’Tis (or ’twil soon be) the season for family gatherings, gift giving and, of course, the company holiday party. Since no good deed goes un-litigated, ’tis also the season to prepare for the employee claims that always seem to arrive shortly after the company holiday party.
In the midst of holiday merriment, companies should not lose sight of the regulations that continue to apply to company-sponsored events, even social events, in which no work is being performed. To avoid the pitfalls that can be created by company holiday parties, companies need to carefully plan out each detail, including the following:
Dress Up Your Policies Before the Big Event. Before the invitations go out, companies should take the opportunity to review their personnel policies to ensure that they are up to date. Given the increased number of claims that are filed after the holiday season, there is no time like the present to make sure that your company’s policies comply with the ever-changing guidance issued by agencies such as the United States Equal Employment Opportunity Commission and National Labor Relations Board. Companies should ensure that their policies prohibiting discrimination, harassment and retaliation are up-to-date. Employees should then receive a reminder that they are expected to conduct themselves at the party in a manner that complies with these policies. By setting the expectation that employees are expected to dress and act in a professional manner, the company can help minimize inappropriate behavior before it begins.
Pick the Right Theme. You’ve heard this before, but it’s something that can’t be taken for granted. Companies should characterize the event as a “Holiday Party” or “End of the Year Celebration” to avoid claims of discrimination. When a company holds a “Christmas Party,” those employees who are of no religious preference and/or who observe a religion that does not recognize Christmas, may find the party to be offensive and discriminatory.
When Facebook and Instagram Crash Your Party. Many companies, seeking to avoid bad press, may instruct employees not to post photos from the company holiday party on their personal social media accounts. Left unchecked, these instructions run the risk of creating a claim of unfair labor practices under the National Labor Relations Act – especially if the employee is posting about something that could be construed as his or her “working conditions.” While companies can certainly take measures to prevent the dissemination of legitimately confidential company information, companies should consult with counsel before prohibiting social media activity that could be protected under federal labor laws.
Avoid “Forced Fun.” Consider allowing attendance at the company holiday party to be optional. Otherwise, employees (especially hourly workers) could try to claim that attendance at the party constitutes “work” for which they are entitled to be compensated at their regular (or overtime) rate of pay. Similarly, an employee who suffers an injury on the dance floor may attempt to claim workers compensation benefits. For the same reasons, companies should endeavor, as much as possible, to avoid discussing the business affairs of the company during the holiday party.
Getting Into the Spirits. While celebrating with a drink and toast is a fond tradition at many holiday events, companies should be wary of serving alcohol at company-sponsored holiday parties. Since alcohol frequently loosens inhibition, companies that serve alcohol risk the possibility of employees engaging in inappropriate, potentially sexually harassing behavior that might not occur if alcohol is left out of the equation. Other risks, such as liability resulting from serving alcohol to minors, may also be present. If alcohol must be served, consider taking precautionary measures, such as choosing a date, time and location that is likely to discourage excessive consumption, hiring a professional bartender who can assess intoxication levels, and limiting beverage selections. Companies may also want to consider providing employees with transportation after the party to limit the possibility of employees driving under the influence.
To Give or Not to Give. Many of us have witnessed the scene: A supervisor, trying to win favor by being funny, gives an employee a sexually explicit gift that seems funny to the supervisor, but makes the rest of the party uncomfortable. We have also witnessed when a colleague gives an employee, on whom the colleague has a not-so-secret crush, a lavish gift that makes the recipient feel that they’re being harassed through unwelcome romantic attention. The fact is, gifts often go awry and can become part of the basis of an employee’s claim of sexual or other harassment. Companies should be wary of holiday gifts: regardless of whether it’s the company, a supervisor or a colleague who is doing the gift giving, the company should insist (and instruct employees ahead of time) that all holiday gifts be nonoffensive, professional and appropriate.
Wear Your Best “HR” Hat. Companies are wise to instruct their salaried managers to keep a watchful eye throughout the company party. If at any point the company observes inappropriate conduct, designated managers should be prepared to intervene and put an end to the behavior.
Give Yourself a Gift, too. Last but not least, companies should give themselves the gift of ensuring that their workers’ compensation, employment practices liability, general liability, and/or other insurance policies are up to date, with premiums paid in full.
For advice concerning how to most effectively minimize liability during the holiday season, companies are advised to consult with experienced employment counsel.
Lori A. Higuera is a director and a co-chair of the employment and labor practice group at Fennemore Craig. She represents employers in internal and external investigations, arbitration, mediation, litigation, and administrative proceedings. Ms. Higuera also regularly provides employment training to employers of all sizes and frequently speaks on a variety of work-related topics before a wide range of professional organizations. Ms. Higuera can be reached at 602-916-5000 or firstname.lastname@example.org.
Shannon Pierce practices in employment, trade secret and commercial litigation with Fennemore Craig Jones Vargas. Ms. Pierce has a decade of experience representing management in litigation concerning claims of discrimination, harassment, retaliation and other traditional employment law claims, as well as claims of predatory workforce raiding and trade secret misappropriation. Ms. Pierce can be reached at 775-788-2200 or email@example.com.
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