By Jonathan A. Segal
Festive holiday gatherings won’t bring much holiday cheer if they don’t take into account several important legal considerations.
For many of us, the most wonderful time of the year is right now. The holidays can be a wonderful time of religious, cultural and seasonal celebrations with family, friends and business colleagues.
For plaintiffs’ lawyers, the most wonderful time of the year is the winter months that follow. Sad but true, the confluence of religious expression, social interaction and alcoholic consumption can result in litigation.
Here are some general guidelines on how to enjoy your holiday season without giving plaintiffs’ lawyers an expensive post-holiday gift.
Many organizations have some sort of a seasonal celebration. One of the most common concerns is whether to serve alcohol. The legal issue is whether employers are liable if employees subsequently drive under the influence, causing an accident that injures themselves or others.
The law on this issue varies from state to state. However, some general guidelines can be gleaned from court cases.
The greatest exposure to employers is if they serve minors. If minors drive under the influence of alcohol served to them by employers, there is a substantial likelihood of employer “social host” liability if those minors are involved in accidents.
The result is less clear if the employee is an adult. In some states, “social host” liability is restricted to the service of alcohol to minors. However, even in those states in which social host liability generally is restricted to minors, the case law often leaves open the possibility that employers potentially may be held liable.
Moreover, even if and/or where there is no potential for legal liability with regard to adults, there are moral considerations. It would be hard to sleep at night if you knew that a serious or fatal accident involving one of your employees might have been avoided had reasonable steps been taken to limit the consumption of alcohol.
Obviously, the safest approach, from a legal perspective, is to supply no alcohol. However, this may not be practical or desirable. ·
Where alcohol is provided, the following guidelines should help to minimize the employer’s risk:
- Make clear in pre-party communications that minors cannot drink and that if minors do drink, they may be terminated. 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 so as to avoid being under the influence. Also make it clear that you don’t expect anyone to drive who is under the influence.
- Have someone serve alcohol, rather than permitting employees to serve themselves. This not only gives the servers (the number of which should be limited) the opportunity to flag employees who drink too much, but it also may deter employees from pouring too many drinks in the first instance.
- Consider establishing a maximum number of drinks that individuals can have. Tickets won’t work because individuals can give away their tickets. Consider a fluorescent stamp on an employee’s hand in exchange for a drink, limiting the number of stamps an employee can receive.
- Make cab vouchers available that employees can obtain without going to a manager. While a few employees may abuse the privilege, it’s a small risk to take compared to the bigger risk it may help to avoid.
- Ask certain managers to keep their eyes and ears open for individuals who are visibly intoxicated. Intoxicated individuals should be asked for their car keys. If they refuse, consider calling the police. If you warn employees in advance that this is the course of action you will take, you strengthen your legal position by demonstrating your diligence.
- Serve plenty of non-alcoholic beverages and lots of food.
As we all know, holiday gifts can get expensive. An employee’s gift can become expensive for the employer as well if it is not appropriate for the workplace. There always will be a few individuals who will want to give sexual, suggestive or otherwise inappropriate gifts (e.g., a Victoria’s Secret negligee).
For this reason, it is in an employer’s best interest to remind employees that any gifts they give to co-workers should be appropriate to the workplace. Employees should be told to avoid offering gifts that are sexual, suggestive or otherwise inappropriate.
While this admonition is generally recommended, it 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 guidelines is even greater.
Also remind employees of the importance of not engaging in inappropriate behavior at company functions. While the holiday party can and should be fun, employees still need to remember that they are with co-workers. The fact that a holiday party may be off site and may take place outside of normal working hours does not give employees the license to engage in licentious or other inappropriate behavior. Keep your eyes and ears open for such behaviors and take corrective action immediately if and when you see them.
Invitations to the Holiday Party
Many employers hire temporary and leased employees. Should these individuals be invited to a holiday party?
If you don’t invite them, they may feel like second-class citizens. If you do invite them, these individuals could use the invitation to argue that they are regular employees.
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 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.
