November 28, 2016 Practice Points

Surviving the Holiday Party Season: An Employer’s Quick Reference Guide

By Sidney O. Minter

As 2016 winds down, we are entering into the prime season for holiday gatherings. Based on a recent study by the Society for Human Resource Management, approximately 65 percent of employers plan to host a holiday or end-of-year party. Although these parties can be a lot of fun, they can be hotbeds for potential employer liability. So, what can employers do to reduce the potential for mishaps? There is no surefire way to eliminate legal exposure, but there are some proactive steps employers can take to reduce their risk. Think of this article as a roadmap, so employers can focus on what is really important: Having fun!

1. Serving Alcohol is a Big Risk
People enjoy an occasional holiday alcoholic beverage—cocktails, beers, eggnog, etc. Nevertheless, alcohol consumption adds another layer of complexity and potential risks for employers. Alcohol often causes people to "let their hair down," which can be bad news for employers. Letting one's hair down can (and often does) lead to harassment, inappropriate comments, and many other potentially illegal behaviors. If an employer decides to serve alcohol, it should consider a few things. Employers should limit the amount of alcohol an employee can consume. This can be accomplished by using a ticket-system. Employers should not serve alcohol-based punch, or eggnog. Employers should hire professional bartenders who should serve alcoholic and non-alcoholic beverages. Employers should close down the bar at least one hour prior to the end of the event. Employers should have a drawing for a prize or some other activity to encourage people to stick around during the last hour.

2. Voluntary, Never Mandatory
If employers decide to host holiday parties, attendance at the parties should be voluntary—not mandatory. The voluntary nature of the party should be explicitly stated—preferably in writing. Employers should not put pressure on employees to attend. When holiday parties are mandatory, employers face a greater risk of wage and hour and workers' compensation claims. Also, since this is a party, employers should refrain from turning the event into a de facto meeting.

3. "Feed Me Seymour"
Employers certainly do not want to serve alcohol to people on empty stomachs. So, once the decision is made to serve alcohol, employers need to determine what kinds of food will be served. This decision is very important, and should be made with great care. Also, some employees will have food preferences and/or allergies—some of which may be tied directly to a religious belief (Title VII), or a medical condition (Americans with Disability Act).

4. Adults Need Chaperones Too
Alcohol + music + adults = a potentially combustible environment. People tend to be more open, honest, and potentially inappropriate when they consume alcohol. Sometimes people forget (at least temporarily) that they are married, or that they have a significant other. For these reasons, it makes sense to encourage employees to bring their significant others to the event. The hope is that these guests will: (1) encourage employees to be on their best behavior and (2) reel in their spouses and significant others should they drink too much of the party juice. Employers should instruct a number of senior managers to refrain from drinking alcohol on the night of the event. Employers should instruct a senior manager to stand near the exit at the end of the party. This person will thank guests for coming to the event, but most importantly, he or she will make a final determination regarding whether employees are fit to drive themselves home.

5. This is a (Work) Party
Holiday parties are often held off-site, or after regular working hours. That is why it is critically important that employees must understand that work rules are applicable. There are a few ways to relay this message to employees. Employers can circulate a memorandum to all employees outlining the purpose of the event, its voluntary nature and that professional behavior is mandatory. As an alternative, employers might provide a refresher training session to all employees regarding discrimination, harassment, and other applicable company policies before the date of the event. This memorandum or training session will provide another reminder to employees of applicable policies. It should also add another level of insulation for employers in the event of legal action.

6. Uber. Taxi. Private Drivers.
No matter how careful an employer handles serving alcohol—without a doubt—someone will consume too much alcohol. Someone will not be able to drive. This will happen. What can employers do to stay ahead of this potential problem? Employers should offer transportation from the event for its employees. I know: this is another expense. But, for at least two reasons it is well worth the cost because: (1) it will enable employers to protect its most important assets—its employees; and (2) it will provide another layer of insulation for employers flowing from an employee's injury or from the harm he inflicts upon another person as a result of alcohol consumption. Many of the transportation companies offer group deals to defray the cost of this service.

7. Snap Chat. Facebook. Instagram. Twitter.
We are living in an era where almost every person has a cellular device. Most people subscribe to some sort of social media platform. That said, there is a great chance that the company holiday party—in its entirety or in part—will be uploaded to Snapchat, Facebook, Instagram, Twitter or any number of social media platforms. As an employer, this sounds pretty scary for a number of reasons. What could make this scenario even scarier? Insert Mistletoe! Do not use mistletoe as décor.

8. Prompt Corrective Action
No matter how much an employer plans, bad things will happen. Sometimes an inebriated employee makes a racially, sexually or otherwise discriminatory comment. This cannot be avoided—unfortunately. Nevertheless, part of an employer's obligation under Title VII is to make prompt corrective action in the event it becomes aware (directly or indirectly) of potentially discriminatory behavior. Employers must ensure that management and executives attending these events are setting a good example. They also need to function as watchdogs on high alert for inappropriate behavior. The sooner this behavior is reported and investigated, the less likely the employer will face continuing legal exposure.

This article has covered many tips for mitigating exposure in a holiday party setting. None of these tips will guarantee that an employer will not face legal action. In the meantime, implementing some or all of the tips discussed should reduce an employer's risk of legal exposure.

Keep these guidelines in mind, so you and your employees can focus on enjoying the event. Happy Holidays!

Sidney O. Minter is an associate in the Charlotte office of Fisher Phillips.

Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).