As companies around America drag out the lights, consult with caterers and order booze for their annual holiday parties, know that once the celebrations are over, more than one in three employers will report that the festivities got out of hand.
It could be that a worker used the mistletoe as an excuse to get frisky with a colleague, or a few tipsy employees exchanged heated words—or even came to blows.
Thirty-six percent of U.S. employers report worker misconduct at holiday parties, wrote Albert Brannen, an attorney at Fisher & Phillips LLP, in the firm’s November 2013 Labor Letter. The misconduct runs the gamut: excessive drinking, sexual advances, off-color jokes, vulgar language, arguments and fistfights.
Businesses may be liable for the acts of their supervisors and employees under several legal theories.
For instance, case law makes it clear that legal liability can ensue when an employee drives drunk after a company-sponsored holiday party, said David Barron, labor and employment attorney at Cozen O’Connor. He pointed to a California appellate court’s highly publicized 2013 decision in Purton v. Marriott International.
In that case, at the annual holiday party for employees, San Diego Marriot served only beer and wine and limited drink tickets for each worker. A hotel bartender arrived with a flask of whiskey, which a supervisor refilled with hotel liquor after the employees drank all the whiskey. While driving home, the employee with the flask struck another vehicle and killed the driver and was sentenced to six years in prison.
After the deceased’s family sued Marriott, the appeals court held that the proximate cause of the death—the worker’s intoxication—happened while the employee was at the party. Because the party benefited the hotel and was a Marriott custom, drinking at the party was within the scope of employment, and Marriott could be held liable for the employee’s actions.
“Liability can be substantial,” Brannen wrote. “Take these risks seriously.”
Should Employers Ban Alcohol?
Most holiday-party misconduct happens when people drink too much, labor experts said.
Steve Miller, a labor and employment attorney in Chicago, said employers should consider banning alcohol from holiday parties.
Yet, a 2012 Society for Human Resource Management employer survey found that a majority of organizations (61 percent) planned to serve alcohol at their holiday or end-of-year parties.
“The increased recognition that alcohol consumption at organization-sponsored events creates significant legal liability has had an impact on company holiday parties—but is not necessarily cause for a complete ban,” Barron said. “Certainly the decision whether to serve alcohol is up to the employer, and it is a legitimate position that restrictions conflict with the intention to reward employees, boost morale and encourage team spirit. But if alcohol is served, reasonable precautions are essential.”
Such precautions, Miller said, can include designating supervisors or bartenders “to ensure no one is getting [drunk] and remind employees that they are still to comply with the company’s policies and code of conduct. He continued, “There’s a possibility if someone consumes too much, they can become loose with the lips and create an uncomfortable work environment for someone.”
Or workers who imbibe too much may become loose with their behavior.
“If alcohol is involved, people can become more touchy-feely or get a little frisky,” Miller said. “When you add to a party the layer of the holidays—where someone may show up as Santa’s elf or helper wearing something a little revealing—that certainly opens the door to [inappropriate] comments.”
Employees are protected from sexual harassment and discrimination by Title VII of the Civil Rights Act of 1964, which covers organizations with 15 or more employees. Title VII provides two requirements for conduct to trigger liability for unlawful harassment: The conduct must be unwelcome, and the conduct must be sufficiently severe or pervasive that it violates the law.
“If a harassment incident at a holiday party follows previous incidents of misconduct, it could constitute the evidence necessary to reach the severe or pervasive threshold,” Barron said. “It’s the employer—not the harassing employee—who may well wind up in court.”
Brannen recommends that employers do the following before and during holiday parties:
- Remind employees that normal rules of conduct apply to parties and that they should drink responsibly.
- Arrange for designated drivers, or reduced cab fares or hotel-room rates.
- Tell employees that attendance is not required.
- Provide employees with a limited number of drink tickets.
- Limit the time for the party, and close the bar an hour before the celebration ends.
- Serve nonalcoholic beverages.
- Don’t 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 alcohol assimilation—those high in protein or starch, not greasy or salty edibles.
- Have the party offsite at a professionally managed facility with bartenders who trained to limit harm and 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 weeknight, when employees are less likely to overindulge.
- Hire an off-duty police officer 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 policies for alcohol-related exclusions.
Dana Wilkie is an online editor/manager for SHRM.