By Mark F. Kluger and William H. Healey
Nobody invites us to holiday parties. We’re sure that’s because we annually rant to all of you about everything that can and often does go wrong. Now, if we can only figure out why we don’t get invited to parties any other time of the year either.
The Root of All Evil: Every year clients ask us how to avoid legal trouble at their holiday party. Our refrain is always the same: No alcohol! After the laughter dies down, we reiterate that we’re serious. Company holiday parties are a time to socialize and celebrate with co-workers. So by definition, everyone should relax and be their “socialselves” not their “workselves.” Unfortunately, for many, their “socialselves” plus alcohol around co-workers can be just a bit too uninhibited. And come daylight, its back to work with all those who witnessed whatever was said and done the night before. We have suggested activity parties like bowling or axe throwing (which we have done—and nobody got hurt) to keep the team building and fun without much traction among our followers. Here’s an updated alternative which we are not endorsing, but could tend to keep the buzz going while mellowing the scene if you know what we mean. How about replacing the bartenders with budtenders? Check it out. We hear people tend to be less aggressive and calmer. You may just need to order more snacks.
Hey Baby—Want to See the Partridge in My Pear Tree?: Who even has a pear tree around here? We don’t know for sure what brings out the worst in predatory behavior at company holiday parties although we have a pretty good idea. See The Root of All Evil above. Sexual harassment complaints following the annual company festivities are as predictable as a hangover—just more difficult and costly to cure. While impossible to police the event to prevent these encounters, we recommend a pre-party memo to all hands about keeping all hands to oneself. We’re not even against sending around the anti-harassment policies in advance of the party. See why we’re never invited. A few other tips: no sitting on Dirty Santa’s lap to get bonuses or lap dances, and No Mistletoe! Lest we misrepresent that all fooling around is unwanted, an October 2023 Spokeo pole survey found that 35% of respondents were tempted to cheat on their romantic partners at the annual holiday party and 17% admitted to actually doing it. Sometimes trying to do the right thing can cause other problems. Those employers who book rooms at hotels to keep office party animals from driving, may actually pay for their good deeds with a harassment lawsuit should morning after guilt or regret set in or, of course, should there have been a lack of consent.
Pay to Play: Here’s one you probably weren’t expecting. If you make attendance at the holiday party mandatory, non-exempt employees will need to be paid by the hour to party with you. Sometimes even the not so subtle pressure from a boss might be interpreted as making being there mandatory. So a written message from the top, maybe even with the invite, saying that attendance is not mandatory gets you out from under that maddening potential. There is another good reason for that messages coming up next.
Merry Happy Chrismahanukwanzakah: It has been awhile now since the politically correct police starting handing out tickets for calling the Christmas holiday party the Christmas party in favor of something more inclusive. For some reason, our suggestion of the Get Drunk and Grope Your Co-workers Party never got much traction although that is seemingly very inclusive. We get it that not everyone celebrates Christmas and a diverse workforce means everyone should feel welcome at a work event to celebrate “the holidays,” even if their particular holiday is not really being celebrated. Just changing the name of the party however has proven not to be enough. As the more inclusive holiday party concept has evolved, so seemingly have the ways in which employers can offend or be accused of excluding. Let’s start with the decorations. If the red and green dominate, might that make others feel left out? If there is a Christmas tree, should there be symbols of other holidays despite the tree’s lack of religious significance? What about the music? If there are too many Xmas songs, will that make anyone feel excluded? We have one exception: no holiday party would be complete without playing the Boss’s Santa Claus is Coming to Town and that’s not just in Jersey. Then there’s the food. But doing this right is not all that hard. Having choices is the American way. If there’s ham, have an alternative for those who may have religious dietary restrictions. Mix the décor and the music. Don’t have the party on the first night of Hanukah or Kwanza. Remember, Santa is also not a religious figure so we are good with Secret Santa but with rules…no condoms or other gifts of a sexual nature. See Hey Baby above. Also remember that the religious beliefs of some make them uncomfortable around others drinking. See The Root of All Evil above. The simple answer is to be clear that attendance is not mandatory—and mean it. See Pay to Play above. In 2019, the EEOC sued a NYC employer for terminating an employee for refusing to attend the holiday party because she felt that it was against her religion to attend an event with entertainment, immoderate drinking or dancing. And you think we’re no fun!
After Party Party: For those of you old enough to remember the famous words of Nancy Reagan, when it comes to allowing an after party, just say no! We know from client experiences, anecdotal evidence and this case, more trouble comes from after parties than the actual holiday party. In the lawsuit filed by the EEOC against a retail employer, the 34 year old manager allegedly, tried to force himself on the 19 year old employee during the after party. Those events occurred in 2017. After an adverse finding against the employer in the EEOC Charge case, in 2019, the agency filed suit in federal court on behalf of the employee. Think about this–almost 7 years after all the merriment, the lawsuit continues to this day with a procedural decision issued by the federal court as recently as December 6, 2023. After parties are trouble for all kinds of reasons. First, it’s usually just the cool kids who even know about the after party, meaning that it is a smaller, more intimate (and better looking crowd). And “no” of course we’ve never seen the inside of an after party, but we’ve heard stories from friends of friends. The after party is also often in a more intimate setting, like the hotel suite involved in the EEOC lawsuit. The group has typically already loosened up on at the bar during the main event, and yes there is likely more booze at the post-event festivities. See The Root of All Evil above. The cherry on top is that the more intimate, cooler, beautiful people, over the legal limit event is usually sponsored by someone who can afford the suite and/or to pick up the tab—meaning a boss of some kind. Loosely translated, that means, essentially everything that happens at the after party can be the legal responsibility of the employer. If there is a supervisor present, the after party is the employer’s headache. Just say no, and by that we mean, prohibit anyone with the means to sponsor the event and do whatever it takes to enforce the ban lest you end up with 7 years of ugly litigation. No after party though does not solve all your problems. There is another approach: A former Taco Bell employee is suing the franchise owner for the likely PTSD she feels from last year’s holiday party in which a co-worker allegedly had sex with his wife during the main event in front of the whole crew. Ah…this must be the fast food approach –why wait for the after party when you can go right to the drive through window and have it your way. At least it was his wife. See Hey Baby above.
Just remember…next year we’ll be waiting by our inboxes for our invites to your alcohol free Chrismahanukwanzakah parties.
Until then, we wish you all happy holidays and a healthy new year!!