A Survival Guide to the Office Holiday Party

By Lauren X. Topelsohn and Steven I. Adler On Dec 12, 2016

Tis’ the season to consider how best to approach the annual, holiday party. Generally, such events are intended as a means to thank employees for their contributions, and an as opportunity to enable everyone to better get to know each other. Ideally, a good time will be had by all. However, the year-end blowout may just be that (a blowout) if common sense and legal considerations are left in the coat-check room.

The potential for scary stuff includes:

• Religious discrimination
• Sexual harassment
• Wage and hour mistakes
• Alcohol and driving, minors, reduced inhibitions (a virtual “you fill in the blank” array of ramifications)
• Employee injuries and workers’ compensation
• Liability to third parties

Some of the “scary stuff” is easy to address; some is not. There is a delicate balance between being perceived as a wet-blanket (for instance, by banning alcohol) and torpedoing your company or career (for instance, by distributing mistletoe; and encouraging folks to stand under it). The following tips should help ensure that everyone will still be filled with good cheer come the next business day.

1. Alcohol. As lawyers, we cannot and do not recommend serving alcohol. Now, with that disclaimer out of the way, if you choose to do so, here are suggestions to reduce your risk:
   • Transportation: Where public transportation and taxis are readily accessible, make certain they are used! Provide your employees with MetroCards or cab vouchers at the door. In less urban areas, hire a van, bus or private cars (Uber)! Alternatively, arrange carpooling and “designate” drivers you know you can trust.
   • Host the event offsite: Under various dram shop acts, establishments that serve alcohol to minors or visibility intoxicated patrons are strictly liable to third persons who are injured as a result. This solution may not be enough to absolve an employer of liability, but it does let you share the risk.
   • Hire professional servers: Encourage them to ask for identification from young-looking employees and to “cut off” or report anyone who appears intoxicated to someone in authority.
   • Limit the bar: Distribute a limited number of “drink tickets,” or close the bar and serve coffee and alcohol-absorbing food an hour before the party ends.

2. Holiday Pay

The big picture is that the Fair Labor Standards Act (FLSA) does not require that employee be paid for time not worked (such as holidays and vacations). Those benefits are a matter of company policy or agreement between an employer and an employee.

So, is an employee at work while attending a holiday party? The answer depends on whether attendance is mandatory. If the answer is yes, then an employee must be paid. For employees who are not exempt from overtime pay, this means that once a non-exempt employee works over 40 hours in a work week, he/she must be paid overtime even if some of those hours were spent at the company party. The best way to avoid paying your employees to party? Make attendance optional. Most will attend in any event, at least if alcohol is served (but see above) – after all, it is party!

If you provide holiday pay to employees who do not work on the holiday, you do not have to count the paid holiday hours as hours worked for purposes of determining whether an employee is entitled to overtime that week.

3. Religious Sensibility

Although there has been no ruling yet on the Tooth Fairy, the United States Supreme Court has held that Santa Claus and his reindeer are “secular” in nature. That said, it is important to acknowledge diversity and to ensure holiday parties are inclusive to all employees. Throughout this article, we have used the term holiday party as a synonym for “end-of-the-year.” Certainly no one can take offense to the notion of a “New Year’s party.” As for religious activities, if you intend to include a religious reading or prayer at your party, employee attendance cannot be compulsory. In the interest of peace on earth and goodwill to all, when it comes to office parties, it is best to leave the bible at home.

Wishing you the very best for the coming new  year!

About the Authors: Lauren X. Topelsohn is a member and Steven I. Adler is Chair of the Labor and Employment Practice at Roseland, N.J.-based law firm Mandelbaum Salsburg (www.lawfirm.ms). They can be reached at 973-736-4600.

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