How to Celebrate the Holidays without Ending Up in Court: Tips for Hosting a Corporate Holiday Party

Q.  Do you have any tips on how to ensure that our company holiday party does not lead to a new year liability?

A.  As the year comes to a close, many employers often celebrate with a holiday party as a way to thank employees for their contributions. The holiday party is meant to build comradery with co-workers, and provides an opportunity for all employees, management and non-management, to “let their hair down”.  A festive occasion however, can turn into a legal nightmare if employers fail to set expectations.  Everyone has heard stories of an employee (or two) having too much to drink at the holiday party and making an inappropriate joke, getting “touchy” with a co-worker, or getting into a car accident.  By following a few simple rules, employers can attempt to prevent such legal disasters.  Below are some suggestions to help ensure that your holiday party does not end up as the focus of a lawsuit.

  • Social Gathering Policy. If the company has a social gathering policy which details behavioral expectation in social settings, it should re-circulate this policy to all employees prior to the holiday party with a special note to address expectations with the respect to the upcoming holiday party. If the company does not have a social gathering party, this would be a good time to create one and send to all employees prior to the event. In lieu of a creating a social gathering policy, a company should, at a minimum, draft a memo or email to all employees encouraging them to attend the holiday party, but also reminding them of behavioral expectations, including but not limited to alcohol consumption, arranging for transportation, and the anti-harassment policy.
  • Have a Designee.   Employers may want to consider having a corporate designee, such as a Human Resources professional, attend as the sober “eyes and ears” of the party. If the designee sees or hears something inappropriate, he/she can try to temper the situation before it gets out of hand.
  • Control Alcohol Consumption.  A “dry” holiday party may have very limited attendance. When serving alcohol, however, the employer should consider whether to limit the alcohol to beer and wine. Even if the employer does not limit the alcohol to beer and wine, it should hire a licensed bartender who can identify any individuals that have had too much to drink, stop serving him/her alcohol and possibly alert the sober designee to ensure that the individual gets home safely. Another measure to control alcohol consumption is to close the bar prior to the end of the party, so that attendees have some time to “sober up.”
  • Make Sure People Get Home Safely. Arranging for car service for all employees may be an expense that employers are not willing to undertake, however, it should be strongly considered, especially in states like New Jersey, where a host that served or sold alcohol can be found liable for injuries sustained from an intoxicated driver.  If an employer is unable to pay for transportation for attendees, it may consider offering a stipend to cover some of the attendees’ transportation costs, or in the alternative, the employer can coordinate with a car share service to provide discounted transportation to attendees.
  • Make the Party Voluntary. A holiday party, especially one that occurs after working hours, should not be a mandatory event. An employer want to mandate participation to ensure employees attend.  However, when the event is after hours, this could potentially give rise to wage and hour claims. The best policy is to have voluntary attendance, which should be clearly communicated to all employees.
  • Promptly Investigate/Address Any Bad Behavior. Even after putting these procedures into place, there may still be one (or two) bad apples; likely someone who has had too much to drink and does or says something inappropriate. If this is the case, the employer should promptly investigate the allegations and take appropriate remedial action.
  • Follow-Up With Attendees. Finally, an employer may consider sending attendees a quick survey asking for feedback after the holiday party. This can serve two purposes: (1) if issues arose that the employer is unaware of, the attendee may share it via the survey and (2) if there is future litigation, it can be used as evidence to show that the employee never reported the incident.

 

Kali T. Wellington-James

Tips for Addressing and Investigating Sexual Harassment Allegations in the Workplace in Light of the #MeToo Movement

Q.  There is a lot of conversation in the national media about the #MeToo movement. How do I ensure that my employees are treating each other properly?

A.  In October of 2017, the two-word hashtag,“#MeToo,” created a social media movement amongst women and men who have experienced sexual harassment. The hashtag was an attempt to educate society about the prevalence of sexual harassment. As a result of the movement, men and women all over the world have been reporting inappropriate behavior in the workplace.  Thus, employers need to be ready for the impact of the MeToo movement and make sure that they have the appropriate policies and procedures in place to effectively address harassment complaints.

