the basis of religion in hiring, firing, or other conditions of employment.  Specifically, the law states that employers must “reasonably accommodate” an employee’s religious beliefs and rights as long as such accommodation does not cause the employer to sustain severe or undue hardship. However, the law does place a burden on the employer to prove such a hardship. The following are some points to consider:

  1. An employer should make every possible effort to allow an employee with a sincerely held religious belief to take the time off for proper observance for a religious holiday.
  2. “Reasonable” accommodation examples including allowing employees to switch shifts, take vacation or unpaid time off, or offer a floating holiday to use.

Last, let’s remember that the year-end holiday season is not just for parties but are religious (e.g., Christmas and Hanukkah) events as well cultural ones (e.g., Kwanzaa). Plus, let’s not forget that certain religions (e.g., Jehovah’s Witness) don’t celebrate these holidays and may be offended. Thus, we need to make sure that gift giving and holiday parties are
voluntary and not pushed onto everyone. In addition, holiday decorating, as discussed earlier in this article, as well as entertainment needs to be secular.  Although we don’t have to forbid private expressions of “Merry Christmas” or “Happy Hanukkah,” it’s very important that we not adopt them as the company message.  11.26.2012

2:00 pmto4:00 pm

Please join us on Wednesday, December 12, 2012 for a seminar on Salary Update and Human Resource Management Practices for a Continued Weak Economy – conducted in Japanese by Mr. Munero Ueda, HRM Partners, Inc.

This seminar will be conducted between 2:00 p.m. and 4:00 p.m.  The location will be at HOLIDAY INN EXPRESS at 2120 South Arlington Heights Road, Arlington Heights, IL 60005.

This is a “no charge” seminar.  However, due to limited seating, you must contact Mr. Ryota Mitsugi at rmitsugi@hrm-partners.com.

Implementation of the Patient Protection & Affordable Care Act (PPACA) moved forward on November 20th with the issuance of proposed rules on some of the health care law’s key provisions, according to a news release from the Department of Health and Human Services. The expansion of employment-based wellness programs is the subject of one proposed rule.  It also outlines standards for nondiscriminatory “health-contingent wellness programs,” which generally require individuals to meet a specific standard related to their health to obtain a reward, according to a fact sheet on the rule. A second proposed rule addresses standards for “essential health benefits” that must be covered by plans offered in the individual and small group markets, and a third proposed rule tackles insurance company requirements related to issues such as coverage for people with pre-existing conditions, fairness of premiums, and guaranteed renewability of coverage. A discussion of “Incentives and Rewards” appears in chapter Wellness and Health Promotion Programs.  In addition, the HR Health Care Compliance portal page provides easy access to a range of ACA news, analysis, and other resources.  11.21.2012

The Internal Revenue Service (IRS) today issued the 2013 optional standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes.

Beginning on January 1, 2013, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be:

  • 56.5 cents per mile for business miles driven.
  • 24 cents per mile driven for medical or moving purposes
  • 14 cents per mile driven in service of charitable organizations

The rate for business miles driven during 2013 increases 1 cent from the 2012 rate. The medical and moving rate is also up 1 cent per mile from the 2o12 rate.

The standard mileage rate for business is based on an annual study of the fixed and variable costs of operating an automobile. The rate for medical and moving purposes is based on the variable costs.

Taxpayers always have the option of calculating the actual costs of using their vehicle rather than using the standard mileage

A taxpayer may not use the business standard mileage rate for a vehicle after using any depreciation method under the Modified Accelerated Cost Recovery System (MACRS) or after claiming a Section 179 deduction for that vehicle. In addition, the business standard mileage rate cannot be used for more than four vehicles used simultaneously.  11.21.2012

On November 6th, San Jose, CA voters approved an ordinance requiring a $10.00 per hour minimum wage for all workers in the city who put in more than two hours a week.

Measure D, which won 58.5% of the vote, covers all employers beginning 90 days after the election is certified. The wage rate will rise beginning January 1, 2014, based on the consumer price index.

Enforcement includes award of back wages; fines of $50 a day for violations; private enforcement through civil actions; and revocation or suspension of permits or licenses.

San Jose joins San Francisco with a minimum wage above California’s $8.00 per hour requirement and the federal minimum wage of $7.25 per hour. San Jose already has a living wage ordinance for 2012 of $14.73 for employees of contractors with health benefits and $15.98 per hour for those workers without health benefits.

Exempt from the ordinance are employers that do not maintain a facility in the city and are exempt from the business license. Measure D also applies to participants in Santa Clara County’s welfare-to-work programs by limiting the number of hours the participants would be required to work to the number of hours equal to the cash benefits divided by the minimum wage.   11.21.2012

The annual four-day Thanksgiving holiday officially arrives this Thursday. Thanksgiving and all that it stands for (e.g., traveling to be with family and friends, feasting on certain traditional foods, giving thanks for bounty, etc.) is one of America’s most unique holidays. Although the original idea of a thanksgiving can be traced back in history to the autumn harvest festival which has been celebrated all over the world in different cultures and societies, it slowly morphed into something very unique once it was brought to the New World in the early 17th century by the Pilgrims, a religious group trying to escape religious persecution in England.

