How to Minimize Employer Liability for Holiday Party Misconduct: Atlanta-Based Fisher & Phillips LLP Attorney Offers Tips

Thirty-six percent of employers report employee misconduct at holiday parties. Misconduct can include excessive drinking, sexual advances, off-color jokes, vulgar language and gestures, arguments and even fistfights, said Bert Brannen, managing partner of the Atlanta office of Fisher & Phillips LLP. Brannen urges employers to follow some easy-to-follow pre-party compliance efforts and specific actions for the night of the party.

Legal Risks

“Employers may be liable for the acts of their supervisors and employees under numerous legal theories. For example, employers may be civilly liable for negligent or intentional acts occurring within the ‘scope of employment’,” Brannen said. “Employers also may be liable for harassment, discrimination or retaliation in violation of Title VII. Individual employees also can be civilly or criminally liable for their own acts. Apart from being embarrassing, liability to the employer and to individuals can be substantial.

“Employers should take these risks seriously and consider taking the following precautions to reduce their potential risks,” Brannen said.

Pre-Party Necessities

Prior to the party, employers should:

• review policies prohibiting drug and alcohol abuse, harassment, dating, fighting, weapons and other misconduct

• train supervisors and employees about the no-harassment, no-retaliation and EEO policies and the procedures for reporting and responding to harassment, discrimination or retaliation claims and document that this training has occurred

• make sure they have consistently disciplined violators of policies

• foster a work environment free of harassment, discrimination or retaliation

• consider whether a private binding arbitration program for resolving employee claims is right for the organization

Party Planning

Most holiday party misconduct is related to over-consumption of alcohol. If you choose to serve alcohol at a party, Brannen suggests considering these tips:

• Remind employees that normal rules of conduct apply to parties and to drink responsibly

• Arrange for designated drivers, reduced cab fares or hotel room rates or even offer to pay or reimburse alcohol-impaired employees for cab fare or hotel expenses

• Tell employees attendance is not required

• Provide employees with a limited number of drink tickets

• Limit the length of the party and close the bar one hour before the end of the party

• Serve plenty of non-alcoholic beverages

• Do not serve punch or other concoctions that mask alcoholic content

• Provide food and entertainment to prevent drinking from being the focus of the party

• Serve foods that slow the assimilation of alcohol (i.e., those high in protein or starch) and not greasy or salty foods that encourage more consumption of liquids

• Have the party off site at a professionally managed facility with bartenders who are trained to limit harm or liability

• Don’t allow employees to tend bar or provide alcohol

• Designate a responsible person to “monitor” the party and work with the event staff

• Schedule the party on a weeknight when employees are less likely to over-indulge

• Hire an off-duty policeman or security specialist to be present during and after the party

• Don’t hang mistletoe

• Make sure underage employees or guests are not served alcohol

• Consider buying a special insurance policy for the event that includes liability for alcohol-related misconduct
• Review your existing insurance policies for alcohol-related exclusions

“Employers cannot completely eliminate the risk of liability arising from parties,” Brannen said, “but they can significantly reduce the potential for liability with some advance planning. So, do proceed, but use caution.”

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About Fisher & Phillips LLP (www.laborlawyers.com)

Fisher & Phillips LLP is a national law firm committed to providing practical business solutions for employers’ workplace legal problems. Labor and employment law is all the firm does, offering deep and broad knowledge and experience in the area of the law the attorneys know best. Fisher & Phillips attorneys help clients avoid legal problems, are dedicated to providing exceptional client service, and are there when you need them. The firm has 300 attorneys in 31 offices. In addition to Atlanta, the offices are in Baltimore, Boston, Charlotte, Chicago, Cleveland, Columbia, Columbus, Dallas, Denver, Fort Lauderdale, Gulfport, Houston, Irvine, Kansas City, Las Vegas, Los Angeles, Louisville, Memphis, New England, New Jersey, New Orleans, Orlando, Philadelphia, Phoenix, Portland, San Antonio, San Diego, San Francisco, Tampa, and Washington, D.C.