Updated November 2017
Think quickly: where will you be the morning after Thanksgiving? If you're like me, you're probably envisioning yourself snuggled up beside the roaring fireplace, still recovering from a healthy dose of Americana: turkey, pie, and football. Millions of other Americans, however, are planning to spend their morning waiting outside their favorite stores, fighting the impending winter chill and ready to get their hands on the best Black Friday deals.
But what about the people behind store doors?
Every year, retail employees give up their Thanksgiving holiday to stock item after item in preparation for the mob of turkey-stuffed customers vying for the newest edition of PlayStation. Unruly crowds are just the tip of the iceberg when outlining employer risks. So before you reach for that third helping of eggnog, let's take a look at the potential risks you may face as an employer and how you can prevent them from happening this holiday season.
They say baseball is a dying sport. Consumerism, on the other hand, seems to be an undying one. In response to a market of discount-hungry consumers, Black Friday has inevitably bled into Thanksgiving Day, giving reasons for families to gather around their neighborhood Best Buy to give thanks to the bargain gods—and even more reasons for employers to double-check their payroll and accounting.
So why's that? The answer is twofold:
Since Thanksgiving is a federal holiday, you might naturally think you have to pay your employees "time and a half" (hourly wage plus 50 percent). In fact, federal law does not require you to pay your employees extra, or above normal, pay for working on a holiday. This is especially true for retail or hospitality businesses as holidays are considered regular workdays. Of course, this all depends on your Employment Contract.
But what if your employee decides to take Thanksgiving off? Well, if you're an employer that doesn't provide any paid holidays (check your Employee Handbook and mirror: did we find ourselves the modern-day Scrooge?), you are not obligated to pay them for that day of missed work. The Fair Labor Standards Act (FLSA) requires employers to pay only for time worked.
Your employees may be working longer hours than usual to meet the demand of frenzied shoppers, so it's important to know the difference between exempt and nonexempt workers. Nonexempt employees are entitled to overtime pay, which is the case for most retail or hospitality workers. This means if your employee works over 40 hours during the week of Thanksgiving, they are entitled to that "time and a half." Failure to comply with this law may subject you to noncompliance penalties like back payroll taxes or other heavy monetary fines.
In 2008, a Wal-Mart employee died in a deadly Black Friday stampede. Just minutes before the store opened its doors, an out-of-control mob of shoppers smashed their way in, trampling dozens of workers in the process. Many employees found refuge on top of vending machines, while others were knocked out but lucky enough to escape. One worker, Jdimytai Damour, was found dead from a heart attack, after being trampled over and trying to gasp for air.
In response to this tragic incident and other horrific incidents that could have been prevented, the Occupational Safety and Health Act of 1970 (OSHA) created crowd management safety guidelines. It gives you a detailed list of things to do for "planning," "pre-event setup," "during the sales event," and "emergency situations." It's important that you review and understand this fact sheet so you can ensure you're doing everything possible to create a safe shopping environment for your customers and employees. If not, you could face a premises liability lawsuit if an injury happens in your store or workplace.
The OSHA guidelines create a safe environment for both workers and customers. But in addition to these guidelines, you should help prepare your employees for an unpredictable shopping season.
Here are some proactive steps you should encourage your employees to take:
- Let someone, preferably a supervisor, know if you think a situation is getting dangerous.
- Know where the team of security guards are located, and how you can get help if needed.
- Wear comfortable shoes with good traction.
It's important to let your employees know that they're not legally obligated to place their physical safety at risk. Careful preparation can help ease anxiety, and ongoing communication will help mitigate any potential risks throughout the busy holiday season. Check in with your employees every so often. See if there's anything you can do to help solve any arising problems or fears.
If you're still feeling unsure, that's okay. There's still time to prep and plan for the biggest shopping weekend of the year, and we can help. We have thousands of legal documents to choose from and you can solidify your Black Friday plan in writing. If you have a question, go ahead and Ask a Lawyer. Our legal experts are waiting to answer your question in under one business day.
From bad publicity to lawsuits, there's too much at risk to simply not care. So go ahead: put that third helping of eggnog to the side and start your risk mitigation planning for Black Friday. There will be plenty of time to celebrate afterward.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.