Holidays and Seasons, Labor / Employment, On The Job, Parties

3 Tips to Avoid Being Deposed About Your Holiday Party

Advice from new employment columnist Evan Gibbs on how to party responsibly this holiday season.

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holiday party Christmas partyEd. note: Please welcome Evan Gibbs, one of Above the Law’s new labor and employment law columnists.

Hello! I’m Evan Gibbs, a labor and employment lawyer with Troutman Sanders in the firm’s Atlanta office. My column will focus on substantive legal issues in labor and employment law, presented in what I hope is an entertaining and digestible format. I’d love to hear your feedback, especially if it’s to tell me how great this column is.

Every year around this time, companies hold their annual holiday parties. These parties fall somewhere on a continuum. On one end are the reserved, quiet potluck lunches during regular working hours. Eat some pie, chat about TPS reports, get back to work. Maybe there’s a gift exchange if the party-planning committee was feeling especially wild that year.

Others are knockdown, drag-out blowouts blazing into the wee hours of the morning that fizzle out only when the sun’s dawning rays shock everyone back to reality. The alcohol flows like water and people’s hangovers are tinged heavily with regret.

Regardless of where your firm’s, spouse’s, friend’s, or client’s party falls on the wildness continuum, holiday parties present a lot of real concerns for employment lawyers. Below are my top three tips to make sure you and your holiday party aren’t the subject of a judge’s order or a jury’s verdict form in 2017.

1. Don’t do or say anything at the holiday party you wouldn’t do or say on the job.

A lot of people operate under the mistaken assumption that what they do outside of the office and/or normal working hours won’t have consequences at work. That’s not how that works.

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Here’s an example out of the District Court for the District of Columbia: Russ v. Van Scoyoc Assocs. , 122 F. Supp. 2d 29 (D.D.C. 2000). In Russ, the company had its annual holiday party starting around noon. I guess no one told the party-planning committee that when you start drinking at noon, you’re going to have a bad time.

Predictably, the Court noted that “several people became very intoxicated, including a Vice President.” That same Vice President and “a number of [other] people,” however, were not full enough of the holiday spirit(s), and so they opted to start an after-party – at 3:00 in the afternoon – at another nearby bar.

You can guess what happened next. Our intrepid partier, the Vice President, started making a lot of sexually explicit comments and requests to the company’s receptionist, even telling her that “she could make more money working at Hooters than at [the company].” The fact that this happened outside of the workplace and outside of normal working hours was not a defense.

Remember folks: offsite conduct can still create liability. Watch what you say and do at the party just like you do at work.

*Bonus protip for young lawyers: Don’t drink too much at your holiday party. You don’t want to be remembered as the one who set their hair on fire and vomited on the dance floor.

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2. Attendance probably shouldn’t be mandatory.

I’m sure it’s tempting for management to want to require everyone’s presence at the annual party. They want to foster a team environment and get folks to connect on a personal level they might not get from the day-to-day grind.

But there are a couple of reasons this might be a bad idea.

First, when attendance is mandatory, employees have to be paid for their time. The Department of Labor’s regulations make it pretty clear that when attendance is required, employees must be compensated. See 29 C.F.R. §§ 785.12, 785.27.

The DOL’s regulations go on to say that attendance is considered mandatory for wage and hour purposes “if the employee is given to understand or led to believe that his present working conditions or the continuance of his employment would be adversely affected by nonattendance.” Id. § 785.28. So, from a wage and hour perspective, it’s probably best to make the party voluntary.

Second, some people’s religious beliefs might prevent them from coming to the holiday party. A case on this point is Chandler v. Infinity Ins. Grp., 2014 U.S. Dist. LEXIS 77378 (N.D. Ala. June 4, 2014). There, the plaintiff (a Jehovah’s Witness) claimed that she was discriminated against based on her religion because her employer forced her to attend a Christmas party, which violated her religious beliefs.

Under Title VII, once an employer is made aware of an employee’s religious practice that conflicts with a work requirement, the employer generally has an obligation to reasonably accommodate the religious practice. While the Chandler plaintiff lost on summary judgment since she failed to prove that she gave her employer notice that attending the party violated her religious beliefs, the case illustrates another problem with mandatory attendance.

For example, what if the Chandler plaintiff specifically objected about attending the party to her direct supervisor, who didn’t know that an accommodation might be required? The supervisor repeats the company line that attendance is necessary, and boom – the company finds itself in hot water.

The lesson: consider making the party completely voluntary and outside normal working hours.

3. Discourage or prohibit excessive alcohol consumption.

It’s easy to see how free-flowing booze could create liability. An employee drinks way too much, gets behind the wheel, and hurts themselves or someone else. Every 1L could issue-spot that.

A ready example is Auto-Owners Ins. Co. v. England, 2013 U.S. Dist. LEXIS 95423 (E.D. Tenn. July 8, 2013). The employer hosted a holiday party where alcohol was furnished, and then allegedly “made only half-hearted attempts” to prevent an employee from driving away while intoxicated. The employee crashed his car into a family of travelers, who then sued the employer.

How can employers avoid this problem? Consider providing a limited number of drink tickets, or providing entertainment to shift attendees’ attention away from alcohol. Also consider providing cab rides home for intoxicated employees, or hold the event at a hotel where employees can spend the night if needed.

Whether you’re a decision-making member of management or a first-year associate, keep these tips in mind so that you’re not being deposed next year about the 2016 holiday party.

evan-gibbsEvan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)

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