As the story has been told over and over again, the original American Thanksgiving harks back almost 400 years to the Pilgrim colony in Massachusetts. The Pilgrims, after making a rough two month sea voyage from England during the fall of 1620, arrived in America at the beginning of winter and had a tough go of life in the New World over the next several months. If it wasn’t for a tribe of Indians called the Wampanoag, who taught the newcomers about the New World’s different food sources, the Pilgrims would have all perished that first year. Although many did die, several didn’t and there was a bountiful feast held in the autumn of 1621 by the Pilgrims and the Wampanoag Indians. Ergo, the first American
Thanksgiving feast!

After the Pilgrims, came tens of thousands of more settlers to America. By the second half of the 1600s, thanksgivings after the autumn harvest became more common and started to become annual events. Also, by the 1700s, “thanksgiving” was celebrated on different days in different communities and in some places there were more than one thanksgiving each year. The celebrations often included prayer and fasting and so were quite different to the modern holiday we have today which is totally secular.

It wasn’t until 1789, however, that George Washington, the first president of the U.S., proclaimed the first national Thanksgiving. His historic proclamation set aside Thursday, November 26 as “A Day of Publick Thanksgiving and Prayer.”  However, this wasn’t enough for everyone to get in line and celebrate Thanksgiving on the same day. By 1863, however, when President Abraham Lincoln proclaimed the last Thursday of November as Thanksgiving Day, the day finally became a national holiday everywhere in the US. And finally, in December 1941 Congress got even more specific and passed a law ensuring that all Americans would celebrate a unified Thanksgiving on the fourth Thursday of November every year.

The Thanksgiving feast became a national tradition — not only because so many other Americans have found prosperity but also because the great sacrifices the Pilgrims made to come to America for their religious freedom still catches our imagination. To this day, a traditional American Thanksgiving dinner almost always includes some of the foods served at that first feast held in 1621: roast turkey, cranberry sauce, potatoes, pumpkin pie.

Thanksgiving is one of the most celebrated and popular holidays in America. Almost all government offices, post office, banks and businesses including retail stores are closed on Thanksgiving Day. Many businesses allow employees to have a four-day weekend with the Friday after Thanksgiving Day also a holiday. According to the BNA annual Thanksgiving
Holiday Practices Survey, 96% of employers schedule Thanksgiving Day as a paid holiday and 72% of employers schedule both Thanksgiving Day and Friday after as
a paid holiday.

With it being a rare four-day long holiday, Thanksgiving wins over any other U.S. holiday for being the busiest for long-distance travel. Between the Wednesday before and Sunday after
Thanksgiving, freeways, airports, and train stations are packed with travelers. And not to forget, the day after Thanksgiving marks the unofficial beginning of the Christmas holiday shopping season with “Black Friday,” one of the biggest shopping days of the year. Of course, Black Friday seems to start earlier each year with more and more stores getting a head start on Thanksgiving Day. Plus, as an extension to all the shopping frenzy during the Thanksgiving weekend, the internet retailers have developed “Cyber Monday” for increasing internet retail sales.

No matter what you’re planning, cooking or enjoying a Thanksgiving meal with friends and family, watching a football game or the Macy’s Thanksgiving Day Parade, waiting to get into a store at 4:00 am on Black Friday, traveling by car, plane or train or simply sitting at home relaxing, we wish you a happy and safe Thanksgiving Holiday 2012.

HRM Partners, Inc.

10:30 amto12:00 pm

Please join us on Thursday, December 6, 2012 for a seminar on Salary Update and Human Resource Management Practices for a Continued Weak Economy – conducted in Japanese by Mr. Munero Ueda, HRM Partners, Inc.

This seminar is held in conjuction with TS Consulting International, Inc. and will be conducted from 10:30 a.m. to 12:00 p.m.  The location for the seminar will be at Board Room at Mountain View Chamber of Commerce, 580 Castro St., Mountain View, CA 94041.

This is a “no charge” seminar.  However, due to limited seating, you must contact TS Consulting International, Inc. directly to reserve seating.

10:30 amto12:00 pm

Please join us on Tuesday, December 4, 2012 for a seminar on Salary Update and Human Resource Management Practices for a Continued Weak Economy – conducted in Japanese by Mr. Munero Ueda, HRM Partners, Inc.

This seminar is held in conjuction with TS Consulting International, Inc. and will be conducted from 10:30 a.m. to 12:00 p.m.  The location for the seminar will be at 8 Corporate Park, Suite 300, Irvine CA 92606.

This is a “no charge” seminar.  However, due to limited seating, you must contact TS Consulting International, Inc. directly to reserve seating.

10:30 amto12:00 pm

Please join us on Wednesday, December 5, 2012 for a seminar on Salary Update and Human Resource Management Practices for a Continued Weak Economy – conducted in Japanese by Mr. Munero Ueda, HRM Partners, Inc.

This seminar is held in conjuction with TS Consulting International, Inc. and will be conducted from 10:30 a.m. to 12:00 p.m.  The location for the seminar will be at 21250 Hawthorne Blvd., Suite 500, Torrance, CA 90503.

This is a “no charge” seminar.  However, due to limited seating, you must contact TS Consulting International, Inc. directly to reserve seating.

Upcoming Seminars

November 2012
December 2012