Tuesday, December 1, 2015

The Company Holiday Party - Tips to Help Avoid Liability

Allowing Everyone To Fit

The holiday party season is in full swing, and employers and employees alike are in the spirit to celebrate and unwind. Unfortunately, what makes for a fun holiday party doesn’t always jibe with company standards for professionalism in the workplace. An employer is just as legally accountable for what happens at the holiday party as it is for what happens around the water cooler. It shouldn’t come as a surprise, then, that holiday parties have been known to produce a lawsuit or two. Here are some tips to help avoid beginning your new year with litigation.

1. Train/Warn Employees Beforehand. Your company’s policies and expectations for employee conduct are fully effective at the holiday party, and your employees need to know and understand this. Shortly before the party, an employer should consider sending out a memo to its employees reminding them of the company’s policies on harassment and discrimination, as well as any workplace code of conduct or expectations. Also explain to employees that the company’s policies apply to company-sponsored social events in the office and outside of the office. Clearly state that any before-party or after-party is not sponsored by the company.

2. Alcohol. Clearly, not serving alcohol at the holiday party is the best way to go. Advising your employees that they are not permitted to bring their own alcohol is also smart. If you do allow alcohol at your holiday party, make sure you’ve hired an outside service provider to handle the bartending and related duties. Prohibit your management staff from serving alcohol to employees. Ensure there are a wide variety of non-alcoholic drink options available, including “mocktails.” Explicitly instruct service personnel not to serve anyone who appears intoxicated. Ask the bartenders to mix “weak” drinks. If the company is paying for the drinks, provide each employee with one or two drink tickets, and require employees to pay for any additional drinks. Cut off the alcohol service at least one or two hours before the end of the party. Provide alternative transportation home such as a shuttle service. At the very least, organize a carpool with volunteer sober-drivers. Drivers should be instructed to drop off employees at their homes and nowhere else.

3. Keep it Secular. Unless your company has a legal religious exemption from employment laws, avoid company references to specific religions or religious practices. Title VII of the Civil Rights Act of 1964 prohibits religious discrimination and requires employers to accommodate employees’ religious beliefs. Beyond this legal requirement, taking religion out of the equation ensures that all employees will feel included, regardless of their beliefs.

Make your “Christmas Party” a “Holiday Party.” When decorating, opt for seasonal as opposed to religious imagery. For example, choose pine trees, snowflakes, and poinsettias over nativity scenes and menorahs. Think of the party as a yearly celebration of the company and a "thank you" to employees. While the timing happens to coincide with many religious happenings, keep the company party strictly secular. This includes all music, gifts, decorations, and topics of conversation!

4. No Racy Gifts, Games, or Gab. Holiday parties can become increasingly racy or controversial as the night wears on and employees’ inhibitions are lowered (and alcohol greases those wheels!). Gifts and games are not uncommon, and they often veer toward the inappropriate, as do topics of conversation. While there’s only so much a company can do about this, train your management-level employees to be on the lookout for such happenings and politely shut them down before they get out of hand. Just like in the workplace, managers with knowledge of inappropriate conduct are lawfully required to take appropriate measures to stop it and address the problem. Failure to do so because the conduct occurred at the holiday party will not fly in the courtroom.

5. Make it Absolutely Voluntary. Do not require your employees to attend. Do not pressure your employees to attend. Do not insinuate, even in the slightest way, that failure to attend will adversely impact or reflect poorly on an employee. 

Workers’ Compensation
Several states have statutes that specifically address employee injuries from recreational or social activities. Some states limit the employee’s recovery to those activities for which the employee is paid to participate. Other states allow employees to recover compensation if the employee’s participation was specifically directed by the employer. Much of the analysis turns on the laws of the applicable jurisdiction and cannot be addressed without specific knowledge of the facts involved.

But workers’ compensation laws often contain exceptions. For example, if the employee was ordered to participate or was paid wages or expenses while participating, then the employee may recover. Additionally, employees may recover if the injury occurred on the employer’s premises, the premises contained a known unsafe condition, the employer knew employees were participating in the activity, and the employer failed to stop the activity or cure the unsafe condition.

Personal Injury
Depending on the particular circumstances and state law, employers may face liability for negligent acts of the employee at a social event. For example, an employee hosts an annual holiday party to show its appreciation for its clients. After drinking too much at the client party, an employee causes an automobile accident. In some states, the employer may be liable for injuries caused by its employee.

Finally, employers may face liability for employees attending outside events. For example, an employer who requires employees to attend a party sponsored by a customer may be liable if the employee commits an actionable intentional or negligent act while at the event. Courts have found that the employer is liable because it stands to benefit from the customer’s goodwill generated by the employees’ attendance.

6. Respond Promptly to Post-Party Concerns. It’s not unusual for a company to learn of a potential problem a week or two after the holiday party. Have management appropriately trained and ready to respond to any concerns that are raised by employees or their party guests. How a company responds to an employee’s concerns about inappropriate workplace behavior can significantly impact whether that employee ultimately seeks out an attorney and pursues litigation. Furthermore, if an employee does sue the company, a prompt and appropriate company response to the employee’s complaint can provide a solid defense to a discrimination or harassment claim.

Potential Claims
No matter how well intentioned, office holiday parties tend to encourage employees to behave in ways that they normally would not when at work. Despite your best efforts to train supervisors and instruct your employees, someone is bound to forget about the employer’s anti-discrimination and anti-harassment policies as well as its more general code of conduct, all of which apply and must be enforced at any company-sponsored holiday party. In summary, employers should consider the following steps to reduce the risks of an employee violating these policies at the holiday party:
  • Confirm that your insurance policies cover your holiday party.
  • Remind employees of the company’s code of conduct as well as its anti-discrimination and anti-harassment policies the week before the holiday party.
  • Remind employees that these policies apply to company-sponsored social events both inside and outside of the office.
  • Remind employees that they will be subject to discipline if they violate these policies during the holiday party.
  • Remind employees that any “after party” is not sponsored by the company.
  • Remind supervisors of these policies and what to do if they learn of or witness any potential violation of these policies during the holiday party.
  • Consider inviting spouses and partners of employees to the party to potentially assist in reducing flirting and other possible harassment issues.
  • Consider implementing a dress code that maintains a professional environment.
  • If there will be gift exchanges, "legal" raffles or drawings for prizes, white elephant gifts, etc. make sure that All staff, even those who chose not to attend in the party, have an equal opportunity to share and participate if they wish.  Send and invitation to all and request an RSVP.
  • Exclude no one, even if they do not choose to reply or participate. They are all valuable members of your team! 
Image from: coverlayout.com
No amount of precautionary steps will entirely eliminate the risk of employee lawsuits associated with the holiday party but be sure to take the appropriate steps to minimize liability. The same is true for the workplace in general. Your holiday party can be a great success and an opportunity to boost employee morale and regroup for the new year. Have a happy and safe holiday season!

Sources: http://www.dickinsonlaw.comhttp://www.shrm.org/http://www.constangy.com/, HCSI 

For more information on this and other healthcare compliance topics related to HIPAA, OSHA, Medicare and HR, simply email your questions to support@hcsiinc.com
visit our website at http://www.hcsiinc.com or post a question on our LinkedIn group at: http://bit.ly/1FWmtq6

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