Episode 162: Trending Topics on the Labor Law Helpline: Halloween Parties, Listening to Music in the Workplace and More

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, the Labor Law helpline manager and Employment Law council with the California Chamber of Commerce. Hello listeners. It seems the weather is finally turning cooler and an actual fall season is on the horizon. The last quarter of the year is a good time to take stock in everything that's happened over the course of the year here at our workplaces, a chance to begin to prepare for the new laws that will take effect on January 1st and of course, have parties. The first holiday Halloween is rapidly approaching and many employers like to kick off the holiday season with a fun and workplace appropriate celebration. To that end, employers have been calling us on the helpline to talk about parties handbook policies and so much more as we head towards the end of the year to discuss these trending topics on the helpline, we welcome back my colleague Ellen Savage, one of Cal Chamber's excellent helpline advisors and employment law experts. Thanks for joining me today, Ellen.

Hey, happy to be here, Matt.

All right, so holiday parties of course are a fun way to provide a morale boost and some team building with your workforce. But as the saying goes, no good deed goes unpunished. Ellen, when an employer calls us about what issues work parties, Halloween parties in particular, can create in the workplace, what are some things that employers should be aware of as they plan their festivities?

Well, Matt, I can tell you back when I started here at the chamber 30 years ago, we had some Halloween parties and costumes that would not be acceptable in today's workplace. Not at all. But I think that's a good thing. That's a good change. And there are a couple areas employers should be particularly aware of as they plan their Halloween bashes. The first thing is workplace safety related to costumes which you wouldn't really think are connected. But for example, masks make it really hard to identify who is behind that mask. And that can be a big safety issue in terms of who's in your workplace. So probably no masks that obscure a person's identity. Advise your employees, stay away from depictions of violence, alcohol or drugs, which of course are going to undermine your workplace safety policies. Tell employees, make sure costumes aren't tripping hazards, workers comp and all of that, or dangerous in other ways, I would say. Second, pay attention to costumes that can create hostile environment issues. Costumes sometimes play on racial or cultural or religious or sex based stereotypes, unfortunately, as well as costumes that are provocative or revealing or sexual in nature. For example, when my daughters were in college, it was all about the sexy bunny costume or the sexy cat or whatever not cool at work. Third, keep in mind wage and hour issues. Yeah, it's a party, but you know, if it's after hours or even during lunch break and employees need to go, they're required to go. You got to wage an hour component that required attendance can be work time, therefore compensable. And even if you serve a great lunch, it could trigger a meal break penalty, I think. Finally, we've got alcohol related concerns. Halloween party, maybe at the end of the workday, you serve a few drinks, employee drives home intoxicated. Also after those witches brew cocktails, who knows what might be said or done that would create a sexual harassment claim. So we suggest make sure that in your party invitation you mentioned that the alcohol served at the party maybe is an exception to your alcohol free workplace policy. And you know, make sure to control that consumption issue. Drink tickets or some other way of limiting consumption. I would say those are probably the biggest issues.

Yeah, and I think that hits on everything that I say the same with members as well in that, you know, there are these, these auxiliary issues that are out there and people might laugh or think it's silly that costumes can create a workers comp issue sounds really out there, but it's true. Some costumes are incredibly elaborate. They may have long trains on their dresses or somebody may have some really elaborate. Win one turn or, you know, one foul step at a workplace party and you've got a workers comp claim. Because really, at the end of the day, workers comp applies whenever somebody is there at work in the course of their employment and they get hurt. It's a real broad standard. So it's a good idea before we get these parties in place, of course, to make sure we have all the ground rules set. Everyone's aware of the expectations and follows through with all those principles that I think you really eloquently put out there. Alan. So an interesting question I tend to get every year is an employee is objecting to the party and oftentimes it's based on their individual religious beliefs. In particular, if one employee complains, does that mean then that the employer can't have the party at all because they're raising these religious concerns? And we know religious beliefs can be a protected class under the Fair Employment and Housing Act. What do you think about that, Ellen?

You know, I think that a religious accommodation can be made without canceling the entire party. You can excuse the employee from attending the party, maybe, you know, give them some paid time to just go on home if they want, make sure any benefits that other Employees might get from that party are available, though, to that individual. For example, you throw everybody's name in a witch's hat or whatever for some kind of prize drawing. Make sure that employee who's not attending has the option, if they want to, to have their name in the drawing as well.

