‘Tis the season to avoid office party lawsuits
Tuesday, December 04, 2018
According to a new OfficeTeam survey, 93 percent of organizations will provide some type of seasonal activity this year — whether off-site or on-site. Also, 41 percent of companies plan to spend more on this year’s festivities.
"Hosting holiday activities is a great way for companies to recognize teams and thank them for their hard work," according to Stephanie Naznitsky, executive director of OfficeTeam. "These events can boost morale and allow coworkers to bond in a more relaxed atmosphere."
On the other hand, almost everyone has a "Hey, remember that time at the holiday office party when . . ." story about out-of-control-behavior.
"For years, holiday parties were treated much like a trip to Las Vegas: what happens at the holiday party stays at the holiday party — aside from some persistent whispers," according to Nannina Angioni, a labor and employment attorney and partner at Kaedian, a Los Angeles-based law firm. "It was a time when employees let loose, over indulged, and perhaps mustered up enough liquid courage to confront their boss or pursue a romantic interest."
While employers didn’t appreciate the risks that arise at these types of events, Angioni says the #MeToo movement has caused companies to be more attentive and seek to minimize exposure.
These are some tips for ensuring that your party doesn’t garner headlines for all the wrong reasons and become a case study for law school students.
Don’t Make Attendance Mandatory
The Office Team survey also found that 66 percent of managers say there’s an unwritten rule that attendance is mandatory.
However, according to Beth Zoller at XpertHR, a company might get into trouble enforcing that policy. "Do not make attendance mandatory," Zoller advises. For one reason, if the party is after hours and you force employees to attend, she says this may be considered work time and your hourly employees could be entitled to overtime pay.
In fact, Angioni says compulsory attendance is no different from making employees attend a training session outside of regular hours.
But there’s another reason why you shouldn’t make the party mandatory. It’s possible that some of your employees don’t celebrate this time of the year. Also, for employees who have lost family members, the holiday season can evoke painful memories.
"You also don’t want to make employees feel uncomfortable by forcing them to attend a social affair that they don’t want to attend," Angioni explains.
Enforce Existing Policies
A study by the Society for Human Resource Management found that companies with a higher percentage of employees who earn more than $100,000 a year are more likely to host a holiday office party, have an open bar, and offer transportation for inebriated partiers. However, the survey also found that these same organizations are least likely to enforce HR policies regarding expectations about employee behavior at a party, and employees at these organizations are the most likely to behave inappropriately.
Regardless of where your organization is on this spectrum, you can’t afford to let your employees get out of hand since your company could be held liable.
If you’re thinking, "Wait, should there be policies for behavior at a party?" the answer is yes — a million times, yes. You don’t necessarily need to create new policies for this event, but you should remind employees that the company’s policies extend to the party.
Zoller offers the following example: "Workplace policies regarding discrimination, harassment, employee dating, employee conduct, and the dress code remain in effect even during the holiday party, and employees as well as supervisors will be liable for violations."
In fact, it wouldn’t hurt to actually go over your company’s policies again with your employees. If you don’t want to have an open forum, at least send out an email. "What seems perfectly acceptable to one individual may be misinterpreted by another and very quickly escalate into a harassment claim as harassment is subjective and a slippery slope," Zoller explains.
For example, it might be fine to kiss people under the mistletoe in other social settings, but employees shouldn’t try this at an employee-sponsored event.
Enlist your leaders to help monitor the party and keep an eye out for any unruly behavior that needs to be addressed.
"If an employer decides to serve or allow alcohol, it should designate a management employee to monitor alcohol intake and make sure employees do not become too intoxicated or incoherent," Zoller says. And Angioni goes as far as to recommend that alcohol be limited to one or two drinks.
At this point, you might be thinking, "But we’re adults, and we want employees to enjoy themselves." Yeah . . . but from a legal standpoint, maybe you shouldn’t encourage too much enjoyment. "You don’t want drinking to be the only activity for holiday party guests,” Angioni warns. "Countless cases arising from holiday parties begin with someone drinking too much."
And even though it’s a festive event, never forget that a holiday party is an extension of your company’s work environment, she explains. "You wouldn’t want employees walking around drunk in the office — you don’t want them doing so at the holiday party."
Angioni admits that this seems rather controlling. "But you don’t want to be on the receiving end of an assault claim because, for example, an employee got drunk at the party and assaulted a coworker."
Companies should also ensure that employees aren’t drinking and driving. "If an employee leaves your event over the legal limit, gets in a car, and crashes into someone, you better believe the company will be named in a lawsuit," she warns.
But alcohol isn’t the only substance you need to worry about. "With more states legalizing medical and recreational marijuana, an employer should clearly communicate that use of marijuana or any other controlled substance while at a work-related holiday celebration is strictly prohibited, as it may endanger employee safety and impair judgment," Zoller says.
Be Inclusive and Respect Religious and Cultural Differences
Unless your company is a religious organization, don’t make the party a blatantly religious event (Nativity scenes and Christmas music), because, again, not everyone shares the same religious views.
Zoller recommends carefully planning the menu and entertainment with the individual needs and concerns of diverse employees in mind. "Make sure your workplace celebration is inclusive of everyone and it is a fun and festive occasion," she says.
Also, if you have a holiday party for the company, you should invite the entire company. "This means everyone who works for you — whether full-time, part-time, executive level or admin staff," Angioni says. If you start excluding groups of employees, she says you may end up inadvertently discriminating against a group of employees who share a protected status.
"Executives can certainly meet for an event among themselves, or a team within your division can have a team-focused celebration, but once you decide to have a company party, where people across some divisions are invited, you need to keep the scope wide and invite everyone," Angioni advises.
If you decide to include spouses, don’t forget that everyone is not married. To avoid discriminating, Zoller recommends telling employees that they can each bring one guest, which covers the various types of relationships.
However, inclusiveness starts long before the date of the party. For example, don’t have the event at a place that might cause some people to feel uncomfortable. This should be obvious, but in case it’s not, Angioni is against having employees meet up at a strip club, or even a restaurant like Hooters. "No part of a holiday party should involve your employees venturing off to a place that sells sex or involves sexually-driven branding," she warns.
When thinking of dates and places, Naznitsky recommends thinking about alternatives, such as hosting an afternoon affair, choosing another night instead of Friday, or even using an alternative venue such as an ice skating rink where employees are less likely to drink heavily.
Along these lines, Angioni adds, "Consider having a party where the company volunteers at an event, or plays a game together, or participates in an activity — vs. sitting around a room, snacking on small bites and drinking; do something else to engage attendees."
If you’re struggling to come up with ideas, exercise some of that inclusiveness by asking employees for their ideas.
Naznitsky says companies might be mistaken in thinking that they have to spend a lot of money on holiday events. "What’s most important is that employers survey the staff to learn what types of celebrations they like most.” And then, she recommends encouraging interested employees to help plan and promote the agreed-upon event.
Respond in a Timely Manner
If inappropriate behavior takes place at your company’s party, don’t drag your feet responding to the issue. "If the employer knows of any complaints regarding the behavior of supervisors or employees, the employer and HR should be sure to address these issues before they escalate," Zoller advises. "Documentation and investigation of any complaints is essential."
But hopefully, following the aforementioned steps will help to ensure that you don’t get a lump of coal — or a lawsuit with a lump-sum settlement — in your stocking this year.
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