United States: The Year End/Holiday Celebration In The Era Of Reckoning

Last Updated: December 14 2017
Article by David J. Houston

Who doesn't enjoy the annual company Holiday Party? Do any of these remind you of an event that you have attended?

  • Employees, relieved of normal workplace stresses and worries, exuberantly extolling a year's worth of hard-won achievements and desired esprit de corps;
  • Happy workers collectively celebrating year-end bonuses and time off from work, eschewing business attire, dressed and coiffed attractively for the "office party," sharing Mistletoe Greetings;
  • Owners, managers and executives mingling for "morale" purposes with staff and support team members, freed (for the occasion) from boring "HR Rules" and Company codes;
  • Normal courtesies and inhibitions lowered by the celebratory atmosphere and plentiful Company-provided Holiday Spirits.

What could possibly go wrong?

The sharp increase in publicized harassment claims is merely the "tip of the (liability) iceberg." Here are a few practical suggestions for your organization to consider:

Harassment. No employer wants to be defending a harassment claim in the current "red hot" environment. And, don't forget that "hostile environment" claims are not limited to "sexual harassment" – an actionable claim can arise based on any "protected characteristic" or classification.

The legal duty to prevent harassment in the workplace likely extends to work sponsored events.

  • Make sure your harassment-avoidance and reporting policies are up-to-date and clearly apply to a "company sponsored event" using state-law appropriate language. Costume or dress-up events are likely in our view to present a situation where some may feel they are "licensed" to act or dress inappropriately.
  • Pre-event harassment avoidance training should be reviewed; also, consider a "gentle reminder" in invitations or other event publicity. Risky behavior should be counselled against actively.
  • At this particular point in time, we believe that any "adult themed" event or activity (think, anonymous "gag gift exchange" or the like) is simply not something that most business organizations should be considering.
  • Avoid risky "traditions." See, "Mistletoe Greetings," above.
  • Remember the "Email Rule, Amended." Photographs and social media postings, like emails, are forever. This writer literally just settled a case based in part on allegedly inappropriate photographs taken at – you guessed it – a Holiday Party.
  • Make sure your organization has an "Employment Practices Liability" policy that covers workplace torts including harassment claims.

Alcohol or Other Intoxicant Consumption. The Society for Human Resource Management (SHRM) reports that in 2015, 59% of employers served alcohol at their year-end celebrations but less than half had any measure regulating consumption. Moreover, at least 44 states have liquor liability laws that typically impose liability for over-service or improper service. In the increasing number of states where medical or recreational marijuana use is allowed, additional risk assessment and avoidance measures should be undertaken.

Injured third-party drivers, harassed or insulted co-workers or possibly customers, lead the list of potential claimants, social-media bashers, trolls, or the like. We would be remiss if we did not observe that it is not a requirement that intoxicants be served, but, clearly, other interests may prevail. Here are a few ideas:

  • Make sure your organization has Commercial General Liability insurance coverage, although such a policy may not cover the service of alcoholic beverages. Check with your agent.
  • For large events, hire trained servers who carry appropriate liability coverage.
  • Advise attendees to be responsible. Include a reminder in the email or paper invitation. Consider a mechanism to limit consumption, such as drink tickets.
  • Serve food and non-alcoholic beverages.
  • STOP serving at least an hour or two before the end of the party.
  • Consider having an observer stationed at all exits with authority to arrange for alternative transportation, and post information about that transportation alternative.
  • Management must lead by example. Some employers have managers monitor alcohol consumption.

Location. Consider an off-site location not only for service convenience, but liability as well. Among other reasons, most worksites are not designed or furnished to handle a large "party." This also alleviates worksite property damage, confidentiality, and other concerns. An off-site location provides other benefits, as mentioned below.

Diversity. Don't leave your diversity creds hanging (only) on the Christmas Tree. The late-November to early January period is a time for celebrations in many cultures and religions. We easily identified 14 religious holidays celebrated in or around December this year, including the Advent Fast (Orthodox Christian), Mawlid el-Nabi (Islam), Posadas Navidenas (Hispanic Tradition Christian), Solstice (Pagan), and, of course, Hanukkah and Christmas. Not to mention, everyone's "second favorite," "Festivus" for the rest of us! Recognize and share your beliefs and celebrations with your colleagues.

In embracing diversity, don't forget about food and beverage personal, cultural and religious preferences (vegan, vegetarian, kosher, halal). Keep the decorations and themes multicultural or on "wintery" themes.

Workers Compensation and FLSA Issues. We would not be fulfilling our "buzz-kill" responsibilities if we left off these concerns. Worker's comp law varies from state to state, but here are some general suggestions:

  • Make it clear (that is: in writing) that attendance is not mandatory.
  • Affirm that there is no "business purpose" for the affair, and do not conduct business (year-end announcements, awards, or the like).
  • Do not assign workers to perform any duties, or pay those who receive work assignments.
  • Consider, as noted, holding the event off-site.
  • Consider holding the event outside of normal work hours.

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.

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David J. Houston
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