Client Alert

PREVENTING EMPLOYMENT LIABILITY
DURING THE HOLIDAY SEASON

Most of us have been to office Christmas parties and functions where our co-workers or supervisors have overindulged in holiday spirits or displayed excessive holiday cheer. Work-related social situations, especially where alcohol is served, can be hotbeds (pardon the expression) of employment litigation for unwary employers.

Important Points to Remember

• Under Massachusetts law, employers are strictly liable for the discriminatory conduct, including sexual harassment, of their supervisors/managers whether or not the employer is aware of the conduct.
  
  
• Employers can be held liable for discriminatory conduct, including sexual harassment, even if the conduct takes place out of the workplace. Therefore, conduct at work-related or sponsored events must be appropriate and in keeping with the various employment practices laws, even if the event takes place off-site.

What is an employer to do?

• Target the holiday season as the time of year to distribute your sexual harassment policy. Massachusetts law requires all employers with six or more employees to distribute a copy of their sexual harassment policy on an annual basis.
  
  
• Consider conducting sexual harassment training for managers. At the very least, go over the sexual harassment policy and discuss the potential liability exposure at work-related social events.
  
  
• Assign a manager the task of making sure people behave appropriately and safely during the event. (You certainly do not want people driving home drunk.)
  
  
• Instruct all supervisors/managers that only appropriate gifts are to be given to employees. (We have had several cases where "gag" gifts of a sexual nature were given to employees.)
  
  
• No strippers, belly dancers, etc. at work-related events.
  
  
• No x-rated cakes, etc. (Yes, we have defended cases involving x-rated birthday cakes!)
  
  
• No sexually explicit jokes or stories.

Office parties are an excellent way to boost morale and foster team spirit. While our concern for the potential liability may appear extreme, the Human Resources and Employment Practices Group has defended countless employers in cases where behavior during a holiday party, work-related function, client or customer function, business trip, or social event, etc. has resulted in liability exposure for our clients. We hope that this information will help you prevent liability this holiday season (and seasons to come).

Published by The Human Resources and Employment Practices Group
Chair: Rebecca J. Wilson
Co-Chairs: Donald S. Burnham, Jennifer L. Lauro