    • Be Proactive. Employers have a duty to implement sound, reasonable employment practices aimed at prohibiting and remedying workplace harassment, such as implementing and enforcing anti-harassment policies and procedures, providing sexual harassment training programs, and creating effective reporting mechanisms. Employers should make sure that their anti-harassment policies are legally compliant and their trainings are up-to-date.
    • Take Every Complaint Seriously. Employers are legally required to investigate employee complaints regarding harassment, discrimination, and retaliation. It is important for employers to adequately address every complaint it receives, and recognize that sexual harassment encompasses a variety of behaviors. Sexual harassment appears in many forms, including but not limited to distributing or displaying inappropriate materials, sexual jokes and innuendos, sexual contact and assault, unwelcome sexual propositions, distributing or displaying inappropriate emails, leering and staring, obscene gestures, unwelcome touching or groping, forwarding inappropriate text messages and emails, and making suggestive comments.
    • Begin The Investigation Promptly. It is important to investigate allegations of harassment thoroughly, impartially and quickly. Delaying an investigation makes it more difficult to collect evidence and can signal to employees that their complaints are not being taken seriously.
    • Create An Investigation Plan. Before beginning any investigation, it is helpful to generate an investigation plan. The plan should clearly define the purpose and the scope of the investigation by identifying: the individual(s) and the issue(s) that are being investigated, who will be interviewed, and what evidence needs to be collected. Investigation plans must, however, be flexible, and allow the investigator the ability to adjust the plan in light of information received and “follow the evidence where it leads.”
    • Keep the Investigation Confidential. Employers should ensure that the contents of the investigation are kept as confidential as possible. The employer cannot promise complete confidentiality because the investigator must be free to question appropriate witnesses about the events so that they can obtain a complete picture of the incident.   But information about the investigation should only be shared with individuals who have a need to know.  Failure to treat a complaint with the appropriate level of confidentiality could result in employees being hesitant to report their issues and concerns in the future.
    • Maintain Adequate Documentation. Employers should document the investigative process in case it ever has to defend its investigation during litigation or an EEOC or state agency investigation. Employers should document when the initial complaint was received, when the investigation began, the evidence collected, individuals interviewed, and the resolution. When taking notes, it is important that they are taken contemporaneously, and identify the author of the notes and the date they were taken. In addition, employers should keep in mind that these notes may become evidence in a litigation, and therefore stick to the facts and avoid using labels or drawing legal conclusions in written memoranda.
    • Maintain Objectivity. Investigators must conduct an unbiased investigation. It is recommended that, when feasible, workplace investigations include a two-person investigation team. In some instances it may be necessary to hire independent investigators.  If an employer chooses to utilize internal investigators (HR professionals, general counsel, etc.) it is important to make sure the investigators have the proper training.   Consider whether the company can (and should) keep documents created during the investigation privileged from disclosure.
    • Take Appropriate Remedial Measures. Remedial measures can be implemented before, during, or after the investigation. Depending on the nature of the complaint, it may be necessary to separate the complainant and the accused while the investigation occurs, or place the accused on leave. If the investigator concludes that unlawful conduct, or even inappropriate conduct that may not rise to the level of actionable harassment, has occurred, the employer must take reasonable action. The action the employer takes must be directed to stopping the conduct and any ongoing harm that is occurring due to the conduct. Effective remedial measures may take many forms. When the employee who committed the conduct continues with the employer, there should generally include an acknowledgement of the prohibition against harassment and additional training.
    • Proactively Avoid Retaliation. Claims of retaliation are very common among employees who raise complaints about sexual or other forms of harassment. Employers must make clear to all involved in the complaint, investigation and remedial measure processes that retaliation will not be tolerated. Any remedial measures taken by the employer should include a clear message that retaliation against the complaining party or others involved in the investigation is prohibited, and provide the individual with a mechanism for informing the employer if he or she believes he or she is being retaliated against for making a complaint and/or participating in the process.
    • Be Consistent. Employers must ensure that all complaints are investigated in accordance with their policies and procedures. It is also important that similar conduct receives a similar level of discipline.

Incorporating the following tips into your workplace investigations will help employers identify and eliminate unlawful harassment and avoid the incalculable harm done to the workplace when harassment occurs and is not remedied. These actions will also reduce a company’s liability risk from harassment and discrimination claims. If, as an employer, you feel that sexual harassment is an issue in your workplace, you may want to hire outside counsel to conduct a full investigation and make recommendations.

Renee Manson

 

Uber Sex Harassment Scandal Is Sobering Reminder of the Costs of Ignoring Complaints

Uber made headlines last week when Susan Fowler, a former engineer, claimed that she was harassed by her direct supervisor and her complaints were ignored by the human resources department. Uber took another hit a few days later when a recently-hired executive resigned amidst allegations that he had harassed employees at his former company.

How can you prevent your company from becoming the next media story?

