By William Joseph Austin Jr., Of Counsel
There, in the very title of this article is the first and fundamental conundrum, can we, should we, call it a “Christmas party”? Boldly I say yes. There is certainly a school of thought that, for the sake of inclusiveness and sensitivity to diversity, would rename the event generically and perhaps even put it off until bleak January. However, that certain feast celebrated shortly after the Winter Solstice has been known as “Christmas” for centuries, and the word pervades culture and commerce from some point in time soon after Halloween until on or about the feast of the Epiphany. The “Christmas party” to many is that “one crowded hour of glorious life,” which the poet says “is worth an age without a name,” aka the otherwise nameless, uninspiring “holiday party.”
So we can call it the Christmas party but the reason for the angst over naming it does bring up the first caveat, which is, do not make attendance mandatory. If a person of a faith that does not celebrate Christmas is forced to attend or is disciplined for not attending, the employer’s hangover may include a Title VII charge to the EEOC. While we are on the subject, do not require an employee to wear a Santa hat if it violates his or her beliefs, Velez-Sotomayor v. Progreso Cash & Carry, Inc., 279 F. Supp. 2d 65 (D.P.R. 2003}, and do not require a Jehovah’s Witness to answer the phone with “Merry Christmas.” Kentucky Comm’n on Human Rights v. Lesco Mfg., 736 S.W.2d 361 (Ky. App.1987). In short, there are many ways these days to set yourself up for a charge of religious discrimination. Try to be sensitive, or at least be wary and aware of differing holiday sensibilities.
Back to our first caveat, there are other good reasons for giving all employees the option to attend or not, as well as to decide how long to stay. (For sure do not emulate Clark Griswold, “Nobody’s leaving. Nobody’s walking out on this fun, old fashioned family Christmas!”). Wage and hour laws include the bite of back pay for unpaid wages, liquidated damages, and attorneys’ fees. Compensable time in this regime includes all hours worked at the employer’s premises or at a designated workplace. Requiring the employee to stay at the office late for the party or even to make the trek to a bistro to fill out the crowd may be considered time spent for the employer’s benefit and therefore compensable time.
Similarly, if it is a command performance, an employee who is injured at the party may claim that it was in the course and scope of employment and therefore compensable under the Workers’ Compensation Act. The case–by-case analysis that is applied under North Carolina law is a litany of questions which can trigger or trip up the claim of the employee who tripped on the stairs, whether corning or going: Did the employer sponsor the party? Was attendance required? Was there any degree of employer encouragement to attend? Was the party financed by the employer? Did the employees consider it a benefit of the job? Did the employer gain any tangible advantage, such as taking the opportunity to make a speech or to present awards? Six affirmative responses is a slam dunk successful worker’s compensation claim. Required attendance plus a mix of “yes, no, maybe” responses probably engenders the same outcome. Bottom line-did we mention this caveat?-do not make the Christmas party mandatory.
The next caveat is a variation on a mantra this writer has reiterated in numerous in-service programs over the course of decades now, “Don’t get your honey at the place you make your money!” The risk of people not adhering to that admonition is notoriously multiplied at a Christmas party, wherever the location. Historically Christmas has been a time when social conventions if not graces are relaxed. Sinatra sings of “folks stealin’ a kiss or two” as if Christmas gives people a license to do so. Title VII is a permanent revocation.
Current events may signal a sea change in attitudes, but prior experience tells us that ninety-nine times out of a hundred when presenting at harassment training it is almost palpable that we are not in every case preaching to the choir (present company being the one percent exception). If they did not hear the message sober, a fortiori they will not remember it after the Jose Cuervo shots. Management must still manage the risk. As always the proper tone must be set from the top down. [Nor should the boss emulate Clark Sr., “I had a lot of help from Jack Daniels.”)
Speaking of our “good friend” Jose Cuervo and his running mate Jack Daniels, even if the party goes off without a hitch (no altercations, no one tripping down the stairs, no ribald jokes or provocative presents, and so on, in other words a, shall we say, sedate party) there is still the risk that accompanies the polite, quiet drunk in the corner, who departs (together with the risk, i.e. “social host” liability), gets in the car, drives off, and promptly collides with someone else who is seriously injured as a result. Although this writer has found no North Carolina case precisely on point, social host liability is a real risk. Doctrinally there is no reason why an employer who sponsors an employee party and serves more alcohol to an employee who is already drunk would not be liable in just such a case.
There are many more caveats and suggested ways of curtailing this risk:
- A limited number of drink tickets per person or drink maximum.
- Cash bar.
- Designated drivers or limo service home.
- Hiring a professional caterer and conscientious bartender who have liability coverage
- Serve food.
- Invite spouses and significant others (another way of policing the mistletoe by the way).
- Don’t serve drunk people more booze.
- Check your own insurance to sec if you are covered or buy the one-time special-event policy.
This is just a starter list, Google to find more, but expect no silver bullets.
Risk management in conjunction with holiday fun puts us in mind of Ellen’s line to Audrey, “I don’t know what to say, except it’s Christmas and we’re all in misery.” Yet remember Margo and Todd, who eschewed a tree and avoided any effort to enhance their Christmas spirit, but still had their door beaten down by the SWAT team. Forewarned is forearmed as always. So, Merry Christmas. Happy Hanukkah. Harambee. Peace on Earth.
© Narron Wenzel, P.A. 2018