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5 Tips for HR to Help Corporate Avoid Holiday Party-related Legal Liability

“Angela drafted me into the party planning committee. Her memo said that we need to prepare for every possible disaster. Which to me, seems... excessive”.
– Ryan Howard, in a holiday episode of The Office.
The good news is that the holidays are here! The bad news is that Angela is right!

So, if you are in HR, and you are tasked with planning the annual company holiday party, you should plan for all sorts of possible trouble. Aside from the usual challenges of party planning (choosing the party favors, decorations, menu items, music, liquor choices, etc.), company holiday parties also come with an additional list of potential headaches that can lead to significant legal liability for the company if they are not adequately planned for. This article will identify some of those issues, and give you tips on how to plan for them and limit or avoid liability for your company.

Let me start by saying that this is NOT an article about how to avoid destroying your career at the company holiday party. The internet has some excellent materials offering advice on proper company party etiquette. Needless to say though, don’t drink if you can’t hold your liquor, avoid telling edgy jokes, stay away from politics and religion, and don’t talk your boss’s ear off with shop talk. Oh, and don’t be the creepy person hanging out under the mistletoe! (more on the mistletoe later). This may seem like common sense, but every year you will see one or more of your co-workers violating some or all of these unwritten rules. It looks especially bad when the offending employee works in HR. Don’t let that employee be you this year!  

Now, let’s get to the serious business of protecting your company from holiday party-related liability. As much as I detest the current proliferation of “10 Tips” styled articles, I have distilled this information into 5 helpful tips for you. Here goes:

1.Control the Holiday Sprits:
By this I mean, to the extent that you choose to serve any alcohol, you should limit how much alcohol any one person can have. So-called “dram shop” laws hold companies liable for the acts of their intoxicated patrons/employees who drink and later cause injury to another. So, controlling alcohol consumption is key to avoiding such liability. A good way to accomplish this is by issuing 2 drink tickets per person (watch for employees getting extra tickets from their co-workers!). You can also close the bar a few hours before the end of the party. In addition, try to see to it that at least finger foods are consumed prior to opening the bar. It will help reduce the effects of the alcohol once people start drinking. Also, have a clear policy for servers not to serve alcohol to visibly intoxicated employees. Lastly, have a plan to arrange cab service or carpooling for intoxicated employees.

2.Company Holiday Party ≠ Company Holy-Day Party:
Be wary of religious discrimination issues. While the EEOC and courts take the position that certain holiday decorations are secular in nature (i.e., wreaths, Christmas trees, and Santa clause), and that employers do not have to put up decorations associated with other religions, the EEOC also says that if an employee objects to particular mandatory holiday customs or practices on religious grounds, the employer may have to offer a reasonable accommodation to the objecting employee.

Of course, the employee must have a sincerely held religious belief before a duty to accommodate would be triggered, and the requested accommodation must be reasonable and not cause the employer undue hardship. What that accommodation could look like is case-specific, but if your holiday party is mandatory for employees to attend, and includes religious readings or a religious play, the accommodation could include allowing the employee not to attend the holiday party (or that part of it), or allowing them to have a separate (perhaps smaller) party or gathering if the numbers warrant it. It is clear that you cannot force employees to participate in a religious activity, regardless of what the activity is called. If the party is not mandatory for employees to attend, you can simply tell the employee that they do not have to attend.

If you find yourself grappling with this issue in the planning stage, then refocus on the purpose of the holiday party. Since the thought behind company holiday parties is usually to foster a sense of togetherness and boost the morale of the staff, it would seem wise that if your workforce has a number of different religions, you should find a way to incorporate the symbolism of each in small ways, or alternatively, reduce the references to each so as not to put religion as the central focus of the gathering. After all, you want as many employees to attend and enjoy the party as possible.

3.No Place for “The Forbidden Dance”:

Every year it seems party planners are stressing out on how to make this year’s festivities better than the year before. There are many ways to achieve this ever-illusive goal. However, I beg of you! In your quest to create the most awesome holiday party ever, please DO NOT include a “dance-off” or “dancing with the stars” competition to the party! Unless you want ruptured Achilles tendons, pulled muscles, groin pulls, herniated discs, and/or heart attacks, I would strongly advise against including or allowing such competitions in the party, whether formal or informal. Not only would any medical emergency sustained in the dance-off effectively kill the holiday spirit and bring an abrupt end to the party, but the resultant injuries will most likely implicate your workers compensation coverage, and could also cause FMLA and/or ADA issues to arise. So, instead of the dance-off, opt for less physical activities, like singing, and/or board or computer games (not Wii Fit though!).

