Employment Law

How To Host a Holiday Party… Like an Employment Lawyer

December 2019

By Anne E. Jenness*

Planning holiday parties at the office has always been a delicate balance. Fun but not too much fun. Cost-conscious but not cheap-looking. Festive, and also inclusive. Now, in the wake of the “Me Too” movement, employers have even more concerns about office parties, and the potential for claims of harassment and discrimination. Yet, gatherings that strike the right balance between workplace and fun can be great ways for coworkers to learn more about one another’s interests and hobbies, for junior and senior staff to interact in a less formal setting, and for employers to share their appreciation for employees.

holiday office party scene

Admittedly, employment lawyers don’t usually get to plan the parties at work. Our colleagues call us “boring” or tell us that we “worry about everything.” But it is possible to have a great workplace event for staff, while minimizing the risk of an employment law-related hangover; read on for answers to questions that employment lawyers frequently hear.

Are you going to tell me not to serve alcohol at the party? No one will come.

When employers serve alcohol at holiday parties, they rely on their employees to make good choices, with (at least somewhat) impaired judgment. As a result, most employment attorneys probably have at least one story where alcohol contributed to a claim of harassment or discrimination, whether based on regrettable jokes, comments, or other decisions. On the other hand, many employers choose to mark an office party as a social event by serving alcohol and thereby encouraging staff to interact in a less formal setting.

For a number of reasons, some employers forgo serving alcohol at holiday parties entirely, opting instead for a company lunch or outing, or a family-friendly daytime event. For those employers that do serve alcoholic drinks, the following strategies may reduce the risk of overindulgence or employer liability:

  • Hold your event at a location with bartenders (or similar third parties) who are trained to recognize the signs of overconsumption and cut off partygoers who appear intoxicated.
  • Provide drink tickets for attendees, serve only beer and wine, or opt for a cash-only bar.
  • Set up games or activities that take the focus off of drinking alcohol.
  • Serve interesting non-alcoholic drinks and plenty of food throughout the event.
  • Consider inviting significant others to attend offsite events; sober spouses or partners can help employees stay on their best behavior.

We are definitely serving alcohol. How do I keep employees from drinking and driving?

Employees who drive after drinking at a work-sponsored event may pose a particular risk for employers. For example, employers in New Hampshire may incur social host liability for injuries that employees or third parties experience as a result of alcohol service, if alcohol service is deemed to have been reckless or negligent. To reduce the risk of such a problem:

  • Try to reduce drinking overall, using the strategies above.
  • Look for an event location where an appropriately licensed and trained third party serves the alcohol.
  • Close the bar after a couple of hours (well before the end of the event).
  • Designate some management employees to stay sober and subtly keep an eye on employees as they depart.
  • Reimburse employees for taking a cab or public transportation to get home safely.
  • Offer shuttle service to and from the event.
  • Host the event within walking distance of hotels.

Do I have to pay people to come to the party?

In the case of nonexempt employees who are paid hourly, unless your holiday party is a purely voluntary event, you will need to pay employees who attend. If you intend the party to be voluntary, ensure that employees understand that the gathering is truly optional by consistently communicating that message. If you tell employees that they are “encouraged” or “expected” to attend, the party may no longer be considered voluntary. Handing out awards or bonuses at the event may also make the party appear more mandatory.

For exempt and salaried (whether exempt or nonexempt) employees in New Hampshire, the answer is even simpler: you cannot deduct from these employees’ salaries just because they attended your holiday party. This is because, in New Hampshire, there are limited circumstances under which an employer may deduct from the pay of an exempt employee, or from the pay of any salaried employee. Attendance at a holiday party, standing alone, does not allow the employer to deduct from the pay of an exempt or a salaried employee. Besides, the Scrooge jokes practically write themselves.

If you are giving holiday or end-of-year bonuses, remember that purely discretionary bonuses or gifts (as legally defined) do not need to be included in the calculation of the regular rate for nonexempt employees. However, bonuses tied to things like production, hours worked, or efficiency, would still be included.

Is it okay to use [Santa, manger scenes, menorahs, or other holiday or religious symbols] at my event?

Employers are increasingly opting for holiday parties with winter or end-of-year themes, likely in an effort to be inclusive of diverse employee beliefs. The Equal Employment Opportunity Commission (EEOC) takes the position that wreaths and trees are permissible in both private and government workplaces, and many employers still choose to decorate holiday parties or offices with these items. However, even private employers should strongly consider avoiding overtly religious decorations, like nativity scenes or menorahs. Employees may hold a wide array of religious (or nonreligious) beliefs, and such displays may make some employees feel uncomfortable or even unwelcome. Under certain circumstances, the presence of such decorations could become a factor in an employee’s complaint of harassment or discrimination. On the whole, holiday parties and décor are generally intended to raise the spirits of staff and make all employees feel included; using religious decorations is a risky choice.

Finally, it should go without saying, but absolutely no mistletoe in the office or at a work-sponsored event!

Is there anything else I should be thinking about?

Holiday parties are supposed to be fun, but employers shouldn’t offer them as an opportunity to ditch all the social norms and rules that exist at work. Make sure that supervisors and managers don’t send mixed messages by overindulging at parties or encouraging employees to do so. You may consider particularly reminding management staff about appropriate behavior at parties before the event. And, while you are at it, make sure that your internal policies clearly address expectations for employee conduct at work-sponsored events. Of course, if you need more specific advice and guidance around any holiday issues, contact experienced employment Counsel.

Happy Holidays from Gallagher, Callahan & Gartrell!

* Anne Jenness is admitted in New Hampshire and California.

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Attorney Anne Jenness
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