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<!–:en–>BEST EMPLOYER PRACTICES FOR MAINTAINING GOOD HOLIDAY CHEER & AVOIDING THE GRINCH (I.E., LAWSUIT)<!–:–><!–:ja–>訴訟を避けてホリデーシーズンを楽しく過ごすための対策<!–:–>

November 26, 2011

With the month-long Christmas/New Year holiday season just getting underway, it’s time to review a few guidelines to keep the holiday a happy one and avoid any related HR problems. Although the most typical and certainly biggest topic you may hear about concerning holiday practices involves the company-sponsored holiday party and serving alcohol, there are several other areas, in addition to holiday parties, that we want to cover with this article.

THE HOLIDAY PARTY. Given the poor economic times as well as increased liability stemming from court cases over the past several years, one would think most companies would stop having holiday parties altogether. Although the popularity of holding holiday parties has indeed gone down from a pre-recession level (2007) of 90%, today there still remains a healthy 70% of employers holding them according to a recent survey by Challenger, Gray & Christmas. And of this number, only 30% will hold them on-site. Since the 30% of on-site events are pretty much assumed to be without alcohol, we’re still talking a healthy 40% of employers who are holding off-site holiday parties with alcohol being served. Thus, this is the biggest issue to discuss.

Most of the potential liability dealing with serving alcohol at company parties has grown out of such legal theories as respondeat superior, which holds employers responsible for the acts of employees undertaken in the course of their employment; and social host liability, which holds the provider of alcoholic beverages who served alcohol to visibly intoxicated individuals liable for injuries those individuals may cause while intoxicated.

The basic rule to remember with these liabilities is that employers aren’t responsible in the event where alcohol is served for purely social reasons. However, if business activities are involved, an employer may be implicated and possibly held responsible. There are several factors that courts look at to determine an employer’s liability which includes where the event is held; whether employees are required to attend; whether spouses, customers or clients are invited; whether speeches were given or company business discussed; and whether the event was organized and sponsored by the company or employees independently arranged it. Thus, the best practices to consider include:

  1. To Serve or Not Serve Alcohol. Since this is the biggest issue, if you don’t serve alcohol, you reduce your liability risk down to almost nothing. However, not serving alcohol at an off-site company party isn’t very realistic unless you’re prepared to deal with a great deal of complaining about your event.
  2. Limit Alcohol Consumption. Thus, if you are going to serve alcohol, the best practice is to limit the amount people drink by doing such things as having a cash bar, providing limited drink tickets, and operating the bar for only a set period of time.
  3. Hold the Party Off-Site & Not During Regular Business Hours. It’s best to hold the event after regular business hours at a restaurant or off-site venue not owned or operated by the employer and where there are professional bartenders, not employees, to dispense the drinks.
  4. Make the Party Voluntary. Make attendance voluntary. Don’t keep any records of who attends or doesn’t attend.
  5. Keep the Party Social. Do invite spouses but don’t invite customers. In addition, don’t make business-related speeches or hand out awards or bonuses. Simply put, don’t conduct anything that even looks vaguely like business.
  6. Remind Employees of Certain Policies.  Remind employees of your policies related alcohol use, sexual harassment and dress codes by sending out a memo prior to the party.
  7. Designate a Monitor & Have Transportation Alternatives.  Appoint a designated monitor to make sure that intoxicated or impaired employees do not drive themselves home. In addition, make taxi vouchers available as an option as there will be a high chance that a few employees will need alternative transportation to get home.

HARASSMENT CLAIMS. The next biggest problem for employers after personal injury claims is that of harassment claims when intoxicated employees make inappropriate advances toward co-workers. The combination of lowered inhibitions, impaired judgment, and a festive atmosphere can lead to harassment claims. At this point in time, there are countless lawsuits involving sexual harassment at office parties. Although we won’t go into the sordid details of some of the example lawsuits, if you care to look up a few, they include: EEOC v. Lenscrafter, Civil Action No. 1:09 CV-12694, MI, 2011; Whited v. Tennessee, 781 F. Supp. 2d 621, 623, M.D. Tenn. 2011; EEOC v. Rose Casual Dining, L.P. (dba Applebee’s), E.D. PA 2004; and Russ v. Van Scoyoc Assoc., Inc., 122 F. Supp. 2d 29, 31, D.D.C. 2000. They are all solid evidence that mixing employees and alcohol can definitely lead to disaster. Best practices to consider, in addition to those already explained above, include:

  1.  Distribute the Company’s Harassment Policy.  Prior to the company holiday party, redistribute the company’s harassment policy, making sure that employee’s read it and submit notification of having done so.
  2. Manager Training. Managers and supervisors should be trained on proper conduct for the holiday party and should provide a visible and positive presence as well as set a professional example. In addition, management should be instructed to not invite employees to an “after party” at their house or local pubs. After parties have also been known to create harassment incidents.
  3. Dress Code.  Suggest a dress code for the holiday party that keeps things professional. Avoiding provocative dress can help reduce some forms of harassment.
  4. Release for Company-Sponsored Extracurricular Activities.  Consider having employees sign a release that limits the company’s liability for employee participation in a company-sponsored extracurricular activity. While such a release doesn’t provide absolute protection to an employer, it can provide some limited liability as well as provide a reminder to employees to conduct themselves appropriately.

WAGE/HOUR ISSUES. Another problem that has begun to surface in the last several years is that of non-exempt employees working off the time clock to help with an event preparation. For example, if you send a non-exempt employee out to buy party supplies during their unpaid lunch hour, by law you should be paying them. As a matter of wage and hour law, if employees are engaged in work, then they should be paid. Although this may seem like a small issue, it’s not as wage and hour lawsuits have exploded throughout the U.S. over the past few years.

HOLIDAY DECORATIONS. It’s important to remember that an employer cannot treat persons of different religions differently. This shouldn’t be forgotten when dealing with holiday decorations. In general, most employers prefer to decorate the office with non-religious decorations that include winter/snow scenes, candy canes and strings of lights and steer clear
of anything religious such as the manger scene. Also, the EEOC has acknowledged the U.S. Supreme Court’s determination (County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 1989) that wreaths and Christmas trees are considered “secular” symbols. Thus, an employer can hang wreaths around the office or have a tree in the building lobby, even if an employee objects to such decorations.

RELIGIOUS OBSERVANCE ACCOMMODATION. Title VII of the Civil Rights Act states that employers may not discriminate against employees on the basis of
religion in hiring, firing, or other conditions of employment.  Specifically, the law states that employers must “reasonably accommodate” an employee’s religious beliefs and rights as
long as such accommodation does not cause the employer to sustain severe or undue hardship. However, the law does place a burden on the employer to prove such a hardship. The following are some points to consider:

  1. An employer should make every possible effort to allow an employee with a sincerely held religious belief to take the time off for proper observance for a religious holiday.
  2. “Reasonable” accommodation examples including allowing employees to switch shifts, take vacation or unpaid time off, or offer a floating holiday to use.

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