Category: Parties and Celebrations

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.

Alcohol

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.

Harassment

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.

Payment

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.

Holiday Decorations

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.

© 2002 HR Comply, Inc.

All rights reserved

 

Unfortunately, it is true that if you permit employees to consume alcohol
at business events, you have an increased risk of legal liability. Most
claims of liability involve employees who become intoxicated at an
employer-sponsored function and then injure coworkers or others.
These cases are brought under a variety of legal theories and focus on
the employer’s responsibility for its employees’ actions. (These legal
theories were introduced in last week’s E-Tips. If you missed that issue,
click here for a copy: http://www.ppspublishers.com/ez/html/120604txt.html

As discussed last week, though, you are shielded from liability in most
states under “dram shop” (seller liability) and social host theories.
Still, no one wants to be in the position of defending an unpleasant case
involving injuries or death. A better approach is to prevent these
accidents and problems altogether by taking some common sense steps
to limit alcohol consumption and its effects.

* To Serve or Not to Serve *

So what’s an employer to do? Your most conservative policy option is to
ban alcohol consumption in all business settings, including holiday
parties. However, many may view this prohibition as unduly protective or
unwelcome, especially for essentially social or team-building functions.

Therefore, a more practical solution is to have a clear policy statement
requiring employees to exercise moderation and good judgment when
drinking at a business function. Obviously, for such a policy to be
effective, top management must support it and set a good example.

In addition, if your organization decides to serve alcohol at its business
functions, your best bet is to manage the situation carefully and enforce
certain limits, while also requiring employee moderation and good
judgment. The following eight steps can help you do that.

1. Have a clear policy prohibiting the use of alcohol (and illegal
drugs) while working. The policy should include any exceptions for
business social functions and entertaining.

2. Make it clear that employees who become intoxicated at
employer-sponsored events will be subject to discipline.

3. Remind employees that work rules regarding appropriate
behavior and prohibiting harassment apply to employer-sponsored
events.

4. Limit the availability and consumption of alcohol by stipulating
that it may be served only for a set period of time.

5. Do not allow supervisors to purchase alcoholic drinks for
employees.

6. Serve substantial food that can offset the effects of alcohol.

7. When possible, hold events at restaurants or other sites not
operated or staffed by the employer.

8. Have a designated monitor to make sure that intoxicated or
impaired employees do not drive themselves home.

Alcohol, business entertaining, and employee functions are a volatile
mix. You need to understand your organization’s needs and
responsibilities before setting policy. If you don’t want to prohibit
alcohol consumption totally and thus be viewed as the “holiday grinch,”
then take the above steps to control consumption, require accountability,
and limit your exposure.

Does your organization serve alcohol at the annual holiday party? Or, do
you sponsor department “happy hours” on Friday afternoons to
encourage teamwork and interaction? Unfortunately, if you do, you
increase your risk of legal liability if a drunken employee harms himself
or others.

Employers can be sued for their intoxicated employees’ misdeeds under
a number of different legal claims and theories, ranging from workers’
compensation to sexual harassment to negligence. Fortunately, despite
overall increased litigation, employers generally are still shielded from
liability in most states.

Even with this shield, and regardless of actual negligence, the employer
remains a tempting legal target and is considered the “deep pockets”
when damages are sought. In this week’s E-Tips, you get a look at the
legal issues and some cases addressing employer liability for alcohol-
related incidents.

However, if you still want to serve alcohol at this year’s party, don’t
totally despair. In next week’s E-Tips, you also will find steps to help
prevent alcohol-related problems, or at least to limit your liability
exposure if they do occur.

* Respondeat Superior *

One of the biggest concerns for employers, when alcohol is involved, is
the potential for liability for injuries to nonemployees. Most often,
third parties injured by an organization’s intoxicated employee will claim
employer liability on the theory of “respondeat superior.” Under this legal
doctrine, the employer may be liable for its employee’s acts if they were
committed within the scope or course of employment.

