United States: Making a List and Checking it Twice: Holiday Tips for Employers

Company holiday celebrations have a well-deserved reputation for resulting in employer headaches. Alcohol consumption at parties, gag-gift exchanges, questionable wardrobe choices, dirty dance moves, excluded spouses and significant others, and a host of other factors have made the office party the most wonderful night of the year for plaintiffs' employment lawyers. A bit of commonsense advance planning will ensure that the holidays are fun, safe, and professional.

The Grinch that can ruin a company holiday celebration is alcohol. In some instances, employers can be liable for accidents caused by employees intoxicated at a holiday party. Avoiding any such occurrence should top every employer's wish list. Never serve alcohol to minors. It's best to have a bartender and to limit consumption by issuing tickets or stamping vouchers. Plenty of heavy food and nonalcoholic drinks should be available. Have designated drivers or taxicab vouchers for those who need them, and have managers or security assist intoxicated employees who appear intent on driving.

Sexual harassment lawsuits often include claims based on conduct at holiday parties. Before the party, review your policies and expectations of professional conduct with employees. Senior personnel should be conspicuous at the party, model exemplary behavior, and enforce the harassment policy and other conduct rules. Intervene immediately if any issue comes up, and follow up to ensure that it is fully resolved.

Hold holiday parties outside normal working hours and make attendance truly voluntary. If attendance is compulsory or the party is held during the workday, hourly employees must be paid. Don't pressure employees to attend; there are a number of protected reasons why they may choose not to. For example, an employee may be a recovering alcoholic or a Jehovah's Witness, or may be reluctant to attend with a same-sex-partner. If an invitation is declined, it's best to let the matter drop. A diverse workplace is best served by an inclusive celebration. Party behavior is often considerably improved by inviting spouses and significant others. If temporary workers are included, invite them personally rather than including them on employee communications.

The holidays coincide with important religious observances. If you allow a reasonable amount of holiday decorating of office spaces, then allow individual employees to include decorations with a religious theme in their personal space. Scheduling events and employee work shifts around religious observances can be difficult, but remain open to discussing accommodations and considering alternatives that do not unduly disrupt the business. While an employer should accommodate individual employee beliefs, avoid endorsing or supporting a particular religious observance in holiday decorations, party themes, or company holiday cards.

Giving presents in the workplace may lead to misunderstandings, hurt feelings, and harassment claims. Employers should carefully consider whether to sponsor gift exchanges. The cost of even small gifts is a hardship for some. Expensive or personal gifts can be disruptive to professional relationships. So can gag gifts, especially those in poor taste.

Many employers give holiday bonuses to employees in the form of cash, gift certificates, or traditional turkeys. The value of such bonuses generally does not have to be figured into an hourly employee's regular rate of pay for overtime purposes, unless a bonus is directly dependent on hours worked, production, or efficiency. Cash and cash equivalents, such as gift certificates, are taxable, while turkeys and other small gifts would probably be deemed "de minimis fringe benefits" that are not taxable.

Not everyone shines during the holidays. Exercise sensitivity toward struggling employees, but focus on performance issues such as absenteeism and work quality rather than delving into personal employee matters. If an employee becomes subject to discipline or termination during the holiday season, exercise caution, not paralysis. Considerations of business needs, consistent treatment, and workplace safety should be balanced with a desire for respectful timing.

The holidays afford an employer the opportunity to show employees its appreciation for their accomplishments over the past year. They also offer an excellent opportunity to renew an employer's commitment to a workplace that is fair, productive, harmonious, and profitable. Get started now by reviewing your policies and planning a celebration that brings out the best in your company.

Bob Zech recently joined the Employment Law and Labor Relations team at Miller Nash. His practice focuses on advice and counsel to employers on compliance matters, investigations and discipline, dispute resolution, and training. He spent the last 12 years as a human resources counsel and litigation counsel for Airborne Express, and as senior corporate counsel for AT&T Wireless.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.