Best Practices for the Holidays

With the holiday season about to swing into full gear and parties all around, now is a good time to review a few guidelines to make the time festive and avoid a number of liability pitfalls that could befall an employer.

Alcohol: Most of the potential liability springs from serving alcohol at company parties. The legal theory of “respondeat superior” which holds an employer responsible for the acts of his or her employees undertaken in the course of their employment; and social host liability which holds a provider of alcoholic beverages who serve alcohol to visibly intoxicated individuals liable for injuries those individuals may cause while intoxicated. If an employee (or worse, a manager or supervisor) can’t hold his or her liquor and begins to flirt… or touch… or proposition, you may very well be looking down the barrel of a sexual harassment claim.

So what can you do to avoid this kind of liability?

• Determine in advance if you will serve alcohol at the party. If you don’t serve alcohol, you reduce your liability risk down to almost nothing. However, not serving alcohol at a company sponsored event isn’t very realistic unless you are prepared to deal with a lot of grumbling about how “boring” the party was.
• Limit alcohol consumption or use designated “spotters” to make sure people who have drunk too much don’t leave the party on their own, don’t become “too friendly” with someone else at the party and don’t engage in activities which can be dangerous to themselves or others.
• Make the party voluntary, and invite family members such as spouses and children.
• Arrange transportation for intoxicated employees, either by having designated drivers or using a transportation service.
• Hold the party off site and during non-business hours at a venue not owned by the employer and where there are professional bartenders to dispense the drinks.
• Set the tone of moderation before the party through interoffice memos and meetings reminding employees to be responsible, discourage excessive drinking, and indicating what measures you will take to ensure a safe event, as well as a reminder of the consequences of out of bounds behavior.
• Remind employees of certain company policies regarding alcohol use, sexual harassment and dress codes by sending out a memo before the party.

Religious Accommodations: What about your obligation to accommodate an employee’s religious beliefs during the holiday season? The law says that an employer must “reasonably accommodate” an employee’s religious beliefs as long as such accommodation does not cause the employer to sustain severe or undue hardship. You should make every possible effort to allow an employee with a sincerely held religious belief to take time off for proper observance of a religious holiday. Examples of reasonable accommodations may include:

• Allowing employees to switch shifts
• Use vacation time or unpaid time off
• Offer a “floating holiday”.

What if an employee objects to your traditional workplace Christmas decorations on the basis that they offend his or her religious beliefs. Do you have to take them down? Not as long as you are a private employer. Use common sense and be reasonable. If an employee doesn’t wish any Christmas decorations on the desk or in the cubicle where they work, don’t force the issue.

Solicitations: A common practice during the holidays involves various kinds of charitable solicitations – to help schools, needy children, various religious agencies. The problem is if you have a “no-solicitation’ policy at work and choose to selectively enforce it during the holidays, you may run afoul of an unfair labor practice if you decide to enforce that policy with regard to solicitations in connection with the organization of a union. If you want to enforce the rule, you must do so at all times or it is worthless.

Harassment Claims: The combination of alcohol, lowered inhibitions, impaired judgment and a festive atmosphere can lead to harassment claims. The best practices to consider include:

• Distribute the company’s harassment Policy well in advance of the event, making sure employees read it and submit notification of having done so.
• Manager training is important to ensure management understands and will enforce the policy and provide a visible and positive presence as well as set a professional example.
• Dress Codes should be set out in advance. Avoiding provocative dress can help reduce some forms of harassment.
• Avoid the “after party” at someone’s home or local bar.

Wage and Hour Issues: If a non-exempt employee is pressed into service to make arrangements for the party (sending them out to buy party supplies during their lunch hour), by law you should be paying them. Also, be wary that certain types of bonuses to a non-exempt employee may have to be included in their regular rate of pay for purposes of calculating overtime compensation. To be excluded from an employee’s regular rate of pay, a bonus must not be determined from the total hours worked, production or efficiency. Nor may the bonus be so substantial that the employee considers it a component of his or her annual income.

Holiday Firings: Letting someone go during the holidays is a double edged sword. On the one hand, there is no law that prevents you from firing someone during the holiday season. And, if there is a good reason to justify the termination, go ahead. However, firing someone “at Christmastime” will seem heartless to some people and these people may well end up serving on a jury that will decide if your well intentioned actions was lawful. If, on the other hand, you have followed proper practices, fully documented your reasons, engaged in the process of progressive discipline, and the time for termination just happens to fall in the month of December, proceed with the termination. But, if the termination isn’t clearly justified or is somehow legally problematic, let the holidays pass. Most lawsuits arise out of firings, and firing at Christmastime will only increase the odds that a suit will be filed.

If you need some counsel on some of these issues, contact us.