Employment & Labor Insider

Yeah, yeah - I know it isn't even Thanksgiving yet, but you are planning your holiday party now, and you want answers to your burning questions while you still have time to do something about it.

And, as luck would have it, I presented a webinar on Wednesday with David Weisenfeld of XpertHR on "How to Make Your Workplace Holiday Party Sparkle -- With No Legal Hangovers," and got some great questions from the attendees. If you weren't there and would still like to hear it, please do. Meanwhile, here's a little seasonal Q&A.

What do you consider to be the Number One risk factor for employer liability resulting from workplace holiday parties?

I would say crystal meth, except that the employers I know don't typically serve it at their parties. They do, however, serve alcohol. For this reason, I say alcohol. Alcohol (1) loosens inhibitions, which can result in sexual harassment, inappropriate comments, or fighting, and (2) impairs judgment and reaction times, which can result in accidents when guests leave the party.

Employers having parties where drinks are served need to do what they can to protect intoxicated guests and their potential victims.

What can an employer do to make sure that it isn't liable for a drunk driving accident after a workplace party?

There is probably no way to eliminate the risk of liability (assuming that alcohol is going to be served), but you can minimize risks by doing some or all of the following: (1) paying for cabs to take impaired employees home, (2) having the party at a hotel, or within walking distance of a hotel, and providing rooms for anyone who may not be able to get home safely, (3) having designated drivers, (4) having a cash bar with drinks so expensive that your employees won't want more than a couple (but be prepared to be called a cheapskate if you do this), (5) closing the bar after about two hours, and (6) serving lots of free food to soak up all that booze.

Another good thing to do, if you can afford it, is invite spouses and significant others to the party. They aren't called "better halves" for nothing - they will frequently be forces for moderation.

Is it against the law to call our party a "Christmas party"?

Not if you're a private employer. Although city and county governments get sued for things like putting Nativity scenes in the town square, that's because they are governments. The First Amendment prohibits governments from establishing a "state religion."

If you're a private employer, then go ahead and call the party what you want, but be sensitive to employees who are not Christians. Trees, greenery, and lights should be fine. Santa (the Coca-Cola Santa, not the real St. Nicholas) is probably ok, too. I love the idea of including Chanukah decorations with Christmas decorations when Chanukah is occurring around the same time.

Make sure that employees of all faiths (and non-believers, too) know that they are welcome at your party. And don't forget that some employees -- most notably, Jehovah's Witnesses -- do not believe in having parties at all. (CORRECTION 11/21/14: Many thanks to reader Jill Domingue, a corporate event planner and Jehovah's Witness, who set me straight on this point. Jill says that Jehovah's Witnesses are not opposed to all parties, but only to those connected with religious celebrations or that may be poorly managed -- for example, by having free-flowing alcohol.) Allow employees to opt out of your party without penalty if they consider attendance to be a sin, or if they have some other type of sincere religious objection. (This would be a religious accommodation, which the law requires if it's not an undue hardship. I feel safe in predicting that no court would find it an "undue hardship" for you to let an employee skip your holiday party.)

Can we require, or "strongly encourage," employees to attend the holiday party?

Sure, but I don't recommend it. For two reasons: (1) employer liability for injuries, and (2) wage and hour.

Your liability as an employer for something bad that happens at a workplace party is going to depend primarily on whether the party was within the course and scope of employment. If attendance is required, then it's a good bet that the party is within the course and scope of employment. That means that if an employee gets hurt at your party or hurts another employee, the injuries will be compensable under your workers' compensation policy. If an employee hurts a non-employee (spouse, date, unfortunate driver who happened to be on the road at the wrong time), you could be legally responsible for your employee's negligence. If attendance is truly voluntary, on the other hand, then the party may not be in the course and scope of employment, and as a result, you may not have these liabilities as an employer.

(It should be noted that an employer can always be liable - either under workers' comp or tort law - for injuries caused by its own negligence.)

Mandatory attendance is a bad idea from a wage and hour standpoint, too. If non-exempt employees are required to attend, then you must pay them for their party time, and if the party hours -- added to their actual work hours for the workweek -- put them over 40, then you have to pay overtime for those extra hours. (California requires daily overtime.) If attendance is truly voluntary, you shouldn't have to pay for the party time unless the employee performed actual work (for example, handing out name tags, or performing set-up/clean-up duties, or acting as a company-appointed designated driver).

And why do I keep saying "truly voluntary"? Because if you tell employees that their attendance is "encouraged" or "expected," then their attendance is probably not "truly voluntary." Employees tend to feel compelled to do what their employer "suggests" or "expects." (At least, the good ones do.)

In closing, I hope that everyone who is planning a workplace party this year will have a blast. But not too much of a blast. And with due respect for all viewpoints. And without coercion. And in full compliance with applicable wage and hour laws.

What? You say you're going to just give out gift cards this year?

Also of interest . . .

Jeff Rosin from our Boston Office (with Andy Eisenberg and Ellen Kearns) has everything you need to know about the new Massachusetts paid sick leave law, which will take effect next July. (There's a lot to it, so employers with operations in Massachusetts need to start planning now.)