With a new wave of sex harassment complaints making headlines, there is also a bit of reflection that should happen at workplaces and the lawfirms that counsel them.

One area that we can evaluate is whether the training that is provided is effective.

A report yesterday from NPR concluded that training is just not working at many workplaces. 

The primary reason most harassment training fails is that both managers and workers regard it as a pro forma exercise aimed at limiting the employer’s legal liability.

For those of us who have been paying attention, this isn’t new.  I know that for the trainings I give, I try to have them be engaging with discussions of different fact scenarios being discussed.

But I’ve wondered whether we could be doing more.

Indeed, the EEOC issued a report last year highlighting the problems with existing training programs.

In its executive summary, it noted two big issues with the current model of training:

  • Training Must Change. Much of the training done over the last 30 years has not worked as a prevention tool – it’s been too focused on simply avoiding legal liability. We believe effective training can reduce workplace harassment, and recognize that ineffective training can be unhelpful or even counterproductive. However, even effective training cannot occur in a vacuum – it must be part of a holistic culture of non-harassment that starts at the top. Similarly, one size does not fit all: Training is most effective when tailored to the specific workforce and workplace, and to different cohorts of employees. Finally, when trained correctly, middle-managers and first-line supervisors in particular can be an employer’s most valuable resource in preventing and stopping harassment.
  • New and Different Approaches to Training Should Be Explored. We heard of several new models of training that may show promise for harassment training. “Bystander intervention training” – increasingly used to combat sexual violence on school campuses – empowers co-workers and gives them the tools to intervene when they witness harassing behavior, and may show promise for harassment prevention. Workplace “civility training” that does not focus on eliminating unwelcome or offensive behavior based on characteristics protected under employment non-discrimination laws, but rather on promoting respect and civility in the workplace generally, likewise may offer solutions.”

Connecticut requires harassment training; I’ve talked about the requirements in some prior posts (check this one out from 2010, for example.)  But employers who have just gone through the motions, aren’t doing enough as we’ve now seen.

As we continue to work to eliminate sexual harassment in the workplace, having an effective policy is only part of the solution.

Making sure the training we provide to employees is helpful is obviously a part as well — and something that may have been overlooked in the past.

But finding that perfect solution to training still seems elusive.

So a few weeks back, I suggested that we were entering into a new era of sexual harassment cases and wondered out loud when the statistics would back up my observations.

We now have our first signs.  Maybe.

In my exclusive continued look at the case statistics from the Connecticut Commission on Human Rights and Opportunities, we can see the first signs of an increase.

But as I’ll explain below, it’s difficult to know if this is a statistical anomaly.

Despite significant drops in most types of discrimination complaints, the number of sexual harassment complaints in Connecticut went up last fiscal year to 145, up from 135 the year before.

As a percentage of overall claims, sex harassment employment claims are just 3 percent of the overall claims filed, up from 2.5 percent the prior year.

But here’s the issue: When you look back at prior fiscal years in 2014 and 2015, the number of sex harassment claims is still below those years.

In other words, is it a trend up? Or overall down? Indeed, the numbers from FY 2012 are comparable to FY 2017’s numbers. Except that as a percentage, there were more sex harassment claims made 5 years ago, then now (3.6% to 3.0).

What else do we see? Well, as expected with an overall drop in cases is an drop in claims of wrongful discharge, refusal to provide reasonable accommodations, terms and conditions, and even demotions.

Remaining constant were claims for failure to promote, termination of employment due to pregnancy, and aiding & abetting discrimination.

When you review the basis for claims filed, we see drops in claims for age (FY 2017 451 vs FY 2016 518), race (551 vs 616), sex (507 vs 532) and physical disability (445 vs 520).

Some other bases hold steady or even slightly increase: ancestry claims (200 vs 188) and mental disability claims (103 vs. 110).

For employers, watch the trends. Will sex harassment claims continue to increase? And will overall claims decline?

