As an employment lawyer, it takes a lot to shock me, and just when I think I’ve heard it all, I find myself muttering again, “you can’t make this stuff up.”
There is no time of year this rings more true than the winter holidays, when employees feel increasingly free to proverbially let down their hair (and hopefully not their pants) to celebrate the end of the year together in a festive spirit.
Many employers opt to show their gratitude to the workforce by hosting company holiday parties. At these parties, employees have greater opportunities to socialize in ways other than the usual chit-chat around the water cooler. The inherent nature of company holiday parties, together with differing risk factors that are present in an everyday office environment (read: alcohol), render them a hotbed for legal woes.
Here are my top 10 tips to keep things professional.
1. Limit drinking
Obvious tip number one is to limit drinking. Employers can limit the options available at the bar, or employees can self-limit and swear off hard alcohol for one night. Employers can offer a cash bar instead of a free-for-all or offer drink tickets. Employers can offer plenty of food to help ensure employees don’t drink on an empty stomach. It bears stating the obvious detail regarding this obvious tip: drinking alone does not cause nor excuse employee bad behavior, but alcohol lowers inhibitions and can fuel it.
Tied at number one for obvious tips is that employers should have transportation home available for attendees. In the days of apps like Uber and Lyft, this is a no-brainer option that limits myriad risks to employees and employers.
3. Celebrate diversity
It’s no secret that society seems more divided than in recent memory. There is plenty of blame to go around, and it seems much easier to offend each other these days. Companies can be viewed as mini-societies of their own, with great diversity among the workforce. In the case of a holiday party, religious diversity, and, to the extent some feel that political correctness leads to so-called reverse discrimination — political diversity, can both prove ripe areas for controversy.
One way to avoid this segment of legal drama is to sidestep these issues altogether by avoiding any overt religious references. Some may say bah-humbug, how can one celebrate the holidays without referencing the holidays? It’s a business decision for companies to make, but it is worth considering that a company holiday party is not the time or the place to pick these battles, and perhaps rather than celebrate a specific holiday, or even a few, it is enough to celebrate the season.
4. Existing policies
The best way for a company to avoid problems that arise from holiday parties is to have a positive company culture and appropriate policies that prohibit undesirable conduct, already in place. Those policies can include non-harassment policies, code of conduct policies, social gathering policies and others.
5. Manager responsibilities
Managers need to lead by example, not only during the workday but also at the company party. Managers should also be mindful, particularly at a company holiday party where inhibitions may be lowered, of their authority over subordinates. Subordinates often feel no choice but to laugh at the boss’s jokes or tolerate the boss’s conduct, no matter how inappropriate. Managers should be aware that this power differential is the crux of the #metoo movement.
6. Designate responsibility
Proper delegation of tasks and responsibilities is imperative to smooth operations of a company during business hours, and the same is true during a company holiday party. It is a good idea to designate a few folks, from Human Resources or particular managers, to keep an eye and ear out. Bad behavior is often on full display; one or a few people should be designated ahead of time to deal with it when it occurs.
Another idea that involves planning ahead is to set parameters and remind employees of expectations ahead of time. It is not unreasonable to remind employees that the same policies and expectations that apply during the workday continue to apply during the holiday party — even if the party is offsite or after business hours.
8. Voluntary attendance
Employers are well advised to ensure that a company holiday party is voluntary. If a company holiday party is mandatory, it can open the door to several legal liabilities and concerns- ranging from wage and hour concerns to vicarious liability concerns — that simply are less likely to be present if the party is voluntary.
Employers should carefully weigh the pros and cons of inviting non-employees to the party. Some are of the mindset that inviting significant others acts as a kind of insurance against employees behaving badly. Others feel it can solicit unknown or new liabilities into the scenario. Individual details about the party itself and the workforce may determine the advisability of inviting guests to the party.
10. Don’t throw up in the aquarium fish tank
Don’t have racist themes for the party. Don’t hire a person dressed up as an ape to perform lewd gestures during the party. Don’t have a sign at the party pointing to a “make out closet.” Don’t have a vodka luge for employees to kneel under and do vodka shooters. Don’t get naked. Don’t do flips off of a hotel bed. Don’t think that just because it is a holiday party you can start asking your colleagues how to pronounce certain sex acts in different languages. Don’t swim in a public fountain. Don’t make sexist jokes.
These are real examples, and yes, I told you — I’ve seen it all.
Jill is a member of the law firm Eckert Seamans Cherin & Mellott, LLC’s Princeton, NJ office and divides her practice between complex commercial litigation and employment litigation.