Many employers recognize that hosting a holiday party is a great way to team build and thank employees for their individual and collective contributions to business success over the course of the past year.
However, as an employer, you must always be aware of potential liabilities that lurk beneath the party’s surface.
Holiday parties are focused on fun. Celebrating success and using the opportunity to get to know each other outside of work are positives from a human resource perspective. However, employers and employees, alike, often fail to realize that work related social activities can be a recipe for potential disaster (not to mention legal liability).
As a basic principle, it is important to understand that your “workplace”, by definition, will extend beyond the boundaries of your business premises. All of a sudden conduct at an off site holiday party, often fueled by the consumption of alcohol or cannabis, is ‘work related”. That has potentially serious consequences for employer and employee alike.
While every employer wants their employees to enjoy themselves, such “enjoyment” must be respectful and safe for all. Your objective is to head off the possibility of inappropriate conduct before it occurs in order to balance the risk against the benefit of hosting a holiday party. That is in everyone’s benefit. It is not only about avoiding employer liability. It is also about avoiding employee misconduct that could be career limiting. Remember…it’s not like your trip to Vegas. What happens at the holiday party does not stay at the holiday party. It gets reported to human resources.
To assist you follow this holiday checklist:
1. Remind your employees that the party is the “workplace”. Given its still the workplace, all “respect in the workplace” policies still apply. Heighten awareness around your policies (including in particular your codes of conduct, anti-harassment and discrimination, AODA, dress code, social media, privacy and anti-intoxicant policies).
Give real life examples of what is considered sexually harassing workplace conduct. For example any of the following behaviours can be considered sexual harassment:
• that telling a co-worker “how hot” they look
• kissing a colleague or your boss on the lips – mistletoe or no mistletoe – and please no mistletoe at a work Christmas party
• hugging co-workers you don’t normally hug
• dancing provocatively
• asking a subordinate or co-worker out on a date
Employees need to understand that “I was drunk” or “I was stoned” will not be a defence.
Also remind employees of the need to be sensitive to and aware of individual differences. In addition to generational, cultural and religious differences, there may be physical or psychological limitations due to disabilities, prescribed medications or personal differences. For example, avoid peer pressure, insensitive comments and non-inclusive situations by emphasizing to employees that there are many reasons why an employee may choose not to drink other than being “no fun” or a “party pooper”. Remind them that such choices may be due to religious or cultural beliefs, medications they are taking for their anxiety or depression, the fact that they are a recovering alcoholic, on the Bernstein diet, or just as a result of a personal preference. Employees who abstain should not feel that they are under an obligation to explain or defend.
Address social media expectations as to employees taking unauthorized or unwanted photos of co-workers and venue staff and posting them on line without the subjects consent (particularly the embarrassing or compromising ones).
If the party is midweek and you expect them at work, on time and ready to perform the next work day, ensure that this expectation is clearly communicated to your employees.
2. Ensure your employees are aware of your expectations concerning intoxicants at the party. Recall that recreational cannabis is legal. Have you addressed your expectations in relation to the same in advance of the party with your employees? Advise whether recreational cannabis is prohibited and of any legal requirements as they relate to smoking in enclosed spaces and near entrances (as employees can oddly believe that it should be treated the same as drinking (not just smoking)). In relation to drinking, limit the alcohol so employees do not overdrink – consider a ticket system so that employees are entitled to a maximum of two drinks each and ban shots (we all know it goes downhill once the shots start) or provide rides – Uber, cabs or shuttles, to the party but especially home. Proactively avoid the HR hang over!
3. Do more than serve drinks. Serve food and have planned activities. Planned activities should be team building and should keep your party from spinning out of control. For example, having Secret Santa or a White Elephant gift exchange results in employees interacting in a fun way that they don’t normally interact, breaks up the time and prevents employees from just going back and forth to the bar that may result in less than jolly behavior that could amount to gross misconduct (e.g., bullying, harassment and/or discrimination on the basis of race, age, sex or religion).
Ensure that the food as well as the activities are inclusive and that no one is excluded due to their age, disability, religious beliefs or any other enumerated ground.
4. Limit the hours of your party. Start the party right after work to avoid “pre-drinking” and consider limiting your party’s hours (e.g., three to four hours allows plenty of time for socializing, teambuilding and activities). The longer the party goes, the greater risk of intoxication, employees “letting lose” and getting out of hand and poor behavior.
5. Monitor behavior. Owners and managers will usually take on this important role in order to stop or address problematic behavior when it occurs. There should be at least one person tasked with this role and it need not be the HR manager or someone from the HR department. Everyone from your management team should be reminded of the importance of being a responsible party host. Ensure you monitor any behaviours that can amount to gross misconduct as well as those that may cause a toxic work environment or reduced morale.
As always, it is essential to have, educate and train your employees on, as well as consistently apply and enforce your workplace policies. Your workplace policies establish expectations on employee conduct so that the holiday season is festive for all. If you have any questions or concerns in relation to workplace policies and their application, or holiday party misconduct, please contact one of Sullivan Mahoney LLP’s experienced employment lawyers for advice.
Disclaimer: Information made available in this article is provided for general information purposes only and is provided without representation for its accuracy or completeness. It is not legal advice and should not be relied upon. You should not take any action or fail to take any action based on the information set out in this article or on this website. Consult a lawyer at Sullivan Mahoney LLP and seek professional legal advice tailored to your unique situation.