There’s more that we can glean from these numbers too. I’ll have more in an upcoming post.

 

 

“Let’s engage in a Halloween-type party where everybody would be having sex.”

Or perhaps, “So, are you going to wear a bikini for your Halloween costume?”

What is it about Halloween that brings out the creep factor in the workplace?

The first quote is from a real district court case earlier this year which documented a series of alleged comments made relating to a sexual harassment complaint.

(If you’re scratching your head at the reference to a “Halloween-type” party, I’m right there with you.)

The second is from a different case that is no less offensive in its descriptions of pervasive inappropriate conduct in the workplace.

(And, as if you needed confirmation, Princess Leia in a bikini from Return of the Jedi is not appropriate in the workplace, however cool Princess Leia is.)

Now, long time readers may recall a 2008 post about the perils of costumes in the workplace, and another post in 2010 about the perils of enabling sexual harassment when it comes to Halloween.

And yet, it continues.

Suzanne Lucas (a/k/a Evil Hr Lady) recently posted some tips about hosting an Office Halloween party.  Among them:

Costumes shouldn’t make fun of other cultures, the word “sexy” shouldn’t be attached to any workplace costume and the gore should be kept to a minimum. Remember, the goal is to have fun, not to offend. If you want to dress up as a sexy zombie, save that for your own Halloween party with personal friends.

But here’s my simple advice, be afraid. Be very very afraid. There are just way too many bad things that happen on Halloween with far more “tricks” than “treats”.

I realize that sounds like a no-fun lawyer, but how many more sexual harassment cases from Halloween do we really want or need? Do I need to keep writing these posts each Halloween?

One of the interesting strains to come out of the new round of publicity surrounding sexual harassment is a renewed focus on mandatory arbitration provisions.

And it comes from an unexpected source: former Fox News anchor Gretchen Carlson.

Indeed, Carlson recently gave an interview with former ESPN producer and self-titled “Commander-in-She” Valerie Gordon that may have slipped under radar in which she talks about such provisions.

She notes that mandatory or “forced” arbitration provisions enable sexual harassment to exist under the radar.

I’m doing some advocacy work on Capitol Hill, working on gathering bipartisan support to take the secrecy out of arbitration.  You know the forced arbitration in employment contracts makes these things secret.  We have to stop the silence around it.

In another recent interview, Carlson suggested that these arbitration provisions are often “in the fine print” and not focused on when people start a new job.  She’s talked about it during Senate press conferences this year as well.

I’ll be interested in reading more about Carlson’s perspective in her new book being released today.

Carlson’s message should be well taken by employers; if employers are using these arbitration provisions merely as a means to allow a system of harassment to continue, then shame on them.

But here’s the issue: As with most things employment law related, it’s far more nuanced.

There are times when arbitration makes sense for BOTH the employer and employee. Litigation is expensive — very expensive, some of my clients would say — and is filled with uncertainty and time-consuming drama.  I talked more about this in a 2014 post.

Arbitration can be less expensive and can allow both sides to be heard by a neutral third party much more quickly and effectively than a court system.

And yes, it avoids some publicity but again, that can benefit employees too.

By filing in arbitration, rather than court, an employee’s claims won’t be public and won’t seen by future employers as a potential lawsuit waiting to happen.

The U.S. Supreme Court is set to review this once more in a trio of consolidated cases, including whether employers can force employees to sign away rights to pursue a class actions.

And we shall see if the Connecticut General Assembly revisits the issue in the upcoming session in January 2018.  Until then, employers should continue to monitor developments in this area and figure out if mandatory arbitration provisions are right for your business.

 

Back in the 1990s, employers still had the Anita Hill-Clarence Thomas hearings and the tawdry sexual harassment allegations relatively fresh on their minds. Employment lawyers will tell you that they started to see a bump up in claims in the early to mid 1990s as the issues of workplace harassment raised to the surface.

I raised it in one of my posts 10 years ago this very week.

