By Kevin Troutman, Partner, Fisher Phillips
Here in the midst of the season for holiday gatherings, it is not too late for administrative and human resources (HR) leaders to review their plans and to help ensure that a holiday party does not turn into a visit from “the Grinch,” fraught with headaches and unpleasant surprises. Although parties typically boost morale and build comradery, they can also become hotbeds for potential employer liability.
While there is no surefire way to eliminate legal exposure, employers can take some proactive steps to significantly reduce risks. With this set of tips in mind, healthcare employers can deliver an enjoyable event while protecting themselves from nasty post-holiday repercussions:
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NO GRINCH Tips for a Safer Holiday Party
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- Never Forget that Serving Alcohol Carries Some Risk
While people may enjoy a holiday cocktail, beer or other drink, alcohol consumption also infuses a layer of complexity and potential risks for employers. Alcohol can of course erase inhibitions, leading some people to “let their hair down,” perhaps more than they should. That formula can easily lead to workplace-related problems. The problems can (and often do) lead to allegations of harassment, inappropriate comments or touching, and other prohibited conduct.
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If a company decides to serve alcohol, it should consider several issues, beginning with limiting the amount of alcohol an employee can consume. Steps could include using a ticket-system, which would (at least theoretically) restrict each employee to a certain number of drinks. Companies should also avoid serving alcohol-based punch or eggnog, which can make it hard for employees to tell how much liquor they have consumed.
Another effective measure could be hiring professional bartenders for the party and closing the bar at least an hour prior to the end of the event. That precaution could be coupled with conducting a drawing for a prize or some other activity that would encourage people to stick around during the last hour.
Finally, ensuring the availability of non-alcoholic beverages can be very helpful for guests who prefer not to drink, or realize they have had enough for the night.
- Only Encourage (Do Not Require Attendance)
Attendance at such parties should be voluntary – not mandatory. The voluntary nature of the party should be explicitly stated, preferably in writing. Employers should not pressure employees to attend. When holiday parties are mandatory, a reluctant (or purportedly aggrieved) employee can argue that they were coerced into attending. And when attendance is required, employers face a greater risk of wage and hour or workers’ compensation claims. If some employees are required to be “on duty” during the event, and that is likely to be the case, any such non-exempt employees should record their time and be paid for it. As to all other employees, who are off duty, employers should refrain from activities or conversations that could arguably turn the event into performance of duties or a de facto meeting.
- Give a Great Party, But Remember That It’s Tied to the Workplace
Even when held offsite, after regular working hours, a holiday party is still a work-related event. Thus, it is critically important for attendees, especially supervisors, to understand that company rules of conduct are still applicable, especially rules that prohibit all manner of harassment or discrimination. Supervisors must never forget that they are the face, eyes, and ears of the employer at these events. They must therefore consistently set good examples while being alert to halt any outlandish or offensive behavior.
Of course, maintaining a company culture that emphasizes respect for individuals and does not tolerate bullying or harassment is the best way to avoid such issues. But it can be a good idea before the event to circulate announcements or email to all employees, outlining the logistics, with any theme or dress code information, along with a reminder that the company wants everyone who attends to enjoy a great event in keeping with the organizations values, policies, and culture.
Stationing a trusted (and trained) senior leader or two near the exit will not only help ensure that guests are acknowledged, but it can also help in assessing whether any departing guests do not appear to be capable of driving themselves home. This idea ties directly to Tip No. 6, below.
- Remember – Food Can Reduce the Impact of Serving Alcohol
If alcohol will be served, plan to serve foods that will slow the absorption of alcohol, such as those high in protein or starch. Greasy or salty foods generally tend to encourage more alcohol consumption, so avoid them.
Also, some employees will have food preferences or allergies, some of which may be tied directly to a religious belief (Title VII), or a medical condition (Americans with Disabilities Act). Make sure you understand whether any accommodations are necessary by asking your guests ahead of time.
- Include Spouses and Significant Others on the Guest List
Another way to help reduce some of the potential inhibition-busting effects of serving alcohol is to encourage employees to bring their spouse or significant others to the event. The presence of these guests may tend to encourage employees to be on their best behavior and hopefully reduce the risk of sexual harassment allegations.
- Need a Lift (Lyft)? Uber. Lyft. Taxi. Private Drivers.
When it appears that a guest is unable to drive themselves home safely, be prepared to offer transportation, whether it be through Uber, Lyft, taxi, or other private drivers. For a couple of reasons, this extra effort may be well-worth the cost. First, it prioritizes the safety and wellbeing of employees, their guests, and the general public. Second, this precaution can provide another layer of insulation if an incident occurs. Some transportation companies may offer group deals to defray the cost of this service. Again, the use of professional bar tenders can help employers in this regard. And the individuals entrusted with the responsibility of watching for and offering this assistance to potentially impaired guests should be trained.
- Could Your Event End up on Social Media?
In the age of smart phones and social media, shots from the company holiday party could appear on Snapchat, Facebook, Instagram, Twitter, or any number of social media platforms, even despite any best efforts to the contrary. (Such efforts are likely to encounter legal and practical obstacles.)
In the final analysis, this reality is something that employers should keep in mind when planning a holiday event and considering each of the tips above.
- Handle any Problems Promptly
Despite the best laid plans, untoward events still sometimes happen. For example, if an inebriated employee makes a racially, sexually, or otherwise discriminatory comment, or does something else that violates company policies, the employer likely has an affirmative duty to investigate and promptly put a stop to such activities. Again, this is critical from both a practical and legal perspective. A thorough, well-documented and timely investigation and follow up is an employer’s best and most effective protection in these circumstances.
Finally, a bonus tip: Mistle-No! Need we say more? Hanging mistletoe is probably the biggest single mistake that an employer could make at a holiday party.
This article has covered various tips for reducing exposure in a holiday party setting. While none of them provide a complete guarantee against a party turning into a disaster, but they do provide a good baseline for planning. As always, employers must consider and weigh the risks and rewards associated with these ideas to determine how and to what extent they may be effective in their workplace.
Happy Holidays!