Ensuring A Silent Night: Reducing the Risks of the Office Holiday PartyMar 10, 2015 Published Article
Companies throughout the county are busy planning their holiday office parties. While holiday parties can be great for developing camaraderie and celebrating annual accomplishments, they can also expose the company to increased employer liability. By understanding where those risks lie, and what steps can be taken to mitigate them, an employer can better protect itself during this holiday season.
Too Much Egg Nog: Alcohol-Related Liability
It’s hard to separate alcohol from holiday parties. Unfortunately, it’s also hard to separate diminished judgment from intoxication. This foreseeability becomes relevant under California law when an intoxicated employee driving home from a holiday party injures a third party. California law exposes an employer to liability for tortious conduct of its employees when the tortious conduct is committed within the scope of the employee’s work. The employer’s liability exists whether or not the employer is negligent or has control over the employee at the time of the injury. California cases have already found a sufficient nexus between an employer’s holiday party and an employee’s automobile accident for the purposes of holding the employer liable for the injuries sustained by a third party in the accident.
Employees injured in the course of their employment are also entitled to receive workers’ compensation benefits. Off-duty social activities (e.g., the holiday party) that are expressly or impliedly required by the employer are covered by these benefits. In fact, the California Supreme Court has previously determined that an employee killed while driving home drunk from an office holiday party entitled the employee’s wife to workers’ compensation benefits.
Faced with liability to its employees and third parties as well, employers planning to conduct a holiday party should take proper steps to mitigate the risks related to alcohol. The employer should disseminate its policy regarding alcohol and substance
abuse to all of its employees in the weeks leading up to the party. Supervisors should not only be reminded of the policy, but re-trained on the proper handling of violations of the policy. Rehearse the “most-likely scenarios” with your supervisors so that they are well prepared to address them at the time of need. Employers should consider designating certain senior supervisors to oversee the event, remaining sober and vigilant during the party.
Employers should also consider holding the event at an off-site location such as a restaurant or hotel. Taking the employer out of the role of bartender helps minimize liability. To help limit consumption, an employer should consider the use of drink tickets (i.e., 2 per attendee) if they plan on having an open bar. Consider hosting the event during the day. However, if the holiday party is to be an evening event, the employer should make sure that there is a set ending time which will be enforced (nothing good happens after midnight...). The schedule should include closing the bar an hour or more before the end of the event. There should also be plenty of food and non-alcoholic beverages available. Employers should consider offering taxi vouchers or a shuttle service to reduce the number of attendees getting behind the wheel.
Lose the Mistletoe: Sexual-Harassment
Holiday parties typically generate a surge of sexual harassment complaints, as employees too often lose their inhibitions while drinking alcohol in a festive environment. It is well established that the office holiday party is part of the “working environment” when analyzing a “hostile work environment” claim. Thus, unwelcome sexual conduct at an office party that is sufficiently severe or pervasive can constitute sexual harassment. And in California, an employer is strictly liable for sexual harassment committed by a supervisor. The threat of sexual harassment occurring during the holiday party is real.
To avoid a sexual harassment complaint, employers should consider the following ideas for their holiday parties. It starts with proper training on the company’s sexual harassment policy. In the weeks leading up to the holiday party, employers
should re-publish and train all employees on its sexual harassment policy. The training should include a discussion of the upcoming holiday party, reinforcing the idea that the same rules regarding harassment will apply at the event. To help curb inappropriate behavior at the party, employers should consider inviting spouses and significant others to the event. “Secret Santa” gifts exchanges can be problematic, especially without established rules prohibiting sexually-charged gifts. Employers should refrain from putting up the mistletoe--it is likely to incite unwelcome sexual behavior. And finally, the employer should promptly investigate any complaint of harassment that is made.