But even before yesterday’s news that major movie mogul Harvey Weinstein has been accused of sexual harassment of many women over many years, I’d been thinking that we’re seeing another wave.

For employers, this new era should be even more concerning.

Why?

Because back in the 1980s and early 1990s, employers could at least say that “well, we didn’t know we needed to train” or “well, we didn’t know we needed to do an investigation.”  It may not have been plausible (or even good business), but at least it was something.

Now with laws in many states mandating sexual harassment prevention training and with U.S. Supreme Court precedent nearly mandating that employers investigate harassment claims and take prompt remedial action, there’s just no excuse.

And yet, over the last 12-24 months, we’ve seen a series of very high-profile people be brought down over sex harassment cases.

The implications for this are huge — and not for the reasons you may think.

It’ll take a while for statistics to back this up, but my educated guess is that settlements of sex harassment claims, and employee verdicts of sex harassment claims are up and going to continue going up.

As a result, employers are likely to pay more for settlements in the short term to avoid headlines of the type we are seeing. And juries are more likely to punish employers that they think should know better.

The practical implications of this for employers are several, but I’ll highlight three, some of which I’ve said before.

  1. It is absolutely imperative for employers to investigate sex harassment claims. But more than that, employers must take steps to ensure that the harassment STOPS.  Paying off one case, only to have the harasser move on to the next victim just is a recipe for disaster.
  2. When a lawsuit does arise, make sure you are fairly evaluating the case. Even if you think you have a defense, there may be more value to settling the case early on than fighting it and losing big.  Not every case is a home run, but not every case is an outright winner for the employer either.
  3. Train. Train. Train.  And when you’re done training, encourage people to bring issues to your attention.  Sweeping claims under the rug will only hurt the employer in the long run.

A new era of sex harassment claims is upon us.  Employers that allow any such harassment to go on risks headlines AND big payouts.  It’s a place employers should strive really hard to avoid.

The Dialogue, a online conversation between yours truly and a prominent employee-side attorney, Nina Pirrotti, returns today with another installment — this time tackling the topic of sexual harassment in the workplace.   For prior installments, check out these posts here and here.  As for the promised redesign and relaunch of the blog, it’s nearly complete. Can’t wait to share it with you soon.    

chionDan: Last time we promised to tackle a serious topic: Pizza. Given that you’re based on New Haven, surely you have thoughts on the subject. Pepe’s? Sally’s? Modern? Or something else? 

But in the meantime, I wanted to tackle a really serious topic and get your thoughts on the state of sexual harassment claims.  It feels like we’re hearing more about it of late.  It’s been about two months since Bill O’Reilly was fired from Fox News amid allegations of sexual harassment, and the news this month is of a major shakeup at Uber in light of an internal investigation looking at workplace culture.  Indeed, the Uber CEO just announcement his resignation yesterday! We won’t get statistics out from the agencies that receive harassment complaints (EEOC and CHRO), but anecdotally, it feels like we’re seeing more awareness of the issue and more questions from employers.  What are you seeing from the employee-perspective this year?

nina_t_pirrotti1-150x150Nina: This is the bone-chilling reality and the reason why, even if I won the lottery tomorrow I would never give up my day job:  Sexual harassment continues to infect the workplace at the same alarming levels as it did in the days of Mad Men.  Indeed, the only aspects of it that have changed over the years is that now  men of power have much greater variety in the manner of delivery.  So in addition to groping, fondling and yes, even raping women in the workplace ala Don Draper and his C-Suite buddies, men of power these days are also sexting, Snapchatting  and otherwise exploiting social media to prime, intimidate and conquer their victims.  Hell, the president of the United States is even doing it!

Long before a SunTrust recruiter made headlines when he sent a nude photo of himself to a female prospective hire, exposing his genitals and inviting her to “play,” my client, a factory worker who spoke little English, endured daily groping and sexual taunts from her assembly line supervisor.  The smoking gun in that case?  A naked photo of himself that he texted her during work hours.   That case settled quickly, and despite her paltry salary, very, very well.

