Episode 42: How Festive Is Too Festive? Tone from the Top Is Key to Avoiding Trouble

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber's general counsel and executive Vice president, and with me back on the show is Jennifer Shaw of the Shah Law Group, who, as we know, is an employment law expert extraordinaire. Welcome back.

I'm not sure I can live up to that, but I'm happy to be here. Thanks for having me, Erica.

And we are small, smack dab. In the middle of the holiday season. Things are getting pretty festive. Christmas lights are up. People are out there looking and driving around, checking everybody's front yards. The holiday movies are being shown on the tv whether you're streaming or watching cable. Still lots of parties, socializing. And with parties and socializing comes what? Drinking, Drinking, drinking, drinking. So today we are asking and answering the question of how festive is too festive in the workplace. On the last two episodes of the podcast, we listened to a few clips from one of our favorite shows, the Office. Today we're changing things up a little bit. We're getting a little bit more festive, and we are going to share a little clip from our favorite movie, the Elf, showing just how out of control the festivities can get at work.

Syrup and coffee. Why didn't I think of that? Can I try some guests? Very generous of you.

I love syrup.

Oh, I love it.

You know, I know I sound like a broken record, but we are buddies. You're my best friend. That's it. You're my best friend.

It's the pickle bite.

Tickle bites.

All right, so we know it's five o' clock somewhere, anytime.

Absolutely. And I'm not gonna sit on this podcast and say you should have a holiday party without any drinking or, you know, don't allow anyone to come to the holiday party and have a glass of wine. That's not what it's about here. What I think is critical is figuring out where's the line, right? And again, we're right back to where we always go. What is your workplace like? What's your culture? What's your environment? What are people's expectations going to be? We all know if you watch the movie a little longer, you know what happens, right? And syrup in the coffee. As we know, syrup, of course, is one of the four food groups for elves that created a huge sort of temporary bonding experience in the mailroom. But then there were some consequences that had to be dealt with as well as he ends up in jail. So this idea of how much is too much is really something that the leaders of an organization have to decide. It's really hard to say to a frontline manager or supervisor, why don't you figure out what we should do at this party? Okay. We need some leadership from the top. We need some people at the top who are actually behaving appropriately at these events and being responsible. Whether we're talking about taking a client out to dinner and drinking or at a holiday party or. Or at a sporting event where we might be entertaining people, there needs to be this level of moderation and reason because it is the workplace. I know people don't want to think of it that way, but it's work. Anywhere you are in the presence of someone with whom you work is the workplace.

And what I liked about this scene too was Buddy the elf was in the mail room and one of the gentlemen working in the mail room had a bottle of brandy or whatever, spiking his coffee. And it reminded me that for whatever reason, between Dec. Well, we could back it up to Thanksgiving, but let's just say December 1st to January 1st, because it's a holiday. It gives us the license to eat and drink all we want, whenever we want.

Right.

And for some reason, in a lot of workplaces, that's what happens. There's lots of baked goods, but there's also a lot of booze. And it's not just the wine. It's not just the beer. It's the hard stuff.

It's the hard stuff. It's the people bringing things in. Oh, I brought you a special coffee today. I have a little investigation going on about something like that right now.

Exactly. And that's something that we have to all be aware of as far as you're still at work. And many workplaces have a drug and alcohol free workplace policy.

Well, and the problem is, if you have a policy that says absolutely no drinking at work and then you have a holiday luncheon where people are allowed to order drinks, you've just violated your own policy. Now, your policy may be too strict and you need to modify it. But it's another example. When we talk about employee handbooks, your policies have to reflect what you're actually doing. So when it comes to alcohol at work, I think people really need to take a step back and think about, okay, what are we willing to tolerate? What do we think is acceptable? Do we have people in our organization who are entertaining clients who need to go to these functions where there will be alcohol? What do we do to help them figure out what is moderation and how they should be behaving?

I think that's a really good point, particularly since a lot of employers do do parties and a lot of them still like to have them in the evening where people can get dressed up a little bit more. They take it outside of the workplace, the physical workplace area. And there's always questions about alcohol. And we actually get them on the helpline all the time. As far as we want to do a no host bar or we want to be able to put bottles of wine on everybody's table, what's the problem with that or what are some of the concerns or risks with that?

