Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The end of the year brings many reasons to celebrate, and most employers intend to make merry by hosting a holiday party of some sort. This occasion presents an opportunity for employers to foster team spirit and express appreciation for the hard work performed by staff all year. In turn, employees appreciate the chance to interact with their coworkers outside the hectic workday.
Nonetheless, a holiday party can create unintended negative consequences for employers. For example—and as employers are keenly aware—unlawful sexual harassment has become the most visible employment issue in corporate America. It seems as if every day brings media coverage of further misconduct allegations against prominent leaders and celebrities.
Despite their laudable intentions, employers could face liability for the conduct of employees who behave inappropriately at a work event. The office party can become a breeding ground for all kinds of regrettable and potentially unlawful behavior.
To help curb that possibility, we offer several considerations as employers prepare for their holiday events. We’ll use the acronym P-A-R-T-I-E-S to guide our discussion.
- Preparation Begins with Employer Policies.
Employers with holiday parties approaching should consider reviewing and reiterating antiharassment policies, as well as any additional policies relating to employee conduct at company-sponsored events. Now might be a good time to conduct further antidiscrimination and antiharassment training and to remind employees that such policies continue to apply at the event. An employer should strive to ensure that employees understand all relevant policies, as well as the employer’s overall commitment to preventing and correcting unlawful behavior in the workplace.1
This suggestion may be particularly prudent if an employer has not had an opportunity to review this information with staff recently (say, in the last six months).2 Even if your state does not require routine, ongoing training on these topics, a refresher course is a good idea.
Employers might also consider whether revisions to existing policies may be needed. Policies could be updated, for example, to expressly cover work-sponsored functions if they do not already do so. In recent years, moreover, the Equal Employment Opportunity Commission has offered numerous recommendations for employers about the content of antiharassment training. Given the heightened awareness of sexual harassment and the anticipated increase in future claims, employers might want to be proactive with their training regimen and materials.
- Alcoholic Beverages Should Be Carefully Monitored, If Offered, But No Drugs Permitted.
It really goes without saying, but alcohol consumption can quickly transform an otherwise innocuous party into a minefield of unintended consequences.3 With lowered inhibitions, employees (or worse, managers) may make unwanted sexual advances, inappropriate gestures, or offensive remarks. Common claims that stem from such parties include harassment and discrimination, as well as complaints due to injuries suffered both by attendees and third parties.
If alcohol will be served at an event, there are several simple ways to reduce the likelihood that attendees overindulge. For example, consider hiring a third-party bartender and/or issuing employees a limited number of drink tickets. A cash bar might also discourage excessive drinking. Perhaps limit the types of alcohol offered to beer and wine, and serve food. Employers should set concrete hours for the event and ensure that non-alcoholic beverages are available. Employers could also coordinate designated drivers or sponsor rides home as needed.
Another option is to host a breakfast or lunch event, where employees would likely consume less alcohol, if alcohol were served at all. Invitations to off-site events also could include a guest and/or children, to keep the atmosphere family-friendly.
In addition to alcohol, marijuana is legal for adult recreational use in a few states.4 Employees in these locations may feel it is appropriate to bring marijuana, in one form or another, to a holiday party. This development may make employers, and employees, uncomfortable for a variety of reasons. It also poses serious safety risks, particularly if employees bring marijuana edibles to share with coworkers.5 Despite the legality of possession in some states, employers still have the authority to ban pot from the holiday potluck—and from their premises generally. Marijuana remains a controlled substance under federal law. Employers that maintain drug-free workplaces do not need to alter their policies—although now might be a good time to remind employees in affected jurisdictions that their drug-free policy stands and will be enforced. And even in states where recreational marijuana is legal, those laws recognize that employers can prohibit marijuana consumption in the workplace and, by extension, at work-sponsored events.
- Retweet and Post With Care!
Without question, employers should anticipate that employees will post comments or pictures from the holiday party on social media. This digital attention can be positive, but it can also lead to very public embarrassment for employers and attendees alike, along with other complications.6
With that in mind, employers should encourage employees to interact with each other, rather than their screens. Providing an optional, structured activity or entertainment at the party might help keep employees engaged. That being said, employers should not permit drinking games, gag-gift exchanges, or unsupervised skits or speeches, as these activities tend to get out of hand.
Employers should also instruct employees not to photograph, record, or post about party guests without their permission. Posting still or video images without consent is not only rude, it can be illegal in some states and may violate federal wiretap laws.
And if an employer wishes to post on its own social media accounts, it should pay one very sober, very sensible employee to handle that task.
- Task Higher-Ups With Setting The Tone.
In addition to reviewing applicable policies with staff, discuss these issues with management. Encourage leadership—including at the highest levels—to set a good example at the party and to keep an eye out for trouble. They are well-situated to rein in staff in danger of crossing the line.
Generally, and perhaps now more than ever, it is critical for corporate leadership to “talk the talk” and “walk the walk” on appropriate workplace behavior. Workplace culture is critical to identifying and preventing harassment. It may be helpful to spend time to educate leadership (before or after the party) about how best to promote a culture free from harassment, and spell out for them the potential consequences of failure to achieve such a culture.7
- Insist on Invited Guests Only.