The main problem I encounter is, even if by some miracle such women summon the courage to come to me (the factory worker, for example, cancelled two appointments before she showed up at my office) , they often are petrified to take it to the next level.   Even when they have damning evidence, these men have such a hold on them that they fear for their jobs and even their physical safety if they come forward.   I will never forget the time I had to meet with a client at an undisclosed location far away from her workplace and my office to consult with her on a case in which the powerful, rainmaker chief of her department was subjecting her to unrelenting sexual harassment and she had the “goods” (graphic e-mails) to prove it!  She, an otherwise rational, grounded person, was convinced he would discover what she was doing and harm her.

Is your workplace more like a locker room?
Is your workplace more like a locker room?

What makes matters worse is that too often these victims’ worst fears are reinforced by employers who fail to take swift, decisive action when sexual harassment allegations are brought to light. This is far more apt to happen when the predator is a money maker for the employer.    In the case of the harassment by the department chief, for example, several other women had complained about his conduct to no avail.  Such non-response packs two punches.  First, it emboldens the predator who now  has first-hand knowledge he can act with impunity.  Second, it chills fresh victims, like my client, from taking action to protect themselves.   At some point, the hope for we plaintiffs’ employment lawyers, though, is that the lid explodes off the boiling pot.   We have seen this time and again in the media with Bill O’Reilly, Roger Ailes and the folks at Uber et al and, closer to home, that fearful employee who was sexually harassed by the “untouchable” chief ended up convincing four other employees to come forward (three of which were senior executives) and that case settled for well over $1 million even though the hospital finally terminated the chief and all five employees  kept their jobs.

I know your clients would never face such a predicament because they are getting advice from the best, Dan!  Perhaps you could share with us, though, how you counsel those employers who learn that an otherwise valuable employee is being accused of sexual harassment?

As for Pepes, Sally,Modern, Bar or others go, they are all great but I prefer making my own.  The secret is in my sauce . . .

Dan:  Well that’s a lot to respond to! But I don’t think it’s a fair argument to elevate rape (a horrific violent crime) into an analysis of sexual harassment cases in general.   No legitimate employer or their counsel is going to countenance sexual assault (much less outright sexual harassment either.)  Everyone agrees such conduct is wrong.    Continue Reading The Dialogue: Sex Harassment in the Workplace — Still an Issue, but How Much?

DSC03212$20,000,000.00.

That, as they say in the legal parlance, is a crooked number with a LOT of zeros behind it.

And that is also the reported amount of settlement between Gretchen Carlson and Fox News over her sexual harassment lawsuit.  Plus an unprecedented apology.  And it doesn’t take into account other cases of harassment that are allegedly being settled concurrently.

Now I’m sure the settlement had all the disclaimers that Fox News was not admitting liability as part of the settlement.

But you don’t need to be a lawyer to know that you aren’t paying a $20M settlement as “nuisance” value.  I have little doubt that the investigation that Fox News conducted turned up some pretty egregious evidence of something and the company figured that paying the settlement was STILL a lot cheaper than having the case go forward.

It’s a big deal in a lot of respects.

First, by my back of the napkin recollection, it has to be one of the largest single-plaintiff sex harassment settlements ever inked. (If there were ones much larger, it’s been kept pretty confidential.).

Second, it demonstrates — as if the allegations didn’t already — that despite pervasive training and years of awareness, that some workplaces are still riddled with sexual harassment.  I noted as much in a prior post back in July but back then it was tough to figure out what was happening.

A $20M settlement sort of avoids any doubt as to what was happening.

Third, companies need to be vigilant and if the CEO/President is condoning the behavior (or worse, is the one engaging in harassing behavior), then it’s up to the Board of Directors to take a stand.

