The upcoming holidays are associated with a variety of subjects: good cheer, stress, religion, commercialism, gifts and family traditions, just to name a few. One subject which normally doesn’t make the list is employment law–-but maybe it should. After all, the holidays provide employers with a number of liability pitfalls. Let’s consider a few.

Parties–What would a holiday party be without alcohol? Well, safer for one thing.

‘Tis the season for “office parties.” While they can be morale boosters, help create more of a family feeling at work, and provide employees an opportunity to be with each other on a social basis (instead of strictly work), they also present a number of liability pitfalls for employers.

If one of your employees gets drunk, leaves the party, and causes an automobile accident in which injuries occur, you’ll be sued. Perhaps a successful defense to the lawsuit can be mounted (easier to do in some states, more difficult in others). But you will be sued. If a serious injury or death occurs from the accident, the defense of the case (regardless of the outcome) will be quite expensive.

If an employee becomes tipsy during the party, engages in horseplay, is injured, or causes an injury, you may very well be facing a workers’ comp claim. Not so, you say. An employee can’t recover workers’ comp benefits if he or she is intoxicated at the time. Well, maybe so, but if you provide the alcohol and permit the employee to become intoxicated at an employer-sponsored event, the traditional intoxication defense to a workers’ comp compensation claim may not be available.

If an employee (even worse if it’s a supervisor) can’t hold his or her liquor and begins to flirt . . . to touch . . . to proposition, you may very well be looking down the barrel of a sexual harassment claim. It’s unlikely that there has ever been an office party with alcohol where someone, while under the influence, didn’t make a sexual advance toward someone else at the party. But today, this kind of activity can be sexual harassment. And remember–-when it occurs at a party, there are always witnesses.

So what can you do to avoid this kind of liability?

• Don’t serve alcohol.

• If you do serve it, designate “spotters” to make sure that people who have drunk too much don’t leave the party on their own, don’t become “too friendly” with someone else at the party, and don’t engage in activities which can be dangerous to themselves and others.

• Whether hosting the party on or off premises, instruct those who are serving the alcohol to refuse service to anyone who is visibly intoxicated.

• Limit the amount of alcohol that will be served, either by using a cash bar, implementing a voucher system which designates two or three “drink tickets” per person, or restricting the time during which alcohol beverages are served.

• Reduce the risk of over-indulgence by avoiding hard liquor entirely and serving only beer along with a variety of non-alcoholic beverages.

• Arrange transportation for intoxicated employees either by having designated drivers or using a transportation service.

• Have a luncheon where it’s less likely that employees will drink or drink too much.

• Make the party a family affair, including spouses and children.

• Set a tone of moderation before holiday parties through interoffice memos or meetings, reminding employees to be responsible, discouraging excessive drinking, and indicating what measures you will take to ensure a safe event.

• Emphasize that attendance at the party is purely voluntary.

• Check your general liability policies to determine whether there is coverage for this kind of event, and if there is no coverage for alcohol-related accidents, consider a “special events” policy to cover a single event or function.

Religion–What about your obligation to accommodate an employee’s religious beliefs during this season? Let’s say, for example, that a Jewish employee requests a day off on Hanukkah because his or her religious beliefs forbid working on that day. Or a Christian employee who is scheduled to work the last shift on Christmas Eve requests to be off because his or her religious beliefs require attendance at a Christmas Eve service. Under this kind of circumstance, you must determine whether it’s reasonably possible to accommodate the employee’s religious belief.

While you don’t have an absolute obligation to make an accommodation, you must accommodate the employee’s request if it doesn’t cause an “undue hardship.” Thus, if you can get another employee to voluntarily come in and cover for the employee who has requested time off, this would be a way of making an accommodation. Other ways could include obtaining the services of a temporary employee or deciding that the employees already scheduled to work can cover the employee’s responsibilities without having anyone else come in.

Realistically, if an employee is only requesting to be off for one particular day out of the year, it will probably be difficult for most employers to establish this somehow caused an undue hardship. In other words, the employee’s request will ordinarily need to be granted.

