Ten Tips to Avoid Your Holiday Party Resulting in a Fa-La-La-La-Litigation

They say, “it’s the most wonderful time of the year,” but if you are a business owner, in-house counsel or HR professional, this can often be the most stressful time of the year, especially when it comes to hosting company parties. Such celebrations at this time of year, although well intended, can land your company on the “naughty list” and result in legal liability. The good news is that by taking the time now to plan an appropriate, inclusive, and socially aware get together, you can bring all the intended joy and leave the Grinch far away.

Here is our gift to you – some tips to host a celebration your employees will fondly remember, while minimizing legal liability.

1. Control Alcohol Consumption. Most complaints arising from employer-sponsored parties involve alcohol. Alcohol may cause employees to forget that they are in a workplace environment, or blur the lines between management and employees, as well as among employees themselves, which may result in conduct or comments that are unacceptable for the workplace. Remember, even if your event occurs offsite or outside business hours, that does not shield the company from a claim of workplace harassment. Limiting, or even eliminating the alcohol served at a company party (bah humbug, we know), may reduce the risk of employees behaving inappropriately. If you are going to include alcohol at your party, consider the following options to control consumption:

❆ Offer mocktails. These popular, non-alcoholic mixed drinks that replicate craft cocktails will make your employees feel festive while staying sober.

❆ Hold the party on a weeknight or during the afternoon as employees may be less inclined to overconsume during these times.

❆ Rather than a self-serve bar, hire professional bartenders who are trained to identify intoxicated guests and will refuse to serve them.

❆ Issue drink tickets to limit the number of drinks served to each employee.

❆ Consider only serving beer and wine as opposed to spirits.

❆ Stop serving alcohol for a period before the party ends so that employees are not drinking until the very end of the party.

2. Provide safe transportation at the company’s expense for any potentially intoxicated employees, including shuttles, taxis, Ubers, Lyfts or other designated drivers. The potential legal liability costs, as well as the danger, of permitting an intoxicated employee to drive are far greater than any taxi fare.
3. Hold the event offsite for insurance and liability purposes.
4. Remind employees that even if the party is offsite and not during working hours, employees are still obligated to comply with the company’s anti-harassment policies and will be subject to discipline if they behave inappropriately during the event. As a further precaution, recirculate the company’s anti-harassment policy prior to the party and remind supervisors that they have an obligation to report any violations of policy. If the company has not implemented such policies or provided employees with anti-harassment training recently, now is a great time to do so.
5. Take steps when planning the party to avoid triggers for bad behavior. For example, do not have Santa Claus visit and invite employees to sit on his lap, or decorate with mistletoe. Also consider eliminating dancing to prevent close contact where inappropriate touching may occur.
6. If the budget permits, invite significant others or families to the event as this may encourage employees to remain on their best behavior.
7. Be inclusive, particularly with any theme or décor for the party. Rather than calling it a “Christmas” or “holiday” party, consider making it a non-religious “Year End Party,” “Winter Social,” or a “Snowy Soiree.” Eliminate any religious symbolism in order to prevent employees who do not celebrate these holidays or share such religious beliefs from feeling excluded or alleging discrimination.
8. If the party is held after working hours, attendance must be voluntary, and all work-related business excluded so you do not run afoul of wage and hour laws that may require payment to non-exempt employees for their attendance. Be clear that employees may opt out of attending without penalty or any negative connotation.
9. Show appreciation by giving employees what they really want. Perhaps it is a low-key holiday luncheon rather than an after-hours event. Or maybe everyone loves a nighttime event, but they have suggestions for what should be involved in that celebration. While you will never get a unanimous consensus or be able to satisfy everyone, asking for input from employees will make them feel more included.
10. Perhaps scrap the holiday party altogether for less risky alternatives such as attending sporting events, bowling, or painting parties. Team building and community service projects are also popular alternatives. Another option is to take the party budget and give it back to employees in the form of a year-end bonus or extra paid time off.

Although it is impossible for any employer to completely avoid the risks associated with a holiday party, by implementing these tips, you can greatly minimize those risks and provide your employees with a safe and inclusive celebration. However, should a problem arise, it is critical that employers take every complaint seriously and promptly conduct a thorough investigation.

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About The Authors

Lindsay A. Dischley is a member at CSG Law. She is an experienced employment attorney. In this capacity, Lindsay represents employers in all aspects of employment litigation, including wrongful discharge, discrimination, harassment, whistleblower, retaliation and wage and hour claims in the state and federal courts of New Jersey and New York and before federal, state, and local administrative agencies, including the EEOC, New Jersey Department of Labor & Workforce Development, New Jersey Division on Civil Rights, New York State Division of Human Rights, and New York City Commission on Human Rights.

Melissa A. Salimbene is a member and the practice group leader at CSG Law. Melissa is an experienced employment litigator and trusted advisor. For her litigation practice, Melissa regularly represents public and private employers of all sizes and industries before state and federal courts and administrative agencies in all aspects of employment litigation, including defending claims of discrimination, harassment, retaliation, and wage and hour issues. Melissa also brings and defends restrictive covenant claims involving trade secrets, confidentiality agreements, non-compete agreements and other post-employment obligations.