Planning Office Holiday Parties Without LawsuitsJonathan A. Segal
Regrettably, the confluence of religious expression, social interaction, and alcohol consumption often results in a wonderful January for plaintiffs’ lawyers. Here are suggestions for planning and executing company holiday parties that celebrate the season while minimizing the legal risks.
What to Call It, Whom to Invite
You decide to have a holiday party. If you call it a Christmas party, those who don’t celebrate the occasion may feel excluded. If you call it a seasonal celebration, then those who celebrate Christmas may feel you’re demeaning their holiday by using a surrogate name. It’s not like raw fish and sushi; there is a difference.
You can balance competing considerations, albeit imperfectly, by calling the event a holiday party but acknowledging in the invitation that you are celebrating Christmas, Hannukah, Kwanzaa, and other holidays that fall at this time of year.
The next question is whom to invite. What about contractors and other temporary workers? If you include them, you make them look more like employees and assume the accompanying legal risks. If you exclude them, they may feel slighted and you’ll have to bear the hard feelings.
Fortunately, this is something of a false dilemma. You can simply invite employees and “other guests” to make it clear that your contractors fall in a different category than employees do. Within the “other guests” category, include valued vendors, suppliers, and so forth. Is there some risk? Yes. (When isn’t there?)
What about inviting spouses? It seems hospitable. But welcoming “employees plus spouses” could make same-sex couples who cannot marry feel excluded. You can simply say “spouse or partner.” Remember that many opposite-sex “partnerships” exist, too, so it makes sense to acknowledge partnerships (without defining them).
O.K., that may prevent exclusion based on sexual orientation or marital status. But what about those who have no partner, period? Try “employee plus guest.” If you don’t want kids to come, you can say “adult” guest.
Someone might then accuse you of being hostile to children. While we can and should be inclusive in our invitations, we can draw lines between adults and children. Inclusion is not without limits, particularly in the presence of alcohol. O.K., feel like you need a drink now? Let’s move on to that topic.
Alcohol—and How Much
The legal issue surrounding the serving of alcohol is whether the law will hold the employer liable if partygoers drive home under the influence and cause accidents. Laws vary from state to state, but I can offer some general guidelines gleaned from various court cases over the years.
The greatest exposure involves minors. If a minor drives under the influence of alcohol served by an employer and gets in an accident, a substantial likelihood of employer “social host” liability will result.
In cases of adult drunk drivers, the consequences are less certain. Even in the absence of legal liability, moral considerations come into play. You’ll surely spend many a sleepless night if a serious or fatal accident involving one of your employees occurs after you failed to take reasonable steps to limit his or her consumption of alcohol.
The safest approach from a legal perspective is to forget about cocktails, beer, or wine. That’s not necessarily realistic. You can minimize the risk of serving alcohol by following these guidelines:
1. Establish in pre-function communications that minors cannot drink alcohol, and that they—as well as any adult who obtains it for them—will face termination if they consume any.
2. Make clear in pre-function communications that employees under the influence must stay out of the driver’s seat.
3. Have a bartender serve the alcohol. Letting employees serve themselves can encourage them to help themselves too often and pour too generously.
4. Establish a maximum number of drinks that an individual can have.
5. Make available cab vouchers that employees can use without having to go to a manager. So what if a few employees abuse the privilege? If the vouchers prevent one accident, they embody money well-spent.
6. Assign certain managers to keep their eyes and ears open for individuals who appear intoxicated at the party.
7. Serve plenty of nonalcoholic beverages and lots of food.
8. Shorten the happy hour.
9. Consider requiring employees to pay for their alcoholic drinks, then donate the payments to a charity.
10. Do not organize or participate in any “after party.”
Sexual Harassment Concerns
At many holiday parties, someone will dance too close or let his or her hands roam. According to the alcohol and drug-addiction treatment-provider Caron Treatment Center, a study it conducted of adults who attended work-related outings in which alcohol was provided showed that 30 percent had seen someone flirt with a co-worker, 26 percent indicated that a colleague or supervisor had shared inappropriate details about himself or herself or a co-worker, and 9 percent claimed that co-workers or supervisors engaged in sexual activity while under the influence of alcohol.
We all know that alcohol can increase desire and decrease inhibition. That’s not the best combination for a work-related event. Keep your eyes open for those who may be behaving badly and put a stop to it as soon as you can. Even if a harassment claim never results, you risk your reputation—and those of your employees—if you do nothing. Guests who drink responsibly or abstain completely will likely remember what they saw or experienced.
“But I Don’t Wanna Go”
Of course, some invitees will prefer to skip the holiday festivities. They may have legally protected reasons. For example, a newly sober worker may feel uncomfortable in the presence of alcohol. Some employees may be Jehovah’s Witnesses, who do not celebrate holidays. Gay or lesbian employees may feel uncomfortable bringing same-sex partners.
Accordingly, supervisors and managers need to respect the choices of those who elect not to go. Don’t pressure them to attend—or even ask for their reasoning.
Another argument against being pushy: If employees feel compelled to go, you may have to pay for their time. Although there is no Labor Dept. regulation at present, DOL representatives have mentioned to me that if employees are required or even strongly encouraged to attend, attendance may then be considered work.
Finally, the Decorations
How should you make the venue look festive? If you include a Christmas tree, are you promoting Christmas? If you don’t, are you declaring war on it? As a legal matter, an employer has the right to pick decorations at a holiday party or elsewhere. Indeed, the employer has First Amendment rights. Still, risks persist. If you choose decorations of only one religion, some may view it as bias in favor of one faith and hostility toward others.
How you do resolve this issue without losing your mind?
Do your best—at the party and elsewhere—to diversify. Include a Christmas tree. Consider symbols of Hannukah and Kwanzaa, for example, too.
Make your decorations lean toward the secular side. A Christmas tree makes a better choice than a nativity scene. And size matters: A large tree next to a tiny menorah could send an unintended message.
To ensure religious and spiritual inclusion, consider asking employees to suggest the kinds of decorations they’d like to see. You may receive some good ideas. Those who don’t bother to suggest anything will have a harder time complaining later.
When you are done—regardless of your faith—pray. Because no matter what you do, someone will always be unhappy.
For my part, I’d like to wish peace, health, and happiness to you and yours—regardless of what, if anything, you celebrate.
Author’s note: This article should not be construed as legal advice or as pertaining to specific factual situations.