5 Ways To Block Naughty Lawsuits From Nice Holiday Parties

Law360, New York (December 6, 2016, 8:34 PM EST) — While workplace holiday parties are meant to be a time of joy and celebration, careless employers may find that an incident at a company-sponsored gathering has left them with coal in their stockings in the form of potentially pricey lawsuits.

Although holiday parties can be great morale boosters as well as a forum for employers to show their appreciation for their employees’ hard work, management-side attorneys say they can also be the setting for behavior that spawns lawsuits ranging from allegations of sexual harassment to discrimination.

“In 30 years practicing, I’ve seen comedies and tragedies resulting from these things,” said Carl F. Muller, a management-side lawyer at Tucker Ellis LLP. “But people have them and they still serve alcohol.”

Morrison Cohen LLP partner Keith Markel said it’s unfortunate when an employer ends up in a lawsuit because of conduct that occurred at a holiday party because often the case could have been prevented.

“Holiday parties are supposed to be a fun time and they’re great for morale. They encourage people who don’t normally socialize with colleagues to enjoy themselves and talk about things other than work,” Markel said. “It’s typically intended to be a nice evening for everyone — employees and employers. But unfortunately, some individuals can ruin it for everyone.”

Here, Law360 looks at five ways employers can spread plenty of cheer at their holiday celebrations while simultaneously limiting the risks associated with such gatherings.

Beware Of Too Much Booze

Famed crooner Frank Sinatra — who often performed his signature hits with highball glass in hand — once famously opined that while “alcohol may be man’s worst enemy, the Bible says love your enemy.”

When it comes to office parties, most employees, even those who are generally light drinkers, take their cue from the Chairman of the Board and use the occasion to indulge in a cocktail or two — or possibly 10.

The result: They lose their inhibitions and do silly or even offensive things that they wouldn’t otherwise say or do in a work environment.

“There are a whole host of reasons why alcohol is the main culprit for party issues,” Markel said. “You can have a party that has no alcohol, [and] that eliminates 99.9 percent of problems. But is that realistic? The answer is no.”

If an employer does end up facing a holiday-party-related claim in court, Markel said that an employee’s diminished capacity from overdrinking is not a defense to claims of harassment or assault and that employers could ultimately be held responsible because they created the environment for that conduct to take place.

“Because the employer is creating the environment, the employer has to act, to a certain degree, in a parental way,” Markel said. “All the employer can do is position themselves to avoid a suit.”

So if employers don’t want to completely take away booze from the party, attorneys say they still have some options to make sure that the revelry doesn’t get out of hand.

“Employers, first and foremost, shouldn’t have an open bar with unlimited drinks,” said Laura E. Prather, leader of Jackson Lewis PC’s Tampa, Florida, office. “It’s a very risky proposition. We certainly know that alcohol has a tendency to make people drop their inhibitions and say or do things they otherwise wouldn’t.”

Another trick, according to Markel, is for employers to limit the drink menu to only beer and wine and to make sure they hire outside vendors to pour and serve the booze — and not have employees serve each other.

“It’s better to have the alcohol outsourced,” Markel said. “A vendor has its own insurance and its own staff who are trained to recognize when someone is drunk and needs to be cut off.”

Just as at sporting events, where arenas pull the plug on alcohol sales sometime in the middle of a game, employers can consider cutting off all alcohol orders an hour or so before the scheduled end of the party.

Keisha-Ann Gray, co-leader of Proskauer Rose LLP’s employment policies, handbooks and training practice group, also suggested that employers consider having a voucher or ticket system that entitles each employee to a maximum of three or four drinks to curb excessive imbibing.

“When I get litigation or allegations that stem from conduct at holiday parties, I’d say that nine times out of 10 [they] involve alcohol,” Gray said. “The best option is to have a holiday party without alcohol, but that’s usually not what happens.”

Team With A Cab Service

Whether employers choose to have full open bars or opt for the more reserved beer-and-wine option, they can save themselves from plenty of worry by simply making sure those who are slightly tipsy make it home in one piece after the festivities.

In the case of employers who have multiple offices and decide to consolidate their holiday parties at an off-site venue, some employees could be faced with a longer commute than it normally takes them to get to work.

