Holiday Cheers and January Jeers

Monday, November 1, 2004 - 01:00

Introduction

The holiday season is a time for celebration for many of us. However, the intersection of religious expression, social interaction and alcohol consumption often results in celebrations by plaintiffs lawyers at the beginning of the new year. This article discusses some of the more salient risks inherent in holiday celebrations and recommendations on how to minimize these risks without making your workplace bitter cold.

Alcohol

Many organizations have some sort of a seasonal party. One of the most common concerns is whether to serve alcohol. Specifically, is the employer liable as a "social host" if an employee to whom it serves alcohol is involved in a car accident after leaving the party?

In most states, if the employee is a minor, the employer will be liable. The result is less clear if the employee is an adult. However, even in those states in which social host liability is generally restricted to minors, the case law often leaves open circumstances in which liability potentially may arise with regard to adults too.

Moreover, legal considerations are not the only considerations. It would be hard to sleep at night if you knew that, with proper planning, you could have avoided a catastrophe.

The only way to avoid the risk is to avoid alcohol altogether. Short of prohibition, consider the following guidelines to minimize the risk of serving alcohol:



  • Make clear in pre-party communications that minors cannot drink and that if minors do drink this will be cause for their immediate discharge (as well as anyone who gets the alcohol for them).



  • Ask those who dispense the alcohol to keep an eye out for those who look too young to drink and to card individuals if they have any doubt.



  • Make clear in pre-party communications that employees must limit their consumption to amounts that do not render them under the influence and that you do not expect anyone to drive who is under the influence.



  • Have someone serve the alcohol as opposed to permitting employees to serve themselves. This not only gives the servers (the number of whom should be limited) the opportunity to flag employees who drink too much, but it also may deter some employees from ordering too many drinks in the first instance.



  • Consider having a maximum number of drinks that an individual can have and a mechanism to enforce this.



  • Have cab vouchers available that employees can obtain without going to a manager.



  • Assign certain managers the responsibility to keep their eyes and ears open for individuals who are visibly intoxicated. Any such individual who drives should be asked for his or her keys. If they refuse, consider calling the police.



  • Serve plenty of non-alcoholic beverages and lots of food.

Invitations To The Holiday Party

Many employers use temporary and leased employees. Should they be invited to the holiday party?

If you do not invite them, they may feel like second-class citizens. If you do invite them, the invitation may be argued to suggest employment status.

This conflict can be avoided in terms of how temporary and leased employees are invited. Address the invitations to company employees and other guests, making clear that temporary and leased employees are among the other guests whom you are inviting.

If you are inviting spouses, you may wish to broaden the invitation to include significant others. Many employees in committed relationships may feel excluded if the invitation is limited to spouses.

Dancing, Kissing And Touching

Employees sometimes forget what they do during a holiday party. However, others may recall exactly what happened, particularly during their depositions.

Some degree of informality is appropriate at a holiday party. However, there are limits as to what is appropriate in terms of public displays of affection, close dancing and the like.

It is neither practical nor desirable to set clear guidelines as to whom employees can kiss, how close they can dance, etc. However, employees should be reminded that the organization's harassment policy applies to the holiday party.

It is also helpful if a few managers are asked to keep an eye out for inappropriate behavior. If they see it, they should respond proactively to it, even in the absence of a complaint.

Payment

Does an employer have to pay an employee for attending the party? The answer is yes, if the party is during the employee's regular working hours. If the party is outside of an employee's regular working hours, the employer probably does not have to pay the employee for attendance time, if attendance is truly voluntarily.

To counter an employee's perception that attendance is mandatory, make clear in a gentle way that, while all are encouraged to attend, attendance is not required.

Gift Giving

The line between professional and personal often blurs around the holiday season. There always are a few who will want to give sexual, suggestive or otherwise inappropriate gifts (e.g., Victoria's Secrets negligee).

For this reason, it is to an employer's benefit to remind employees that any gifts which they elect to give their work colleagues should be appropriate to the workplace. Employees should be told that gifts that are sexual, suggestive or otherwise inappropriate must be avoided.

This is particularly important if the employer organizes a Pollyanna in which employees give and receive only one gift. Where the employer takes control of the gift-giving process, the need for it to set guidelines is even greater.

Holiday Decorations

Many employees decorate their offices or work areas with holiday decorations. To avoid potential disputes, could and should the employer prohibit such seasonal symbols?

It is clear that an employer cannot discriminate based on the specific religious message. Accordingly, the employer could not prohibit Hanukah decorations while allowing Christmas decorations.

It is less clear whether an employer could prohibit the posting of all religious messages. The argument would be that the employer is not discriminating against any particular religious message.

While the law is not entirely settled on this point, there is an argument that an employer cannot discriminate against religious messages as a class compared with non-religious messages. However, even if this were legal, a blanket prohibition would result in substantial employee relations (and perhaps public relations) problems.

Accordingly, employers are advised not to prohibit religious messages. Rather, employers should consider reasonable time, place and manner restrictions.

For example, when it comes to ornaments, size may matter. A small menorah is one thing; a life size one is another.

There is also a difference between symbols that are more seasonal than religious per se. Compare a Santa Claus with a nativity scene.

Placement also matters. Tighter restrictions may be appropriate at the receptionist's public desk than in an employee's private office.

Nomenclature

Employers are encouraged to acknowledge the holidays generally as opposed to only one (Christmas) or two (Christmas and Hanukah) holidays in particular. Remember, our growing diversity relates not only to race and ethnicity but also to religion.

The foregoing recommendation applies not only to the employer's decorations but also to the nomenclature for the seasonal party (as well as holiday cards). Probably better to refer to the seasonal party as a holiday party as opposed to a Christmas party.

It also should be noted that there are individuals who celebrate core holidays at different times of the year or who generally do not celebrate holidays at all. While this does not mean that employers should not celebrate the holiday season, employers may wish to acknowledge in their good wishes those who do not.

Jonathan A. Segal is a Partner with WolfBlock in its Employment Services Group. His practice focuses on preventive counseling, training and policy development; adversarial proceedings, such as EEO and other administrative charges; traditional labor matters; and, strategic business planning issues. He also is a frequently featured speaker at national, state and local human resources and business conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Author's Note: This article should not be construed as legal advice or as pertaining to specific factual situations.

Please email the author at jsegal@wolfblock.com with questions about this article.