While all employees should be encouraged to attend, supervisors and managers should be counseled not to push employees who decline the employer’s invitation. There may be a number of personal (“protected”) reasons why an employee may choose not to attend. For example:
- The employee may be in recovery from alcohol addiction and, as such, may be uncomfortable in the presence of alcohol.
- The employee may be a Jehovah’s witness and, as such, will not celebrate holidays. ·
- The employee may be gay or lesbian and may not feel comfortable bringing his or her same-sex partner.
A question that sometimes arises is whether employers must pay employees for the time spent attending a company holiday party.
If the party is during the employee’s regular working hours, the employer has to pay the employee for the time attending. Employee relations considerations also support making payment.
If the party is outside of an employee’s regular working hours, the employer probably does not have to pay the employee-if attendance is truly voluntarily.
If the employer requires that employees attend, the employer must pay. But, even if the employer does not specifically require that employees attend, they may feel pressured by virtue of the fact that the invitation comes from management. (Do you feel any pressure when your boss, or biggest customer/client, invites you to a function?)
To counter an employee’s perception that attendance was mandatory, make clear in a gentle way that all are encouraged to attend, but attendance is not required. In the unlikely but possible demand for payment, this communication will come in handy.
Many employees decorate their offices or work areas with holiday decorations. But what if someone is uncomfortable with or offended by such decorations?
In the context of sexual harassment, we all know that if sexual expression reasonably could offend someone, it should not occur. Is the same true of religious expression?
For purposes of this discussion, workplace speech and other expressions can be divided into three general categories. As explained below, sexual and religious expression fall within different categories and, therefore, must be treated differently.
The first category is speech or other expression that is proscribed by federal or state law. Because sexual harassment violates federal and most state laws, sexual speech generally would fall within this category.
Also falling within this category would be speech that disparages, stereotypes or otherwise denigrates a protected group (e.g., racial jokes and ethnic slurs). Where speech is proscribed by a federal or state law, employers have an affirmative responsibility to prohibit/stop it.
The second category is speech or expression that is protected under federal or state law. This would include, for example, complaints about discrimination or harassment or expressions of the desire for a union. Where speech is protected, an employer generally cannot prohibit such speech or other expression or punish an employee for engaging in it.
The third category is speech or other expression that is not proscribed by a federal or state law, but that also is not protected by a federal or state law. This would include, for example, jokes about lawyers. Where speech is neither condemned nor protected by law, an employer can prohibit it, but is under no legal obligation to do so.
Religious expression generally falls within the second category, i.e., protected speech. More specifically, federal and state laws generally prohibit discrimination on account of religious beliefs, observances or practices. This prohibition on discrimination ordinarily precludes an employer from treating speech and other expressions related to such religious beliefs, observances or practices more harshly than non-religious speech (or from treating similar types of religious expression differently because they relate to different religions).
Accordingly, if an employer generally allows employees to decorate their offices with pictures and other ornaments, it probably would be discriminatory to say that these decorations cannot relate to a religious holiday. Similarly, an employer could not allow an employee to decorate for Christmas but not for Kwanza.
Of course, the right of employees to engage in religious expression is not absolute. Like all forms of protected workplace expression, employers generally may impose reasonable restrictions relating to the size, place and manner of such expression.
But an employer would be on the wrong side of the law (and employee relations) to prohibit religious expression altogether. This most probably would extend to religious decorations.
In this regard, it is important to distinguish between the employee’s decorations and the employer’s decorations. For both legal and employee relations reasons, employers do not want to be perceived as endorsing or supporting religion generally, or one religion over another.
As a result, employers may wish to acknowledge the holidays generally as opposed to only one (Christmas) or two (Christmas and Hanukkah) holidays in particular. Remember, 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. It is better to refer to the seasonal party as a holiday party as opposed to a Christmas party.
In this regard, it should be noted that some individuals celebrate core holidays at different times of the year or 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 those who don’t when extending their good wishes, as I will now try to do:
To those of you who celebrate a holiday now, peace, health and happiness to you and yours.
To those of you who do not celebrate holidays or a holiday now, peace, health and happiness to you and yours as well.
Author’s note: This article should not be construed as legal advice or as pertaining to specific factual situations.
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