For example, in Carroll Air Systems, Inc. v. Greenbaum, 629 So.2d 914
(Fl. App. 1993), the employer was liable for third party injuries caused
by an intoxicated employee. In that case, the employer paid the mileage
and automobile expenses for the employee to drive to and from the
meeting where alcohol was served and at which the employee became
intoxicated.

In contrast, in Mosko v. Ratheon Co., 622 N.E.2d 1066 (Mass. 1993), the
court found that the employer was not liable under respondeat superior
theory to a third party injured in a car accident involving an employee
who became intoxicated at a Christmas party partially sponsored by the
employer. The party was not on the employer’s premises or during
working hours, it provided no tangible benefit to the employer, and
alcoholic beverages were purchased from a cash bar staffed by the
restaurant.

* Workers’ Compensation Laws *

While respondeat superior legal theory deals with liability to third
parties, workers’ compensation laws deal with employer liability to its
own employees or their survivors. In general, these laws cover all work-
related injuries regardless of fault. However, they typically exclude
injuries that are incurred at employer recreational events where
attendance is not required or that are the result of the employee’s
intoxication on the job.

* Wrongful Death and Survivorship Statutes *

Employers may also be sued for alcohol-related incidents under state
wrongful death or survival acts. Under these laws, the personal
representative of a deceased person may file suit, on behalf of the
surviving spouse or next of kin, against any party whose actions caused
the death. The purpose of these laws is to compensate survivors by
providing the financial benefits that would have been received had the
person lived.

However, survivors have had little success suing employers for wrongful
death based on the intoxication of employees. For example, in DeRuyter
v. Wisconsin Elec. Power Co., 546 N.W.2d 534 (Wis. App. 1996), aff’d
565 N.W.2d 118 (Wis. 1997), the court determined that survivors of a
person killed in a car accident involving an intoxicated employee could
not bring a wrongful death claim against the employer. The court found
that, since the employee was driving to work, he was not within the
scope of his employment or under his employer’s control.

* Negligence *

Persons injured by intoxicated employees sometimes claim employer
negligence. These claims often arise in the context of the office party
where an employee becomes intoxicated, leaves the party, and injures
another person on the way home. The theory behind this claim is that
the employer owed a duty to the injured party to exercise reasonable
care and breached or violated that duty thereby causing harm to the
injured third party.

Courts have been hesitant to find that employers have a duty of care to
third parties except in situations where, for instance, the employer
continues to serve drinks to an obviously intoxicated employee. In these
situations, the deciding factor may be the employer’s authority to deny
alcohol to the inebriated employee.

In another interesting development in negligence theories, a few courts
have found that an employer may be held liable to third parties if it has
taken action to exercise control over the employee after the employee
becomes intoxicated.

* Harassment *

Besides personal injury claims, employers are also vulnerable to
harassment claims when inebriated employees make inappropriate
advances toward coworkers. In fact, the Seventh Circuit Court of
Appeals, in Place v. Abbott Laboratories, 215 F.3d 803 (7th Cir. 2001),
specifically noted, “office Christmas parties also seem to be fertile
ground for unwanted sexual overtures that lead to Title VII complaints.”

The court went on to cite approximately 20 cases where employees
complained of harassment occurring at employer-sponsored parties.
These cases underscore the potential problems associated with alcohol
consumption at any employer-sponsored event.

* Social Host Under “Dram Shop” Laws *

“Dram shop” laws, enacted in many states, may actually protect
employers from liability. These laws allow persons injured as a result of
their own or another person’s intoxication to sue the serving individuals
or entities if they are licensed by the state to sell or serve alcoholic
beverages.

In general, courts have not extended liability under state dram shop laws
to social hosts, and an employer usually is considered a social host
when it sponsors an event at which alcohol is served. But, note that the
employer may lose the protection of “social host” if it serves alcohol to
a minor.