Labor Letter, November 2013: Plan Now To Minimize Liability For Holiday-Party Misconduct

36% of employers report employee misconduct at holiday parties. The misconduct ranges from excessive drinking to sexual advances, off-color jokes, vulgar language, arguments, or even fistfights. This article summarizes risks to employers and lists precautions you can take to minimize your liability. These precautions are categorized as: 1) pre-party compliance efforts, and 2) specific actions for the night of the party.

Legal Risks

Employers may be liable for the acts of their supervisors and employees under several legal theories. For example, employers may be civilly liable for negligent or intentional acts occurring within the “scope of employment.” Employers may also be liable for harassment, discrimination, or retaliation in violation of Title VII.  Liability can be substantial. Take these risks seriously and consider the following precautions.

Pre-Party Necessities

Prior to the party, you should:

• review your policies prohibiting drug and alcohol abuse, harassment, dating, fighting, weapons, and other misconduct;

• educate supervisors and employees about the No-Harassment, No-Retaliation and EEO policies and the procedures for reporting and responding to harassment, discrimination or retaliation claims;

• make sure you have consistently disciplined violators of policies;

• foster a work environment free of harassment, discrimination, or retaliation; and

• consider whether a private binding arbitration program for resolving employee claims is right for your organization.

Party Planning

Most holiday party misconduct is related to over-consumption of alcohol. If you choose to serve alcohol at a party, consider these tips:

• remind employees that normal rules of conduct apply to parties, and to drink responsibly;

• arrange for designated drivers, reduced cab fares or hotel room rates or even offer to pay or reimburse alcohol-impaired employees for cab fare or hotel expenses;

• tell employees attendance is not required;

• provide employees with a limited number of drink tickets;

• limit the length of the party and close the bar one hour before the end of the party;

• serve non-alcoholic beverages;

• do not serve punch or other concoctions that mask alcoholic content;

• provide food and entertainment to prevent drinking from being the focus of the party;

• serve foods that slow the assimilation of alcohol (i.e., those high in protein or starch) and not greasy or salty foods that encourage more consumption of liquids;

• have the party off-site at a professionally managed facility with bartenders who are trained to limit harm or liability;

• don’t allow employees to tend bar or provide alcohol;

• designate a responsible person to “monitor” the party and work with the event staff;

• schedule the party on a week night when employees are less likely to over-indulge;

• hire an off-duty policeman or security specialist to be present during and after the party;

• don’t hang mistletoe;

• make sure underage employees or guests are not served alcohol;

• review your insurance polices for alcohol-related exclusions.

While you can’t completely eliminate the risk of liability arising from parties, by planning appropriately you can reduce liability – and continue to celebrate!