Fourth, it’ll likely be used as a benchmark for other cases of harassment in settlement negotiations. You can just hear it now: “Well, if Gretchen Carlson got $20M, my client’s case is worth at least half as much….”

Lastly, it should put to bed the notion that we are in an environment where sex harassment just isn’t a problem any more.  Back in 2011, there was a notable column in The New York Times that suggested that was the case and I highlighted it in a discussion about this very issue.

Gretchen Carlson will now join the pantheon of people who spoke up when it would’ve been more convenient to remain quiet.  And everyone — employers and employees alike — ought to appreciate the sunlight she has brought to the issue.  Whether this case is a harbinger of more things to come or not, use this case as an opportunity to test your own practices.

starrWelcome back from summer! Today, my colleague Gary Starr and I bring you the story of an employer that thought that it had done everything right — only to see it all go wrong. 

Imagine this scenario: You, the employer, think you’ve taken all the right steps when hearing about a harassment complaint. You encourage the employee to file a written complaint. You conduct an investigation. You take “prompt remedial action”. What could go wrong?

Well, in a recent case at the Second Circuit, Vasquez v. Empress Ambulance Service, the employer later discovered it had been snookered by the alleged harasser. As a result, its investigation did not uncover what really happened. In fact, the employer — according to the court — had so messed up the investigation that it had charged the victim with actually being the harasser. This should serve as a cautionary tale for employers that investigations need to do more than simply weigh the proverbial “he said/she said” arguments.

What was the case about? 

A recently hired EMT complained she was being harassed by the Company dispatcher. The dispatcher repeatedly asked her out, even after she kept telling him that she was not interested and had a boyfriend. He would put his arm around her whenever he had the chance. He even sent her an “Anthony Weiner” picture of himself. She became fed-up and went to her manager, who asked her to write a formal complaint, which the company would investigate.

The dispatcher learned that she was complaining about him. He then went into his cellphone and changed text messages and included a revealing picture from a woman with whom he had a consensual relationship. He made the materials look like they came from the EMT. He then took screen shots of the doctored texts and photos and presented them to the Company when he was contacted as part of the investigation.

The investigators believed the co-worker’s account. When they met with EMT, she offered to show her phone with the texts and photos, but they declined. Instead they terminated her for sexually harassing the dispatcher.

What happened next?

She sued the employer claiming that she was retaliated against for raising her concerns about being harassed. The employer sought to have the case dismissed because it claimed it acted in good faith, its managers and supervisors were not involved in any harassment, and the decision-makers conducted an investigation and believed what they were told by the co-worker. The Company also argued that there were no allegations that the Company had a discriminatory motive to terminate the employee.

The Second Circuit found that the employer did not have to have a discriminatory motive to be liable for the harassment and retaliation. This was because the co-worker had manipulated the decision-makers so that the Company ultimately ended up being the means by which the co-worker fulfilled his unlawful design. The Court found that that the Company could be liable because it was negligent in the way in which it handled the investigation.

The investigation itself became a vehicle for the harassment to continue, says the court.

The court concluded that the investigation was conducted in such a way that it allowed the dispatcher to significantly impact the outcome. For example, the investigators did not allow the EMT to present evidence that would support her claim that she was the victim. The allegations in the complaint revealed that the dispatcher had tried unsuccessfully to have another employee lie on his behalf about the relationship he had with the victim, which the investigators did not learn. The Court noted that the investigation also failed to identify serious flaws in the dispatcher’s evidence, including the fact that one of the text messages he provided was sent to someone who was asleep, even though a reading of the text showed it was sent during the shift being worked by the EMT.

The Court recognized that a Company would not be liable if it had just got the decision wrong. However, the court found that the employer should not be shielded from liability when it acts negligently and allows a supervisor or a lower ranked employee with a discriminatory or retaliatory prejudice to influence the adverse decision. The flawed investigation undermined the Company’s defenses.

