Kegler Brown " E-mployment Alert

November 21, 2007

On Dasher, On Shot Glass, On Brewski and Kegger …

If Santa totals his sleigh on his way home, let’s hope he wasn’t drinking at your office holiday party. If Grandma gets run over by a reindeer, let’s hope you didn’t over-serve the beast. If Kris Kringle fondles your secretary, don’t let it be at your office celebration.

The storied “office party” of the past, when the liquor flows without end and anything goes, is probably just that- a thing of the past. However, dangers still exist. Companies that hold holiday parties, especially if attendance is mandatory or “strongly encouraged,” can be held liable for injuries, or even death, caused to others by someone who became intoxicated at the party. If some of your employees have a tendency to become a bit bolder, or more amorous, when they drink, watch out for a sexual harassment complaint after the party. The fact that sexual (or other unlawful) harassment occurs at an office party, rather than in the office itself, doesn’t insulate the employer from harassment charges. Stated another way, things said or done at the holiday party will support a claim of harassment just like things said over a conference table or done at the office.

If you plan to have alcohol at your party, charging the employees for drinks doesn’t solve the problem. In fact, once you start to charge you may become subject to a whole array of additional requirements, not the least of which is the requirement to have a liquor license. On the other hand, if you hire a catering company to operate the bar, and contractually require them to monitor employee usage and refuse to serve those that are intoxicated, you may be able to shift or lessen the potential liability.

When you plan your party, consider these things:

1. Bah, Humbug and Scrooge - Although the thought borders on heresy, think about not serving alcohol. Little kids love holiday parties, and most of them don’t need drinks at the party to enjoy it.

2. Oh Come All Ye Faithful - Don’t make attendance at the party mandatory; if staff is required or pressured to attend, the risk of liability for their conduct is increased. Have a written policy or directive that attendance is purely voluntary. If you hold the party during employees’ normal work hours, and you pay staff for the time, make it clear that they will be paid whether they go to the party or not. Make sure there are no negative consequences for those who don’t attend or who leave early.

3. Elijah at the Doorway - Designate managers to act as observers to watch for trouble, like inebriated people or inappropriate conduct. Make it clear that the observer should not out-drink the rest of the party - non-drinking observers are best.

4. Feliz Navidad, Jose Cuervo and Rudolph’s Red Nose - If you provide alcohol, don’t charge for it. Serve lots of food, including vegetables and fruits, which have less salt and therefore don’t intensify the need to drink. Be careful that no one under 21 drinks. Stop serving alcohol and remove it from the premises well before the party ends. Take the car keys from anyone who has had too much to drink. Provide alternate transportation home - have lots of cab vouchers ready.

5. Mrs. Claus and the Three Elves - Watch for inappropriate behavior. Harassment that occurs at the party is still work-related. Send the offender home and then follow-up and handle the situation the same as you would handle similar incidents that occur in the office.

6. Chestnuts Roasting On An Open Fire - Lastly, confirm ahead of time that your general liability insurance covers the party and third-party liquor liability.

Credits

Kegler, Brown, Hill & Ritter's E-mployment Alert is prepared by the Labor & Employee Relations practice group.

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The E-mployment Alert is designed to provide general information about the subjects discussed. It is not meant to be all-inclusive or comprehensive. Kegler Brown is not rendering any legal or professional advice by way of this publication.