Holiday events—especially if hosted at the office—should not be an open house. Only employees should be invited, possibly along with a guest if the party is after-hours and off-site. While no one wants to be a Grinch, it can become difficult to monitor the activities of non-employees, who may not be recognized, wandering around the office. Remember that inviting non-employees into the work space grants them proximity to your employees, as well as files, computers, and potentially confidential or proprietary material.
Moreover, employers can be subject to premises liability and/or social host liability (aka “dram shop liability”) for injuries occurring at, or because of, an office event. Tort liability to third parties may also attach due to an employee’s misconduct. Employers may wish to consult their insurance providers to learn if party-related incidents would be covered by existing policies. And to help keep the party under wraps, employers should not share details about the event with vendors or clients, or on social media.
- Explain Expectations for Attendance.
Prior to any work function, employers should clarify the purpose of the event and whether it is mandatory. Of course, there are many reasons an employee might choose not to participate in a holiday gathering. Some employees may not feel comfortable attending a party for religious reasons (i.e., Jehovah’s Witnesses) or for other personal reasons (i.e., social anxiety issues, financial concerns, dietary restrictions). Recovering alcoholics might want to skip a party where alcohol is served. And if the party is after-hours, parents without childcare might have to pass, some employees might have a scheduling conflict, and others just might not want to attend.
The bottom line is that, unless an employer intends to pay its employees to participate, attendance must be voluntary. Employers may not penalize any employee who declines the holiday party invitation, no matter the reason. Relatedly, employers may want to avoid using the holiday party as a venue for business-related speeches, distributing gifts or bonuses, or the announcement of awards or promotions—all of which could imply that employee attendance is mandatory.
The question of whether an employee is obligated to attend a party may also be relevant for workers’ compensation purposes, should an injury occur. Workers’ compensation laws vary widely by jurisdiction, but liability frequently turns on whether the employee was injured performing his or her duties or otherwise acting within the scope of employment. Injuries suffered at a company party may be compensable in many states, particularly if the event is formally sanctioned by the employer. Additional factors that might bolster a workers’ compensation claim include: (1) the location (i.e., the party took place at the office); (2) the employer’s level of encouragement for participation (i.e., attendance was required); and (3) the role of the employee at the function (i.e., whether he or she performed duties at the event, such as handing out drink tickets).
- Spread Seasonal Cheer to All: Be Inclusive!
It can be tempting to select a religious theme for a holiday party, particularly as several of the world’s largest religions (including Christianity, Islam, and Judaism) have feast days at this time of year. But for nearly all employers, the purpose of the holiday gathering is not to celebrate any specific religion—it is to celebrate the employees, the organization, and hopefully the close of a successful business year. The employees themselves are the guests and may be a diverse crowd.
As a result, and despite the “anti-PC” rhetoric in some circles, employers should be inclusive with party themes, messages, and decorations. For example, invitations should not refer to a “Christmas party” when the event is more accurately described as a “holiday party” or “end-of-the-year celebration.” Employers should also refrain from decorating with religious imagery, such as nativity scenes or menorahs. And for all the reasons discussed in this article, please skip the mistletoe!
Some employers plan parties occurring in the new year, which further distances the event from underlying religious connotations and offers a diversion during the post-holiday doldrums. This approach also can be much easier on organizations that are busy at the holidays, as well as less expensive.
In sum, employers hosting holiday events this year might contemplate some of these party-planning issues:
- Preparation begins with policies;
- Alcohol should be monitored, and drugs prohibited;
- Retweet and post with care;
- Task management with setting the tone;
- Insist on invited guests only;
- Explain attendance expectations; and
- Spread seasonal cheer to all!
As indicated earlier, employers should consider issuing a memo or email to employees prior to the party, addressing, for example, the voluntary nature of the event, limitations on drug or alcohol use, antiharassment policies, and social media etiquette. With a little forethought, this year’s holiday event can be fun, without turning into a fiasco. Happy Holidays!
1 See, e.g., Helene Wasserman, Dear Littler: Is an Employee's #MeToo Social Media Post a Harassment Complaint? (Nov. 6, 2017).
2 See, e.g., Angel Newcomb & Kevin Griffith, Revisiting Your Sexual Harassment Policy During the #MeToo Uprising, Littler Insight (Nov. 29, 2017).
3 According to one survey, roughly 48% of employers hosting parties this year intend to serve alcohol this year, a reduction from 62% last year. Challenger, Gray & Christmas, Inc., 2017 Holiday Party Survey Report: Companies Plan Less Showy Shindigs (noting that fears about sexual harassment may explain the trend toward scaled-down parties).
4 See, e.g., Nancy Delogu & Eunju Park, Marijuana Legalization Efforts Enjoy Success, Demonstrating Major Shift in Approach to Drug Regulation and Use, Littler Insight (Nov. 9, 2016).
5 Edibles can be dangerous because the marijuana content may not be known to consumers and because its effects are typically delayed by an hour or two.
6 Zoe Argento, Social Gatherings and Social Media this Holiday Season – What’s Not to “Like”?, Littler Insight (Dec. 14, 2015).
7 Helene Wasserman, The Higher They Are, The Harder You Fall, Littler Insight (Oct. 19, 2017).