Planning the
Non-Litigious Holiday Party
With
another holiday season here, companies nationwide are beginning to plan
holiday parties. Holiday parties are a longstanding company tradition that help employees
celebrate the accomplishments of the year. Unfortunately, holiday parties,
especially those where alcohol is served, can also be breeding ground for
employment liability.
A
2000 survey conducted by Vault.com found that 44% of employers surveyed had
to reprimand an employee for his/her behavior at a company holiday party.
The same survey found that 44% of responding employers had gotten drunk at
a holiday party.
Holiday parties are really extensions of the
workplace, and employers have a legal duty to prevent harassment,
discrimination and other unlawful behavior from occurring.
Sexual Harassment the Chief Complaint
Every
year countless sexual harassment complaints are filed based in part on
behavior that occurs during the annual holiday party. Employees may be less
careful at a holiday party than they would be in the office, especially if
alcohol is involved. The fun, relaxed environment may cause office
inhibitions to fade.
Consider
this example submitted to USA TODAY.com's Career Center:
"I was feeling a little tipsy
and accidentally grabbed my boss in a private area, thinking it was my
husband. I lost my job within two weeks."
Generally,
conduct must be "severe and pervasive" to constitute sexual
harassment. Usually, one comment at an office party will not meet this test.
However, if the conduct at the office party is coupled with previous
harassment, a hostile work environment may result.
Moreover,
sometimes the one-time occurrence is so egregious that it alone will
constitute sexual harassment. For instance, in one 1990 case an assistant
dean at the University
of Wisconsin holiday
party was said to have followed a faculty member into the bathroom where he
forcibly kissed and fondled her. This conduct on its own could be
sufficient to support a sexual harassment claim.
Tips for Avoiding Harassment Claims from Holiday
Parties
For
the most part, employers still want to have holiday parties. Employers can
take steps to prevent sexual harassment at such parties and to reduce the
risk of liability.
For
instance, employers should re-publish their sexual harassment policy in the
days before the holiday party takes place. Employers should attach the
policy to a memorandum that reemphasizes the company's zero tolerance
policy for harassment.
Managers,
especially, should be reminded of company policy and expectations. Managers
need to know that the company expects them to set an example of
professionalism at the holiday party. Moreover, as part of their sexual
harassment training, managers should be given real life examples of sexual
harassment that includes the holiday party scenario.
Employers
should consider inviting spouses and significant others. This can
significantly reduce the incidences of harassment or offensive behavior.
Employers
need to consider limiting alcohol at the party and keeping an eye on
alcohol consumption. Other liability issues also arise from alcohol
consumption, as discussed below.
Employers
should also take a close look at the venue and the entertainment provided to
avoid a sexually charged atmosphere.
If
inappropriate behavior is witnessed or a complaint made, the company should
take it seriously and not simply chalk it up to another annual holiday
party. Investigate all complaints. Failure to respond to any complaint can
lead to greater liability than the alleged misconduct. Don't dismiss any
complaints associated with the company's holiday party without conducting a
prompt and thorough investigation and taking remedial action if warranted.
Liability for Alcohol Related Incidents
Another
key concern for employers must be the potential risk involved in hosting a
work-related party where alcohol is served.
In
California,
employees who drink at a company-sponsored event and then injure themselves
while driving home may be entitled to workers' compensation benefits. A
California Supreme Court case allowed the wife of an employee to seek
workers' compensation benefits for her husband's death after he attended
the office Christmas party, got drunk and collided
with a railroad signal pole on the way home. McCarty v. Workmen's Comp.
Appeals Bd. (1974) 12
Cal.3d 677.
California
Labor Code section 3600 may call this case into question since it excludes
from coverage those injuries "arising out of voluntary participation
in any off-duty recreational, social or athletic activity not constituting part of the employee's work-related
duties, except where those duties are a reasonable expectancy of, or are
expressly or impliedly required by, the employment." However, the
employee could still argue that attendance at the holiday party in some
circumstances is impliedly required and not truly a voluntary, off-duty
activity.
Moreover,
employers may be held liable for damages to a third party by a drunken
employee. Courts have held employers liable for injuries to a third party
under the doctrine of respondeat superior.
To
avoid such liability, employers may want to take the following steps:
- Consider holding a
"non-traditional" office party and foregoing alcohol. Try a
group trip to a local amusement park or a volunteer activity.
- Make the office
party truly voluntary. Don't invite clients or customers. Doing so may
make employees feel that the event has a business purpose and that
attendance is required.
- If alcohol is
served, consider holding the event off-site and after hours to
decrease the company's liability.
- Reduce the amount
of alcohol served and stop serving well before the party officially
ends.
- Make certain there
are plenty of non-alcoholic drinks available and serve plenty of food.
- Remind managers of
employer expectations and remind all employees of the company's
alcohol and substance abuse policy.
- Consider arranging
for alternative transportation.
Holiday parties are meant to be fun. Reduce
the stress associated with such parties by following these steps.
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