To Celebrate Birthdays at Work or Not?

Lawsuits, embarrassment among pitfalls

By Dana Wilkie Feb 6, 2015
What could possibly go wrong with recognizing someone’s birthday at work?

Turns out, enough to make any self-respecting HR manager pay attention.

The seemingly innocuous workplace birthday celebration has spawned lawsuits about age and religious discrimination, generated numerous questions on attorney-advice websites, and inspired lengthy discussions on social media.

A recent question on the Society for Human Resource Management’s LinkedIn page about the best ways to celebrate employee birthdays elicited nearly 80 comments from HR professionals and company managers or owners. Darcey Peterson, SHRM-CP, PHR, an HR manager with Martin Foot and Ankle in York, Pa., started the conversation by asking others how she could best recognize birthdays at her 80-employee organization.

One helpful idea for small and midsize companies, she said in an interview with SHRM Online, was to partner with a local restaurant that provides birthday celebrants with a 15 percent discount off their next meal.

“Cost is a big factor for a small to medium-sized company, but showing appreciation for the staff is important, too,” she said.

The ‘Don’ts’

Most companies don’t have formal policies on workplace birthday recognition, said Karen Michael, an employment attorney and HR consultant in Richmond, Va. But in her practice, she’s discovered some obvious “don’ts” regarding employee birthdays:

● Don’t have a policy of recognizing birthdays if you’re going to be inconsistent. Celebrating some birthdays while forgetting others hurts employee morale.

● Don’t point out that someone’s having a birthday on the company’s social media sites, on the company’s intranet, in e-mails or in other public forums without first asking if the person is comfortable with it. And don’t publicize the year of someone’s birth. One lawyer noted on the website of Fair Measures Inc.—which advises companies on how to prevent employee lawsuits—that courts have held that disclosing a worker’s age on a birthday card isn’t illegal or an invasion of privacy. But Michael said she “would never expose other people’s birthdays, just as I wouldn’t reveal their Social Security number.”

● Don’t arrange for a cake or a birthday song without first asking if the person is comfortable with it. “Not everyone wants their birthday celebrated, for personal and even religious reasons,” one HR professional noted in response to Peterson’s LinkedIn question. “During onboarding, [we have] a small section under the emergency contact sheet that asks … if we can recognize their birthday."

● Don’t put pressure on employees to contribute money to a birthday gift or attend a birthday lunch. “This is hard, because a lot of managers consider those events team-building exercises, and if you don’t attend, it can be considered negatively,” Michael said, adding, “Some people can’t afford this and then feel they’ve got to be reciprocal.”

Urging employees to leave work for a birthday lunch can also raise issues under the Fair Labor Standards Act, Michael said.

“It’s nice to be taken out to lunch for one’s birthday, but it can be a two-hour event,” she said. “So is it an official work function or not? Do I [record] just a half-hour for lunch, and now I have to put in some overtime?”

Legal Considerations

While birthday celebrations may seem a harmless way to have fun at work and to nurture esprit de corps, there are legal pitfalls, Michael said.

“The most important guideline is to never overemphasize someone’s age,” she said. “There is a significant increase in party paraphernalia that is derogatory to aging people. That’s really inappropriate, and it can absolutely lead to risk.”

In 2010, Tracy Edwards sued her employer, William Raveis Real Estate Inc., for age discrimination. Part of her claim centered on a birthday party that the company hosted for her when she turned 50, where co-workers referred to Edwards as “very old,” “really, really old” and “over the hill.”

The U.S. District Court in Connecticut rejected Edwards’ argument that the party inferred age discrimination—but the decision by the company’s HR vice president to allow such derogatory references was unwise, Michael said, and cost the organization a great deal in legal fees.

Some religions don’t celebrate birthdays. Jehovah’s Witnesses, for instance, believe that doing so is a sin.

In the mid-1990s, the U.S. Equal Employment Opportunity Commission (EEOC) sued Chi Chi’s Restaurant in Baltimore for firing a waitress who refused to sing “Happy Birthday” to customers. The waitress was a Jehovah’s Witness; her religion considers birthdays to be pagan celebrations. The case was settled for $57,500, and the Mexican restaurant agreed to create a policy to reasonably accommodate the religious beliefs and practices of employees.

The ‘Do’s’

If an employee agrees to a birthday recognition, employers may want to consider these ideas generated by Peterson’s LinkedIn question:

● Electronic birthday cards, especially at large organizations.
● Surprise decorations at the employee’s desk.
● Lunch with a manager.
● Gift cards to popular stores or restaurants.
● Cash gifts based on years of service.
● Allowing the celebrant to take a “personal holiday” on their birthday.
● A company contribution to a charity of the celebrant’s choice.
● Monthly celebrations, perhaps with a cake, that acknowledge all workers born in that month.

Some inventive comments in the LinkedIn discussion included the CEO who calls each employee and personally sings “Happy Birthday” and the manager who has co-workers write in a birthday card something they appreciate about the recipient.

“I really liked the ideas about giving out a $5 gift card for Subway or the company cafeteria because … you’re giving the person a nice free lunch to use on their birthday that doesn’t cost an arm and a leg,” Peterson said.

Dana Wilkie is an online editor/manager for SHRM.

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