By Terri L. Pastori, Esquire
It's the holiday season again and as a reminder, here are ten common and sometimes holiday-related missteps that put employers at risk of getting on the "Naughty List" with one or more governmental agencies tasked with protecting employee rights:
1. Determining that an employee is not eligible for a year-end bonus because of a medical leave of absence taken earlier in the year.
2. Denying an employee's request for an unpaid day off in observance of a religious holiday because the employer never heard of it before.
3. Not updating the company's anti-harassment and EEO policies and practices to include "gender identity" as a newly added protected class from discrimination and harassment under Massachusetts law.
4. Forgetting to provide employees with a copy of any negative information that is added to their personnel files within 10 days pursuant to the Massachusetts Personnel Records Statute.
5. Using a written job application that inquires about an applicant's criminal background unless one of the authorized narrow exceptions applies.
6. Failing to pay Massachusetts retail employees premium pay of time and one half of their regular hourly rate for the Monday after Christmas when Christmas falls on a Sunday (e.g. 2011, and calendar ahead for 2016, etc.). This law applies to certain other holidays as well.
7. Disciplining employees for an exchange on Facebook complaining that their employer is a "scrooge."
8. Allowing employees to engage in a Yankee Swap where employees exchange gag gifts that have sexual connotations.
9. Not appropriately investigating a complaint of sexual harassment stemming from an off-site and after-hours company sponsored holiday party.
10. And last but not least. . . Hanging mistletoe decorations around the office or at the office holiday party (they can be invitations for trouble).
Terri Pastori is an attorney licensed to practice in Massachusetts and New Hampshire. Her practice involves counseling and representing employers in a wide-range of employment matters, such as employee discipline, terminations, investigation of complaints, drafting and implementing policies and practices, including handbooks, training (e.g. anti-harassment and diversity training), in-house dispute resolution, and the defense of claims of discrimination, harassment, failure to accommodate, retaliation, and breach of employment and collective bargaining agreements, and ERISA violations. She also advises clients on protecting their intellectual property, including the negotiations and enforcement of non-compete and non-disclosure agreements with employees. She has represented employers in federal and state courts, the state administrative agencies in Massachusetts, New Hampshire, Maine, and Rhode Island, and before the Equal Employment Opportunity Commission. She can be reached at terripastori@comcast.net or at 603.498.7378.
This article, which may be considered advertising under the ethical rules, should not be construed as legal advice. It is intended for general information purposes only and you should consult with an attorney for guidance specific to your particular situation.
