I don’t know about you but the news lately has been awfully serious lately.  Thus, on this Friday before Election Day, let me share something a bit lighter.

So last night, I started watching a few popcorn movie trailers to get my mind off things while finishing up some work.  Sure, there was Star Wars: Rogue One (which I’m going to see — probably twice) and Wonder Woman (likely to see).

But then I came across this, a new trailer for an upcoming movie Office Christmas Party (caution, it’s a little NSFW for language):

(Sadly?) My first instinct was to go — this is going to be a train wreck for employment law issues. But like any good train wreck, I watched anyway.  Because when the motto of a movie is “Party Like Your Job Depends on It”, really, I felt needed to sacrifice for my esteemed blog readers.

And let’s just say — this looks like an epic employment law disaster.  You’ve got employees sledding down stairs only to crash — just a worker’s compensation claim or two there.  You’ve got inappropriate dancing — obviously a sex harassment case in there somewhere.  There’s slip and slides on ice…in the office — clearly an OSHA violation.  And an employee who has apparently stolen some reindeer — a violation of the personnel handbook for sure.

Needless to say, it looked entirely inappropriate for an office setting.

Thankfully, it’s just a movie.  But with stores now having made the changeover from Halloween to Christmas (what happened to Thanksgiving?), it seemed an appropriate reminder to review your office holiday party protocols.  I’ve covered it in many posts like this one.

As for whether I’ll actually see “Office Christmas Party” in the theater, truthfully the odds are I’ll probably see Sing with my kids first.

I only counted one employment law issue in that trailer.

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!

It’s been a crazy week here for reasons I hope to share in a future post.

But in the meantime, the world of employment law still continues. Here are some items worth reading that I had hoped to talk about further. This brief recap will have to do for now.

  • Want some tips on how to avoid liability for your holiday party? Washington Workplace Law has a post that’s a good place to start.
  • Workplace Privacy Counsel has a notable piece on the balance employers face in dealing with HIPAA and the ADA:  How much medical information is private? The Seventh Circuit recently rejected the EEOC’s view. 
  • The Second Circuit recently handed down a favorable decision for employers on non-compete agreements. The employee had tried to challenge it but the court rejected the argument that an employee’s loss of income represented “irreparable harm”.  Trading Secrets blog has the details here.
  • The SCOTUSBlog recapped the oral argument earlier this week in the U.S. Supreme Court about a case that could help define who a “supervisor” is for sex harassment case purposes.  A decision is expected early next year. 
  • The Workplace Class Action blog discussed whether an employer’s discovery request for Facebook postings of employees, who were part of a claim brought by the EEOC, was a proverbial “fishing expedition”.  A court rejected that argument. 

What is it about the holiday party that makes otherwise decent, hard-working people lose their mind?

Alcohol is certainly the main reason, in my view. Open bars are invitations to lots of craziness. (Just ask Katy Perry.)   Since it is unlikely (and unrealistic) that all companies will move to “dry” parties (though some have moved to just beer & wine), employers will continue to have deal with employees behaving badly.

Over the years, this blog has received comments from people who question whether their employer can REALLY fire them over doing silly things at an off-site, after-hours company party.  My favorite is from the employee who was caught not wearing any underwear and was fired.

And employers have asked the same thing (though, admittedly, not about the underwear).

With very few exceptions, the answer is “yes”; employers can fire employees for poor behavior at a holiday party. It’s a company event and a certain level of decorum is expected.  Indeed, employers who fail to curb and regulate such behavior open themselves up to a sexual harassment lawsuit.  (I covered this extensively in a post last holiday season.)

So, what are some tips for employers to follow? Well, several other blogs have already touched on the subject this month and they’re worth a read.

And what else should you avoid? A suggestion from last year still applies: No Elaine Dancing.


 

UPDATED

There are no statistics out there to prove this point, but the traditional office holiday party has to be among the top places where claims of sexual harassment and hostile work environment start.

Indeed, just a cursory look at some federal employment cases shows a common thread that run through each of them: alcohol-induced stupidity leading to serious sexual harassment claims. 

