Consider legal and employee-relations risks
The holiday season is coming, and many employers will be hosting social events at the workplace and offsite. Workers may look forward to participating in the annual festivities, but can you require that they attend? Here's what employment law attorneys said.
"Under most circumstances, an employer can require an employee to attend a social function during or even outside of normal work hours," said Christopher Anderson, an attorney with Littler in Nashville. But there are a host of legal issues that employers should consider before requiring attendance at a social or team-building event.
For example, employees may have religious beliefs that prohibit them from attending an event that falls on a religious holiday or where alcohol is served. In these cases, an employee cannot be compelled to attend, Anderson said.
Rebecca Bennett, an attorney with Ogletree Deakins in Cleveland, suggested that employers create a culture that encourages employees to participate. Find out what employees want and what would truly motivate them, she said.
If employees resist attending, evaluate their reasons on a case-by-case basis, said Jay Glunt, an attorney with Reed Smith in Pittsburgh. In addition to faith-based reasons, some workers may prefer to avoid social functions due to mental or physical impairments or other legally protected reasons, he added.
Event sites should be accessible to workers with disabilities, and employees should be excused if they can't participate in a meaningful way because of a disability, noted Erin Galbally, an attorney with Clark Hill in Philadelphia. Employees also shouldn't be required to attend if they are on a job-protected leave of absence, she added.
Employment discrimination issues can arise if employers discipline workers for not attending social functions. For example, if an employee doesn't want to attend because she is being harassed by her co-workers, disciplining her for not attending could strengthen any hostile work environment claim she filed under federal and state discrimination laws, Glunt noted.
"It's a balancing act," Galbally said. "The critical point is to understand why the employee doesn't want to go."
Nonexempt employees must be paid for all hours worked in accordance with the federal Fair Labor Standards Act and state wage and hour laws. So when attendance is mandatory, employees need to be paid for that time at their regular rate of pay and must receive overtime pay, if applicable. "Also, employers may not deduct hours spent at a required social function from exempt employees' salaries," Glunt said.
If employees refuse to attend an event during work hours, it's probably not a good idea to make them use their vacation time to bow out. "While it may be legal to take this approach, it may not be wise," said Adam Bartrom, an attorney with Barnes & Thornburg in Fort Wayne, Ind.
Vacation benefits are generally governed by state law. Even though no states require employers to provide paid vacation benefits, many require employers to follow their company policies and practices on using, accruing and paying vacation benefits. If a company's policy states that employees have sole discretion to determine when they use vacation, then requiring them to use vacation days in this way may violate wage and hour laws in those states, Glunt noted.
Employers should weigh the pros and cons of hosting a mandatory social event from an employee-relations perspective, not just a legal one. Legally, an employer can tell workers that attendance is required and that they will be compensated for their time, "but this heavy-handed approach will almost certainly not be well-received," Bennett said. "Furthermore, HR should view employees' reluctance to attend a social function as a window into a potential human-relations or culture issue at the company."
If employers force workers to attend or risk losing hard-earned vacation, employees can perceive this as insensitive, Anderson noted. "Employers who, in effect, punish employees for failing to attend a social event are damaging employee morale by undermining the very objective the event is designed to accomplish, which is to create community and encourage collegiality."
The company should view the event through employees' eyes and ask for their help to plan it, Bartrom said. When employees are involved, they are more likely to attend. "This helps avoid the issues of insubordination, required vacation days and diminished morale resulting from mandatory attendance," he said.
Companies that require employees to attend social functions should have a related policy in their handbook. "The policy can be straightforward and brief," Glunt noted. It should state:
- The purpose of the policy.
- The type of social events it covers (e.g., the holiday party, summer picnic or annual barbecue).
- That all employees are required to attend these social events absent extenuating circumstances.
Employers shouldn't discipline workers for violating the policy, Glunt said. "Participation should generally be excused if employees articulate a reasonable basis for resisting the event."
Make sure there is workers' compensation insurance coverage for social events, he added.
Employers should note that they are responsible for maintaining a safe and respectful environment during sponsored social events. If alcohol is served at the function, the company could be liable for injuries or accidents caused by an employee who consumed alcohol at the event, Bartrom said.
Workplace policies also apply at such events, so employees must display the same level of respect and professionalism as they would in the workplace, Anderson said. As a result, employers have an obligation to enforce their anti-harassment policies by investigating complaints and taking appropriate corrective action.***** ***** ***** ***** *****
Source: Society for Human Resource Management (SHRM)