Authored Articles & Publications Nov 01, 2014

Best in Law: Enjoy the Party, but Minimize the Risks

With a Little Forethought, Employers Can Throw Holiday Parties Without Problems, BB&K Partner D. Brian Reider Writes in This Month’s Press-Enterprise Best in Law Column

By D. Brian Reider

Every year about this time, employers are knee-deep in menus and decorations as they plan holiday events for employees – ranging from in-the-office celebrations to lavish parties at fancy locations. Inevitably, some things go awry. And, too often, lawsuits follow.

Regardless of location or size, here are a few tips to keep in mind so employers can enjoy the holidays but minimize their risks.

The first and most obvious: Think carefully about whether or not alcohol should be served, and, if it is going to be served, how to deal with possible consequences. Alcohol lowers inhibitions – often resulting in sexual harassment complaints against partygoers whose language or physical conduct got out of hand after too much to drink. Consider inviting spouses and significant others – misbehavior is less likely if someone important is watching!

Alcohol can also lead to injuries – at the party, and, often worse, after the party. Great care must be taken to make sure that no employee leaves a company party while intoxicated and then gets into an automobile accident.

Last year, a California Court of Appeal found Marriott International liable when an employee became intoxicated at an annual holiday party and then had an accident after leaving the event when he drove more than 100 mph and collided with another car, killing the other driver. This liability can even extend where, with the employer’s knowledge and implied consent, a non-intoxicated employee leaves the company party to go to an “after-party” where they become intoxicated and have an accident.

Because of the possible liability, an employer should consider several steps. Most obviously, don’t serve alcohol at all. If alcohol is served, have a professional bartender or server be responsible for providing the alcohol, and make sure they clearly know that they have the right to refuse to serve anyone who appears impaired. While some companies will use drink tickets to try to limit the service of alcohol, it is common for nondrinkers to give their tickets to other employees who do drink.

At any party where alcohol will be served, make sure that alternative transportation is available. One method is to ask some employees to serve as designated drivers. Have the volunteers work in pairs, one to drive the impaired employee home, and the other to follow in another car to give the designated driver a ride back.

Finally, have a written holiday party policy in place, and make sure that the employees read and sign it in advance. The policy should clearly state that the company wants everyone to enjoy the event, but that there are specific rules that must be followed before, during and after the event – particularly regarding alcohol.

One relatively new holiday party issue concerns the taking of photographs and the use of social media. It has become completely routine for employees to utilize their phones and other devices to photograph and record at holiday parties and to upload their photos and videos to sites such as Facebook and YouTube.

Often, in the light of day, what is uploaded is at minimum unflattering and can be damaging to employees and the reputation of the company. (Picture an over-served employee posing in a very unflattering manner right in front of the company logo.) What can (and can’t) you do about this?

As tempting as it might be, you can’t usually ban either the taking of photos or the uploading of them to social media sites. Besides damaging morale, it is possible that you could violate Section 7 of the National Labor Relations Act. In the past, the National Labor Relations Board, which enforces the act, has held that prohibiting photography illegally restricts the right of employees to discuss working conditions.

Similarly, you can’t discipline employees for posting photos online, even if they put the company in a bad light. You also can’t try to delete employee photos from online sites, as that probably violates the Stored Communications Act. You can delete photos and comments from the company website – but still be careful about having that action also be considered a violation of Section 7 of the NLRA.

In these challenging times, having a company holiday party requires thought and planning. Be sure you know and trust the persons who will plan the party, and that they take all risks into consideration.

*This article first appeared in The Press-Enterprise on Nov. 1 , 2014. Republished with permission.

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