November 20, 2019

Decking the City Halls Carefully-Compliance during the Holidays


All employers, and public employers specifically, have some additional considerations when it comes to preparing for the holiday season. Now, I am fully aware that if A Christmas Carol were written by a modern author, Ebenezer Scrooge would be an attorney. But, hear me out. The tips below are not meant to be a bunch of bah-humbugs. In fact, creating a welcoming environment for every employee, and citizen, not only keeps cities out of trouble but can boost morale and make the city a great place to work.

Accommodating requests for observance of religious holidays
Cities must accommodate an employee’s sincerely held religious beliefs unless doing so will create an undue hardship. Under Title VII of the Civil Rights Act, religion is defined very broadly, encompassing both traditional, organized religions and nontraditional, less formal practices. Personal preference for a day off (to spend with family, for example) is not protected. However, time off to attend a religious service or to observe the sabbath, for example, may be protected.

If an employee makes a request for an accommodation, the city then must determine whether it can be provided without undue hardship on the city. The EEOC cites the following examples of undue hardship: “violating a seniority system; causing a lack of necessary staffing; jeopardizing security or health; or costing the employer more than a minimal amount.” Also, if the change would create an undue hardship, the city must allow for voluntary swapping of schedules if that will provide the employee the leave needed. Being as flexible as the work allows helps cities remain compliant with legal requirements and boosts morale of employees that know their beliefs will be respected.

Embrace a winter décor theme
Using a neutral winter theme for the city’s decorations in common areas will ensure you side-step any religious discrimination claims. Snowflakes, snowmen, sleigh rides, or even my toddler’s favorite upcoming Disney movie, all provide festive options with no religious connections. Keep in mind, the United States Supreme Court has determined that a Christmas tree is a secular, nonreligious symbol and the EEOC has also adopted this view. However, be sensitive to the diversity of your employees, and your city, to determine whether a tree makes the most sense. Also, if you do decorate a tree, use nonreligious ornaments.

Also, skip the mistletoe! This traditional greenery is best avoided in workplace decorations. While the plant can bring about the best Hallmark movie moments, it can also invite inappropriate or unwanted behavior among co-workers.

Keep in mind, not everyone will be in a party mood
Holiday celebrations can magnify feelings of grief, sadness, loneliness and stress. Many employees will be facing their first holiday season without loved ones due to moves, change in family status, or death. Others may be juggling social, financial, and personal commitments that leave them spread too thin. When planning parties or festivities, keep these challenges in mind. For example:

If your employees participate in formal gift exchanges, make sure low spending caps are set and participation is not mandatory. Use the holidays as an opportunity to sit down with staff for a lunch and hear what they are facing this holiday season. Send an email blast out with your city’s Employee Assistance Program (EAP) information to remind employees of their options for help. Cultivate a culture that embraces self-care through the adoption of personnel policies that support mental health.

Avoid prohibited holiday bonuses
Many employers want to provide a holiday bonus to show their appreciation for employees and help offset the cost of the expenses at the end of the year. However, public employers have restrictions that prevent this gesture. Section Three of the Kentucky Constitution provides, in pertinent part, that, “no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public service,” meaning a city may only pay its officers and employees for services actually rendered. Additionally, KRS 83A.070 requires the compensation of city officers and employees be set by ordinance. These two provisions prohibit a city from giving any bonus, gift or extra compensation to city officers or employees over and above that which is fixed in the ordinance setting their compensation.

A city may avoid the restriction on bonuses or extra compensation through inclusion of fixed, additional compensation in the pay and classification ordinance for actual services rendered. The ordinance should also establish the criteria that will govern the decision to pay the bonuses or extra compensation. The most common example is a longevity award: employees that have worked for the city for five years receive an additional $100, in 10 years they will receive $200 and so on. Keep in mind, all taxes and other withholding, including retirement, would need to be taken out of any additional compensation and included in the calculations for overtime.

Creating a warm, welcoming atmosphere for all your employees is the best gift you can give this holiday season!