Almost everyone loves the holiday season.  In the United States, we celebrate Thanksgiving, Christmas, Hanukkah, Kwanza, and other religious and non-religious events.  Often, employers like to have office parties and holiday decorations at this time of year.  Can those things create legal issues in the office?  The answer is a resounding “yes!”  Fortunately, planning and good employment policies can reduce the risk of office celebrations.

The holiday office issues fall into two broad categories: holiday observance in the office and holiday parties.  Notably, some businesses hold holiday parties during the business day, so they can also be holiday observances.

Holiday observance often is rooted in religion.  As we know, in the United States, freedom of religion is a protected right.  Accordingly, company holiday displays should avoid supporting one religion over another.  The U.S. Supreme Court has held that holiday trees are a secular symbol but combining them with religious themes can turn them into religious symbols.

Because workers have individually protected religious rights, employers may allow employees to decorate their personal workspaces as they see fit.  If an employer chooses to do that, that employer should take care to not appear to support one religion over another.  That could infringe on the rights of other employees who have different religions.  The employer may elect to have a policy to bar holiday displays, but even then, a blanket policy could prevent employees from observing their religions’ according to religions accepted practices.  When in doubt, enter into an interactive process to find a reasonable way to accommodate those practices.

Holiday parties can raise similar observance issues as office decorations, but they raise additional problems beyond those of mere religious observance.  For instance, if an employer chooses to mix alcohol with a party, an inebriated employee can greatly increase the risk of workplace liability.

Further, employers can expose themselves to wage and hour liability if they require employees to attend an office party because requiring employees to attend any event smacks of employer control.  Where there is employer control, there is a claim that the employees must be paid for their time.  If employers want to avoid wage and hour liability, they should make party attendance voluntary.

Holiday parties also can lead to claims of sexual harassment, even when employers hold those parties after hours.  Naughty Santas who say off-color things or get a little handsy can cause employer liability for harassment.

As mentioned, consuming alcohol can be at the root of holiday party liability.  In one case, an intoxicated employee caused an accident while driving home from a party.  One person died and another was badly injured, and the court found that the employer was liable for the accident.  (Harris v. Trojan Fireworks Co., (1981) 120 Cal.App.3d 157.)  Additionally, excessive drinking can lead to high emotions, arguments, and even fights

When it comes to holiday parties, employers should consider doing some, or all, of the following things to help control liability and to keep the holiday season merry:
– Choose not to serve alcohol.
– If the employer chooses to serve alcohol, limit the amount employees can drink.
– Have a professional alcohol caterer screen for intoxication.
– Only give out a limited number of drink tickets.
– Have employees pay for the drinks they consume.
– Arrange for alternative transportation.
– Provide discount rates at the hotel where the party is located.
– Attendance should be voluntary.
– Limit the amount of shop talk at the party.
– Do not ask employees to perform special functions at the party.
– Invite the families of the employees.
– Hold the party away from the work site.
– Make sure that sexual harassment training is up to date.
– Make clear that sexual harassment at the party will not be tolerated.
– Harassment policies should cover off-location events.
– Hold the event after hours or on a weekend.
– Do not take attendance.
– Provide plenty of non-alcoholic beverages.
– Investigate complaints about party events as seriously as you would investigate other workplace complaints.

Employment Law Office of Ward Heinrichs
4565 Ruffner Street, Suite 207
San Diego, CA 92111
858-292-0792
(858)408-7543 (fax)