How to Have a Lawsuit-Free Holiday Party: a Checklist for Employers
For employers, whether they are start-ups or more established companies, the end of the year is the traditional time to reward the tireless dedication of their employees. Around mid-November, without fail, holiday cheer works its way into the office. Suddenly holly and miniature trees decorate employee desks, with homemade cookies and eggnog appearing in office kitchens by anonymous do-gooders. Employers want to capitalize on all the positivity and throwing an annual holiday bash seems like the perfect way to bring everyone together to unwind and celebrate.
While that goal is a commendable one, office holiday parties can also present serious risks for employers with respect to social host liability, sexual harassment and privacy concerns. A 2016 survey specifically asked participants across the United States of the most embarrassing moments seen or heard at a company holiday party. Participants spoke of seeing their bosses falling asleep under tables, throwing food, falling into a pool, engaging in physical altercations and using obscene language with subordinates. One manager was even reported to have taken lewd photos at a photo booth!
Case law demonstrates that Canadians are not any different in this regard.
- In van Woerkens v. Marriott Hotels of Canada Ltd., 2009 BCSC 73, the British Columbia Supreme Court found that a senior manager tasked with supervising the holiday party failed to regulate alcohol consumption – in himself and others – and partook in “sexually suggestive” dancing and the harassment of a subordinate, was rightfully dismissed for cause.
- In Poole v. Lombard General Insurance, 2012 BCCA 434, an employee sued an associate at her law firm for injuries suffered as a result of a fall at a night club after a firm sponsored dinner. The British Columbia Supreme Court awarded the employee almost six million dollars in future wage loss.
- In R. v. XI Technologies Inc., 2013 ABQB 651, an Alberta court found an employer liable for the death of an employee where the employer allowed its employees to operate a faulty, rented calf-roping machine at a work social, without proper training or supervision and imposed a fine of $275,000.00 against it.
- In K.L. v. 1163957799 Quebec Inc., 2015 ONSC 2417, an employee alleged that an employer failed to properly supervise an employer-hosted party at which the employee was sexually assaulted and forcibly confined by her supervisor.
Given that legislation such as the Ontario Human Rights Code, R.S.O. 1990, c. H.19 and Occupational Health and Safety Act, R.S.O. 1990, c. O.1 impose obligations on employers to ensure a workplace free of harassment, it would seem that combining unlimited alcohol with a workplace event may be asking for trouble. For this reason, many employers have eliminated their holiday parties altogether, in favour of events such as holiday luncheons at the office.
However, the inappropriate misconduct of a few does not mean that employers should cancel celebrations and prevent employees from socializing. Instead, employers should play a more active and thoughtful role in establishing and reinforcing company policies and employee conduct guidelines.
Here are some tips with planning a safe holiday celebration for all:
- Get input from your employees to ensure inclusivity. Diverse workplaces demand out-of-the box thinking for holiday fun. In addition, employees should not feel obligated to attend the party or fear reprisal for not partaking. All employees should also be informed that all workplace rules and policies would be in effect at the party to promote inclusivity.
- Be cognizant of location. When choosing a venue for your party, think of how the location may play into your overall risk, i.e. are there bars or clubs nearby? Verify insurance coverage for office-related events that are held off premises and when renting any kind of equipment or machinery, ensure that it is properly assembled, maintained and operated by a competent individual.
- Limit the alcohol. Provide plenty of food and opt for a cash bar instead of an open bar. Consider using a ticket system of 2 free drink tickets per employee and hire a trained third party who can monitor alcohol consumption. Aim to close the bar an hour or more before the party ends. Also inform the employees that they are not to drink and drive and set up alternative transportation options i.e. taxi chits. Designate employees to proactively distribute the chits prior to the party.
- Managers and Executives set the tone for the party. Limit senior management to just one alcoholic beverage. They should be the eyes and ears of the company looking for signs of employee misconduct. The management team should aim to mingle throughout the party and periodically perform a sweep of the entire event area (including closets and bathrooms) during and especially after the event. The company’s founder, CEO or designated executive should remain at the party until the end of festivities to ensure it ended on a positive note.
- After the party, reflect. Ensure that any photographs or videos taken at the party are approved by their subjects before publicly releasing them on company websites or social media pages. Conduct a companywide survey to elicit feedback from attendees on the good, bad and the ugly and strive to improve every year.
By planning ahead of time, employers can really have the best of both worlds—a fun AND safe workplace. We wish you and your employees a lawsuit free holiday party and a happy new year.
Employers routinely include “Termination without Cause” provisions in their employment contracts to limit their employee dismissal obligations. In a decision released on June 17, 2020, Ontario’s highest court found such a provision to be unenforceable.
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