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Fa La La Lawsuit: Keep your Company Culture Legal for the Holidays

Doug Reinhard (not his real name) still remembers the look on his boss’ face as he got hit in the forehead with a Nerf dart, shot by a co-worker at a holiday office party.

Doug Reinhard (not his real name) still remembers the look on his boss’ face as he got hit in the forehead with a Nerf dart, shot by a co-worker at a holiday office party.

"What had been a fun game of 'Secret Santa' suddenly was awkward and uncomfortable," Reinhard recalls. "It didn't help that the employee was fairly drunk and our boss was not."

Fortunately, the party spirit was the only thing ruined by the dart-gun debacle -- no one got hurt. Not every employer is so lucky.

It can be daunting to create an appropriate company culture during the holidays that is inclusive, celebratory, safe and legal. A misstep can result in a complaint that the decorations are "too religious" or a post-holiday party charge of sexual harassment.

"Don't assume that all of your longstanding traditions are okay just because no one has complained yet," advises employment lawyer Alix Rubin. "For example, get the mistletoe out of the workplace."

What else do employers need to consider during the holiday season? Some pitfalls may seem obvious, but don't wait for problems to arise.

Manage the "Spirit" of the Season

"Let's face it. At some companies, alcohol is expected at the holiday party," says Rubin. "And when you mix drinking and the workplace, the company risks liability -- for charges of harassment, drunk driving accidents, property damage, and more."

Rubin suggests that some employers can avoid such problems by moving the celebration to the workday and keeping it dry.

"If many of your employees travel far to work, having a festive luncheon during the workday may be the best option," she says, "and they will appreciate getting paid for time spent celebrating during working hours."

"After-hours celebrations are better located away from the workplace," says labor and employment attorney Leigh Jeter, of counsel at Clark Baird Smith LLP.

"Employers can reduce the risk to some extent by having the party off-premises, particularly if they also use other methods to control the flow of alcohol."

To that end, Jeter suggests having a professional bartender serve the drinks with a limited number of drink tickets instead of an open bar.

Keep in mind these holiday party "best practices" as well:

  1. Send your workforce a memo pre-party reminding everyone about the company's policies regarding harassment and appropriate behavior.

  2. Stress that your anti-harassment policies are in force, even though the party may be outside the workplace.

  3. Offer to pay for a taxi or car service home for any employee.

  4. Designate certain employees to stay sober to keep an eye on things -- Jeter suggests thanking the "monitors" with a small gift afterwards.

  5. Invite spouses and significant others to the celebration if you can afford it; in Rubin's experience, people act more appropriately when they celebrate with a date.

  6. Limit the time of the party to only a couple of hours and have it end early.

  7. Serve plenty of food and stop serving alcohol at least 30 minutes before the end of the party.

Mangers and Menorahs -- an Inclusive Holiday Atmosphere

If your company has been around for a while, chances are that your holiday decorations have been too.

"Keep decorations simple and fun," says David Handmaker, CEO of online printing company Next Day Flyers. "For example, skeletons at Halloween, big hearts at Valentines Day and lights and tinsel in December."

Although he has never had an employee complain about a specific decoration, if someone did, Handmaker would immediately remove the offending item, no questions asked.

Jeter cautions employers about making the same rule for employees' personal space. "If you allow employees to decorate their cubicles year-round, and then ask them to remove religious items in December, you could face a charge of religious discrimination," she warns.

"Use common sense when it comes to enforcing a decorating policy -- nothing harassing, discriminatory or distracting -- and then address any questions on a case-by-case basis."

Another way to take the pressure off of the holiday season is to celebrate special days at different times during the year. Select days that do not have religious overtones so that everyone can celebrate equally. "Everyone loves our celebration of National Cheesecake Day," notes Handmaker.

Holiday Gift Giving 101

The giving of holiday gifts at work can cause dissention and stress. At Reinhard's former consulting firm, a major December discussion concerned "how much everyone was spending on their assistant's present. It created a lot of stress -- no one wanted to be cheap, but spending too much seemed obnoxious."

"You can create an office-wide 'secret Santa' and set a price limit or ask each employee to buy a gift to be distributed randomly," says Jeter. "A new trend is to do away with gifts altogether and ask employees to contribute to a charity the business supports. Participation must be voluntary, of course."

As far as what to give, gender-neutral is always best.

"If you would buy it for your boyfriend, girlfriend or spouse, it's probably not appropriate for the workplace," says Jeter. "Food, gift cards and knick-knacks are okay. Perfume and lingerie are not."


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