For the past two years, I have told you the story about the "Jewish Guy Who Wears a Chai." I am retelling the final version of the story this year, but with some additional information. Here we go!
You walk into your building, and you see that holiday decorations are everywhere. You pass by a beautiful pine Christmas tree elegantly decorated. A co-worker responds: “The tree is inappropriate to the workplace.”
Segal: WRONG. It is beautiful; Christmas can and should be acknowledged (says the Jewish guy who wears his grandmother’s Chai). By the way, Chai means “life” in Hebrew. Don’t remove Christmas from the holiday season. But recognize other holidays, too. A Hanukkah menorah and a Kwanzaa harvest basket would be nice additions.
So the employer diversifies its holiday decorations. But a Buddhist employee correctly notes there is no recognition of Bodhi Day on December 8, a holiday observed by Buddhists to commemorate Gautama’s enlightenment under the Bodhi tree at Bodhgaya, India.
Segal: It is hard to estimate how many religions are celebrated in the United States. In part, that is because, for employment purposes, religion is defined very broadly. So make the complicated simple. Ask for input on recognition of and decorations for the holidays. Consider the input you receive, and those who fail to provide input but complain later should be told their input will be considered next year.
You head to the elevator, and you hear employees complaining about the holiday party. What’s the carping? “I don’t want to go, but feel pressure from my boss to attend.” Others in the elevator are thinking: “do you think I really want to go, either?” You take your medication because you can feel early signs of a major migraine. You also wonder whether HR professionals in the mile high city have it easier. And, when I say mile high, I mean it in more ways than one.
Segal: Wouldn’t you just love to say: “Please, if you don’t want to go, by all means, we don’t want you either. Your present to me would be the absence of your presence.” Okay to think it, but please don’t say it (unless you are retiring at the end of the year!) In fact, unless the holiday party is during working hours, be careful not to require or encourage too strongly that employees attend, or you may ring in the New Year with a wage and hour claim. Yes, an employee may claim it is work.
According to one plaintiff’s lawyer in California, so is unconscious dreaming about work that must get done before the holidays. Not really, but sad that it could be true, no? Let’s put an end to this painful ambiguity. Let’s pass the Unconscious Work-Related Dreaming Payment Act first thing next year. There really are not enough FLSA claims diverting money from employees to lawyers (on both sides of the litigation aisle).
In the elevator, one of the employees mentions that he is upset that it is called a Holiday party rather than a Christmas party. Another employee, who does not observe any holidays because of her religious beliefs, is upset that there is a party. You immediately push the button so you can get off on another floor. You walk into a holiday party that appears to have been planned by former friends of Charlie Sheen and Lindsay Lohan. Your life will never be the same, so you quickly get on the elevator and head to your party.
Segal: Usually, best to call it a holiday party or seasonal celebration to maximize inclusion, but it is more than okay to mention the various holidays celebrated, including Christmas. In fact, please do. Inclusion does not mean eliminating anything which is not universally shared. That’s called exclusion (brilliant, huh?).
So, you open the elevator door, and you see a very large, lit Menorah. Your receptionist thought it would add meaning to the season.
Segal: First, let’s deal with the fire and blow out the candles (but don’t make a wish, please). Second, you may want to make it clear that employees cannot put up whatever they want, wherever they want. Sincerest holiday greeting to the NLRB: management rights is not an oxymoron. I will refrain from further comment on the NLRB, or I risk a rabid diversion from which there is no return.
So, you go to your office, and there are three (3) people waiting for you. One of the employees is appropriately upset that he was given, as a holiday gift, a thong. Another employee is not thrilled with her gift from Victoria’s Secret. The third employee is upset because temporary employees were not invited.
Segal: Let employees know that gifts must be appropriate and that excludes anything sexual or suggestive or that would otherwise be inconsistent with your EEO policy. The inappropriateness of the Victoria’s Secret negligee, for example, is clear to all, except the guy who was too busy shaving his knuckles to think about it (that is, assuming, for this blog only, that he does, in fact, think).
But what about a supervisor giving a subordinate perfume or cologne? Have you seen Calvin’s new perfume and cologne collection: Intellectual? Since the scents are designed to be sexual rather than cerebral, perhaps, and by that I mean absolutely, we should consider a safer alternative.
As for temporary employees employed by an agency (as well as independent contractors), they can be included without unreasonable risk so long as you make clear that the invitation is to “employees and other valued guests.” They are your “valued guests.” Would you prefer “second most valuable resource?” Note: this could include vendors, suppliers, customers, etc, too.
Consider also how you will deal with gifts of alcohol. What if you prohibit possession on your premises?
