New Jersey Crime Categories

As explained in our previous posts, the most serious offenses are categorized as “felonies” and less serious as “misdemeanors.”  While this is true in nearly every state, there is an exception (of course) and that exception is New Jersey.

In New Jersey, crimes are not categorized as felonies and misdemeanors but as “indictable crimes,” “disorderly person offenses,” and “petty disorderly person offenses.”

According to New Jersey law, indictable offenses are the equivalent of felonies in other states. Courts classify charges into first, second, third, and fourth-degree charges. A first-degree offense is the most serious of all charges. “Indictable” means that a grand jury has found enough evidence against the defendant to make them face trial.

“Disorderly person offenses” and “petty disorderly person offenses” (sometimes referred to as “DP offenses”) are the equivalent of misdemeanors in other states because they are less serious offenses and are punishable by less than one year in jail.

Civil Cases and Garnishees

A common occurrence when searching civil case records for a company is to locate a record that identifies the company’s role in the case as a “garnishee.” What’s a garnishee and should these cases be included in background reports?

A garnishee can be any company (or person) who holds property (including money) owed to a debtor – that is, someone who has an unpaid judgment against them.

Employers often become a garnishee because they hold wages to be paid to an employee who is a debtor. A creditor can use a procedure called a wage garnishment, which is a court order, that requires the debtor’s employer to hold the debtor’s wages to pay the creditor. The employer as garnishee simply pays the employee-debtor’s wages to the court.

Because a garnishee’s involvement in a civil case is neither negative nor noteworthy, it typically should not be included in the report.  

Reporting Disclosed Criminal Records — Non-Convictions

Previously, we emphasized the limitations that several states and the District of Columbia place on reporting criminal convictions even though a job applicant discloses the conviction during the application process. What about limitations on reporting disclosed criminal records that do not result a conviction? Criminal records of non-convictions include: 

  • Arrest record (no charges filed) 
  • Dismissed charges 
  • Not guilty verdicts 
  • Deferred prosecution (no plea entered, and charges dismissed if conditions met) 
  • Nolle prosequi or nolle prosse (not prosecuted) 

Although the federal Fair Credit Reporting Act (FCRA) permits convictions to be reported regardless of when the conviction occurred, the FCRA limits the time for reporting non-convictions. Records of non-convictions are reportable for seven years from the earliest file date for the record and can appear on a background report for seven years. After seven years, the record cannot be reported unless the candidate is or will be earning more than $75k annually.

The FCRA seven-year rule applies in all states except California, Kentucky, New York, and New Mexico. These states prohibit reporting any records non-convictions, regardless of date of the record. California, New York, and New Mexico provide an exception for records of pending criminal cases. 

Legal considerations when recruiting, hiring out-of-state WFH employees

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Since the COVID-19 pandemic, employees working from home (WFH) have created a host of new wrinkles for employers, many of which are still being ironed out.

For employees, the WFH option can be safer (less chances of contracting COVID) and easier (no more commute); for employers, WFH reduces the cost of overhead and can result in happier, more productive employees.

While it may sound easy to simply hire a worker on the other side of the country, there are several legal questions for employers who want to recruit and hire an out-of-state employee who will WFH. The following are some of the important issues that employers should consider.  

  • Recruiting. Looking for a new employee beyond state lines appears to present a limitless supply of potential new workers. But employers need to familiarize themselves with the laws of the state where the applicant lives, particularly with regard to issues such as background checks, criminal record searches and compensation.

Several states – including New Jersey and New York – prohibit employers from inquiring about a job applicant’s salary, benefits and other compensation history.

Other factors may make certain locations a more advantageous space to find new WFH hires.

Some states offer financial incentives to remote workers. Alabama, Georgia, Oklahoma, and West Virginia offer bonuses to entice remote workers, ranging from reimbursement of moving expenses to $12,000 in cash (West Virginia will pay $10,000 divided over the course of 12 months with $2,000 paid at the end of the second year in residence).

  • Employee benefits and protections. Once an out-of-state employee has been hired to WFH, employers have a whole new list of individual state laws to learn. Each state has its own variations on employee benefits as well as legal protections – and in many cases, additional differences at the county and/or municipal level.

These differences can present the possibility of additional liability for employers on issues such as paid sick leave, paid family leave, minimum wage, disability, unemployment and vacation days, among others. 

