To Christmas Party or not? 

When I was the top Legal Advisor for a large command while serving in the Army I inevitably got the chance to field dozens of questions concerning the Command’s decision to throw a “Christmas Party,” from what to call it, to can we have alcohol and everything conceivable in between. The thought of having to be the naysayer during this festive time made me feel like everyone was looking at me as the Grinch. Such was my duty then, and is now as a civilian attorney, trying to help my clients manage their legal risks. However, with a little preplanning, the risks can be easily managed without too much Bah hum bug; as they say in Whoville, “that the Grinch’s small heart grew three sizes that day. And then – the true meaning of Christmas came through, and the Grinch found the strength of *ten* Grinches, plus two!  Maybe I two will get the honor of cutting the Roast Beast. 

So, in that spirit, let us discuss the office Christmas party.

BAD BEHAVIOR. The first thing an Employer should be concerned of is the potential behavior at the party and what risks it brings especially if you are providing Alcohol. According to Workforce Management, liquor is served at 86 percent of office holiday parties. Alcohol, combined with the relaxed, festive atmosphere of an office party, can easily lead to a “perfect storm” of problems such as: drunk driving, inappropriate behavior including possible sexual harassment issues, and just careless or reckless behavior resulting in injury (a few years back in Chicago a boss dancing with an Employee’s spouse grabbed the spouse, tossed her into the air … and then failed to catch her, resulting in a lawsuit).

It is not surprising that employees may act differently at an office party than they would normally act during the workday. So be on the lookout for those who drink too much, sexual or inappropriate jokes or comments and come-ons. Employers can be held responsible for such conduct at a company-sponsored party, just as they would be in the workplace during the regular workday.

The Wisconsin Dram shop law normally doesn’t provide for liability for a company serving alcohol at a party but it is important to note that liability may attach if alcohol is served by force or by deception (such as hiding the alcohol content of a punch or claiming a beverage is alcohol-free), or when alcohol is provided to a minor and is a “substantial factor” in the resulting injury.  Additionally, you never want to be “that guy,” or company in this case, who creates the facts that brings a change by the legislature.

IS CHRISTMAS OK? The second most common issue is whether you can still call it a “Christmas party?”  For private companies this is not a legal issue on its face and it is perfectly legal to call it a Christmas party. However, ancillary problems have been known to arise from this issue such as discriminating against or harassing employees who don’t believe in Christmas on the basis of religion, forcing Employees to attend or pressuring Employees to participate in some of the Christmas traditions.  You may attempt to eliminate this issue by secularizing it (calling it a holiday party) or by trying to be all inclusive (Kwanzaannukahsolsticemas, or Festivus for the restofus!) however, this may cause backlash issues as well.  The smart Employer feels out their Employees before and makes the best choice possible realizing that you may not please everyone.

LOOSE LIPPED.  Employers should also be concerned about loose-lipped Employees at the office party. Again, in the relaxed, festive atmosphere of the office party, Employees may say things that can create liability for the company — such as sharing personal information about co-workers or discussing confidential company matters. The last thing a Company needs is for an Employee to discuss issues such as hiring, firing, raises or discipline.  

LIMITING RISK.  Now that I have put a damper on everyone’s Christmas Party what are the steps a Company can take to reduce possible liability from office parties:

  • If you serve alcohol, make sure you don’t serve alcohol to underage employees. You can be liable not only for serving them, but for any resulting injuries. In general, managing employees’ alcohol consumption can prevent injury and other legal problems, such as those discussed above.
  • Provide food, and plenty of alternative beverages to alcohol.
  • Consider designated drivers, or hiring a limo service for those who need it. At the very least provide numbers for Cabs or remind the Employees of companies such as Uber.
  • Have someone who has authority in the Company, and not drinking, monitor the interaction between employees and let folks know they can come to that person if someone is getting out of hand.
  • Feel out your Employees for what they think the party should be called and make your decision from there.
  • Make it clear that attendance at the office party is non-mandatory and/or they are not required to participate in seasonal traditions if they don’t wish to.
  • Hold the party off-site. If the party takes place outside the course of employment, employers may avoid workers’ compensation exposure for injuries at the party or harassment complaints.
  • Consider reminding your employees of your employment policies. Let them know that harassing, inappropriate, and unprofessional conduct will not be tolerated — even at the office party.

Now that I have bah hum bugged on everyone’s Christmas party remember the wise words of the Grinch “How could it be so? It came without ribbons!… it came without tags!… it came without packages, boxes, or bags! He puzzled and puzzled till his puzzler was sore. Then the Grinch thought of something he hadn’t before. Maybe Christmas, he thought… doesn’t come from a store. Maybe Christmas, perhaps… means a little bit more!”

Now where is my Roast Beast!


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