Segal: Now, here comes my keen legal prowess. Send this as an e-mail to employees: if you receive alcohol as a gift, do not open or consume at work; take it home the day of receipt.
You go to the holiday party, and you run right to the bar. Note to file: file workers’ compensation claims for the employees whom you knocked down, walked over or tackled on the way.
You know you need to be professional so you have only one drink: a gallon of vodka. Of course, vodka does not smell. Well, actually it does. You can smell the vodka, but not the gas from the original container.
Segal: Control the amount of alcohol provided (and how much you drink). Do not allow self-service. Ensure you serve plenty of non-alcoholic beverages and food, too. Yes, food, and by food, I mean egg rolls. Inside joke. Of course, no alcohol to minors. Vouchers for cabs. Etc.
Consider charging for drinks and donating all of the money, plus more, to a charity. Minimize legal risk, and help those who need it!
Please do not forget this holiday season those who are less fortunate. We need to open up our wallets along with our hearts.
Of course, that starts with people. But my annual reminder: remember our four-legged friends in shelters waiting to be adopted. They ask only for love and give only unconditional love in return. Ignore this suggestion if you have too much unconditional love in your life.
Okay, back to our story.
You finish talking with your CEO, and you notice two employees are dancing very tightly. And when I say tightly, I mean it looks like a passionate embrace. Nope. Worse than that. They are dry humping, and the dry is questionable. And, there also is a love train with employees’ hands in the pockets of the employees in front of them. And some employees are not wearing pants. I know, you are probably thinking: don’t the pants come off only at the after-party? Yes, and that’s why you should never go to or sponsor one! Never!
Segal: Every year there is a marathon by plaintiffs’ lawyers: “Were you groped at your holiday party? Witness employees grinding on the dance floor? Call: 1‑800-RETIRE.” Remind employees that your EEO Policy applies to social events, and respond proactively to inappropriate behavior.
If music is being played, focus on what it is. At the risk of showing my age, Rod Steward’s “Do ya think I am sexy?” would not be my first choice. Expect employees to ask their colleagues the same. There is no good answer to this question! “Yes” is heard as “sleep with me”; “no,” “you repulse me.”
And, Snoop Dogg’s Sensual Seduction isn’t much better. Only two problems with it: both words.
Think about the music you play. Somewhere between sexual lyrics and elevator music is an appropriate middle ground.
You leave the party with a massive headache, and you see that the holiday cards have arrived, but there is no message inside. Why are they blank? Because no one knows what to say. If you say Happy Holidays, are you declaring war on Christmas? If you say Merry Christmas, are you disrespecting your Muslim colleagues?
Segal: I got this one covered, I think. Cards ordinarily should be general—Seasons Greetings or Happy Holidays. But if you know the faith of the recipient, it is more than okay to customize. I always wish my Christian friends Merry Christmas. And I like it when people wish me Happy Hanukkah if they know I am Jewish. I am less happy if they do so because they think I look Jewish. By the way, I found more than one Aaron Greenberg. Remember him?
We call raw fish sushi because raw fish would have about the same cachet as ordering raw cow. We don’t need to come up with a euphemism for Christmas. It is a magnificent and spiritual holiday that should be acknowledged and respected, just not to the exclusion of others.
After the party, the Senior Leadership Team meets with their lawyers and decides there will be no more holiday parties. Just too many risks! I know, hard to imagine: a lawyer focusing only on the risks.
Segal: Yes, there are legal risks, but the risks can be mitigated with careful planning and monitoring. Plus, there are risks in taking no risks. Employees who do not feel connected to or cared for by their employer are less likely to be engaged and all the risks associated with the lack of engagement.
So how do I end this tale, at least for now?
Segal: If you celebrate Christmas, Hanukkah, Kwanzaa or Bodhi day, I wish you a peaceful and meaningful holiday that corresponds with your faith. If you celebrate another holiday, I apologize for not referencing it by name, but I wish you a peaceful and meaningful holiday, too. If you celebrate no holidays or a holiday at another time of year, I wish you well just the same.
Personal note: Two years ago, I dedicated the first version of the tale to my beloved grandparents. I wear not only my grandmother’s Chai but also my grandfather’s ring. Last year, I dedicated it to my parents, two of my closest friends. Earlier this year, I lost my dad to Parkinson’s; I miss that man more than words can describe. So, this year, I will light the Menorah candles with my cherished mom in the wonderful house in which I grew up and hope together we feel the spirit of my dad and of my grandparents. I know I am not alone in a club that no one wants to join, but, with longevity, membership is inevitable. For those who have lost loved ones too, whenever that may have been, I hope you too can remember the special times you shared together. May peace be with you.
This blog is not legal advice and should not be construed as applying to specific factual situations.
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