State laws on minimum wage vary widely, along with differences for tip credits and minimum salary thresholds for exemptions. The current minimum wage in Texas is $7.25 per hour, for example, while New York’s minimum wage is $11.00.

Paid family leave is now mandatory (or will be soon) in California, Colorado, Connecticut, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Washington, and Washington, D.C.

As for overtime, most states follow the standard payment of time-and-a-half for hours worked over 40 in a workweek, but a handful (including California) have more stringent requirements, while some states (California again) mandate that earned vacation days never expire. 

Without a physical location in the state where a WFH employee resides and a breakroom to hang various notices, an employer must still remember to fulfill poster and notification obligations as well as various mandatory training. Remote employees do not need to tape posters up on their walls to satisfy state laws, but employers do need to provide certain information and documentation to out-of-state WFH employees to achieve compliance by sharing – and updating – federal, state, and local notices.

Even if an employer has a single WFH employee in another state, workers’ compensation insurance is necessary, along with registration with the appropriate state agency. Some states have their own fund that employers must contribute into, while a third-party insurance company will suffice in others.

In addition, each state has different laws on employee protections, sometimes with variations at the local level. Employers should be careful to consider state, county and/or municipal statutes and regulations with regard to non-compete agreements, discrimination and retaliation protections and the requirements to legally terminate an employee.

  • Tax implications. Employees must be registered for tax purposes in the state where they reside, which means the company itself needs to register its presence in those states for tax purposes. That potentially newfound “tax nexus” to another state may mean sales and use taxes, income taxes and franchise taxes for the employer as well, depending on the requirements of the other state. The failure to properly register and pay the appropriate taxes can result in fines and penalties.

The registration process requires paperwork, time and patience, as it can take several weeks for an employee and the employer to be property registered. And some states – Pennsylvania, for example – also have local city or township registration requirements in addition to those at the state level.

Employers may also be subject to higher corporate income tax rates, which is calculated in part based on the employee’s role and seniority. So a WFH executive in a state with a high tax rate may cost an employer more money than a lower-level WFH employee in that state.

WFH employees themselves may face a tax conundrum with the “convenience of employer” rule that applies in seven states. In Arkansas, Connecticut, Delaware, Massachusetts, Nebraska, New York and Pennsylvania, if an employee works in a different state than her employer by choice – not because the job mandates – then the employer’s state has the right to tax her, and the employer would be required to withhold taxes from her paycheck in both her home state and the employer’s.

Alternatively, some states have reciprocity agreements that expressly forbid this double taxation. A total of 16 states and Washington, D.C. have such deals, where an employee who lives in Wisconsin and works for an Illinois employer, for example, only pays income taxes in Wisconsin. States that have reached such agreements typically share a border, although Arizona has gone above and beyond, with reciprocity in California, Indiana, Oregon and Virginia.

One additional complication: some states have issued temporary guidance to deal with the out-of-state WFH situation during COVID. Alabama and Georgia stated that they would not enforce payroll withholding requirements for employees who are temporarily working from home due to government-mandated stay-at-home orders; Connecticut said that employees WFH due to the pandemic is a necessity for work but New York reached the opposite conclusion, stating that it is for the employee’s convenience.

Employers should consider all of the legal ramifications before hiring an out-of-state WFH employee.

REMINDER TO NYC EMPLOYERS: NEW REQUIREMENTS UNDER FAIR CHANCE ACT GO INTO EFFECT JULY 28, 2021

On January 10, 2021, the New York City Council passed an amendment (Local Law 4) to the city’s Fair Chance Act (FCA) which significantly expands protections for job applicants and employees. The amendment goes into effect July 28, 2021. Below are highlights of Local Law 4:

