With the Office Holiday Party scene upon us, most articles, like this one in the New York Times tend to point out the obvious risks associated with them — sexual harassment. In my view, if employers are not aware that mixing alcohol with co-workers in a festive setting can be a recipe for harassment claims, that employer probably has larger HR issues than just those arising at the holiday party.
So, for human resource professionals and in-house counsel, what are some other issues for employers to spot and be aware of? They fall into two large categories, both of which, not surprisingly, may relate to alcohol.
- Drinking and Driving
At many holiday parties (though not all nowadays), alcohol, in one form or another, is served. Most employees will behave responsibly but experience dictates that some will get intoxicated. If the employee then gets into an accident on the way home, will the employer may be held liable for any resulting deaths, injuries or damages to property.
Until recently or so, the answer under most states’ laws generally was “no.” There are some courts, though, that are finding legal theories under which employers may be held responsible for injuries caused by an employee who drinks at a business function, such as an office party and then drives while under the influence. Other times, these claims are handled under "dram shop" laws which imposes liability on a commercial establishment for selling liquor to an intoxicated person.
The law varies greatly from state to state and because of cross-border issues between New York and Connecticut, it would be irresponsible to provide a bright line test in those states. Rather, employers with offices nationwide should be aware that some courts have extended the social host theory to employers and imposed “business host” liability. Connecticut may be skeptical of such claims. Nevertheless, an employer ought to be concerned about being liable for injuries to third persons caused by an employee who gets drunk at an employer function and then drives. For this reason, putting limits on alcohol being served may be a good tool for the employer to use at such parties.
- Workers’ Compensation Claims
Suppose a drunk employee falls down while doing the Cha-Cha Slide, or takes a tumble down the stairs, will workers compensation apply? Some workers’ compensation laws impose liability on employers for injuries to employees which arise out of and in the course of their employment, without regard to the fault of the injured employee. Some states, like Connecticut, have an exception — an employer may not liable for compensation when the employee’s injury was caused by the employee’s voluntary intoxication. Conn. Gen. Stat. 31-284(a).
Of course, this is a mixed blessing for an employer. If the employee is not covered by workers compensation, then the employee may still try a cause of action against the employer for negligence or another common law claim.
In a followup post, I comment on some ideas that address these issues.
And last, but not least, if any of your employees are dancing like this classic video, well, perhaps cutting down on alcohol AND dancing at your holiday party may be in order.