Just Say NO to Mistletoe! An Employer's Guide to Holiday Parties

The time is upon us.  The annual office holiday party is generally a great event for morale and employee team-building.  All the same, employers should be aware of some legal landmines that can turn a festive occasion into a Blue Christmas.Several issues may arise for employers at holiday parties. They can include charges of sexual harassment; potential liability for the employer if an intoxicated employee causes an accident; and charges of religious discrimination by employees who feel compelled to attend an event they perceive to have religious undertones.  This doesn’t mean you have to be a Grinch.  By following a few guidelines, employers can host enjoyable holiday activities while minimizing potential liability. Limit Inappropriate BehaviorSexual harassment is probably the greatest EEO risk at the annual holiday party.  Such harassment can take the form of offensive comments, inappropriate touching or worse.  Make sure employees are aware of your company’s reasonable dress code expectations, and that inappropriate attire is not acceptable for any company function.  Also, consider allowing spouses, partners, and significant others to attend your holiday festivities.  Although this may raise the cost, employees may be more reserved and less likely to engage in offensive behavior if their “plus ones” are included.  At the very least, be advised that Twister and alcohol is not an ideal combination for any office party activity. Offensive touching and words may not be the only cause for concern.  Naughty “white elephant” gifts may also lead to trouble, and employers should advise employees who participate in gift exchanges that gifts must be respectful and appropriate for the workplace, particularly if the gift is presented in front of co-workers.Finally, be direct in reminding employees of their obligation to treat each other with respect and comply with all company policies, including the code of conduct, dress code, and anti-harassment policies.  It might even be worth a memo to employees prior to your holiday party that reiterates the fact that such policies apply equally to on-premises and off-premises events.  Eat, Drink, But Don’t Get Too “Merry”While there is nothing illegal about allowing adult employees to imbibe at the holiday party, alcohol is generally the root of all holiday party evils.  Obviously, excessive alcohol consumption during the party may result in an employee engaging in offensive behavior, cause the employee to hurt him or herself, or result in the employee causing an accident while driving home. To avoid a lawsuit hangover, employers should take precaution to minimize the possibility of excessive employee impairment.  Suggested steps include: (1) giving employees a limited number of drink tickets; (2) advising bartenders not to over-pour drinks (no shots!) and not to serve guests who appear intoxicated; (3) making a variety of non-alcoholic beverages and food available to help slow absorption; (4) closing the bar at least an hour or more before the event ends; (5) offering cab vouchers to intoxicated employees; and (6) scheduling the party for earlier in the day when employees may be less likely to over indulge.Respect DiversityAs most employers are aware, Title VII and various state EEO laws protect against religious discrimination.  In today’s increasingly diverse workforce, employers should strive to be inclusive by keeping the holiday party theme generic, and avoid decking the halls with religious decorations such as manger scenes or dreidels.  While some employees may grumble about “political correctness,” it is important to remind them that your company is obligated to respect and make reasonable accommodations for all religious beliefs.  Of course, employees who may be uncomfortable attending a holiday party for religious reasons should not be required to attend, or otherwise subjected to harassment or retaliatory action for failing to participate.Avoid Wage and Hour ClaimsIf attendance at the holiday party is not required, employers should clearly state the voluntary nature of the event in all e-mails or notices announcing the party, as most wage and hour laws require employers to compensate employees for time spent at mandatory events.  Also, do not conduct any work-related activities (such as training or award presentations) during your event.  Instead, consider planning your holiday function at an off-site location and during the weekend, if possible, as doing so supports the argument that your event is entirely social and not work-related. While these tips may sound like a buzz-kill, remember that the “wild and crazy” holiday parties are, for good reason, typically not company-sponsored ones.  If inappropriate conduct does happen during or related to your holiday event, don’t hesitate to be a Scrooge.  Immediately investigate all complaints and take prompt corrective action as necessary to avoid the Ghost of Christmas (Parties) Past from haunting your company in 2015.With that, all of us at Thompson & Knight wish you a happy (and uneventful) holiday season!  – Steve Fink and Barbara-Ellen Gaffney, Thompson & Knight LLP