The Rest of the Stressful Christmas Story

January 4, 2019

You’ve taken all of the appropriate precautions to make your annual holiday season fun and hopefully not a source of harassment complaints against your managers. You are fully prepared to address your employees’ reasonable religious accommodation requests. You’re up to speed on how to avoid wage and hour liability for holiday bonuses and deal with issues arising from holiday leave and pay for your exempt and nonexempt employees. Assuming you don’t live next door to the Bumpuses, what else can go wrong? Read on.

Requiring/Prohibiting Saying ‘Merry Christmas’

Everyone appreciates that Christmas is a religious and a secular holiday. When an employer requires an employee to say “Merry Christmas” to all retail customers, however, the reason is likely religious. Employers cannot require employees to participate in a religious practice as a condition of employment. You cannot lawfully discipline employees—who may not be Christians—or take another adverse action because they refuse to greet customers with a “Merry Christmas.” Taking a job action against employees for refusing the directive can result in a religious discrimination claim under both federal and Wisconsin law.

So, what about the other side of the coin—can you take action against an employee who says “Merry Christmas”? Generally, you shouldn’t prohibit reasonable expressions of faith in the workplace. Employees, however, don’t have an absolute right to religious expression. If co-workers or customers are offended by religious comments such as “Merry Christmas,” you can direct employees to use a phrase such as “Happy Holidays.” You shouldn’t speculate that an employee may be offended by the use of certain religious phrases. You must apply the rules equally to all religions.

Nonparticipation in Holiday Activities

It isn’t illegal per se for an employer to hold holiday activities in the workplace that are religious in nature. If employees decline to participate, however, you may not penalize them. Also, you may not permit coworkers to harass those who refuse to attend or participate in the activity.

We are all familiar with sexual and racial harassment and its unlawfulness. Similarly, harassing employees because of their religion—including for refusing to take part in workplace religious activities—is unlawful.

Religious Displays and Music

As noted above, employees have a right to reasonable expressions of religion in the workplace. For example, it’s generally OK to wear a cross necklace at work unless the jewelry could create safety concerns by, for example, getting caught in a machine. In that instance, you can prohibit the wearing of all necklaces.

The same type of analysis applies to religious music and displays. If employees work in cubicles in close proximity to one another, you can prohibit them from playing music if it’s disrup-tive to the work of others. The rule must be applied to all types of music, not just Christmas music. Similarly, religious displays that don’t affect an employee’s performance of her job duties are generally acceptable.

It’s the Stress, Stressiest Time of the Year

Unfortunately, the holidays generate stress for both employees and employers. Employees have numerous errands to run and never enough time to get them accomplished. With 2019 approaching, employers may have certain year-end tasks that must be completed. Both parties need to appreciate the challenges and, to the extent possible, accommodate each other’s needs.

Holidays often cause us to think about loved ones who are no longer with us, resulting in depression or stress. If you have an employee assistance program, you may want to send out a message to employees reminding them of the service.

To the extent possible, employers should minimize work activities that are outside regular business hours and could interfere with other obligations employees are attempting to balance. Some businesses decorate the office or have holiday food in the workplace. Others allow more flexible scheduling so employees can take time off to prepare for the holidays or participate in volunteer activities. Year-end activities for employers may require employees to work overtime. Some workers view the opportunity as a positive so they can earn overtime pay to be used for holiday gifts.

Bottom Line

The winter holidays, particularly given their religious nature, can pose challenges for your company and its HR personnel. Fortunately, most of the hurdles aren’t unique and need not be overwhelming. Stay positive, call your legal adviser if you have questions, and, most important, have a happy holiday!

For more information about "The Rest of the Stressful Christmas Story," contact Michael J. Modl at mmodl@axley.com or 608.283.6702.