Well, and one of the things that we forget about, I think is just like you would have host liability, if you have a party at your house and you let someone leave who has had too much to drink and they get in an accident and something happens, we have the same liability in the workplace. You know, people say to me, well, that wouldn't be covered by workers comp. Because this wasn't a mandatory event. Are you kidding me? It's a sponsored event. You're not going to get anywhere on that argument. And then if you have a third party involved, you're going to be the deep pocket. The employer is going to be the deep pocket. Now, I'm not saying we shouldn't allow alcohol. We don't give people tickets at our holiday party and say, you may have one glass of wine. We just expect people to behave appropriately. But I'll tell you, it starts with the people at the top of the organization.

Well, you know, you mentioned tickets. Actually that's something that I personally think is a great idea is you get two drinks, I mean, two drink tickets and that's it. I mean, let's face it, you're not here to be getting rip roaring drunk with your co workers.

That's right.

It is a nice thing to have part of the conversation, part of socializing. But from my perspective, unfortunately, when people start to indulge in alcohol, sometimes their judgment is not always there and they make mistakes. And why put an employee in that position with other co workers around?

I think that's right. Now one of the things to keep in mind, of course, is you have two tickets. I have two tickets. I'm going to spend the whole night trying to get your tickets.

Right, so.

So there's nothing wrong with.

That's true.

There's nothing wrong with having tickets.

You're right. It makes me feel better.

I agree. Because you've said like, here's the limit.

Right, right.

You know, people bring, oh, I'll never forget this holiday party we had several years ago, One of our employees didn't worry about drinking at the party. She came to the party already having tickets.

Oh, yeah, the pre party. The pre party party, before the party.

And so I'm not sure that you can really predict what's gonna happen once somebody gets to the event or before the event or at the after party. What you have to be willing to do is set clear expectations for people, like, be responsible. Somebody who's six, eight, can have a couple of drinks, and they're gonna be fine. Unfortunately, I have a glass of wine, you're gonna find me huddled in the corner asleep. So part of the problem is people have to know themselves. And I think if we try to dictate too closely what's gonna happen, we can sometimes create more problems. But there has to be an expectation and I' to leave.

And I think, yeah, put them in.

An Uber and send them on their way.

Well, that's also a really important thing to remind people that somebody needs to be the parent. Somebody needs to make sure that those that are leaving the party are leaving in the right frame of mind. They are safely. Safely. And if not to put them in an Uber or to put them in a car.

Well. And this isn't even about liability, Erica.

No.

How would you feel if one of your employees, something happened to them, and you let them go? Right now you're not going to take their keys? I mean, that's something that's very difficult to do these days. But you get one person to drive the car and drive them home, and that person Ubers back. There are a number of different ways you can do that, but it's so important to not only think of it as a legal risk or a workers compensation risk. These employees are entrusted to us in many ways. Like, I've been thinking about my daughter, about how when she grows up, how's she gonna know to do the right thing and who's gonna look out for her. And I hope if she's at a holiday party, there's someone there who's not drinking, who's paying att of what's going on.

Right, right. And I think, too, like you said, it starts from the top. It's the tone that's being set by the party. And I know in some workplaces and in some industries, there is more of a party feel than in others. And in some departments, they're known to be a little bit more extroverted and enjoy their cocktails and their booze a little bit more. So I get the fact that it's perspective in its workplace. But at the same time, there can be this overarching message of we are here to socialize and enjoy each other. This is not the party. This isn't reliving college. This isn't being at home, going to your progressive birthday party or holiday party and walking home. This still, like we keep saying on all of these podcasts, this is still work.

Well, and I think if people really understood that concept, we would have far fewer issues. If people really got, okay, wait a minute. This is the workplace. I realize I'm in a nice restaurant and there's an open bar, but I'm at work.

Well, I think though, for some folks, it's on the employer's dime, so I am going to take full advantage of it.

Oh, I've seen it. Oh, yes, look, it's an open bar.

Great.

I want one of everything on the cocktail menu.

Exactly.

And that's why we do need, as you said earlier, the parent figure to just sort of be watching that.

So, okay, we talk about holiday parties, that's one thing. But I want to go back and we talked on previous podcasts about gift exchanges and Secret Santas. And oftentimes alcohol does become one of those top gifts. A, it's easy to buy. You go buy a bottle of wine at the local Walgreens, for heaven's sake. But if it's given at, let's say, a holiday luncheon and the alcohol is part of the gift exchange, does that allow or give the employees the right then to start consuming it because it was given at the party?

Well, they certainly don't have a right. I think you have to be clear about the expectation. So the expectation is we're having a holiday lunch. Obviously we're all coming back to work after. So there'll be no drinking at the lunch. So if somebody gives you a bottle of wine, you'll be enjoying it on the weekend. Right. Or after work. So once again, just like everything else we talk about, I think setting the expectation is really important. The other thing that's great here is peer pressure really works positively.