  • Expands scope of “criminal history” to include pending arrests and other criminal accusations.
    The FCA process must be used to determine if a pending arrest or other “criminal accusation” may be the basis to rescind a conditional job offer. Such rescission may only occur if, after considering the relevant fair chance factors “the employer determines that either (i) there is a direct relationship between the alleged wrongdoing that is the subject of the pending arrest or criminal accusation and the employment sought or held by the person; or (ii) the granting or continuation of the employment would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public.”
  • Adds new factors to the individual assessment for pending arrests or criminal charges, or convictions that occur during employment.
    Employers will have to consider the following factors, in lieu of the Article 23-A analysis:
  • The New York City policy “to overcome stigma toward and unnecessary exclusion of persons with criminal justice involvement in the areas of licensure and employment”;
  • the specific duties and responsibilities “necessarily related” to the job;
  • the bearing, if any, of the criminal offense or offenses for which the applicant or employee was convicted, or that are alleged in the case of pending arrests or criminal accusations, on the applicant’s or employee’s fitness or ability to perform one or more such duties or responsibilities;
  • whether the employee or applicant was 25 years of age or younger at the time the criminal offense(s) for which the person was convicted occurred, or that are alleged in the case of pending arrests or criminal accusations;
  • the seriousness of such offense(s);
  • the employer’s “legitimate interest” in “protecting property, and the safety and welfare of specific individuals or the general public”; and
  • any additional information produced by the applicant or employee, or produced on their behalf, regarding their rehabilitation or good conduct, including history of positive performance and conduct on the job or in the community, or any other evidence of good conduct.
  • Prohibits inquiries about specified criminal matters.
    At no time may an employer take an adverse action against an applicant or employee based on that person’s (i) violations; (ii) non-criminal offenses; (iii) non-pending arrests or criminal accusations; (iv) adjournments in contemplation of dismissal; (v) youthful offender adjudications; or (vi) sealed offenses, if disclosure of such matters would violate the New York State Human Rights Law.
  • Requires employers to solicit from the candidate information related to the FCA process.
    Currently, the FCA requires employers to only solicit evidence of rehabilitation and good conduct.
  • Expands the time for candidates to respond to the employer’s writtenassessment from three to five days.
  • Codifies guidance from the New York City Commission on Human Rights on revoking a conditional offer of employment.
    Employers may only revoke the conditional offer based on (i) the findings of a criminal background check following an individual assessment conducted pursuant to the FCA process, (ii) the results of a medical examination, consistent with the Americans with Disabilities Act; or (iii) other information obtained by the employer after making the conditional offer, if the employer could not be reasonably expected to have that information prior to making the offer and the employer would not have made the offer if it had possessed such information.
  • Requires production of evidence to the applicant or employee where the employer takes adverse action pursuant to an alleged misrepresentation by the applicant or employee.
    Under the existing FCA, an employer may take adverse action against candidates who intentionally misrepresent information to the employer. The Law will continue to allow an employer to take such action, but will require the employer to provide to the candidate the documents or other materials that support the employer’s claim of misrepresentation and permit the individual a “reasonable” amount of time to respond prior to taking the adverse action.

Tips for Employers on IRS’ Payroll Tax Deferral

Last month, the IRS issued guidance (notice 2020-65) on the President’s recent executive order to defer certain payroll tax obligations. Specifically, employers could offer to suspend their workers’ Social Security payroll taxes from Sept. 1 through Dec. 31, 2020. This deferral would apply only to employees whose wages are less than $4,000 for a biweekly pay period, including salaried workers earning less than $104,000 per year.

When determining whether suspend collection of eligible employees’ Social Security payroll taxes, here are a few things that employers must consider:

As a tax deferral, the Social Security payroll tax obligations are not eliminated; they are merely delayed. Employees would need to repay the deferred payroll taxes during the first four months of 2021. And the responsibility falls on the employers to ensure that the previously deferred payroll taxes are collected from workers’ paychecks. Some employees may not understand that the payroll tax suspension is not permanent and requires future repayment. If employers do not return the previously deferred tax amounts to the IRS by April 30, 2021, penalties and interest will begin to accrue on tax amounts that have not been repaid.

Therefore, if a company does indeed decide to defer some of its employee’s payroll taxes, it would be wise for the employer to create an agreement with employees acknowledging that the deferral is short-term and that they will pay the money back beginning 2021, even if they leave the company.  

Even if an employee requests the payroll tax deferral, the employer is not required to provide deferral. It is up to the employer to determine whether to provide the relief, but they are not obligated to do so. If, however, an employer does decide to offer temporary tax suspension, the employer may want to provide employees with an opt-in or opt-out option, as some may choose not to defer a portion of their taxes.

Since the deferral period ends at the end of 2020, employers should decide soon if they want to offer the option to their employees. There a number of considerations that may go into an employers’ decision, such as working with vendors to make payroll system changes and budgeting for the repayment of taxes in the event collection from employees is not possible. Employers do not need to decide right away if they want to implement the program, but they should not wait too long. The deferral only lasts until the end of the year and taxes are not retroactive, meaning that employers cannot adjust payrolls processed in the past. For example, if an employer begins the deferral in October, they cannot refund employees for amounts that were deducted for Social Security taxes in September.

