3 Tips For Not Being Sued Or Fired Over Your Holiday Party

Keeping these tips in mind will help you keep your job and avoid being sued because of your holiday party.

It’s that time of year again when companies (including law firms) hold their annual holiday party. These parties all land somewhere on a spectrum. At one end are the reserved, quiet potluck lunches during 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 particularly ambitious.

At the other end of the spectrum are the knockdown, drag-out blowouts blazing into the wee hours of the morning that only fizzle out 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. “Did I actually say that to my boss?”

Holiday parties present a lot of real concerns from an employment law perspective. Below are my top three tips to help ensure that you and yours won’t be deposed about your holiday party in 2019.

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

A lot of people surprisingly still assume that what they do outside of the office and/or normal working hours won’t (or can’t) have consequences at work. But that’s not how that works.

Here’s an example out of the District Court for the District of Columbia: Russ v. Van Scoyoc Assocs. 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.

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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 create liability. Not only that, but what you do and say at a holiday party can be used as a basis for discipline (even termination) back in the office. So watch what you say and do at the party just like you do at work.

  1. 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 not be such a good idea idea.

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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. 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.

  1. 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. 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, keeping these tips in mind will help you keep your job and avoid being sued because of your 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.)