Chanukah starts at sundown this Sunday, and Christmas is only three short weeks away. Can you throw a workplace holiday party that won’t result in a lawsuit? It has been ages since we’ve had a quiz. Let’s do it!
1. Which of the following is NOT an appropriate preventive measure to take before you have an office holiday party?
A. Placing a self-enforcing limit on alcohol consumption, for example by using drink tickets or shutting down the bar at a relatively early pre-designated hour.
B. Reminding employees of your no-harassment policy before the party.
C. Excluding your non-Christian employees as a courtesy to them, since they might find your party to be offensive from a religious standpoint.
D. Choosing a few members of management to act as designated drivers and as “party monitors” so that they can intervene tactfully when they see that employees are looking unsafe to drive, too amorous, or ready to get into a fistfight.
ANSWER: C. You should offer everyone the option of coming to the party. If an employee has a religious objection, he or she can let you know, and you can make appropriate accommodations. Your workplace party should not be so overtly “religious” that employees of other faiths are uncomfortable attending.
2. True or false: Alcohol should never be served at workplace holiday parties.
A. True. The risk of employer liability for alcohol-related accidents and injuries, and even sexual misconduct, is just too great.
B. True. This is a place of business, not a saloon. Employees have plenty of opportunities to drink on their own time.
C. False. If there’s no alcohol, morale will suffer, and all of our employees will go on strike.
D. False. It’s impossible to have a good time unless you’re hammered.
ANSWER: C. (Well, the strike may be an exaggeration . . .) Although it’s wise for employers to limit the amount of alcohol consumed at holiday parties, banning it completely may be going overboard. Unless you’re the Baptist State Convention.
3. True or false: It may not be a good idea to require employees to attend the holiday party.
A. True. This is a free country. Employees should always be allowed to do whatever they want. If they don’t want to come to the party, then that means more food and booze for me.
B. True. If employees are required to come, then non-exempt employees would have to be paid for all the time that they’re there (even if the party is after normal work hours), which could include overtime. Also, if attendance is mandatory, the employer may have workers’ comp or respondeat superior liability for any accidents that occur. There could also be a problem if, say, a Jehovah’s Witness was forced to attend a party that violated her religious beliefs.
C. False. Holiday parties, and other workplace social events, are important for employee bonding and to build rapport between employees and management. If employees don’t care enough to come, then they don’t deserve to have a job.
D. False. I have to go to this stupid party, and by golly so should everybody else!
ANSWER: B. I couldn’t have said it better myself.
4. Under what circumstance might a non-exempt employee be entitled to pay for time spent at a voluntary workplace holiday party that takes place after hours?
A. When the employee has to perform work at the party – for example, by serving punch or setting up and breaking down tables.
B. When the party is really, really a drag.
C. When the employee is paid under the “fluctuating workweek” method, as specified in the regulations duly promulgated by the U.S. Secretary of Labor.
D. When the employee has to sit at the same table as the boss.
ANSWER: A. Non-exempt employees must always be paid whenever they perform work, so if you ask your non-exempt employees to help out at the party, you have to pay them for their time. If the party work puts them over 40 hours for the workweek, you have to pay overtime.
5. If we limit everybody to two drink tickets apiece, and shut down the bar completely at 9 p.m., do we need to worry about liability for accidents (or sexual harassment) caused by intoxicated employees?
A. No, because who would get intoxicated after only two drinks?
B. No, because once you shut down the bar at 9 p.m., all legal responsibility shifts to the establishment or to the individual employees.
C. Yes, because you might know or have reason to know that employees are continuing to drink on their own nickel . . . plus, you never really know how even one drink may affect someone.
D. Yes, because the employer is always legally responsible for whatever its employees do.
ANSWER: C. A two-drink limit and a bar that shuts down at 9 p.m. are great preventive measures, but they don’t guarantee that the employer is off the hook for employees’ alcohol-related misbehavior. It’s not uncommon for employees to “continue the party” after the official party is over. If you as the employer know or should know that’s going on and fail to take appropriate preventive steps, then you could be legally responsible for what happens afterward.
6. OK, well, what if we provide designated drivers, free cab rides home, and free hotel rooms for employees who are too intoxicated to get home safely? Surely we are in the clear now?
A. Nope, because employees always think they can drive safely, whether they can or not, and they may not want to stay in a hotel room.
B. Nope, because the employer is always legally responsible for whatever its employees do.
C. Yep, because now you’ve done your due diligence to prevent drunk driving accidents.
D. Probably, as long as you require intoxicated employees to use designated drivers, cabs, or hotel rooms.
ANSWER: D is the best answer. There is always the risk that an employee will refuse to use whatever you provide to get him home safely. So it’s not enough to simply make those things available. You should also use whatever pressure you as an employer can bring to bear to get the employee to use them. Before the party, tell employees, “If you are not safe to drive home, you must use a designated driver or cab, or spend the night in the free hotel room. If you don’t, you’ll be subject to disciplinary action, up to and including discharge.” And mean it. Also, remember those management “chaperones” we were talking about? (See answer 1.D, above.) Ask them to ensure that anyone who looks like she’s had too much to drink is poured into escorted to a cab. Tell the chaperones not to take no for an answer.
Also keep in mind that hotel rooms are helpful in preventing drunk driving, but they may provide opportunities for sexual harassment.