All in all, whether an employer decides to offer the deferral to its employees, the employer should monitor for additional guidance from Treasury, the IRS, and legislative bodies. There have been discussions of forgiving the deferral, but, ultimately, only time will tell.

Employer Guidance on Revised FMLA Forms

On July 17, 2020 the US Department of Labor issued new optional Family and Medical Leave Act (FMLA) forms. The FMLA is a federal law that permits eligible employees with qualifying medical conditions to take up to 12 workweeks of unpaid leave. According to the DOL, the two-step forms will make it easier for employees and employers alike to comply with the law.

Step 1 (Form WH-381): Is an employee eligible for FMLA leave?

When an employee requests FMLA leave or when the employer learns that an employee’s leave could fall under FMLA, the employer is to issue the WH-381 form. The form notifies the employee of their eligibility for FMLA leave and outlines their rights.

Step 2 (Form WH-382): FMLA verdict

After the employee returns the WH-381 form, the employer must review it and inform the employee of its decision within 5 business days. Form WH-382 allows employers to notify employees of the FMLA verdict: Approved, Not Approved, or Additional Information Needed. If approved, the employer would also include on the form the estimated duration of FMLA leave. If not approved, the employer must indicate why the request was denied. And if additional information is needed, the employer may specify what else they need to certify the decision.

In addition to these forms, the DOL also published additional resources that employers may find helpful when issuing FMLA leave:

Certification of Healthcare Provider for a Serious Health Condition

Certification of Military Family Leave

The DOL has designated the revised FMLA forms as optional and employers are permitted to create their own versions. But if they do, they must ensure that they communicate all the necessary information to the employee requesting FMLA leave.

Complying with the California Consumer Privacy Act

The California Consumer Privacy Act of 2018 (CCPA) gives California residents more control over their personal information that businesses collect about them. The CCPA took effect on January 1, 2020, and final regulations for the statute were approved on August 14, 2020. Enforcement of the CCPA by the California Office of the Attorney General has begun and affected business not in compliance can be fined up to $2,500 per violation or $7,500 for each “intentional” violation.

Who has to Comply with the CCPA?

For-profit businesses doing business in California that collect and control California residents’ personal information must comply with the CCPA if they meet one of three requirements: (1) have annual gross revenues more than $25 million; (2) possess the personal information of 50,000 or more consumers; or (3) earn more than half of its annual revenue from selling consumers’ personal information. For further information about affected employers, see our previous article on the CCPA.

Compliance Strategies to Minimize Enforcement Risk

Businesses required to comply with the CCPA should consider several actions to avoid the risk of enforcement by the attorney general’s office:

  • Update existing privacy policy with information on how, why, and what personal information is collected and processed
  • Update existing privacy policy with information on how users can request access, change, or erase their personal data
  • Introduce a method to verify the identity of the person making requests to access or change their data
  • Introduce a “Do Not Sell My Personal Information” link on their home page to allow users to prohibit the sale of their personal data
  • Obtain consent from minors 13-16 years old before selling their personal data and obtain consent from parents for minors younger than 13

Responding to Consumer Requests and Protecting Personal Data

As more and more companies shift to remote work and digital systems, compliance with the CCPA has become more critical, and for some, burdensome. Companies with limited resources that are struggling to create remote work policies and procedures inside the office are now faced with the challenge of managing data beyond the office. It is important to note that under the CCPA, the California attorney general can also take enforcement action against a business for failing to respond to consumer requests to view or delete personal information, as well as for an unauthorized sale of a consumer’s personal information (or sharing of that data).

Avoiding these compliance pitfalls may require using artificial intelligence and implementing digital tools. Here’s how companies can adapt to CCPA requirements.

Look to analytics and automation technologies to meet consumer and auditor requests efficiently and affordably. Under the CCPA, consumers may request a copy of the data categories being gathered or for their data to be deleted. This is where digital solutions can come in handy. Virtual assistants can help employees ensure that requests are addressed by identifying which consumers have a higher compliance risk and placing them into an automated workflow. Furthermore, analytic tools can make it possible to identify all requests mentioning certain key words, such as “CCPA,” “personal information,” “remove,” or “disclose.” Such tools can ensure efficient and reliable compliance with consumer or auditor requests.

