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Employers: Surviving the Holidays in the Workplace

(posted: November 24th, 2015)

Surviving holidays in the workplace

It's the holidays, and that means office holiday parties - Woo hoo, party at work!

Or...maybe not?

Unfortunately, employers who host holiday parties can end up liable for harassment, hostile work environment complaints, wage-and-hour violations, and even drunk-driving accidents.

But most employees look forward to end-of-year celebrations, and they can be a tried-and-true morale booster, so how can employers continue to throw parties and otherwise encourage holiday cheer while making the events comfortable for all employees and minimizing their own risk?

The short answer is: Plan carefully, and develop clear policies.

Cups of Joy...Or Disaster

Alcohol is both a social lubricant and the fuel for misbehavior. Says Erika Frank, CalChamber's general counsel and VP of Legal Affairs, "Alcohol-fueled mistakes could have a lasting impact on individual careers or on the business as a whole."

Misbehavior includes everything from flirting, arguing and physical fights, to sexual contact and drunk driving. And don't underestimate the role of social media in workplace events. You should assume that drunken revelry will end up on Facebook, Twitter and Istagram, where it will be visible to superiors, co-workers and clients or customers.

California - The Grinch Who Stole Parties

You may find that it's best to serve only non-alcoholic beverages at your holiday parties, as California courts have expanded employer liability for drunk driving accidents following company parties. Your liability has the potential to now include accidents that happen even after an inebriated employee has reached home, if they should go out and drive again while still under the influence.

In a 2009 case, the court ruled that an employer can be held liable if the activities that caused the employee to harm others were either:

  • Undertaken with the employer's permission and were of some benefit to the employer; or
  • A customary incident of employment.

In other words, in the case of alcohol consumption related to work, the employer is potentially on the hook until the employee sobers up.

If you do decide to serve alcohol at your party, put measures in place to minimize the risk of liability.

Nondenominational Holiday

Consider the needs and concerns of all of your employees when you decorate the office, and avoid using religious elements, like menorah's or nativity scenes, in your decorations.

Remember that Title VII of the Civil Rights Act prohibits employers from using an employee's religion as a basis for employment decisions, and the California Government Code also mandates that an employer cannot deny employment or any employment benefit to a worker because of his or her religion.

In the context of these laws, "religion" is broadly defined. It includes all aspects of religious belief, and also protects employees who don't observe any religion.

People (employees and employers) can get pretty enthusiastic with their decorating for the holidays, and if it goes overboard you may face claims of religious discrimination or harassment.

Employees who don't celebrate a religious component to the holidays may not be comfortable with the religious displays common at this time of year.

Go ahead and decorate, but make sure that displays are unrelated to religious observance.

You also should not require employees to participate in holiday observances, whether religious in nature (requiring employees to answer the phones with a greeting such as "Merry Christmas" or "Happy Hanukkah") or secular (asking all employees to wear Santa hats).

Make sure that your policies treat all faiths consistently. State and federal laws prohibit employers from taking adverse action against an employee based on his/her religion, or preferring one religion over another.

"Ensure that your holiday-loving employees are not harassing employees who do not share their beliefs," said Frank. "Snide comments about employees who do not celebrate can lead to a claim of religious discrimination."

Paid to Party?

If attendance at the holiday party is compulsory, or even expected, it has to be considered work time.

If nonexempt employees are required to attend a lunchtime party, the employer will owe them a one-hour missed meal penalty.

Additionally, nonexempt employees will be entitled to overtime pay if a party (for example, an evening event) causes them to "work" for more than eight hours.

Exempt employees are not due any additional wages for attending holiday parties.

Frank points out, "Party attendance is not truly 'voluntary' if it is an unspoken expectation that all employees will be there, or if the employees believe that they will advance their careers by networking with management at the event."

There are benefits to considering the party as "work time." Since employers control the actions of their employees while they are at work, they can require professional behavior at the party. When employees are on the clock for the party, they may be less likely to behave inappropriately.

As the employer, you can remind them that you have the same expectations of professionalism from them at the party as you would on any regular workday.

Holiday Party Tips for Employers

If you do choose to serve alcohol, put some protective measures into place. Some of these could include:

  • Preventing employees from sneaking alcohol into the event
  • Enforcing a drink ticket policy
  • Serving alcoholic beverages for a specific, limited time period
  • Serving food
  • Non-drinking individuals monitoring the event
  • Closing the bar well before the end of the party
  • Hosting the party away from the office with experienced bartenders
  • Providing designated drivers or cab fare
  • Reminding employees of company expectations

You want your employees to have fun, but you also need to maintain some control. Planning your approach and your policies in advance can make the difference between a happy holiday or one filled with lawsuits and claims.

Please contact us if you need some help with your holiday policies.

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