From Lawyer to Employer | Season 4, Episode 5: Avoiding a Holiday Party Hangover: How Employers Can Celebrate Safely

Dan Schwartz: So we'll just start with one basic question. So, we are not saying that employers can't do any parties, right.

Peter Murphy: Absolutely not. I mean, we, uh, as you know, we have a great end of the year holiday party here at, at our firm, and it's something everyone looks forward to. It's a great, uh, opportunity to catch up with people, celebrate the successes and the end of the year and, and look forward to the next year. So, no - we are not saying have no parties.

Dan Schwartz: All right. So then why do holiday parties though give give employers such heartburn and why do they seemingly create a lot of risks at times?

Peter Murphy: Well, you know, there's several factors into that and they all kind of come together at once, right? It, it's a social occasion and oftentimes companies or organizations don't get together socially until the end of the year. And so it's a, a bit of a unique situation, especially in this remote environment. You have people coming together who might not have seen each other over the last month or six months or even year, right? So, you have all these people coming together oftentimes, most times, there's alcohol involved, which can always lead to problems, whether it's, you know, with college kids or organizations or, or whatever. And yet you still have, even though it's a fun environment and there's alcohol and food and sometimes bands and dancing for the larger events, it's still a work event, right?

And, and so you have the, the overlay of all the, well workplace rules and, and structures for that party. So those can kind of be in tension at times. And of course, wherever there's alcohol or social gatherings, there's always a risk for some sort of inappropriate behavior, whether just an inappropriate comment or, a more serious.

Dan Schwartz: Yeah, and I'll talk about alcohol in a second, but I want to touch on one thing that you said, which is that this is still a work-related event. And I think sometimes people lose sight of it, right? They think work is only from nine to five in the office, but parties have proven time and again, to be an extension of the workplace, right?

Peter Murphy: That that is true. And that can be true whether they're, um, you know, mandatory, everyone has to come to this party or voluntary. If it's a work sponsored event, it's, uh, it relates back to the workplace.

Dan Schwartz: Yeah. So, let's tackle, you know, I think the elephant in the room, which is the alcohol directly, because I think you'd agree with me, that's probably the biggest risk factor that employers have on these parties, right?

Peter Murphy: Yes, definitely.

I mean, alcohol presents, um, several different issues, right? One, people tend to have too much or not tend to, but can at times have too much let's it's the bad decisions, which it's just in conflict with, with the normal, uh, workplace environment, right? But there's ways around this. We're certainly, Dan, going back to your earlier point, we certainly are not telling people not to have parties, and we're certainly not telling people it's a can all alcohol and just have juice and, and milk. Alcohol is, is, uh, a very appropriate thing to have at, at after-hours party. But there's ways to handle that too, right? I mean - and, and we can get into that right now, if you don't mind, Dan.

I think in the past many companies and organizations had open bar policies and or open bar parties rather. And, and that can oftentimes lead to issues. So there's ways around that: one, you know, use drink tickets, uh, give people two free drinks, something along those lines. Something, uh, in that moderate range that's always a good thing.

Either having it at a facility that normally serves beer, a restaurant, a function hall, whatever it is. If they normally serve alcohol, they'll have professional bartenders there. If you're having an on site, you can also hire companies to come in and do that, and they have a liquor license and will take on some of the liability for you.

So, not only can they be their eyes and ears in terms of, but you also know, they're serving the alcohol, so they're keeping an eye on whether individuals should be served more or not. It can also help mitigate the liability issues.

Dan Schwartz: Yeah. So you're not just putting out the bottles of vodka on the table and say, go help yourself Yeah.

Peter Murphy: That is true. I think those days are, are gone. Yeah. And you know and that brings up another point, to that end, you know - I know some events that we go to, you know, bar functions or other things, or in our personal lives as well, they only serve beer and alcohol because they feel like that's a little:A - you know, most people can drink beer or alcohol and -I'm sorry, beer or wine. And they don't serve alcohol, sorry. And they don't serve alcohol because you're right - leaving a bottle of vodka on the table is, is not a good way to mitigate your risk.

Dan Schwartz: Some of the other ideas I've heard which I kind of like here that I'll share was one, it was sort of maybe if you want to have a mixed drink, creating just a signature cocktail, that'll be the one drink of choice, but also creating some good non-alcoholic drinks, a mocktail so that people feel included. Maybe they want to have something that feels festive, but they don't care whether it has alcohol. They just, they don't want to feel like they're just drinking the, the club soda all the time.

Peter Murphy: Absolutely. You go to any restaurant now, you'll see numerous mocktails on the list.

Right. There's a, a huge market for that. And, and that would be a great way for a company to vary up what they're serving at an event.

Dan Schwartz: Yeah. And you can look at the statistics and the reports showing that alcohol usage in society seems to be dropping off a bit, and it might be Gen Z related. There are a variety of factors, but I think having other things at your party beyond just the alcohol can help, uh, sort of boost it overall.

Maybe good food, right?

Peter Murphy: Oh, absolutely. You know, a wide variety of food, uh, and have it throughout the evening rather than just at the start of the party. Something, coffee, you know, other non-alcoholic drinks like that, coffee, tea, et cetera. Those are both staples that are, should be staples at a party.