Ensure that third-party partners who collect consumer data are compliant with CCPA requirements. For companies that fail to store consumer data in one central location, they may find it harder to comply with CCPA regulations. Such companies often give third-party providers access to consumer data. In these scenarios, companies should make sure that the third-party providers themselves are compliant with the CCPA.

During these times especially, the CCPA has taken on a new urgency and this is probably just the beginning of the era of consumer data protection.

Q1 2020: UPDATE OF LAWS AFFECTING EMPLOYMENT BACKGROUND SCREENING

As the year and a new decade unfold, we bring you this update on ban-the-box legislation and laws that restrict credit report usage in employment decisions. And no update would be complete without a reminder about a standard-setting federal appellate opinion from 2019 interpreting the Fair Credit Reporting Act (FCRA) disclosure requirement for an employment background check.

Let’s start with a reminder

In January 2019, the Ninth Circuit’s opinion in Gilberg v. California Check Cashing Stores, LLC made clear that any extraneous information in an FCRA disclosure form regarding an employment background check — even if the information is related to state-mandated expansions of consumer rights — violates the FCRA’s requirement that the disclosure must be “in a document that consists solely of the disclosure.”

Even seemingly innocuous content, such as asking for an acknowledgment that the candidate received the FCRA summary of rights or including a statement that hiring decisions are based on legitimate non-discriminatory reasons may run afoul of the FCRA. And any state and local notices regarding the background check must be provided in separate documents, as applicable to each candidate.

Experts believe that the number of class-action lawsuits brought under the FCRA for technical errors will continue to increase. But there is an easy way to comply:

Present the disclosure to the candidate in a separate, standalone, conspicuous document. Make it clear and simple. Keep it short.

Ban-the-box laws continue to proliferate

“Ban-the-box” measures – which generally prohibit employers from inquiring about a candidate’s criminal history (including performing background checks) until later in the hiring process – continue to proliferate. Currently, 14 states (California; Colorado; Connecticut; Hawaii; Illinois; Maryland (effective February 29, 2020); Massachusetts; Minnesota; New Jersey; New Mexico; Oregon; Rhode Island; Vermont and Washington) and 22 local jurisdictions (Austin, TX ;Baltimore, MD; Buffalo, NY; Chicago, IL; Cook County, IL; Columbia, MO; District of Columbia; Grand Rapids, MI; Kansas City, MO; Los Angeles, CA; Montgomery County, MD; New York City, NY;  Philadelphia, PA; Portland, OR; Prince George’s County, MD; Rochester, NY; Saint Louis, MO (effective January 1, 2021); San Francisco, CA; Seattle, WA; Spokane, WA; Waterloo, IA (effective July 1, 2020 but lawsuit filed to strike down the ordinance); and Westchester County, NY) have such laws in place for private employers.

Be mindful of credit restrictions

Less popular than state and local legislatures on ban-the-box and prohibitions on salary history inquiries, credit check restrictions remain an important consideration for employers. Ten states California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada,Oregon, Vermont, and Washington – as well as Chicago, District of Columbia, New York City, and Philadelphia all place restrictions on employers’ use of credit reports with exceptions for the use of such checks when required by law or the responsibilities of the position.      

Arguably, the most imposing local credit report law to date continues to be the New York City’s Human Rights amendment that went into effect on May 6,2015, and made requesting and using consumer credit history for hiring and other employment purposes, with certain exceptions, an unlawful discriminatory practice. The law provides that a “consumer credit report” includes “any written or other communication of any information by a consumer reporting agency that bears on a consumer’s creditworthiness, credit standing, credit capacity or credit history.”Many legal experts hold that the broad scope of this definition not only prohibits obtaining a consumer credit report but also searches of liens, judgments, bankruptcies, and financially-related lawsuits if there is no exemption. There is no case law on this matter. 

On the national level the U.S. House of Representatives on January 29, 2020, passed legislation that prohibits employers from using credit reports for employment decisions, except when required by law or for a national security clearance. The bill also prohibits asking questions about applicants’ financial past during job interviews or including questions about credit history on job applications. The U.S. Senate, however, is not expected to introduce the legislation.

Avoiding Holiday Legal Entanglements

It’s the happiest time of year – except for employers facing the potential of a religious discrimination lawsuit from employees due to holiday decorations, gift exchanges, and other festivities.

