Episode 234 - Avoid Holiday Party Headaches

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, Associate General Counsel with the California Chamber of Commerce. Hello, listeners. Well, time flies as usual, and we are barreling very quickly towards holiday seasons. This is often a fun time of the year for employers and their employees to celebrate the work completed throughout the year, let loose and recharge before the beginning of next year. Of course, these events require planning to just put the event on. But as with all workplace gatherings, there are additional considerations to ensure a wonderful end of year celebration that doesn't end up leading to concerns at the end of the party. So to discuss what to consider beyond just the food and entertainment, we welcome back Erica Barber, Cal Chambers Senior Employment Law Council, and Vanessa Green, Cal Chambers, Employment Law Subject Matter Expertise. Thank you for being here, Erica and Vanessa.

Thanks, Matt. Glad to be here.

Happy to be here, Matt.

All right, Erica, well, let's start in with you. Obviously, these events are meant to celebrate the end of another year at the workplace, but they also often coincide, of course, in timing with religious or cultural holidays. When thinking about the theme for the party, what should our event planners at the workplace consider?

Yeah, when you're thinking about a theme and you're planning your event, really a good rule of thumb is just to keep religion out of these types of events and that by avoiding religious themes, religious traditions, and religious decorations, because we want all employees to feel welcome and comfortable attending the event. And that just may not be possible if we have a religious themed event. And then in addition, we have federal and California law that prohibits employers from discriminating against employees because of religious beliefs. So a party that celebrates a particular religious holiday over others is not going to be respectful of the diverse religious beliefs of our workplace and could lead to employees feeling left out or treated unfairly, which, as we know, could eventually lead to a discrimination complaint. So, for example, if we are hosting a Christmas party with Christmas themed decorations, that could result in some employees feeling that they're being excluded from the event either because they aren't Christian or they have a different religious belief or no religious belief at all. So we want to be mindful of that concern and the potential risk of bringing religion into these types of events. And then we also want to consider the potential need for religious accommodation. So if there is a religious theme to the event, then an employee with a different religious belief may not want to take part in the event. Or we could have an employee who has a religious belief that forbids them from celebrating in any capacity. So if an employee sincerely held religious beliefs prevents them from attending our event, then we need to consider whether a reasonable accommodation is needed, such as excusing their attendance and ensuring they aren't disciplined for not coming to the party. So if you do have an employee who can't attend for a religious reason, you also want to consider what you can do to provide the employee with the recognition that they would have received had they been able to attend. So how do we keep religion out of it? Well, we can just stick to a secular, non denominational theme. We could have a winter wonderland lunch or an ugly sweater party or even just an employee gratitude celebration. Better yet, wait until January when the holidays are over and have an event that celebrates the completion of the prior year and has no tie at all to the holidays.

I love all those themes, Erica. And of course, any ugly sweater parties out there, I am always down to attend those. All right, Vanessa, with our theme set, we do have to actually plan for what occurs during these events. And because these events are meant to be fun and not necessarily work related, do event planners have to really worry about any kind of employer policies or practices that have already been established when we're trying to plan for these parties?

Yes, they do, Matt, because these events are still going to fall under the umbrella of employer responsibility. So I think there's two main areas that employers really want to think about here. One is dress code, speaking of those ugly sweaters parties. And then the other is alcohol. So starting with dress code, holiday parties sometimes encourage festive outfits, like for example, costumes themes or your favorite mat ugly sweaters. And that attire, it typically isn't going to be allowed under the workplace dress code or uniform policy. Right. So employers who have an existing policy want to think about either temporarily revising their policy for the purposes of the event or just communicating that the dress code is going to be relaxed just for the event. But even with relaxed dress code rules, employers still want to remember that employees need to dress appropriately. So nothing offensive and nothing that creates a harassment concern. And then there's alcohol. So many holiday events take place at either venues that serve alcohol, or maybe the company is bringing alcohol on site. So if employers have a drug and alcohol policy they want to think about, do they need to suspend or modify parts of the policy for the party? And if they're doing that, they want to make sure and communicate that in advance to their employees. The other things employers want to think about with regards to alcohol is putting some practical guardrails in place. So, for example, maybe looking at doing drink tickets to limit consumption, you could have non alcoholic options available for folks. You could also do safe ride transportation or rideshare vouchers, or have designated drivers or things like that. Right. Especially if the company is the one providing the alcohol. You really want to think about safety. Ultimately, I think employers should strive for holiday parties to be fun, but also safe and professional.