Dan Schwartz: What about transportation as well? You know, is that a viable option? Should employers be thinking about maybe offering a Uber or Lyft voucher?

Peter Murphy: We certainly see that more and more, and I think it's a good idea. It's just so ingrained in society now that people, you know, use those kind of ride services to get to events where there's gonna be alcohol and, and companies can be well served to offer vouchers or arrange it ahead of time with Uber or Lyft or whatever.

I know, you know, one family member works at a company where anytime they're out for a company dinner or a dinner with a client, et cetera. if you're driving yourself, you're not allowed to have alcohol. You, you can only if you're walking or, or taking an Uber. So, I think that's becoming more and more common all throughout the year.

And then at holiday parties you know, I, I think that could be a gesture of goodwill by your, by your organization.

Dan Schwartz: Yeah, and I would think maybe closing the bar early or maybe even holding the party earlier in the day can help facilitate that too. Again, not saying you can't have alcohol or beer and wine at your, at your party, but you're just adjusting it.

Right. It's very different to have a party in the afternoon versus 8:00 PM on a on a Friday.

Peter Murphy: That’s right or a weekend when people have to come back to the workplace, right? I think when you're choosing a location, whether it's your workplace or offsite, those are considerations, right? Travel does a lot of your staff take the bus to work. Is the, is the facility gonna be on a bus line? Things of that nature. Those are all things you can consider. There's a wide variety of things to consider too, in terms of food, right? Uh, you should know, are there individuals at your organization with dietary restrictions? You want to include them.

You know, are there individuals of a wide variety of religions at your organization? You wouldn't wanna make it a Christmas party, right? You wanna be inclusive of everyone. And I think one way to get at that, the end when you know whether it's the food or the other aspects we were just talking about, is to have a planning committee that pulls people from a variety of different sources within your organization, right?

And have them think about not only what's appropriate, but what, what does the staff want? What do your employees want, right? For a, a party? So rather than a, a leader of the organization dictating it down, that can help eliminate problems as well.

Dan Schwartz: Yeah, that's a great idea. And I think when you just have a leader that has a one size fits all, that's when mistakes can, uh, can, can happen, right?

Peter Murphy: Yes. And you know, like with every situation throughout the year. The leaders of the organization should model appropriate behavior at functions. I think we've all seen cases over the years where the CEO or a, a high level manager, et cetera, is the one leading some, some bad behavior. And that certainly shouldn't be the case at any point in, in the year, much less at a holiday party.

Dan Schwartz: Yeah. Well, let's talk another big thing that comes about at holiday parties that we're asked about, which is preventing harassment claims there. And, look, this is an area where a lot of employers get worried, I hear from them, you know, again, can we do the parties, should we do the parties?

And, uh, the thread through that is the risk of the harassment claim. So, let's just take a step back for a second. I, I think you've sort of answered the first question before, which is, you know, it's still a work sponsored event, right. So, harassment claims can and often do, arise at holiday parties.

Peter Murphy: Absolutely, because you have people interacting in a way that maybe they don't nor typically interact during the year. The alcohol factor you raised before, uh, we've seen a wide range of kind of harassment claims stemming from just comments, low level comments, we'll call them, you know, comments on, on someone's attire or just an inappropriate statement up to more significant, sexual assault or harassment type, uh, situations as well.

I sas, you know, when, when thinking about this podcast with you, I saw a case recently out of Maryland, it was a decision the other day where, you know, they're at the holiday party and then one of the, one of the bosses says, all right, some of us let's go to the bar for a final, right? And I, I want to pay.

And, and so they go there and of course - then, oh, let me walk you home. Right? And, and then the woman alleged that she was assaulted in her own home by the boss, which, you know, it was two steps removed from the actual holiday party, but it just kind of flowed in the natural course from that because the leaders of that organization didn't, didn't have appropriate guardrails in place.

Dan Schwartz: So I think, uh, a simple takeaway from that is not to hang missile toe at the party, right?

Peter Murphy: That is correct. Mistletoe, games, things of that nature that, that those can, uh, sometimes lead to problems - have fun but yeah, leave the games and the mistletoe and the kissing booth and other things out, right?

Dan Schwartz: Yeah. I think, uh, I think that's great. Are there things that, you know, we talk about the party itself, but are there things that the employers can do ahead of the party that maybe they're not thinking about?

Peter Murphy: Sure. I think one of those things would be, you know, setting expectations ahead of times. You and I talk to employers all the time about communications, right?

Having appropriate policies and making sure they're, they're broadcasting and that can be the same with your holiday party when it's sent out. Here's our expectations, here's how it's going to work. We want everyone to have a good time but you know, we're, we're, uh, these are our expectations for the party.

Dan Schwartz: Yeah. You mentioned before, a decision to be made about voluntary versus mandatory. And I think that's in part because of there are some wage and hour rules that tie into that. Right?

Peter Murphy: That's true. If you're hosting after hour party and it's a command performance and everyone's required to be there, then your, uh, non-exempt employees, you know, that's gonna be a work event and you're going to be paying them for that. Right. And so that, that, that's definitely a, a concern on the wage and hour side.