Don’t believe me? Here are just a few cases in point:

  • In Russ v. Van Scoyoc Associates, Inc., 122 F. Supp. 2d 29, 31 (D.D.C. 2000), the Court said that during a office holiday party "several people became very intoxicated".  After the party, several employees went to another bar to continue socializing.  As the day worn on, the supervisor  began making a number of "sexually explicit and offensive remarks to [the female employee], telling her that he admired her breasts, that he wanted to have sex with her, that he wanted to perform oral sex upon her, and that ‘she could make more money working at Hooters’" than at the company.  
  • In King v. Board of Regents of University of Wisconsin System, 898 F.2d 533, 535 (7th Cir.1990), the Court concluded that the defendant’s conduct rose to an objectionable level when he followed the plaintiff into a bathroom at an office holiday party, telling her that he "had to have her" and that "he would have her." Despite the plaintiffs protests, the defendant forcibly kissed and fondled her, stopping when the plaintiff’s boyfriend came into the bathroom. Id.
  • In EEOC v. Rose Casual Dining (d/b/a Applebee’s), (E.D. Pa 2004), the EEOC alleged that upon entering the party, the manager immediately approached the female employee and "grabbed her posterior while commenting on how good she looked. [The manager] then removed [the employee’s] name tag and dropped it down her cleavage. [The manager] continued to pursue [the employee] throughout the night, grabbing her and making repeated sexual comments towards her. "  (Remarkably, alleges the EEOC, after complaining about the incident on the next day, the employee was fired three hours later because she "did not fit in.")
  • In Stathatos v. Gala Resources, LLC (SDNY 2010), a company client became "aggressive" towards a female employee, "grabbed" her repeatedly and "chased her" all night at the company’s holiday party.  When the employee allegedly asked for help from her employer at the party, he responded by saying "He likes you … he wants to date you."

Of course, holiday parties can also serve as the dramatic backdrop to announce harassment claims against a company as well.  For example, in Broxterman v. Falley’s Inc., (D. Kansas 2008), a secretary attended the office holiday party.  According to the court:

During the party, [the employee] went to the microphone and announced to all attendees that she was resigning her employment with [the company] because she believed that the company’s practices were ‘personally and professionally intolerable.’ According to [the employee], she announced her resignation in that manner in part to embarrass [her supervisor] and she testified that he turned ‘bright red’ at the announcement.

I’ve previously covered what steps employers can take to make sure holiday parties don’t turn into lawsuits in the new year here, here, here and here.  And Jon Hyman does a great job today recapping some additional tips for employers to know about office parties as well

But here’s probably the most important thing for employers to know: If you get a complaint about harassment at a holiday party, take it seriously and investigate promptly.  Holiday parties do not give employees a free pass to act inappropriately. While that may still occur, employers can reduce their liability by taking prompt remedial action to ensure that it is unlikely to happen again. 

UPDATE: We’ve since gotten a mention from Above the Law. Thanks! One of the blog readers has also added a suggestion on something to avoid as well — "Elaine Dancing" (with a shoutout to Seinfeld).  No lawsuits are known to have arisen from it, but that’s probably a good suggestion as well.  

As is typical for December, everyone is starting to wrap up for year end and the amount of substantive items to report on slows to a trickle. Thus, it’s time for some short items on a variety of employment law and HR-related topics.

I feel the same now as I did then – while I agree the performance review is an imperfect tool, you’re only credible in calling for its elimination if you’re prepared to put your money and time where your mouth is and be involved in providing the training and CONTINUOUS feedback to managers on their coaching skills.

You don’t have time? Guess what sparky? You’re part of the problem, not the solution. Please fade to the background.

The alternative to the annual performance review is coaching daily, which is another word for feedback. The bad news is that we have a lot of managers nationally who aren’t willing or capable of coaching.

Dunn’s post is worth reading for his suggestions on how HR can help with the performance review process.

Although many holiday office parties have been toned down this year (or canceled) in light of the recession, there are certainly plenty of others moving forward.  courtesy morgue file; NOT public domain

Last year, I did a series of posts on the subject from an employment law perspective.  In general, and besides the obvious sexual harassment issues that always seem to be a concern for employers, I highlighted some issues for employers to think about that I’ll recap again here. (For more details, click here and here.)

  • Be aware of potential claims arising from employees drinking at such parties and driving afterwards.   Although Connecticut has been skeptical of claims in the past, employers ought to be concerned about being liable to third persons based on the actions of an employee who gets drunk at the office holiday party. Putting reasonable limits on the amount of alcohol, or offering free taxi rides homes, is a way to reduce exposure.
  • If alcohol is served, what type of alcohol will be served? Just beer and wine? Providing a cash bar can also reduce the incentive for employees to "load up" on free drinks and keep drinking to a moderate level.  Of course, you can also make it an alcohol-free event as well.
  • Inviting spouses or guests can also encourage employees to be on their best behavior.
  • Make sure employees understand that attendance at the event is voluntary and that attendance will not help a person’s standing within the company.
  • And always be sure followup on any complaints that may arise at or after the party. 