The investigators failed to permit the employee to present evidence that would call into question the documentation submitted by the co-worker. They failed to account for the likelihood that the co-worker might lie to protect his job and paint the woman was the perpetrator and not the victim of harassment. And they treated the dispatcher more as an informant, rather than as a potential suspect. They did not carefully review the timing of the charges and the evidence presented by the co-worker, including the fact that the morning the complaint was filed, he already had printed copies of amorous texts from the woman to substantiate his position.

Quite simply, the sloppiness of the investigation allowed the harasser to manipulate the process.

What’s the takeaway from the case?

Employers faced with charges of harassment or discrimination need to take their investigations seriously. It is not enough simply to talk to the individuals involved, but a thorough review of the statements made and the documents presented must be undertaken and then preserved.

Giving the complaining person an opportunity to respond to the defense being offered against her, is important so that the investigator can fairly weigh the information presented. The company should provide the complaining employee the assurance that the allegations are being taken seriously and that the process has been fair and thorough.

Examining what is presented in a skeptical light is important as is being sure that there is a legitimate basis for the action taken. Employers who do not take harassment and discrimination allegations seriously or who do not conduct thorough investigations will find themselves later trying to explain away their actions.

Rainbow over Hartford
Are Things Getting Better or Worse?

The last few weeks it seems that I’ve been reading about sexual harassment in the workplace issues a lot more. Here are a few examples:

So what’s going on? Is sex harassment increasing? Or is this just another round of increased focused placed on a problem that still persists?

Well, if you look at the statistics, you can see part of the story — and part of the problem trying to glean trends from the numbers too.

Last year, I reported on some statistics from the state level about harassment claims.  Indeed, sex harassment cases were down significantly, but general “I’ve been harassed” claims were up nearly 200% over the last decade or so.

The EEOC statistics show slightly different numbers. Sex harassment claims went up by a modest 4 percent in fiscal year 2015, though more generalized “harassment” under Title VII claims also increased by 6 percent.

So, which is it? Up or down? Statistics on case filing don’t tell the full story.  Surveys (yes, including the one in Cosmopolitan magazine) show that women still think some workplaces have issues.

But I would argue that chasing statistics is missing the point. Rather, it’s the perception of whether this is a hot issue that will drive the discussion.  And to that, we’re definitely seeing renewed interest. For example, a few weeks ago, the EEOC issued some findings and statements from a select task force calling on stakeholders “to double down and ‘reboot’ workplace harassment prevention efforts“.  This increased focus on the area will once again bring the issues of sexual harassment to the forefront.

What’s an employer to do? Well, start with the obvious.  Review your existing policies. Are they strong enough? Do they need to be updated to reflect current practices?  And then review your existing training.  Is it updated? Or is it still stuck in the 1990s?   And then look at how your workplace is actually functioning.

Beyond that the EEOC has a whole list of suggestions for employers to follow. You can view the entire compilation, but here are a few examples:

  • Employers should foster an organizational culture in which harassment is not tolerated, and in which respect and civility are promoted. Employers should communicate and model a consistent commitment to that goal.
  • Employers should assess their workplaces for the risk factors associated with harassment and explore ideas for minimizing those risks.
  • Employers should conduct climate surveys to assess the extent to which harassment is a problem in their organization.
  • Employers should devote sufficient resources to harassment prevention efforts, both to ensure that such efforts are effective, and to reinforce the credibility of leadership’s commitment to creating a workplace free of harassment.
  • Employers should ensure that where harassment is found to have occurred, discipline is prompt and proportionate to the severity of the infraction. In addition, employers should ensure that where harassment is found to have occurred, discipline is consistent, and does not give (or create the appearance of) undue favor to any particular employee.
  • Employers should hold mid-level managers and front-line supervisors accountable for preventing and/or responding to workplace harassment, including through the use of metrics and performance reviews.
  • If employers have a diversity and inclusion strategy and budget, harassment prevention should be an integral part of that strategy.

HR personnel have a lot on their plate now; be sure harassment prevention remains there as well.

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!