There are several takeaways from the Uber incidents:

  1.  Distribute a written policy prohibiting harassment based on sex and other protected categories. The policy should clearly explain the legal definition of harassment, provide examples of conduct deemed offensive, provide alternative avenues for an employee to lodge a complaint, explain the investigation process, and promise absolute protection against retaliation for good faith complaints of harassment.
  2. Provide harassment prevention training at regular intervals.  Not only is such     training crucial to ensuring that employees understand their rights and obligations, but it also may provide an affirmative defense if an employee sues after failing to make an internal complaint.
  3. Train supervisors on their responsibilities to lead by example.  Supervisors need to be taught how to recognize harassment and what to do if they witness or receive a complaint about inappropriate conduct in the workplace.
  4. Take all complaints of harassment seriously and perform a prompt and thorough investigation.  Analyze emails and text messages as part of your investigation.  Ms. Fowler said that the multiple emails that she forwarded to HR were ignored.  Electronic communications can assist HR departments in determining what really happened in what sometimes can be a “he said/she said” situation.
  5. Take corrective action if appropriate, even if it is the first offense. According to Ms. Fowler, Uber didn’t take her complaint seriously because her supervisor was a “high performer.” Ensure that your evaluation metrics take into account professional behavior in addition to job performance.
  6. Never forget that diversity matters.  Ms. Fowler emphasized the low number of women on her team and in the company in general.  Promoting diversity based on gender, race, ethnicity and other categories helps to ensure that all voices are heard.
  7. Take a hard look at your hiring practices.  When performing background and reference checks, dig into information about previous claims against the prospective employee for workplace misconduct.  Keep in mind, however, that certain federal and state laws may govern your company’s ability to gather this type of information.
  8. Finally, never forget the power of the Internet.  Ms. Fowler’s story gained immediate national attention after she published a detailed essay on her personal blog.  While the Internet is a powerful place to promote your brand, this is not the sort of publicity most companies would like to see.

– Tracey E. Diamond

EEOC Issues Guidance Interpreting National Origin Discrimination

Q:  What does it mean to discriminate against someone based on their national origin?

A:  Title VII prohibits employers from acting in a way that would have the purpose or effect or discriminating against an employee because of his or her national origin.

But what does the term “discrimination based on national origin” really mean?

The Equal Employment Opportunity Commission (“EEOC”) recently issued an Enforcement Guidance on this subject. Although the EEOC’s position at times is broader than controlling case law, the Enforcement Guidance is helpful because it offers insight into how the EEOC will investigate claims of alleged national origin discrimination in the future.  It is significant that 11 percent of EEOC Charges filed in 2015 contained an allegation of national origin discrimination.

According to the EEOC, national origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular ethnic group. National origin discrimination often overlaps with race, color, or religious discrimination because a national origin group may be associated with (or, according to the EEOC, perceived to be associated with) a particular religion or race.

Title VII prohibits an employer from using certain recruitment practices, such as sending job postings only to ethnically or racially homogenous areas or audiences, or requesting that an employment agency refer only applicants of a particular national origin group. Importantly, employers may not rely on the discriminatory preferences of coworkers or customers as the basis for an adverse employment action in violation of Title VII.  Thus, for example, a retail store may not reject an applicant for not fitting its “all American image.”

Social Security Numbers

The EEOC also addressed an issue that sometimes trips up employers. According to the EEOC, having a policy or practice of screening out candidates who lack a Social Security number implicates Title VII if it disproportionately screens out work-authorized individuals of a certain national origin, such as newly arrived immigrants or new lawful permanent residents, and thus has a disparate impact based on national origin. The EEOC has clarified that newly-hired employees should be allowed to work if they can show that they have applied for but not yet received a Social Security number.

Accents

Under Title VII, an employer may refuse to hire (or fire) an individual if his or her accent interferes materially with job performance. To meet this standard, however, an employer must be able to provide evidence showing that: (1) effective English communication is required to perform job duties; and (2) the individual’s accent materially interferes with his or her ability to communicate in spoken English. Likewise, an English fluency or English proficiency requirement is permissible only if required for the effective performance of the position for which it is imposed.

According to the EEOC, the key is to distinguish a merely discernible accent from one that actually interferes with the spoken communication skills necessary for the job. Evidence of an accent materially interfering with job duties may include documented workplace mistakes attributable to difficulty understanding the individual, assessments from several credible sources who are familiar with the individual and the job, or specific substandard job performance that is linked to failures in spoken communication.

Hostile Work Environment Claims

The EEOC’s Enforcement Guidance also issued an important reminder to employers that harassment based on an employee’s national origin could give rise to liability for a hostile work environment. A hostile work environment based on national origin can take different forms, including ethnic slurs, ridicule, intimidation, workplace graffiti, physical violence, or other offensive conduct directed toward an individual because of his birthplace, ethnicity, culture, language, dress, or foreign accent.  None of this behavior should be tolerated in the workplace.

Promising Practices

The EEOC lists several “promising practices” for employers to consider to avoid liability for national origin discrimination:

  • Use a variety of recruitment methods to attract as diverse a pool of job seekers as possible;
  • Identify your Company as an equal opportunity employer;
  • Implement clearly-defined criteria for evaluating performance;
  • Distribute a policy prohibiting harassment based on national origin and train employees regarding their rights and obligations under the policy.

Tracey E. Diamond