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Lawyer’s advice: Eat and drink, but don’t get too merry

Rebecca Bruch

The end of summer is here and pumpkins are everywhere. The holiday season is gearing up. Many employers take this opportunity to show their appreciation to their employees with a special lunch or dinner: A little food, a little wine, and some mistletoe. What could possibly go wrong?

Holiday parties are usually good for morale and can be a great way to unwind at the end of the year. It should come as no surprise that Nevada, with its casino-based economy, has rejected dram shop liability; that is, in Nevada there is usually no liability for someone that serves alcohol to guests and injuries occur as a result. However, that does not mean that a well-intentioned employer will not find itself celebrating the New Year by responding to the Equal Employment Opportunity Commission, the Nevada Equal Rights Commission, or in court. While it all seems innocent enough, the celebration can quickly become a liability and fall into the category of no good deed going unpunished.

Imagine this scenario: The party is planned and paid for by employer Acme Rockets. It will be after hours, off the company premises, and at a banquet room in a nice casino. The party will start with appetizers and an open bar, followed by dinner and then dancing. In keeping with holiday tradition, there are decorations and mistletoe. What could possibly go wrong?

For the most part, everyone has a good time and behaves appropriately. But as has happened in the past, Plant Manager Mike has a little too much to drink and gets a little “grabby” with Sally, when they’re both on their way to the restroom. Sally pushes Mike away and tells him to “knock it off.” Mike is a little miffed, but goes back to the party. Sally isn’t happy about it, but doesn’t say anything to anyone and returns to the party. Later, Mike sees her standing under the mistletoe, and interprets that as an invitation to kiss her on the cheek. Sally is already mad at Mike for his earlier conduct and pushes him away. She leaves the party a few minutes later. Several employees, including the company owners, see Mike’s attempt to kiss Sally and her subsequent departure.

The company typically closes for a week between the holidays, and upon reopening, everyone returns to work. Manager Mike decides, without explanation or prior planning, to transfer Sally from her day-shift position to a graveyard shift. Sally isn’t happy about the change. She voices her objection to Mike and then to the HR manager, who she tells that she thinks the transfer is because she rejected Mike’s advances. After speaking with Mike, HR upholds Mike’s transfer decision. Sally files a claim of sexual harassment with the EEOC.

But just like the movie “Groundhog Day,” if the company could rewind and plan its party again, it could have put itself in a much better position to avoid this kind of situation, without having to skip the party entirely. What could the company do?

* Make sure the company has an alcohol and drug policy, and employees are reminded that they are expected to adhere to it at all company events, even after hours.

* Avoid an open bar with unlimited access to alcohol. That could include giving out tickets to employees, which limit the number of drinks the company will provide.

* If alcohol is going to be available, consider a no-host bar for which employees must pay for their own alcohol.

* Close the bar once dinner starts or an hour or two before the planned ending time for the event.

* Designate some employees as chaperones, who do not drink and are asked to keep watch over the party. These chaperones need to be able to speak up if they see any conduct they think is questionable or party-goers who may appear to be intoxicated.

* Provide transportation via taxi or shuttle buses.

* Consider providing overnight accommodations.

* Make sure your insurance policies cover after-hours events.

Acme decides that after the nightmare of last year’s party, it will host a lunch in the company breakroom, which would be catered, with no alcohol. Attendance is mandatory. The party will go from lunch until 3 p.m. Families are invited, and Santa will come with presents for the kids. Employees are also supposed to draw names and bring a “white elephant” gift, with a $10 limit on what they can spend. The company will close after the party, and employees can go home after the party ends. What could possibly go wrong?

Aaliyah, the shift supervisor and a practicing Muslim, asks if she can be excused from the party, because of her religious beliefs. She is told that she can be excused from the party, but needs to stay at work and continue her normal work duties, including staying until the end of her shift at 5 p.m. She talks to Sally, who tells Aaliyah to file a claim with the EEOC. Aaliyah files the next day.

What could Acme have done to avoid this situation with Aaliyah and the EEOC claim?

* Make attendance at holiday events voluntary. If employees do not attend, they should not be treated any differently than if they had attended.

* Keep activities secular and nonreligious.

* Be sensitive to religious dietary restrictions.

* Remind employees exchanging gifts that those gifts should be tasteful and nonoffensive. Avoid “adult” items and items with graphic lyrics. What is humorous to one employee may be offensive to another.

As tempting as it is for Acme to skip the party, that drastic step is not necessary. A little preplanning and a few precautionary steps can ensure that every employee enjoys the holiday season and Acme’s annual holiday party does not become a legal nightmare.

Rebecca Bruch, Esq., is a shareholder at Erickson, Thorpe & Swainston, Ltd. in Reno, where she practices primarily in the area of employer-side preventative employment law and defense of administrative and legal claims. She can be contacted at 775-786-3930 or rbruch@etsreno.com.