Jeffrey (Jeff) H. Ruzal, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in Law360, in “3 Ways to Avoid Being a Wage & Hour Grinch,” by Daniela Porat. (Read the full version – subscription required.)

Following is an excerpt:

The holiday season means holiday parties, end-of-year bonuses and long hours, all recipes for distinct wage and hour violations, but employers can protect themselves by making sure celebrations are not mandatory and bonuses are true gifts, attorneys say. …

Make the Holiday Party Voluntary

The December office party is often a nice opportunity to gather employees to celebrate the year's achievements. But employers must take care whether attendance is mandatory and as a result potentially compensable.

A driving factor behind whether time when work is not being performed is nevertheless compensable comes down to whether attendance is truly voluntary, said Jeff Ruzal, a member of management-side firm Epstein Becker & Green PC.

"It might be an environment where employees feel that they have to go to the office party or to the holiday gathering, even if it's after hours, because perhaps they feel that it will reflect poorly on them as individual performers or office morale," he said. "If in fact, [employers] want the attendance of the party to be voluntary and non-compensable … they make it very clear that it is in fact voluntary."

Even if the gathering is marketed as voluntary, an invitation describing the party as an opportunity to collaborate or just connect with colleagues in person, instead of virtually, could place the employer in compensable territory, Ruzal said.

"If there is something that is arguably tied to work, whether it's even as innocuous sounding as morale building or boosting, potentially an argument could be made that it should be compensable work time," he said. …

Employers should compartmentalize bonuses, Ruzal said.

"There should be ideally clear descriptions that are visible to the employee receiving it so that they understand exactly what it represents," he said, "so that it potentially helps avoid confusion over the nature of the gift and the decision as to whether or not it's included in the regular rate."

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