“Have cars and taxis to make sure that those who have had too much to drink get home safely,” said Muller of Tucker Ellis.

Markel says employers can plan to have either a shuttle bus available or partner with an Uber-like taxi service that can safely ferry home any employee who’s had a few drinks — and tell employees in advance the option exists so they know to contact human resources with any requests for accommodation.

“Make it clear that the employer can and will provide transportation,” Markel said. “The last thing an employer wants is someone to get in a car drunk and get into an accident.”

Make The Party Secular And Inclusive — But Not Mandatory

While booze may be at the root of most employer headaches surrounding holiday parties, it’s not the only cause of lawsuits that stem from social events.

To avoid legal trouble, lawyers say employers should avoid using religious symbolism at company-sponsored events and opt instead for seasonal themes.

“Don’t make it a religiously themed party and don’t have religious symbolism,” Muller said, noting that religious discrimination has been an area of increased enforcement by the U.S. Equal Employment Opportunity Commission.

Jackson Lewis’s Prather offered similar advice, saying that employers should “be mindful and respectful that not everyone celebrates a holiday in December.”

The veteran Jackson Lewis attorney added that employers need to make sure that parties are inclusive not only of employees from varying religious backgrounds but also for many workers on maternity leave or some types of medical leave.

At the same time, no one should feel forced to go.

“Everyone has a right not to attend and feel as though they’re not treated any differently,” Prather said. “It doesn’t mean that if someone doesn’t attend, they get talked about or picked on.”

Besides issues surrounding religious discrimination, Muller points out that employers should also make the voluntary nature of a party crystal clear to avoid any claims by workers that the party counts as compensable time under the Fair Labor Standards Act.

“Send an email or enclose a notice as part of a paycheck that parties are voluntary,” Muller said.

Ask Workers To Behave On Social Media

In today’s world, smartphones are ubiquitous and people will always want to take pictures and videos of moments they think are funny, particularly in a festive setting like a party, according to Proskauer Rose’s Gray.

“Employers have to be aware of the fact that behavior and conduct at holiday parties can and likely will be recorded … and put online for all to see,” Gray said. “It’s no longer a private party. It’s an open party.”

While Gray noted that it would be inappropriate for employers to ban or restrict phone use, an action that could be seen as having a chilling effect on workers, she said employees should be reminded of certain ground rules to consider before posting or sharing any scenes from an office party.

While pictures or short videos may themselves be harmless, issues could arise once those snippets find their way back into the work environment, either by an employee posting them to social media or forwarding them in an email to other employees.

For those in the pictures or videos, even if they had not objected to being filmed in the first place, Gray said there could be an after-the-fact perception that the images are offensive if they believe they are being portrayed in a way that is inappropriate for a professional setting.

That in turn could breed claims of a hostile work environment, harassment or discrimination, Gray says. In other instances, workers could be offended even if they weren’t the subject of a particular photo or video but are upset that a colleague’s actions at the party are being scrutinized and joked about.

To avoid such outcomes, Gray says employers can offer regular training to both supervisors and rank-and-file employees to be mindful of each other’s feelings.

“Employers should have an open communication to just help people understand not to put themselves in a position where they drink too much and do something [they] may regret later,” Gray said, adding that employees should also be reminded not to use the information in a way that may be harmful or offensive.

Remind Everyone That Work Rules Still Apply

Before a party, employers should offer reminders to their workers about the company’s anti-discrimination and anti-harassment policies as well as proper reporting procedures should any incidents occur, lawyers say.

Supervisors and managers in particular also need to be reminded that their managerial hats don’t come off just because they’re at a social event.

“They can’t treat employees differently than in an office environment,” Prather said. “A party is still an extension of the workplace, and members of management need to be reminded of that.”

Prather said it would behoove supervisors and managers to steer clear of talking business or, if they do so, to keep that talk as generic as possible. Otherwise managers could inadvertently make an employee a promise they can’t later keep, or make a promise to one employee and not another, or simply offer complements inconsistently, which could lead to hard feelings among workers.

“No off-color jokes. It’s not appropriate in the workplace and not appropriate at a holiday party either,” Prather said. “You’re in a group and everyone laughs, but you don’t realize who overhears. Keep it high-level and generic.”

~Author: Vin Gurrieri; Editing by Jill Coffey.