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The Legal Intelligencer

It’s probably about time for your holiday office party. Whether you are an employer or an employee, this should be a fun time of year. But, as one court pointed out: “At the risk of playing the Grinch . . . we note that office Christmas parties . . . seem to be fertile ground for unwanted sexual overtures that lead to Title VII complaints.”

The office party should be a time when people can let loose and have fun. But as many employers have found out the hard way, “fun” can mean something different to everyone, so after-party damage control winds up lasting longer – and costing far more – than the gathering itself. So in today’s litigious world, how do you draw the line between an overly controlled professional (boring) event and one that gets out of hand?

First, let’s think about how office parties can result in trouble.

When the liquor is flowing and people are in an informal environment, employees are much more likely to make inappropriate comments, tell off-color jokes or use vulgar language in ways they would not in the office. Aggrieved employees may later try to use those comments and jokes to argue that they are an extension of the culture within the workplace. Take, for example, Crowley v. L.L. Bean Inc., in which evidence of an unwanted foot massage at a company pool party and inappropriate comments at other company parties was admissible to help determine whether harassment was severe and pervasive.

Similarly, sexual advances can cause problems, whether they are immediately rebuffed or are accepted and result in a pairing, but later go sour. Cases abound where sexual advances turn into a lawsuits – employees claiming they were mistreated for refusing an advance, that they were pressured into a relationship or suffered adverse consequences when they ended a consensual relationship, as well as co-workers who believe they have been passed over because they did not have the relationship.

Many employers have successfully defended cases involving incidents at office parties on the grounds that they involve isolated incidents and do not amount to severe and pervasive conduct. Other defenses include that the party occurred outside the work place or that the harasser acted outside the scope of his employment. These are arguments that employers obviously want to avoid having to make during an expensive litigation.

Another area for concern is drunken driving. Employers can be held responsible if an employee served alcohol at a company event has an accident because he or she is drunk. In McCarty v. Workmen’s Comp. Appeals Board, a wife was allowed to collect workers’ compensation death benefits for husband’s drunken driving accident that occurred on his way home from an office Christmas party, because her husband’s intoxication arose in the course of his employment. The court reasoned that “employee social and recreational activity on the company premises, endorsed with the express or implied permission of the employer, falls within the course of employment if the ‘activity was conceivably of some benefit to the employer.’”

Further, the court agreed that the recurring drinking on the premises served both to foster company camaraderie and provided an occasion for the discussion of company business. Compare Wadley v. Aspillaga, in which the court granted summary judgment to a company sued by a pedestrian’s family after he was killed by a drunk employee driving home after an office party. There, the court reasoned that “[e]vents which have . . . a purely social purpose may not support a claim of vicarious liability, even if the social interaction between employees incidentally confers quasi-corporate benefits like employer-employee goodwill or encouragement to employees to work harder or continue employment with the corporation.”

These are some more extreme examples, but let’s not forget about countless slip and falls, fights and the Monday morning gossip-fest – all of which can lead to costly, and avoidable, litigation. Put simply, the possibilities of areas to get into trouble at your office party are endless and unpredictable without 20/20 foresight.

Office gatherings, however, remain an essential party of company culture, so we shouldn’t scrap them altogether to avoid risk. So the question then is: What can you do about it?

Remember this is still work for all intents and purposes, and just like any other part of the job, it’s up to leadership to set guidelines and policies driven at achieving the best result. In this case, it’s a rewarding, fun and memorable experience that boosts morale. So, here are a few ways employers and employees can make the best of the holiday season.

Set the tone well before the first drink is poured. Employers need to maintain an anti-harassment policy that is effective and enforce it promptly when complaints are made or violations are observed. Reinforcing the harassment policy and making sure that employees are properly trained about harassment before the party can help avoid lawsuits and defend any case that is brought. Employers should consider reminding employees that company policy applies during the party and to use their business etiquette. By the same token, employees should follow their employer’s policy against harassment during the office party, making sure their party behavior exhibits the same respect for others as it does from 9 to 5.

Speak up, and listen. Employees who feel harassed during an office party should complain pursuant to company policy, just as they should for harassment that takes place during the work day. Should this occur, employers should listen, taking complaints about office party conduct just as seriously as they ought to take all complaints of harassment. That means investigating and taking prompt remedial action where appropriate.

“See no evil” is not an acceptable policy. Even if no one complains, if an employer or its management observes or has reason to know about inappropriate conduct, the employer must take action. For employers, the office party is no time to worry about being a scrooge. Being a strong leader requires the manager to stop the offensive conduct and make the best effort to prevent that conduct from happening again. Regrets should always be allowed. The employer should not make attending the party mandatory.

The same goes for drinking at the party or participating in “party games.” Implying that drinking is important to management or putting unreasonable pressure on employees is also a no-no. The employer should make sure that nothing about the party or entertainment may be construed as harassing, demeaning or inappropriate. Avoid a sexually charged atmosphere. At the same time, make entertainment, food, and socializing the focus of the party, not drinking.

Serve drinks responsibly. If serving alcohol, employers should consider holding the event off-site and after hours and having third parties, not employees, handle alcohol service. Even though a professional bartender should know not to serve someone when visibly intoxicated, it couldn’t hurt to remind the bartender before the party to make sure they don’t serve anyone intoxicated and not to pour too much alcohol in mixed drinks.

Let the bartender know if employees under 21 will be attending the party so they won’t assume everyone at the party is of age. If the employer observes an underage employee drinking, sorry, but it’s time to be the Scrooge again. Other ideas to limit drinking include limiting the number of drinks purchased for employees, offering non-alcoholic alternatives, and stopping alcohol service well before the party ends.

Spring for a taxi. Employers should consider arranging for alternative transportation and in no circumstances should an employer let an employee who is visibly intoxicated leave the party without arranging for a ride.

Know you’re covered. Employers should check their insurance policy for exclusions and coverage for after-hours events and events where alcohol is served and, if necessary, consider a rider.

Install “chaperones.” Employers may also want to consider inviting spouses, significant others, even children, as people tend to be on better behavior in front of their family. Employers can also consider holding the party on a work night to give employees one more reason, getting up for work the next morning, not to over-indulge. Employers should also consider whether to specifically assign a manager to monitor drinking and party conduct and handle any issues that may arise.

Don’t forget diversity. Think about making it a holiday party, not a Christmas party, to avoid the suggestion of a religious preference.

And, some final suggestions for employees: Stay off the karaoke machine unless you can really sing, stay away from the copy machine, and reconsider that skit about your boss. Most importantly, have fun – but sorry, no mistletoe!
JANICE G. DUBLER isa partner inthe employment law department of Montgomery McCracken Walker & Rhoads. She has writtenmany articles and presented on employment law topics including sexual harassment, e-mail in the workplace and the Worker Freedom from Employer Intimidation Act. She also writes “The Employment Law Corner,” a regular column in The Barrister, the Camden County Bar Association’s newspaper.

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