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In a world where the high spirits of December’s office holiday party can give way to the high cost of January’s lawsuit, the briefcases of attorneys have more in store for the workplace than Santa’s sack of presents. Labor and employment attorneys frequently find themselves doubling as party planners, advising their clients how to have liability-free holiday parties. While other employment issues, such as bonuses, firings and holiday depression tend to come up toward the year’s end, the major question on employers’ minds tends to center on the office holiday party. When the alcohol starts flowing at an office party, employers face the added liability that drinking can bring, such as responsibility for drunken driving or a booze-induced accident at the party. Outside of the parties, the end of year can be a touchy time, since employees might revolt over a meager or nonexistent bonus. Many employers turn to attorneys for advice to reduce their liability and help shelter them from costly lawsuits. Former Secretary of Labor Robert Reich could be called the Grinch-in-Chief for his role in casting this pall over holiday celebrations. Under his leadership in 1996, the Department of Labor released a list of holiday party tips for the first time, drawing nationwide attention to litigation threats associated with the annual office get-together. The Department of Labor missive focused on serving alcohol at office parties, which leaves employers open to vicarious liability suits if tipsy party-goers land in legal trouble after the party. Joseph Fleming, a labor and employment attorney at Greenberg Traurig in Miami, believes the memo was a “starting point” for how attorneys advise employers on holiday party planning. The memo gave several suggestions that attorneys and employers often turn to when trying to limit liability at office parties, such as serving starch- and protein-rich foods that do not make people as thirsty as salty or greasy foods. The Labor Department memo also advised employers to post company policies where the party is held and suggested turning to alcohol-free events. But even before the federal government’s foray into holiday party advice, a number of lawsuits stemming from office parties gone wild threw cold water on office celebrations. Carroll Air Systems v. Greenbaum, a 1993 opinion from Florida’s 4th District Court of Appeal, held an employer vicariously liable for the death of a third party hit by an employee driving home drunk from a professional association meeting. The court ruled that since the employee’s attendance at the meeting furthered the employer’s interest, the company was responsible for the employee’s drunken driving. As a result of Carroll Air Systems, attorneys advise their clients against inviting clients to office parties or engaging in any work-related activities during parties, because the business element could be interpreted as prompting the employer’s interest and thus increasing liability. “You don’t want to mix your party, to have client development going on there,” said David Spector, labor and employment attorney at Steel Hector & Davis’ West Palm Beach office. If you “don’t mix business and pleasure, you’re further insulating yourself.” Employers can also face direct liability for negligence stemming from office parties. In Bardy v. Walt Disney World Co., the 5th District Court of Appeal ruled that employers are responsible for keeping their employees from driving if they become drunk at a work-related function. Bardy, an employee at Disney, became drunk at a party on company premises and fell asleep in his car. He was awakened by a security guard, who ordered him to leave. The employee drove off and hit a light pole 500 feet from the company’s property. The 5th DCA ruled that the onus was on Disney to keep the drunken employee from driving home. The appeals court held that “given all these circumstances in combination, unless the security guard reasonably believed Bardy could legally and safely drive, Disney had a duty to refrain from ordering him to do so.” Keeping the annual office party dry is the best way to ward off lawsuits. “The only way to avoid liability in regard to alcohol is to ban alcohol,” Fleming said. He suggests lunchtime events or officewide charity activities as alternatives to the traditional boozy Christmas bash. But some employers — fearing widespread revolt if the office party is ditched — have turned to other options. Aaron Reed, an associate at Littler Mendelson in Miami, advises clients against making the party mandatory or holding it on the company premises. Keeping a defined dividing line between the office and the office party offers some insulation from liability, since it avoids the appearance of combining business with partying. “Make sure you advise employees they are relieved of their office duties,” Reed suggested as a way of alleviating some liability. Other suggestions from lawyers: Use a drink ticket system that allots party-goers ticket stubs redeemable for a set number of drinks and appointing one employee to supervise drinking at a party. Office parties can also be breeding grounds for sexual harassment and religious discrimination complaints. “I’ve seen an increased trend to be more inclusive, to have parties that celebrate all types of holidays over the season,” said Judd Goldberg, an associate at Kirkpatrick & Lockhart’s Miami office. “It shouldn’t be a party that overtly celebrates one religion over another. If you are a company that has a diversity policy, and if you’re excluding a group of individuals by having a party, it’s self-defeating.” While Florida’s appellate courts have not ruled on any sexual harassment cases arising from a Christmas party, a 1993 decision by the Georgia Court of Appeals sided with a woman who claimed she had been sexually harassed by her boss, including an incident at the office holiday party. In Rogers v. Carmike Cinemas Inc., the plaintiff alleged that her boss continually sexually harassed her and ultimately exposed himself to her at the holiday party. This kind of bad behavior is more likely to be found at office parties than during the course of the regular workday, Spector said. “You’re going to see more sexual harassment claims from a holiday party. People do things they wouldn’t normally do. They do things they wouldn’t do if they were at their desks,” Spector said. While the holiday party issue is the most common area labor and employment lawyers get calls about at this time of year, several other seasonal issues tend to come up. Robert Turk, shareholder at Stearns Weaver Miller Weissler Alhadeff & Sitterson in Miami, said that annual bonuses can create problems for employers. “If there’s an expectation of a bonus, and the company’s not in a position to give a bonus, you have to explain that,” Turk said. Irked employees could hold the missing bonus against their employer, creating the unintended consequence of workers looking to a union for being treated unfairly, Turk said. Another bonus-related issue that Turk pointed out is giving a bonus to an employee who is slated to be fired or laid off. “If it’s a team effort, and everyone gets a bonus, then the manager turns around and says, ‘You’re fired,” the reaction is that there is something else at play,” Turk said. A bonus implies that an employee is doing well, and if the employee is later fired, the employee could use the bonus to argue that performance was not the issue and the termination must have been for another reason. The firing issue in general is also tricky during the holiday season. Axing a worker in the prime of gift-buying season isn’t likely to look good to the fired employee, the remaining staff or a jury, if it comes to that. “You have to think carefully through what message it sends to people who are remaining, because you paint yourself as a Scrooge,” Turk said. If the situation necessitated firing an employee, Turk said he advised clients to make sure they had the appropriate documentation, “because employees are more sensitive to being let go at this time of year, and are more likely to seek legal action.” Depression-related absenteeism and performance problems are more common during the holiday season, said Carmen Johnson, a shareholder in Akerman Senterfitt’s labor and employment practice group in Miami. “A lot of employers seem to be dealing with increased issues related to depression — a lot of unexplained absenteeism and sometimes odd behavior,” Johnson said. Employers must tread lightly when dealing with an employee suffering from depression. “Generally, employers are somewhat restricted from getting too far into the employee’s medical condition. I advise them to react to the problems the employee is having on the job with some sensitivity that there are other issues involved,” Johnson said. Despite the fact that labor and employment attorneys often advocate for dry and more sedate holiday parties and raise possible legal pitfalls the holiday season presents, Spector denied that makes them Grinches. “People say we’re being the Grinch that stole Christmas, but it’s really about finding that happy medium. You don’t want to be the ogre that stole the Christmas party, but you want to be mindful,” Spector said. Fleming suggested dodging flak for toned-down holiday parties by pinning the blame on Robert Reich. “The idea is if you have to say who the Grinch is, you can say it’s the Department of Labor,” Fleming said. “The positive thing about their letter is it does give a lot of ideas, and you can say the government has imposed them.”

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