Okay. Moving off the parties, I think we've kind of hit every point that employers need to know. So go out there, have your parties, have fun. Just be aware, as always, with everything we do in the workplace, there are going to be certain rules that we want to be aware of and make sure that we fall into compliance and can just have a good fun time. Now, some of that involves policies, right? Workplace policies, and establishing things and ground rules for our employees. And, you know, on a previous episod, we discussed several new laws that will be taking effect January 1st, as they do every year. And every year, this means employers have to figure out which, if any, policies that they need to update for their employee handbook or if there's anything that they need to add to their employee handbook. So to start, we get a lot of technical questions about the handbook itself this time of year, such as, does the handbook need to be printed or can it be electronically stored? And same kind of questions for any acknowledgments the employer wants signed. Do we have to have that wet ink signature or can we do an electronic signature acknowledgement? How do we handle these technical aspects of the handbook, Ellen?

Well, I would say the first thing we want to start with is the surprising fact that no law actually requires any employer to have an employee handbook, which sounds crazy. We're in California. There's a rule and a law for everything. But, you know, even if it's not technically a requirement, and this is important, it is absolutely a best practice to have an employee handbook for so, so many reasons. Your handbook's the rules of the road for your employees. Everyone can follow it. It can protect you legally. So having said that, let's answer the questions. No. Since you don't have to by law have an employee handbook, then clearly there's no law that says it has to be physically printed and bound. It can totally be electronic. But if you do decide to distribute it electronically, probably a good idea to have a couple printed copies around for employees who maybe aren't tech savvy or just want to through it, you know, on paper. Whether it's printed or electronic, it doesn't matter. Some acknowledgement that the employee has received it and that they understand they need to review it and follow it. That can be either printed, electronic. There's no requirement that it be what you call a wet signature. But I have to say, it drives me crazy when I see acknowledgments that are signed by an employee that say, you know, I have read and understood this entire 257 page handbook and it's only 9am on their first day of a job. Like, no way.

Yeah. And Ellen, I think that's so important to note because as you said, these are the rules of the road. Right. We want to hold employees to these policies and these rules, and when they violate them, we want to discipline them for it. And if our acknowledgments don't set out the evidence that demonstrates that they actually got them and had the chance to understand them, then it becomes an issue for us. And, you know, because the acknowledgments is really only the only evidence that we have that they've gotten this handbook and they've had the chance to review it and they are acknowledging that they've done it. What if the employer refuses to sign the acknowledgment?

That does happen once in a while and it's really up to the employer on how to handle that. I think honestly, the best and the simplest way to handle that is just create a record that the employee did receive the handbook, that they chose not to sign it, that you explained to them that it still applies to them even if they don't sign it. Call in another manager, have them witness that sign off that the conversation occurred. Sometimes our members want to know, well, you know, the guy won't sign the handbook. I suspect he's going to be a difficult employee. Can I just, you know, discipline him or fire him on the spot? And, you know, maybe you can, but do you really want to deal with a wrongful termination claim, paying unemployment insurance, when there's just a much easier answer?

Okay, good. So make sure we get that kind of acknowledgement in. Make sure you handle it appropriately with our employees. Now, as we mentioned, tying this in with new laws. We get new laws and every year, Ellen, you know, you and I often get asked, well, what do these new laws need to be in the handbook? And, you know, how do we kind of handle this question, Ellen?

Well, not every new law that gets passed requires that you change your handbook. There are quite a few that do, but not everyone really. There's just a couple of laws that actually say if you have an employee handbook, you have to include a policy on this topic. Those would be the state and federal Family leave laws and the pregnancy disability leave law. Those say if you've got a handbook, you got to put a policy in your handbook on this topic. Also, all employers have to have a harassment, discrimination and retaliation policy that can be wrapped into the handbook. That can be a standalone lactation accommodation. Also required policy in California can be a standalone can be wrapped into the handbook. In terms of the new laws we're being asked about right now as to whether they have to be in the handbook, one of the first ones we're getting asked about is the new salary range disclosure law. I think you talked about that in a previous podcast, Matt, and there's really no reason that needs to be in an employee handbook. That's really up to the employer, but there's no need for it. Particularly the bereavement leave law is another one we're getting asked about a lot. So as of January 1, employers have to offer five days of bereavement leave. Now, note that that's an unpaid leave. It's just job protection, but you don't have to pay the time. But it probably should be a handbook policy because there's a lot of rules that go along with it in terms of documentation and pay issues and that sort of thing. So that's a good one. Where the rules of the road being in a handbook probably should be in there, even though the law itself does not explicitly require it.

