Lucan_J_WebIt’s mostly a coincidence that my colleague, Jarad Lucan returns today with a post on a favorite topic of ours: Holiday parties.  While most of it isn’t groundbreaking (holiday parties haven’t changed all that much over the last decade), Jarad really focuses in on the key issues.

So, enjoy your holiday parties over the next few weeks at work. Just be sure to follow the rules. 

Holiday parties are a great way for employers to boost morale and bring employees together to celebrate the season and the past year’s accomplishments.

However, if not properly planned, a holiday party may bring an employer a special gift served by a less than jolly state marshal or process server.

When preparing for a holiday party, employers should take steps necessary to guard against potential legal pitfalls, such as sexual harassment claims, alcohol related accidents, workers’ compensation claims, and wage and hour risks.

danceoffSexual Harassment:

Before the holiday party, an employer should review its anti-harassment policy (and if you don’t have one by now — really?) to ensure that it addresses employer sponsored functions.  If a policy does not specifically cover employer sponsored functions or social events, an employer should consider amending the policy.

In the alternative, an employer can remind employees prior to the party, that its anti-harassment policy applies and provide employees with examples of conduct that is considered unacceptable, even at a party.  An employer can also remind employees that any gift exchanges or holiday customs should be proper for the workplace and not include offensive items or behaviors, even if meant as a joke.

While it’s ok to allow an employee to listen to “I Saw Mommy kissing Santa Claus” (at a reasonable volume level),  it’s just not ok to allow an employee to hang mistletoe over his or her office door and try to act out that song.

In addition, to minimize the risk of any harassment claims, an employer should consider allowing employees to invite guests (depending on budget constraints).  An employee is unlikely to engage in harassing behavior if accompanied by a spouse or significant other.  Setting the tone of the party in advance can help root out unwanted sexual advances and inappropriate activities.

Alcohol-related Accidents:

Obviously, the simplest way to reduce the risk of alcohol-related accidents is to not serve alcohol at a holiday party.   But that might be considered by some to be going overboard. (You can just hear it now — “The lawyers ruining our holiday party — again!”) If, however, the goal is to avoid dampening the “holiday spirits,” an employer may want to hold its party at an establishment with professional bartenders who know how to handle and limit the amount of alcohol consumed by any party guest.

For those employers that hold their parties at their place of business, consider hiring a professional bartender rather than allowing guest to self-serve.  An employer can also instruct any caterer or bartender to limit the amount of alcohol served and to refuse service to anyone who appears to be intoxicated.  An employer can also limit that amount of drinks consumed by employees by, for example, utilizing a drink ticket system and limit the alcohol to beer and wine.

If all else fails, an employer should consider providing transportation for employees.  Lastly, an employer should review its insurance policies with regard to covering any liquor law liabilities.

Workers’ Compensation Issues:

If an employee is injured at a holiday party, an employer may be able to limit is workers’ compensation liability by making very clear to employees that the event is completely voluntary.  In addition, it should be made clear that the holiday party is not for business purposes and no work is expected to be done while at the holiday party.  While not necessary, this may be one reason to consider hosting any holiday party outside of the normal place of business.  If that is done, however, ensure that the venue provider has proper insurance to protect against any injuries that may occur.  In any event, an employer is best served by not encouraging activities like dance-offs, which can lead to all kinds of physical (and perhaps emotional – not covered by workers’ compensation laws) injuries. We all remember the dancing on Seinfeld, right?

Wage and Hour Risks:

It should come as no surprise that our wage and hour laws require an employer to pay employees for their time spent working.  Thus, if a holiday party is held after work hours and is made mandatory for all employees,  an employer has to pay employees to be there.  If this results in an employer’s non-exempt employees working more than 40 hours that week, those employees must be paid overtime for attending the party.

Accordingly, an employer should: (1) inform employees that attendance at the party is voluntary; (2) refrain from engaging in any business during the event, including speeches about the how well the employer is doing; (3) refrain from distributing bonus payments; and (4) avoid requiring certain employees from performing functions meant to benefit the employer, such as serving in the distinguished role as the mistletoe or dance-off police.

Happy Holidays everyone!