With the holiday season approaching, employers should be mindful that office holiday parties can create HR headaches. As pandemic restrictions have declined, employers are eager to host, and employees are eager to attend, in-person social events.

However, a number of employment laws could be implicated from a holiday party gone wrong. Consequently, employers should keep these statutes top-of-mind this holiday season.

Title VII of the Civil Rights Act of 1964: Be Merry, but Stay Away from the Mistletoe

An office holiday party can implicate multiple theories of liability under non-discrimination/non-harassment laws. First, laws such as Title VII prohibit discrimination in employment on the basis of religion. So, if an office holiday party theme relates to a particular religious holiday, such as Christmas or excludes other seasonal religious celebrations, an employee could object to attending on religious grounds. In one case, an employer faced a Title VII discrimination lawsuit after it fired an employee who refused to attend the employer’s holiday party for religious reasons.

Second, sexual harassment is prohibited – and these protections extend beyond the four walls of the office – including to company social events. An employer can be liable for sexual harassment in the workplace when the harassment is severe or pervasive. As such, even one isolated incident of sexual harassment at an office holiday party may be sufficiently severe to result in liability. For example, if alcohol is served and employees’ judgment is impaired, unwanted sexual advances and other problematic conduct could occur. The Equal Employment Opportunity Commission has sued employers for sexual harassment related to office holiday parties, including one case in which a manager was alleged to have sexually assaulted an employee in a hotel room following the company’s holiday party.

Fair Labor Standards Act: How the Grinch Stole Wages

The Fair Labor Standards Act (FLSA) requires that employers pay non-exempt employees minimum wage for all hours worked, including “time and a half” when an employee works over 40 hours per week. Although an employer might not think of a holiday party as “work time,” the risk of wage and hour issues may still exist.

Non-exempt employees must be paid for all time they are required to be at work. So, an employee must be paid for time at a holiday party if attendance is mandatory.

Non-exempt employees do not need to be paid if (1) attendance is voluntary, (2) the party is held outside of normal working hours, and (3) no work is performed at the party.

Occupational Safety and Health Act of 1970: Don’t Get Run Over by a Reindeer!

The Occupational Safety and Health Act (OSHA) requires employers to ensure safe workplace conditions for employees. Specifically, OSHA’s “general duty clause” requires employers to furnish “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm  to . . . employees[.]” Under this law, employers may face liability if an employee suffers an injury at work.

If attendance is mandatory, an employer could be liable for injuries suffered at the office holiday party. For example, an employer could be on the hook if an employee is hurt after drinking too much at the company’s holiday party. However, if attendance is voluntary and there is no business purpose to the get-together, an employer is less likely to be liable for any employee injuries suffered.

Best Practices for Office Holiday Parties

To minimize issues under employment laws, employers may take a number of steps for a festive and worry-free holiday party:

• Do not use religious themes or decorations;

• Make it clear that attendance is completely optional;

• Do not question an employee’s decision to skip the event;

• If the party is offsite, clarify details such as dress code, guests, and transportation options;

• Before the event, remind employees of the company’s code of conduct, anti-harassment policy, and any other respectful workplace guidelines;

• Remind managers that they should be setting a positive example and keeping an eye on their employees to ensure that policies are being followed;

• Consider limiting employee alcohol intake and serve plentiful food; and

• Promoting responsible drinking habits, such as featuring “mocktails” and providing Uber/taxi vouchers.

With thoughtful planning and clear communications, a company holiday party can be a fantastic bonding event for your workforce.  Follow these guidelines…then eat, drink (responsibly), and be merry!