All right. And I think those are two good pieces of advice. And it's kind of funny. This is the time of year, you know, employees are doing their online shoppings and things as they get ready for the holiday season. And you see ads for all kinds of fun, ugly sweaters and things that we think are funny, but maybe you're not necessarily appropriate or fall in line with our dress codes, even when they're relaxed. So I think that's a really good piece of counsel there, Vanessa. Now, Erica, these events do often take place during work hours and are often designed around the workday. That is, you know, we want to encourage maximum participation. And if the employees are there for the workday, then it's easy for us to put these events on during the workday. But that does raise a concern for us as to whether or not there are any wage and hour concerns that we see here. And if so, how can employers plan for them? Erica?

Yeah, so this area can create wage and hour issues if not handled properly. So when it comes to our non exempt or our hourly employees, we need to remember that if we're requiring them to do something, even if it's something fun like attending a work party, then that time needs to be paid. So if we're holding the event during the workday, our hourly employees should be on the clock and being paid for the time. And remember too, that your hourly employees still need to take a timely meal break, even if you're serving food at the event. So plan accordingly so employees have time to take a timely break before the event starts. Now, if the event is outside of work hours, but attendance is mandatory, if we're requiring our hourly employees to attend, then they're going to need to be paid for the time that they spend at the party as well. Only if the attendance at the event is voluntary would your hourly employees not need to be paid. But just calling a party voluntary is not going to be enough. We need to make sure that attendance is truly voluntary and be really careful about our communications around the party and attendance. So being clear that attendance is not expected or required and that employees have the choice not to attend without suffering any adverse consequences. And then also don't incorporate any work into the party Right. So no work discussions, no town hall updates or things like that because then the party is starting to look more like work and would likely then need to be paid.

Excellent. Well, Vanessa, besides the food and drink, these events are often scheduled with other fun like paid entertainment or White Elephant gift exchanges. And again, while these are meant to highlight how this is really just a celebration and we're trying to kind of, you know, let our hair down and cut loose, what kind of considerations are important when we're planning the entertainment part of the events?

Well, employers need to make sure that the entertainment is workplace appropriate. So that's really important. If you're bringing in entertainment, like for example, a comedian or a live band or like a trivia host, you want to make sure that you know what their content is and that it's going to fit, fit a workplace setting. So a joke or a song that might be fine, like out at a club, for example, that could create a harassment complaint if it's tied to a company event. And as for gift exchanges like White Elephant, they can be fun, but they can also get a little tricky without some clear ground rules. So employers want to think about setting up guidelines up front. For example, maybe having a reasonable spending limit, making sure that folks know they're not allowed to bring offensive or adult themed items and then giving folks an opt out so that no one feels pressured to participate if they're uncomfortable. And then sometimes the stealing aspect of the gift exchange can lead to hurt feelings or people being upset. So maybe structure that in a more light hearted way or just make the rules very clear ahead of time so that everybody knows what to expect with that. I think ultimately it's just really important that employers remember that their harassment and respectful workplace policies are still going to apply at these holiday celebrations and events and that they are responsible for the environment that's created at these events.

Okay, that makes sense. Especially if the events at work during work hours that we would be responsible and covered by that kind of policy or any kind of policies that apply to us. But Erica, you know, what if the event is after hours or away from the workplace or both. And you know, really, what if, especially as we have talked about, the party is purely voluntary both on the face and in practice. You know, we do not expect you to show up. We're just putting this on if you want to come, it's voluntary, but it's not here at the office, it's not during work hours. Are there still policy harassment issues, things like that at play?

Yeah, well, like we always say, in our harassment prevention training. Matt, when it comes to workplace harassment, it's not where you are, it's who you're with. So if you're with your co workers, whether that's at an on site work event or an after hours work party, the anti harassment policy and the laws against harassment still apply. So if the conduct wouldn't be appropriate at the work site in the workplace, it's not going to be appropriate at the work party, even if it is off site, after hours and purely voluntary. Now employees may not always realize that, so it can be helpful to remind them of your anti harassment policy and in advance of your event and even circulate a copy of the policy. That could be a memo or an email to all staff. And be really clear with your employees that inappropriate conduct is not going to be tolerated at the event. Make sure your management and your supervisors are setting a good example at the event as well and not engaging in any inappropriate conduct themselves. And if misconduct does occur, it needs to be dealt with promptly. And if you receive a complaint of harassment or misconduct after the party, you need to investigate it just as you would any other complaint. The fact that it happened after hours or away from the work site or at a voluntary work event is not going to excuse your obligation to investigate and take appropriate corrective action.

Well, I've really enjoyed this conversation with the two of you. It's nice fun event planning that's going on out there and I know it is not quite there yet, but these holidays and these parties come upon us. So everyone out there please do, you know, take note and take some lessons from this. So thank you Erica and Vanessa for joining me today to really help employers avoid any of these kind of little thorny issues when trying to plan some fun end of year celebrations.

Thanks Matt.

Thanks Matt. It was a great discussion and thank.

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