6 legal risks hotels face during the holidays

Hotel employers should call social events "holiday parties" and consider different types of venues or cuisine for social gatherings to celebrate the diversity of their employees and backgrounds. Photo credit: Shutterstock/Liaskin Aleksei

The holiday season is quickly approaching, and it is a joyous time when many hotel employers are organizing holiday parties, decorating offices and halls or throwing off-site parties. Hotel employers, however, must be ready to face a flurry of potential workplace issues that come with the change in season. This article identifies common pitfalls for hotel management who may need to address holiday workplace issues such as employee leave and time-off requests, religious accommodation, inclement weather and year-end company gifts. Hotel employers should familiarize themselves with and proactively monitor the following risks that may arise during the year-end holiday season.

Religious/Cultural Sensitivities

Hotel employers should strive to foster a diverse workforce and inclusive work environment, particularly during the holiday season. For some, the holiday season is a time for religious or cultural events or gatherings. Hotel employers organizing any social gatherings should make such events voluntary in nature so that those who choose to abstain from celebrating for religious or cultural reasons do not feel uncomfortable or compelled to attend. Similarly, hotel employers should be conscious of religious symbols in the workplace and consider excluding religious symbolism from decorations and entertainment. Finally, hotel employers should call social events "holiday parties," and consider different types of venues or cuisine for social gatherings to celebrate the diversity of their employees and backgrounds.

Religious Accommodations

During the holiday season, hotel employers encounter countless requests for time off to attend religious services or observe religious holidays. Because of the expansive interpretation of “religion” under federal and state law, employers must be careful in making premature assumptions about the sincerity of an employee’s religious beliefs when approached with a religious accommodation request.

Hotel employers may want to carefully evaluate the options to accommodate employees. Examples of common religious accommodations include flexible scheduling, voluntary shift substitutions and modifications to workplace policies or practices. Management may also provide employees some days to use throughout the year to observe their preferred holidays or permit employees to swap the holidays they will work with other employees. When exploring accommodation options, please be mindful that some scheduling alternatives are governed by stricter state and city wage and hour laws.

Party Behavior

While holiday “office” parties are festive, each holiday party carries a minefield of potentially regrettable conduct and, in worst-case scenarios, can lead to incidents involving discriminatory remarks or harassing behavior.

Before the holiday season begins, hotel employers can safeguard against these claims by sending written reminders to all employees that the company's various workplace policies (including, for example, anti-harassment/discrimination, code of conduct, social media and drug and alcohol policies) still apply to off-site, after-hours company events. Workplace policies should be made available to employees, along with the names and contact information of the appropriate company representatives who may be contacted if an issue arises during a holiday party.

Time Off and Meal and Rest Breaks

Time off is another important issue for hotel employers to consider during the holiday season. Long lunches, leaving early and arriving late are common as employees celebrate the holidays.

Management must take steps to ensure that all employees take their required meal and rest breaks as provided by federal or state law or company policy. Timekeeping and leave policies must be enforced equally and consistently to avoid assertions of favoritism or selective enforcement, which may result in claims of discrimination, harassment or retaliation. Meal periods are not compensable under federal law if they are 30 minutes or longer and uninterrupted, if the employee is relieved of all duties and if the employee is free to leave his or her workstation. However, state and city laws may vary.

Accordingly, management must emphasize the importance of accurately recording all work time, including breaks and off-the-clock work, and be prepared to address these issues consistent with company policy.

Inclement Weather

With ever-changing weather conditions, hotel employees are at times unable to work due to inclement weather. Under federal law, nonexempt workers must be paid only for the time they work. Hotel employers are not required to compensate nonexempt employees who are not working because of bad weather. As a general matter, it does not matter whether the absence (or nonworking time) is based on the hotel employer’s decision to close the premises or the employee’s decision to stay or go home. If a hotel employer remains open but permits an employee to stay home or leave a shift early, a hotel employer is not required to pay the non-exempt employee for the hours missed. There may be exceptions during inclement weather for waiting time or on-call time. Stated differently, employees who must remain on the premises and are unable to use their time for their own purposes should be compensated.

When a hotel employer shuts down its operations because of adverse weather conditions for less than a full workweek, exempt employees must be paid their full salary. This rule also applies if exempt employees work only part of a day. Thus, if a hotel employer decides to send exempt staff home early due to deteriorating conditions, it may not dock exempt employees’ pay. Indeed, if an employer deducts from the employee’s salary in this situation, it risks losing the exemption applicable to that employee.

Taxes and the New Year

Many hotel employers provide holiday gifts to employees. While gifts are permitted, hotel employers should be mindful that there may be tax consequences to holiday gifts. Gifts such as holiday hams, gift baskets and other tangible goods of a de minimis value ($25 or less) can be given to employees without implicating tax issues. However, gifts of cash or "cash equivalents" such as gift cards are likely to be treated as taxable wages by the IRS.

Finally, hotel employers should become familiar with new workplace laws and regulations that take effect in 2020. Hotel employers are encouraged to consult with experienced labor and employment counsel to start the New Year in compliance.

William H. Ng, shareholder, and Kevin K. Yam, associate, are attorneys in the New York office of Littler Mendelson, a global labor and employment law firm. Contact them at [email protected] and [email protected].