That's true.

If you have people who are more adult in their behavior and who understand a little bit more about how things can go wrong, who've been in the workplace maybe a little longer, they can help the folks who are newer to the workplace to understand, yeah, this isn't a fraternity party. This is actually something that we're doing. And there are people here who you want to impress. You know, many people. Let's face it many people don't want to go to the work holiday party. They go because the boss is going to be there. They feel like they have to show up. They feel like they have to make an appearance. So let's keep that sort of idea and use it for us in a positive way, which is, look, this is your chance to have a social conversation with someone, maybe who you want to promote, to work with. There's a way to use these parties to your advantage. But if you're three sheets to the wind, it's not going to happen.

So, Jennifer, what happens when an employee does end up getting intoxicated, whether it's at the holiday party or at the gift exchange, and the employee decides to open up the bottle of schnapps that they received?

Well, you're gonna love this answer because it's what we always say. As a lawyer, it depends. Right. So what you're gonna do is gonna depend on the situation. Can the person get home safely? Is the person disrupting anybody else at the event? Is the person making a fool out of themselves and you want to save them?

Right.

So you really have to look at what's going on. But what I think is the most critical thing is for employers to realize it. It's okay to do something because I've had clients who call me and say, well, I didn't know what to do when this stripper came out at the holiday party because I didn't order the stripper and I didn't know who did. And so I wasn't really sure what to do. What you do is close down the stripper. Okay? So let's not be confused by just because it's a work event. Well, don't they have a right? No, they actually don't. They're at your event. It's a work related event. So we need to first think about safety, think about how they're affecting other people and save them. I mean, we've all been in a situation where we've had too much to drink. If we've done or said something that we absolutely regret. Help the person.

Like my wing man or woman.

Exactly. We need someone to sort of help us through some of those things.

Right. And I sit here thinking, okay, we're talking about the workplace, but this is really applicable to even our personal lives. Right. It's the holiday season. Everybody's having whatever cocktail of their choice. Like I said, it's for some reason gives us free reign. And I'm right there too, of having cookies and brownies and fudge. And whatever it might be, but to be responsible and to make sure that we are entrusting someone to take us home if we are unable to drive ourselves. But to still have a good time.

Yeah. And it's certainly possible.

Right, right.

You can certainly have a great time having one glass of wine instead of the whole bottle. And like I said, alcohol affects people differently. I think it's really hard to have a sort of hard and fast rule. But if you're going to have a policy, and you should, you better recognize in that policy. We have holiday parties. We know you take clients out to drink or out to dinner and there will be drinking. Like you have to make sure your policy really reflects what is going on. Because that's where I've seen this really come unraveled for employers, is where they want to discipline somebody for doing something that the policy allows them to do.

Yeah, I could see that. And that's where these types of social events come into play and where it could create some problems.

One of the other things that I think is interesting is we're talking about alcohol, but obviously we have marijuana now. We have CBD gummies. We have all sorts of natural things that people can be doing. We really have to think about our altered state. Right. We want to be on our best at these events.

Well, so that kind of brings up something. It's not entirely off topic, but real quickly, the gift exchange where the marijuana gummies are given. What does an employer do in that situation?

They can't do much. It's legal.

It's legal. But if I have a drug and alcohol free workplace policy, although giving wine at that at my event is creating a problem too.

Well, and those of us who are a little older have, I think some particular views, some of us, about marijuana or CBD that we don't have about alcohol. Right. Because we were just raised in a different time. It's really important that it's a great example of why we have to think it through. And of course, you know, this sounds like a weird topic for an orientation, but I actually talk to people when I interview them. Listen, we have two big parties a year. We have a summer party, we have a holiday party. We have. Everybody brings their family. It's great fun, very G rated. I mean, I set the expectation up front.

Yeah, that's a good point.

So you want to bring a bottle of wine. Great. But you're not going to be drinking the whole bottle. Yeah. You're not going to be falling down drunk at the party. And when you are there's a consequence.

Well, as always, it's a pleasure having you, Jennifer, and I think today was a really fun topic to talk about because it is appropriate given the holiday season. But it's also just a good, nice reminder to everybody, not only at the workplace, but when they're out there on their social events having a nice time for everyone just to have a safe, safe holiday season.

Absolutely. Thanks for having me.

And thank you for joining us on the workplace. Please comment, share and subscribe to Cal chambers podcast@calchamber.com.