Dan Schwartz: Yeah. And I think for the planning committee, if they're expected to be there and they're non-exempt, I think despite the fact that they're gonna enjoy the party too, but if they're expected to provide some oversight role or manage things, check people in, those people still need to be paid for that work.

All right, let's talk logistics here. We've mentioned some things here that employers can build on. You mentioned the sort of responsible venues, maybe not having an all you can drink approach there. Are there other things that employers should think about at the event itself?

Peter Murphy: One thing is a guest policy, whether you're opening it up to individuals besides your employees, whether those are spouses, significant others, or just everyone can bring a friend, right?

That's one thing that they might want to, to think about. That comes to mind.

Dan Schwartz: Yeah. So and, and I think holding it at a, at a right venue is, well, maybe, uh, you don't hold it at a hotel where people are gonna get a room afterwards. Right? That creates more risk. You might want to do it at a, again, a banquet facility, a restaurant, somewhere else.

Or even the workplace itself. Right? That sets the tone that, hey, this still has some appropriate barriers to it. I, I know I've talked with you about playing pickleball, but you know, there's nothing to prevent a, an employer from picking a fun event a game room, a pickleball place, uh, shooting gallery for, uh, for golf.

Peter Murphy: Yeah. That is the bowling alley. The casino, right?

Dan Schwartz: Yeah. All of those types of things. All right, so now let's talk about post party. Sure. Employer hears, you know, Monday morning starts hearing about some things. What do they need to do?

Peter Murphy: Yeah. Well, let's start with a should not do. Right. And they should not just blow it off, right? Anything. Oh, it was a after-hours party. It's not our responsibility. Or, oh, that was just Bob letting off some steam or something. So that's definitely not the approach they would wanna take. They would wanna handle it - if they got a complaint that something occurred at, at the holiday party, they would investigate it like they would any other potential workplace issue, right?

Don't make snap decisions. In fact, there was a another interesting case, Dan, recently, where an individual sued because people allege that he got a little touchy with, with some females at the holiday party, and the company just fired him, didn't really do any investigation. So then, and then word starts getting out that he was fired for, uh, inappropriate conduct, and he sued them for defamation, intentional affliction, emotional distress of that, et cetera, because they overreacted, they didn't even do an investigation, they just took the, the allegation as true and, and fired him. And so. And you don't want that situation either, right? You don't wanna blow it off. You don't want to rush to judgment. You wanna do an appropriate investigation, which will depend on the circumstances, but certainly talk to people, look at footage, whatever you would normally do in a workplace investigation.

Dan Schwartz: Yeah. One of the other things that comes to mind is really just doing a postmortem on the event as well. Which is what's, what worked, what didn't, and learn from things. And I think where another potential area of liability is if you know an event wasn't perfect in the first year, doing the same thing over and over.

It's just inviting a complaint there that you didn't learn from your mistakes and your causing this situation to occur.

Peter Murphy: Sure. Good advice.

Dan Schwartz: Alright, let's wrap up so everyone can go back to their eggnog and other drinks here. We're not telling you not to have the parties, but if doing so, what are some going away tips for employers here?

Peter Murphy: Sure. I, I think the things that, you know, we talked about are set the expectations early, make sure people realize it is a work event. It's not a free for all. It's an extension of the workplace and our normal expectations apply. Have a good plan for food and alcohol, right? How that's gonna be handled.

Maybe have a plan for transportation afterwards if you think, uh, that's appropriate. And make sure you choose a good venue and, and good staff, whether you know if you're gonna host it internally. Those are four or five, I think things that can make for a fun time. And certainly just to emphasize again, Dan, right - we're, we're, we're encouraging people to have holiday and end of the year parties and we, we look forward to our own and I'm sure many people do, and let's just all have a fun time and a safe time.

Dan Schwartz: Yeah. Our Shipman & Goodwin holiday party is something that I can look forward to. Whether it's Gabe or, uh, Glen's pants or attire or some of the other fun things that are appropriate for the workplace, I think a holiday party remains a vital workplace function.

So absolutely enjoy the party, but do it responsibly. So Peter. Thank you again.

Peter Murphy: Always fun.

Dan Schwartz: Alright, and with that listeners, this will be our last episode for the year. We are gonna take a couple of weeks off around the holidays as I hope you do as well. If you would like more information about the subject, we have posted about this from time to time on our blog, employment law letter.com.

And, look, if you have any questions, you can always reach out to members of our team at Shipman & Goodwin, at least when we're not at our holiday party. So, with that happy holidays to everyone, may your company party be festive, safe, and uneventful. Take care.

Host: Thank you for joining us on this episode of From Lawyer to Employer a Shipman podcast.

This podcast is produced and copyrighted by Shipman & Goodwin LLP. All rights reserved. The contents of this communication are intended for informational purposes only and are not intended or should not be construed as legal advice. This may be deemed advertising under certain state laws. Subscribe to our podcast on Spotify, apple Podcast, or wherever you listen.

We hope you'll join us again.