For human resource professionals, this time of year can be particularly challenging. But perhaps you can be glad that you don’t have to deal with the same issues as those in Great Britain, as you may recall from a story from Great Britain from last year

This month, I’ve recapped some thoughts on the office holiday party in the United States (available here, here and here.)  But by and large, holiday parties in the United States are fairly tame — particularly when compared with our friends in Great Britain.  Whether that’s through litigation or tradition is a question for sociologists, not employment law bloggers.

When I read this story in this morning’s Washington Post, I couldn’t help but think to myself — they have "medical tents" set up to deal with office holiday parties? 

Just before midnight, the well-dressed, 25-year-old financial trader arrived by ambulance at the makeshift hospital tent pitched at a train station in central London. Blood oozed from his scalp, staining his elegant pink-striped shirt.

"What happened to your head?" asked Dixie Dean, an emergency care specialist with the London Ambulance Service, as she wrapped gauze around his head and checked for a skull fracture.

"I don’t remember," said the dazed man. He was the latest injured drunk this busy night in the medical tent set up to care for casualties of the infamous British office party.

In many parts of the world, companies hold Christmas parties — or holiday, year-end bashes — for employees. But in Britain, the gatherings have become a particularly potent institution, legendary for massive booze consumption that leads to fistfights, firings and spur-of-the-blurry-moment indiscretions in boardrooms and parking lots.

Dean compared the Christmas season in Britain to New Year’s Eve in New York — except that here, the binges run nightly for two solid weeks leading up to Dec. 25.

Whatever anyone may think of our nation’s employment laws, it seems a step up in civilization to have put these types of affairs in our rear-view mirrors.

After my two-part series of posts on office holiday parties (here and here), I thought I would pass along a more humorous post about holiday parties.  A temporary employment firm has compiled its list of the most outrageous holiday party hijinks. 

Creative Group, a temporary employment firm focused on the advertising, marketing and creative fields, recently surveyed industry executives about the most off-the-wall holiday party antics they had witnessed. 

Among them:

  • “One colleague set another’s wig on fire while it was on her head.”
  • “Someone dumped Gatorade on the boss.”
  • “Someone jumped into a bowl of Jell-O.”

Anyone care to share any favorite stories of holiday parties gone amiss?

(H/T: Hartford Business Journal)

Yesterday, I talked about issue spotting for holiday parties.  But what are some pro-active steps an employer can take? Well, there is no "one size fits all" approach.  Drink - courtesy FSPHere are some suggestions to ponder that may fit for a particular employer.

To Drink or Not to Drink

  • Since alcohol can be tied to many of the issues arising from the holiday party, the obvious suggestion is to not serve alcohol.  If you do, consider sending a message related to the holiday party that excessive drinking will not be tolerated. 
  • Schedule the event at a restaurant or bar whose liability insurance would cover the event. 
  • Arrange to have alternate transportation available to guests who do drink too much.  Offering a taxi or car service home is much cheaper than having to deal with an employee’s car accident later on. 
  • Use a cash bar or tickets that limit the number of drinks to which each employee is entitled. An open bar — particularly before it turns into a cash bar — only invites binge drinking.
  • Consider serving just beer and wine; if your party serves tequila shots, for example, there will tend to be faster drinking than if done through beer and wine. 
  • Do not skimp on food. There can be a tendency to under order for appetizers, etc, for cost purposes. However, high-protein foods, like cheese and meats, help slow the absorption of alcohol and keep guests from drinking on an empty stomach. 
  • Make sure the people serving alcohol know that they can refuse service to anyone who appears intoxicated.  Designate some company employees (human resources, perhaps) to act as "scanners" to scan the crowd occasionally and make sure guests are behaving appropriately. 

Other Than Alcohol…

  • Invite spouses and family members, or clients or customers. Their presence will encourage employees to be on their best behavior and may minimize the chances of excessive drinking and inappropriate sexual conduct.
  • Daytime (lunch) events work better than night events.  Consider linking it to another activity so the party (and drinking) isn’t the sole focus. 
  • Attendance at the party should be strictly voluntary and managers should be instructed not to suggest that  attendance will benefit a person’s standing within the company.
  • To address any religious considerations of employees, consider scheduling the party during the week (Monday through Thursday).  Similarly, the holiday party should be just that — a holiday party — and not tied to any particular religion.  
  • Lastly, if any complaints (of sexual harassment or otherwise) are made at or after the party, the employer should take prompt, effective steps to address the complaint.  If an employee who complains at a party about inappropriate behavior, it may be necessary to address the issue then and there.

There are, of course, countless other ways to reinvent the holiday party.  I’m certainly not advocating eliminating it.  But being a little more cautious about the party helps keep a fun occasion from turning into a hangover headache.

As always, employers who have specific legal questions, should seek the appropriate legal counsel. The ideas listed above are just some examples of issues for employers to consider as they approach their holiday party.