4.Paid to Party if Made to Party:
Simply put, most wage & hour laws say that if you require employees to attend the holiday party, you must pay them for the time they spend there. This comes up in situations where the company president plans to make a speech or presentation about the past year’s performance and upcoming year’s goals, and so deems that attendance at the party isIf the party occurs during normal work hours, the employees are being paid anyway. However, in many companies the party is scheduled after work hours. In those situations, if attendance is mandatory, the employees that attend must be paid.   For non-exempt employees that work more than 40 hours that week, including time spent at the mandatory party, this will mean they get overtime pay.   My advice? Make attendance optional. Most will attend anyway because . . . it’s a party!

5. Say NO to Mistletoe:
While a playful holiday kiss under the mistletoe can be just the thing needed to kick off the holidays at home with your spouse, it can also be the start to something unlawful at a company holiday party. Joe from accounting may see this mistletoe moment as his best chance to show Susan from marketing how good of a kisser he is. Why? Because if it doesn’t work out well, he can always point to the “tradition” of kissing under the mistletoe as an excuse for his conduct. It’s not just about the mistletoe though. Something about company holiday parties seems to bring out the romantic (or creep, depending on the situation) in some people. Whether it’s the title “party” or the alcohol, some people get the idea that the company holiday party is the perfect setting for them to act on their attractions.

Thus, the weeks leading up to the holiday party is a great time to refresh the staff’s memory regarding the company anti-harassment policy, and dress code policy. Emphasize to them that the company has a zero tolerance for any sort of harassment, and remind them that inappropriate touching, jokes and remarks are included within that. As for dress code, while employees should be permitted to dress up for the party if they choose, they should be guided to dress in clothes that are not too revealing. Examples of appropriate clothing should be shown to them if it is different from what is commonly understood to be “business casual”. Make it clear that the company reserves the right to refuse anyone entry to the party if they are in violation of the dress code. In addition, make it clear that employees that violate the anti-harassment policy can be disciplined for their conduct at the party the same as if it occurred while working.               

So there you have it. While eliminating excessive consumption of alcohol, wild dancing, and awkward pick-up behavior may reduce the entertainment value for some employees, your primary goal as someone responsible for planning the party is to make it a safe and appropriate company holiday party. Parties don’t have to be wild and crazy to be enjoyable, and those that are wild and crazy are, for good reason, typically not company- sponsored ones. With these 5 tips, you can now make sure that the start of your company’s new year is not blighted by having to defend a lawsuit born out of a poorly planned company holiday party. Happy holidays, and a superb new year!  

DISCLAIMER: This article is intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

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Biography

Shaun C. Reid, Esq. is a labor, employment, and immigration law attorney.  As the Principal of Reid Kelly, P.C. law firm, he advises clients on all aspects of employment law, immigration, and labor relations, and provides human resources counseling.  His practice includes employment discrimination litigation, unfair labor practice litigation, NLRB representation proceedings, collective bargaining, involvement with grievance arbitration procedures, drafting and implementation of personnel policies, and advising clients concerning compliance with applicable labor and employment laws, wage and hour standards, and other general workplace guidelines.

Prior to founding Reid Kelly, P.C., Mr. Reid served as the General Counsel and Director of Labor Relations of a retailer based in New York City.  Prior to that, he served as an Associate Attorney for a boutique management-side labor and employment law firm in New Jersey and New York.  He has also served twice as a legal intern at the U.S. Equal Employment Opportunity Commission’s New York District Office, and as a legal intern in the U.S. Bankruptcy Court, Southern District of New York.  He is a proud graduate of Fordham University School of Law, and is admitted to the Bars of New York and New Jersey, and the Federal Courts in the Southern and Eastern Districts of New York.  He is a member of the New York City Bar Association, The Brooklyn Bar Association (member, Labor & Employment Law Committee), The Brooklyn Chamber of Commerce, the MBBA (member, Labor & Employment Committee), and NAAAHR-GNY (member, Legal Committee).

Mr. Reid volunteers his time with several legal services organizations on matters related to immigration and consumer debt.

He can be reached at s.reid@reidkellypc.com, and more of his thoughts can be found here http://www.reidkellypc.com/blog/, and here http://hrlawyer.tumblr.com/.

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