But note–-the request must be based on a sincerely-held religious belief. A lot of employees might like to attend a Christmas Eve service, for example, but they would be hard pressed to honestly say that attending the service is required by their religious beliefs. Therefore, if an employee requests to be off on Christmas Eve because of his or her religious beliefs, you would be justified in asking the employee to provide something which demonstrates the validity of the religious belief.

You shouldn’t do this in any type of accusatory or offensive manner. Rather, explain to the employee that others on the Christmas Eve shift might request time off to attend a Christmas Eve service if they learn a co–worker has already successfully made that request. Therefore, you must have some way of determining that the request is based on religious beliefs instead of mere convenience.

What if an employee objects to your traditional workplace Christmas decorations on the basis that they offend his or her religious beliefs? Do you have to take them down? No–-at least as long as you are a private employer. The question is a bit more complicated if for a public or government employer, but even then, you may have the discretion to use traditional Christmas decorations, as long as they do not focus on the religious aspects of the holiday.

When dealing with an employee and his or her religious beliefs, use common sense and be reasonable. If an employee doesn’t wish any type of Christmas decorations on the desk or in the cubicle where he or she works, don’t force the issue. If he or she chooses not to attend the Christmas luncheon because he or she doesn’t espouse Christian beliefs, let it alone. The holidays are hectic enough for most people without challenging their religious beliefs.

Solicitations—It’s common for this time of the year to include various kinds of charitable solicitations–-to help schools, the homeless, needy children, and various relief agencies. It’s also common for these solicitations to be made at the workplace. In fact, your own employees may try to solicit their co-workers on behalf of various groups. Any problems?

There’s a problem if you have a general “non-solicitation rule,” and you decide not to enforce it during this season. The problem arises when you later attempt to apply the rule to solicitations made in connection with the organization of a union. Allowing solicitations (whether during the holidays or at other times) makes the application of a non-solicitation rule to a union organization extremely problematic. Therefore, if you want to be able to enforce the rule, it has to be enforced at all times.

Bonuses–Under the federal Fair Labor Standards Act (FLSA), employers are required to add certain types of bonuses to a non-exempt employee’s “regular rate of pay” in order to calculate the employee’s overtime rate. Obviously, if a bonus must be included in the regular rate, this increases the amount of overtime pay to which an employee is entitled. What about a Christmas or holiday bonus? How is it treated by the FLSA?

The answer to these questions depends on the purpose and nature of the bonus. Generally speaking, a bonus created to encourage productivity is counted as earnings and must be included in determining the employee’s regular rate of pay. On the other hand, a discretionary bonus in the form of a gift can ordinarily be excluded from the employee’s regular rate of pay. So a Christmas bonus doesn’t have to be included–-right?

Well, probably–-but it still depends. To be excluded from an employee’s regular rate of pay, a Christmas or holiday bonus must not be determined by the total number of hours worked, production, or efficiency, nor may the bonus be so substantial that the employee considers it a component of his or her annual income. In addition, a Christmas or holiday bonus can’t be excluded if it’s made in accordance with an employment contract.

Since most Christmas or holiday bonuses are based on length of service, a flat amount, or a percentage of compensation, the FLSA doesn’t require that they be included in an employee’s regular rate of pay when overtime is being figured. But note–you should make sure that the various states in which you have employees don’t have wage and hour laws which would cause a different result.

Firings–For some reason, firings seem to abound during the month of December. Perhaps there’s a short supply of patience with everything else that’s going on. Perhaps a clean slate is desired at the beginning of the new year, thus requiring the elimination of marginal employees. Perhaps Scrooge really is alive and well at this time of the year.

Well, there’s no law that prevents you from firing someone during the holiday season. And if there’s a good reason for a discharge, the fact that it occurs around Christmas shouldn’t prevent the termination from occurring. However, firing an employee at “Christmas time” will seem heartless to some people, and some of these people could end up serving on the jury that judges whether your decision to terminate an employee was unlawful.

If someone commits an act of misconduct justifying termination on the day before Christmas, go ahead with the termination. If you’ve engaged in the process of progressive discipline and the time for termination happens to occur during the month of December, proceed as usual. But if the termination isn’t clearly justified or is somehow legally problematic, let the holidays pass. Most lawsuits arise out of firings, and a firing at Christmas may just increase the odds that a lawsuit will occur.