• Avoiding Employment Law Hangovers from the Office Holiday Party
  • December 14, 2004 | Author: Kenneth F. Sparks
  • Law Firm: Michael Best & Friedrich LLP - Chicago Office
  • As the holiday season approaches, employers are busy planning holiday parties and arranging holiday staffing. But smart employees who want to enjoy their holiday cheer should also remember the legal risks -- and how to avoid them. So what kind of issues come up? More than you think. The risks fall mostly into three areas: sexual harassment, accidents and injuries caused by the consumption of alcohol, and religious discrimination.

    Let's start with sexual harassment. It doesn't require a report from Santa's elves to know that people drink at office parties, and that some of them behave badly. Alcohol lowers inhibitions. In casual social settings, such as office parties, this can be a recipe for an EEO nightmare. Every human resource professional and most managers know that sexual jokes, touching, and sexual advances aren't OK in the workplace. What they might forget in the holiday rush is that such acts don't become OK just because they happen at an off-site holiday party. Employers can be liable for a single incident of sexual misconduct if it is severe.

    So what should smart employers do?

    • Leave the mistletoe at home. Let's face it, inviting employees to make an unwanted sexual advance can get you more than a lump of coal. It can get you sued.

    • Make your expectations clear before the party. Tell your employees to have fun, but remind them that to consume in moderation and arrange for designated drivers. They should also know that the firm's anti-harassment policies remain in effect at firm functions -- even if at a restaurant.

    • Lead by example. Your managers set the tone. If they consume in moderation and behave, so will most others.

    • Step in to stop inappropriate behavior. That includes excessive drinking, inappropriate jokes, or unwanted or excessive displays of affection.

    • Limit or cut off the alcohol. If you serve alcohol, make certain to have a professional bartender who has been instructed to cut off employees who have had too much and report problems to managers early. Consider limiting alcohol to beer and wine or closing the bar early.

    • If a problem arises, take swift, appropriate action. Treat sexual harassment or other misconduct at a party the same way you would any other misconduct. Investigate promptly, make a decision, and issue discipline where appropriate.

    Employees who drink too much are also a risk to themselves and others if they drink and drive. Although Illinois does not allow suits against those who host a party, even employers, for serving alcohol to adults in a social setting, not all states follow that rule. But what if the party is really a business function, such as a customer dinner? If an employee drinks and drives as part of his or her required job duties, the employer may be liable. So what do you do?

    • Make sure you have a substance abuse policy that prohibits driving under the influence on Company time and enforce it.

    • Most holiday parties should be optional, not mandatory.

    • Serve non-alcoholic beverages. Drinking should always be optional.

    The last thing to consider is religious discrimination. Employees celebrate different holidays and hold a wide range of religious beliefs. Don't exclude anyone by holding celebrations that recognize only one holiday or one religion to the exclusion of others. Make your holiday celebration an inclusive event for people of all beliefs.

    An employer also has an obligation to offer reasonable accommodations for religious beliefs if they do not impose an undue hardship. What is reasonable? That depends on the facts. Generally, you do not have to incur significant costs, such as giving an employee extra paid time off. But you must make an effort to permit an employee to use existing leave time or unpaid days to observe a religious holiday. If you need to have someone work that day, you must at least attempt to find a replacement or arrange a trade. But the law does not require you to violate the seniority provisions of a union contract or act so as to hurt your business. The bottom line? Be reasonable, offer to discuss the accommodations requested, and offer reasonable alternatives that do not hurt your business.