Okay, now to kind of put a bow on everything here about handbooks. It's not a new law, but it's definitely a fascinating question. We've got to end this section on. We got a question recently about whether an employer should create a quote unquote personal music policy about the types of music that an employee may play or listen to at the work site. Now, personally, I am a big emo punk rock guy that's a product of growing up in the late 90s. But, Ellen, can my employer really dictate the type of music that I can play at work?

Well, first off, I would not have pegged you for an emo punk rocker, Matt. You learn something new every day. So music policy, personal music policy, kind of a free speech issue. You get the this is America, so I can say what I want and I can play what music I want. And a lot of people are surprised to learn they really do not have free speech rights at work. And so, Matt, they also do not have, whatever we want to call it, free music rights at work either. Your boss can choose to play James Taylor ballads all day long, Matt, no matter how much you might not like that. And that's what you get to listen to. And frankly, you don't even have necessarily the right to pop in your earbuds at work and listen to Death Cab for Cutie. Your boss might want you paying attention to your customers instead. So no, no, no music policy necessari.

Boss can decide what music is played in the workplace.

Ellen Death Cab is the quintessential emo punk rock band. So, you know, nice citation there. I will wrap this section up really to say, you know, employee handbook policies are important. These are contracts with your employees about again, the rules of the road and standards that you want your employees to follow. So as always, when we get towards the end of the year with our employee handbooks, consult with a reputable tool with a reputable attorney to be able to ensure you get the new policies in and to update existing policies as needed. So, Ellen, it wouldn't be a Helpline podcast without some of the questions we get that really put that human and human resources. So we've got a little bit of time to run through. Just a couple. We have a pair of questions about scheduling and real life issues that the employee is experiencing. First, do I have to give time off for my employee to meet with his probation officer? Then, do I have to rearrange an employee's schedule because he's only allowed supervised visits with his children and the scheduled times off don't fit with his work schedule?

Now these are two questions that I actually had in the last couple of weeks. And you know, Matt, California has protected time off for an awful lot of things, school activities, organ donation, and so on. The two topics that you just asked me about, those are not legally protected in any way. So an employer could choose to agree to them, but they certainly would not be required to. Those are interesting.

All right. And we're going to close this out with one of my most recent favorites that I've heard, and I think this is one that you've gotten as well. Ellen, is it an invasion of an employee's privacy to sniff someone's open Gatorade bottle while they're away from their desk to see if there's alcohol in it? And the reason behind it is that the employer may have some reasonable suspension because the color looked a lighter blue than the flavor should actually be? Ellen, what do we do with this?

So, Matt, this is a question I was asked on the helpline recently, and I admit at first it sounded kind of odd, but it really led to an interesting discussion with the Cal Chamber member Who was asking me? As you know, California is one of a handful of states where the right to privacy extends into the workplace. So we really had to think about whether an employee has a legitimate expectation of in their Gatorade bottle. Anytime we're talking about privacy, we ask ourselves, would a reasonable person expect that particular thing to be private? So like at work, I would expect that my supervisor would not be snooping around in my purse or mat. If you left your personal cell phone on your desk while you went down the hall to, let's say, get your Gatorade out of the fridge, you would have a reasonable expectation that your boss wouldn't be reading your latest text from your wife when you got back. That's cell phone. So what about a Gatorade bottle sitting open on a desk? You will not be surprised to learn there's no court case out there yet on this one. I really don't know that there's any reasonable expectation of privacy there. Maybe it would make a difference if the bottle wasn't already open. What if the boss saw the unopened bottle, unscrewed the top and sniffed it? I don't know. I gotta say, I was impressed. The supervisor knew exactly what shade of blue that, I don't know, electric frost or whatever flavor should be. I was very impressed by that. But I'm not sure. What do you think? Invasion of privacy?

Yeah, I mean, I think you hit it. And that's such a fact based inquiry. Right? Like how much expectation of privacy do you have in your foodstuffs? I think there's some there. Is there a public policy interest here or employer interest? Excuse me. That's going to override that privacy. For example, if they've already noticed that the employee is intoxicated through stumbling, slurring or of words, maybe that would give them more rights to smell it. But yeah, be cautious there. It's a tricky area to navigate. But I love these questions, Ellen. Mostly because we always talk about the laws. But there's so much more to running a workplace and having to navigate just the people in our workplace. So, Ellen, it was a real treat having you on today. Thank you so much for being here.

Hey, thanks for having me, Matt. I look forward to hopefully seeing you in your. What are you gonna have a 90s emo punk rock costume chamber Halloween party Monday? I'm looking forward to it.

It's possible. I'll see if I can get something put together. And thank you listeners for joining this discussion on the workplace. Please comment, share and subscribe to Cal Chambers podcast by visiting calchamber.com.