Law360, New York (December 2, 2015, 4:53 PM ET) — Holiday parties are a time-honored tradition for many companies, but such celebrations could invite bias and harassment claims, in addition to other possible legal issues.
Employers and their employees alike can see these festivities as a chance to blow off some steam and get to know each other better, but sometimes people can cross the line, especially when alcohol is served. What started as a way to build camaraderie and reward employees with an end-of-the-year shindig could become another line-item on an employer’s legal bill.
“People lose sight of what the conduct expectations are,” Marc Mandelman of Epstein Becker & Green PC says.
However, the potential legal exposure doesn’t have to shut down the party entirely. Here are some steps to keep the party going while mitigating the risks.
Make and Enforce Clear Social Gathering Policies
Employers should make sure to spell out that policies in the office apply to company-sponsored gatherings outside the office, whether the party is in a conference room at the office or at an off-site location, and whether it’s during the business, after hours or on the weekend, according to Mandelman, a management-side attorney.
“[Employers] have to confirm that all workplace policies are established to apply in any work-related setting,” Mandelman said, noting that he has seen and had clients include a specific reference to holiday parties in anti-discrimination and harassment policies.
But although it’s necessary to have those policies in place in a handbook, it’s not enough to stop there.
Employees sign handbooks when they start a new job and often never return to them again, unless there is a problem, according to worker-side attorney Carla D. Brown, a partner at Charlson Bredehoft Cohen & Brown PC and a member of the executive board of the National Employment Lawyers Association.
Instead, Brown says, communicating with workers and training them on what a “company event” is and what the expectations are is a better approach.
“I would think an email setting forth that the company wants to have a great time and that people should be responsible would also be helpful,” Brown said.
Temper Alcohol Consumption
Although the same rules apply at a social event as they do in the office, a big possible difference is that a company soiree has alcohol. A classic Homer Simpson salute to spirits underscores the need to be mindful of employees’ alcohol consumption: “Here’s to alcohol: the cause of, and solution to, all of life’s problems.”
Whether it’s an employee sexually harassing a coworker, an employee getting injured after drinking too much or someone making a racist joke, at a holiday party alcohol can certainly be a problem for employers looking to stave off legal liability. But a vast majority of holiday parties have alcohol available and Brown says the solution is to monitor people’s alcohol consumption.
“Most companies have a good idea who the offenders are — they tend to be repeat offenders,” she said. “It is not pleasant to do, but better than a lawsuit.”
One way to keep alcohol consumption tamed is to hire a properly trained and insured third-party vendor, Mandelman said. The professional bartender will know how to identify when someone is drinking excessively and will stop serving them, he said.
“It’s easier when the person cutting off the alcohol is not a coworker or supervisor or manager,” Mandelman said.
An insured third-party contractor can reduce the liability an employer could incur if a drunk employee later gets into a car crash or is otherwise injured as a result of alcohol consumption, he said.
Remind Leaders to be Leaders
At holiday parties bosses can have fun, but they also need to remember that they are still leaders and can’t be partying like their employees, according to Littler Mendelson PC shareholder John D. Doran. Management needs to set a good example and be prepared to not only look like leaders, but act like them, he said.
Doran, a management-side attorney, says he has seen clients get into trouble with leaders doing things like taking shots at the bar with employees or otherwise getting down in a way that shows there are different rules than at the office.
“It flows from the top,” Doran said. “People who want their employees to behave well need to behave well themselves.”
Instead, managers and supervisors need to keep an eye on how things are going at the party and be prepared to immediately address any inappropriate behavior they observe, Mandelman said.
Employers should establish a protocol or game plan for how to address situations that arise, such as inappropriate behavior on the dance floor, someone telling offensive jokes during a speech or someone trying to kiss a coworker under the mistletoe, he said.
“They need to be prepared to deal with that and not get caught off guard,” he said.
The U.S. Equal Employment Opportunity Commission requires prompt and effective action, so employers can’t brush off concerns, hoping people forget about them in the morning, Mandelman said.
Fisher & Phillips LLP partner Jennifer Sandberg, a management-side attorney, says inaction is almost always the biggest problem.
“Literally anybody with any supervisory authority ought to be looking around to see how things are going,” Sandberg said, “and if somebody says or does something that violates policy, deal with it.”
Make Sure Employees Get Home Safely
For employers choosing to hold parties at a location other than at the office, and at night rather than during the day, a great thing companies can do is make sure employees get home safely, Mandelman said.
“It’s worth the cost of offering to pay for taxis, Uber or arranging to have designated drivers,” he said.
Some cab companies and app-based firms such as Uber offer prepaid packages so event organizers can offer party attendees rides conveniently, Sandberg said.
Regardless of the alternative employers provide, employees aren’t at risk of getting into their own cars to drive drunk, which could open the employer up to vicarious liability concerns if an employee is injured in a drunken car crash, according to Mandelman.
Keep the Party Universal
Another key thing to remember is that a party should be inclusive of a variety of traditions, Mandelman said. The party’s theme can be just a general “holiday party” or an “end-of-year party,” he said.
“Avoid religious symbols or decorations,” he said.
One way to mitigate any perception that any given religious holiday or celebration is favored is to have multiple celebrations a year, so the focus is not on just Christmas or another holiday, Sandberg said.
“You’ll have a workplace where people are happy to have a party and be together,” she said.
But if the party is of the end-of-year variety, employers could promote the spirit of inclusion by picking a diverse group to be a part of the event-planning committee, she said.
Inclusion isn’t just about symbols or even religion, though. Mandelman says employers should also be considerate of everyone’s dietary needs, so as to not open themselves up for Title VII claims or disability bias claims under the Americans with Disabilities Act.
Make it Voluntary
While an inclusive party is extremely important, requiring employees to attend is a bad idea, because it could open an employer up to wage-and-hour claims, Doran said.
“As long as it’s voluntary, you’re not going to have to pay people to go to a holiday party,” he said.
There are also instances that might seem mandatory even if they aren’t explicitly — such as having a celebration during lunch break or at some other time during regular work hours — that could still be seen as compensable time, Sandberg said.
Employees will expect to be paid for that time and employers will draw their ire if they aren’t, Mandelman said.
“If the party is during regular work hours… the employer will be viewed as Scrooge if employees are told the time is noncompensable,” he said.
–Editing by John Quinn and Kelly Duncan.
From http://www.law360.com/articles/733013/how-to-hold-a-holiday-party-without-inviting-legal-hassles
