Stop Holiday Staffing Headaches Before they Start

A legal expert clarifies some HR scenarios that commonly affect staffing and payroll decisions during the holiday season.

The holidays are an exciting and hopeful time of year, but keeping the hospital fully staffed while allowing workers time off to enjoy the season—without breaking the payroll budget—can be a challenge.

I asked Thomas Shorter, a lawyer with the law firm Godfrey and Kahn in Madison, WI, to comment on a few situations that are likely to arise during the season.The transcript of our conversation last week has been lightly edited.

HealthLeaders Media: What are some FLSA-related errors that employers typically make during the holidays?

Thomas Shorter: One common error is calculating overtime pay for non-exempt employees. Many healthcare systems provide what I will call "holiday pay." The simplest way to explain this is that it's money the employee is paid for the holiday [usually the equivalent of eight hours of labor] despite not actually working.

So, the employee receives pay. But if the employee also happens to work the typical 40 hours that week, it is not it's not uncommon for the employer to get confused and think that they have to pay the extra eight hours at an overtime rate.

Holiday pay does not count toward hours worked. Think of it like this: The employee didn't actually work those hours, they were just given the pay for them. But sometimes, payroll will get confused regarding how to pay that, and will end up counting holiday pay hours as if they were overtime hours worked.

So, they end up paying overtime when they don't have to.

I recommend healthcare systems make a note of this in the in employee handbook to ensure employees are aware of the holiday pay policy and rate, and train payroll staff to understand it as well.

HLM: A common assumption is that employers are required to provide time and a half or double time to employees who work on Christmas. Is that correct?

Shorter: That is not correct.

There is no [legal] requirement to pay a special holiday rate. Now, a lot of organizations try to inspire people to work on Christmas day by offering a higher rate of pay on that day, but that's not related to overtime pay or FLSA requirements. It's a way to get employees to say, "Yeah, sure I'll work Christmas day!"

As long as employees work 40 hours or less, there is no requirement to pay them overtime.

HLM: Comp time, while popular with both employers and employees, is technically illegal. If I wanted to grant employees who work on Christmas or New Year's Day a compensatory day off, would there be a legal way to do that?

Shorter: Under the FLSA, comp time is still not legal; the rule hasn't changed. There really isn't a way to legally grant comp time.

This is a law that many organizations are not in compliance with. Most employees find it beneficial and favorable, so they tend not to complain about being offered comp time—which is why periodically, someone raises it as something that would benefit both employees and employers.

People, frankly, like comp time.

HLM: Let's say I have three time off requests for Christmas day. One is from a worker who says he cannot work on Christmas day for religious reasons, one is from someone who does not celebrate Christmas, and one is from someone who  because of the holiday, can't get childcare that day. I need one of them to cover the shift. Legally, what can and should I do?

Shorter: I'm going to assume the religious person requested a religious accommodation.

There is an affirmative obligation by an employer to accommodate religious beliefs. If an employee makes a request for accommodation and indicates that they need time off based on their religious beliefs to observe a religious holiday, the employer has an obligation to accommodate that if they can without an undue hardship.

This means that you then look to others who can cover that particular shift.

Presumably, as a good employer, you will need to figure out which of those two employees can, in fact, work the shift. This is the very reason that many employers offer special holiday pay rates—not because of laws or mandates, but because they're trying to incentivize people to cover days when many people want time off, or at a time when it's difficult for them to work the shift.

In the scenario with the employee who has kids and the nanny is taking the day off, that employee might be forced to dip into their paid time off if the employer doesn't accommodate the scheduling request.

Neither of the remaining two employees in this scenario has a situation that the employer is required to accommodate. You can tell either of them that they have to work.

HLM: Is there a legally preferred way to make sure we have enough staffing coverage over the holidays?

Shorter: Well, the main objective is to ensure that your organization is not exposed to any FLSA or religious discrimination claims. What that really means is that you try to seek out which employees are willing to work voluntarily that day, and, if you don't have enough staff based on volunteers, you then make a decision about offering incentives, financially or otherwise, for people to work on the holiday, or mandate that certain employees will work that day whether they want to or not.

All of this has to be done in advance so you're not left short-staffed.

Some employers have concerns about mandating coverage on a holiday date with a religious observation component to it. The best way to handle this is, when seeking volunteers or making staffing decisions for the holiday, [is to] make a statement that if someone is in need of a religious accommodation on that day, that person must reach out to HR.

This creates a documentation trail of the employer's fulfillment of their obligation to attempt to accommodate the religious observance.