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

Employer Planning Needed to Counter Zika and Influenza Viruses

Q.  Are there any issues I should be concerned about with regard to the Zika virus and upcoming flu season?

A.  Media attention about the Zika virus seems to have lessened now that temperatures in the Northeast have cooled.  If your business requires employee travel to Zika-infected areas, however, there are several issues for you to consider.  Zika concerns also highlight the need for employers to be prepared for issues surrounding other employee viruses, particularly as influenza season begins.

Click here to access an article by Pepper Hamilton’s Amy G. McAndrew highlighting these issues and discussing what employers should be doing with regard to Zika and other viruses.

-Tracey E. Diamond

 

Creepy Clowns and the Workplace

Q.  My office likes to celebrate Halloween. With all the talk about “creepy clowns,” should I be worried that our celebration will get out of hand?

A.     Creepy clowns are making national headlines as clown sightings spread throughout the country and on social media. Whether the clown prank turns more sinister remains to be seen. In the meantime, however, ‘tis the season of goblins and ghouls, and now is a good time to remind employees of some do’s and don’ts to maintain professional decorum while celebrating the Halloween holiday:

  1. Update dress codes to provide costume guidelines.  Employers should shudder at the thought of skimpy costumes, plastic weapons or costumes depicting the religion or national origin of others.  To the extent that you allow employees to wear costumes at all, remind them that costumes should be appropriate for the workplace.  Keep in mind that the Company’s equal employment opportunity and sexual harassment policies apply at all times, even (especially!) during holiday events.
  2. Provide guidelines for office decorations.  The same concerns regarding costumes apply to office decorations.  While it may be fun to hang spiders and put out pumpkins, make sure employees refrain from decorating the office in a manner that would offend a co-worker’s religion, national origin, or other protected category.
  3. Allow employees to opt out if they want to. Some employees may not celebrate Halloween for religious reasons.  Forcing them to join the group could turn the fun into a lawsuit.
  4. Likewise, if an employee asks for time off to celebrate the religious aspect of All Hallow’s Eve, keep in mind the company’s obligation to accommodation a sincerely held religious belief unless to do so would cause an undue hardship.
  5. If alcohol is going to be served at a Halloween party, make sure to serve food too. Limit the number of hours that the bar is open, or provide drink tickets so that employees do not get too carried away. If an employee appears to be intoxicated, make sure they have a way to get home safely.

Finally, update your security procedures during the holiday season.  If an unknown individual does try to enter your workplace in a creepy clown costume or other inappropriate attire, err on the safe side and alert the authorities.

Tolerating Tattoos in the Workplace

Q.  We have several employees with tattoos on their necks and forearms. Can we require them to cover up?

A. Many employers have in place employee dress codes, in an effort to maintain a certain brand image, comply with health standards, and foster professionalism. As tattoos, body piercings and other forms of body art are trending in today’s culture, some employers have struggled with whether such displays are in keeping with the company’s image.  To what extent can an employer place rules on an employee’s appearance at work without violating anti-discrimination laws?

Generally speaking, employers are free to require employees to dress in a certain way. So, for example, an employer may require that an employee wear a certain uniform, cover up a tattoo or remove a nose ring.  However, employers are required to reasonably accommodate an employee’s sincerely-held religious belief, including an employee’s dress or grooming practices that are for religious purposes, unless to do so would be an undue hardship on the employer’s business operations.

The EEOC has issued guidance stating that a religious accommodation may cause an undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work. This is an easier standard for employers to meet than the “undue hardship” analysis under the Americans With Disabilities Act.

Thus, for example, it may not be a Title VII violation for an employer to require an employee of the Sikh faith to shave his beard if he (1) works with hazardous chemicals that require him to wear a respirator; (2) the beard prevents the required face seal to protect him from chemical exposure; and (3) there is no alternative device or method of doing the work that would not require him to shave his beard.

On the other hand, it would be a Title VII violation for an employer to prohibit an employee of the Muslim faith to wear her religious head covering where wearing the religious head covering does not pose an undue hardship, even if it results in complaints from other employees or customers who are not used to seeing such head coverings in the workplace.

As for tattoos and piercings, employees have no legal right to display body art, unless it is required for a sincerely held religious belief. Thus, employers may prohibit tattoos or may require employees to cover them up.  Employers also are free to create a tattoo policy that prohibits sexist and racist images, and images that promote violence, so long as the policy is applied evenhandedly throughout employees of all protected categories.

-Tracey E. Diamond & LaVelle S. King

Safety in the Workplace

Q.  The world feels like a scary place these days. In light of current events, what are my obligations with respect to providing a safe workplace for employees.

A.  You are not alone in asking this important question. The sad and horrific string of mass shootings — from Sandy Hook to San Bernadino to Orlando to Dallas to Baton Rouge — is causing many employers to take a hard look at their workplace violence policies and programs.

The federal Occupational Safety and Health Act (OSH Act) requires employers to provide a safe working environment. Under the OSH Act, an employer can be found liable if it failed to keep the workplace free from a hazard that employees were exposed to, and the following factors apply:

  1. the hazard is recognized
  2. the hazard was likely to cause death or serious physical harm
  3. there was a feasible and economically viable way to correct the hazard.

In addition to the OSH Act, there are various state laws that impose safety requirements on employers. And, if an employer hires or retains an employee and knows or should know that the employee poses a risk of harm to others, that employer could find itself liable for the tort claims of negligent hiring or negligent retention.

It seems these days that hazards can come from multiple sources — coworkers, family members of coworkers, customers or even strangers. Here are some best practices for establishing or updating your workplace violence prevention program:

  • Put in place a zero-tolerance policy with respect to all types of workplace violence and threats of violence.
  • Prohibit weapons of any kind in the workplace, subject to state laws permitting concealed weapons in a parked car.
  • Educate employees so they understand their rights and obligations.
  • Carefully screen applicants. This is tricky now because certain states and municipalities have instituted “ban the box” legislation, which prohibits employers from asking about an applicant’s criminal record in the employment application. In most jurisdictions, however, employers are permitted to check an applicant’s criminal record before making a final decision whether to bring the individual on board as an employee.
  • Take measures to increase physical security in your buildings, such as requiring employees to wear identification cards, locking doors and installing an alarm system.
  • Ensure that your company parking lot is adequately lit and secure.
  • Provide your employees with an evacuation plan in case of a dangerous situation, and periodically perform drills so that employees are educated properly on what to do in case of an emergency.
  • Provide resources for stress management, such as an employee assistance program.
  • Train managers on conflict management.

While it is impossible to erase all risk, a well-written workplace violence prevention policy, combined with employee training, physical security measures and proactive human resources controls, can reduce incidences of violence in the workplace and minimize the impact of any violence that does occur.

-Tracey E. Diamond