While it may seem Grinch-like, such lawsuits are not uncommon. Just a few months ago, the Equal Employment Opportunity Commission (EEOC) filed suit on behalf of Shekinah Baez against her former employer, Pediatrics 2000. According to the New York federal court complaint, Pediatrics 2000 violated Title VII by denying Baez a reasonable accommodation for her religious beliefs and terminating her because of her religion.

A Jehovah’s Witness, Baez was instructed to plan the company’s 2018 holiday party. The EEOC alleged that Baez’s employer knew that her religious beliefs prevented her from attending a party for another religion (such as a Christmas party) or attend a party that involved drinking or dancing.

During the planning of the party, Baez learned that it would have holiday-themed decorations and entertainment that would make it inappropriate for her to attend, the EEOC said, such as dancers wearing sexy outfits and encouraging the employees to dance. Although other employees were excused from attendance for reasons unrelated to religion, the complaint accused Pediatrics 2000 of refusing Baez’s religious-based request to skip the bash and instead fired her.

That case is ongoing, but there are some ways for employers to avoid becoming a defendant in a similar action.

Title VII prohibits employers from discrimination based on religion and requires them to “reasonably accommodate employees’ sincerely held religious practices” unless it will cause the employer an “undue hardship.”

During the holidays, concerns about religious discrimination can arise in a host of situations, including the context of requests for time off. A Muslim employee may ask to have a break scheduled after sunset during Ramadan when fasting ends, or a Christian worker on the night shift may seek a night off for Christmas Eve mass. Applying the mandates of Title VII, that means employers should generally accommodate reasonable requests for religious observance unless it would cause an undue hardship.

To help reduce complications with time off, floating holidays might be a good option for some employers. This type of excused absence provides employees with the option to take time off for religious observances that they believe in without being required to take time for holidays they do not observe.

Office décor can also be an issue. The U.S. Supreme Court has actually spoken on the legality of holiday decorations. In 1989, the justices ruled in County of Allegheny v. ACLU Greater Pittsburgh Chapter that trees and wreaths are secular symbols, while decorations like a menorah or a creche send a religious message. The EEOC has adopted this position in its Compliance Manual.

Although that ruling applied to a public employer, leaving private employers with the leeway to endorse a religion and display religious symbols in their workplaces, employers may prefer to avoid any potential issues with holiday-neutral decorations – think snowflakes or candy canes – instead of setting up nativity scenes in the conference room and break area.

Employees interested in decorating their own space raise similar concerns. Prohibiting employees from displaying religious-themed holiday decorations in their own workspace could form the basis of a religious discrimination claim, but other employees working nearby could also be offended by an overt religious display. Employers should be careful not to suppress religious expression if the employee decorates their own personal workspace that is not visible to the public and doesn’t imply the employer’s endorsement of the religion.  

Many companies have done away with the annual holiday party for a variety of reasons, from cost to inappropriate behavior by employees to concerns over inclusion. But for those that decide to celebrate the end of the year with their workers, proceed with caution.

To avoid problems, make sure that the party is a voluntary event. Jehovah’s Witnesses don’t celebrate holidays, for example, so requiring an appearance could constitute discrimination. Do not tie the party to a specific holiday and don’t schedule the celebration when it might conflict with a religious observance (such as the night Hanukkah begins).

Food can be tricky, so offer a variety of choices that include vegetarian options as well as items that can meet halal and kosher dietary needs. If alcohol is offered, be sure that nonalcoholic beverages are stocked as well. Similarly, any employer-sponsored gift exchanges should be entirely optional and not holiday-specific – avoid the “Secret Santa” moniker.

A case out of Arizona provides a cautionary tale about many of the dangers of the holiday season for employers. Marcy Rich sued her employer for creating a hostile work environment due to religious discrimination.

Rich, who is Jewish, alleged that her supervisor placed crosses on invitations to a mandatory company holiday party and hired carolers who sang songs with Christian lyrics (like “Christ our Lord”). The supervisor – a born-again Christian – told Rich it was inappropriate to decorate her cubicle with cutouts of a dreidel and a menorah and “Happy Hanukkah” cards.

The employer filed a motion to dismiss the suit, arguing that Rich’s claims were related to Christmas activities, not religion. But the court disagreed.

“This argument lacks merit,” the Arizona federal court wrote in Rich v. Arizona Regional Multiple Listing Service, Inc. “Title VII defines the term ‘religion’ to include ‘all aspects of religious observance and practice, as well as belief.’”

Keeping this principle in mind, employers can strive for a happy holiday season.