Employers – Be Merry and Bright … And Thoughtful About Those Holiday Parties!

By Fiona Ong - Shawe Rosenthal LLP

December 8, 2023

‘Tis the season for holiday parties – and possible employer liability. But don’t be a Scrooge. The Three Wise men employers should keep some things in mind in planning holiday events for their employees.

•    “Oh No Christmas tree”? Avoid overtly religious themes and decorations. Promoting or excluding particular religions could constitute a violation of Title VII’s prohibitions on religious discrimination.
•    “In a one-horse open sleigh” (and other vehicles): As a matter of equity and inclusion, keep in mind that not all employees may have access to private transportation to off-site events. Choose locations and times that are easily accessible to all employees. Or consider providing transportation to off-site locations, if public transportation is not readily available.
•    “Come, they told me, pa rum pum pum pum”: Make attendance voluntary, and do not pressure/question employees who choose not to attend. Requiring attendance could make this activity work – meaning that you would need to pay non-exempt employees for their time spent partying under the federal Fair Labor Standards Act and state wage-hour laws. It might even trigger overtime pay. Moreover, some employees may avoid celebrations for religious reasons (see Title VII above) or mental health ones (triggering protections under the Americans with Disabilities Act – see our prior blog post on how workplace birthday parties can go so very very wrong). Moreover, as COVID-19, flu, RSV and other contagious illnesses are on the rise ( NOT a good holiday gift), employees (some of whom may have physical disabilities that could be exacerbated by these illnesses) may wish to avoid crowded events.
•    “Naughty or nice”: Remind employees of Company policies on appropriate conduct and non-discrimination/harassment. Permitting bad behavior at these events can trigger liability under Title VII’s prohibitions on harassment.
•    “Bring me some figgy pudding”: Consider whether alcohol should be served and if so, how much. Think about having a bartender/server (who can monitor the number of drinks someone has or how intoxicated they are) rather than allowing employees to serve themselves. Think about limiting the number of drinks each person is allowed to have (e.g. tickets, stamps, etc.) Instruct managers to keep an eye on who may be getting too drunk to drive. Provide non-alcoholic alternatives and plenty of food. And consider providing transportation (e.g. ride vouchers) for employees who are drinking. Do not allow intoxicated employees to drive – if they injure someone on the way home, you could be liable for those injuries in many states!  
•    “Reindeer games”: Do not arrange for or permit high-risk physical activities during the event, particularly if people are drinking. (See our prior blog post on why firewalking is perhaps not the best team-building activity…). Injuries could trigger OSHA reporting obligations and workers’ compensation issues.

And we wish all of you joy (and no liability) this holiday season!

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