Monday, December 9, 2013

Tis The Season

Here's the obligatory "Holiday Party" post.

There are a lot of concerns about holiday parties, and a lot of situations in which employers can or have ended up on the hook for serious liabilities.  Most of them are related to alcohol consumption leading to inappropriate, dangerous, and/or illegal behaviour.  That's not always true, however.

In a casual setting, employees feel a little more free to 'let loose', and there's a feeling that "We're not at work anymore; the policy manual was left at the door."  For employees, I cannot say this firmly enough:  That is not true.  Inappropriate behaviour towards co-workers, subordinates, supervisors, or others will almost certainly be disciplinable, and potentially expose you to legal liabilities.  Or even criminal sanction, in some cases.

Sexual harassment is a common problem, and employees need to remember that any advances which you know or ought reasonably to know are unwelcome...are illegal.  Unwelcome advances to somebody to whom you are in a position to provide a benefit are especially problematic.

In the absence of an anti-fraternization policy, though, there's nothing strictly improper about flirting between willing co-workers, or about welcome advances to co-workers.  And that's half the problem, because (a) an employee might see the holiday party as an opportunity to try to get to know a given co-worker better and (b) many people don't know where to draw the line on their own behaviour, especially where alcohol is involved.

So employees should remember to use their best judgment, to remember that you still have to work with these people, and to remember that inappropriate behaviour might jeopardize their careers.

That's good advice for employees at all times.  But an employer cannot simply wash their hands of it, because we all know that some employees will not use good judgment.

So here are a few tips for employers to reduce the odds of finding a statement of claim in your stocking.

1.  Make Expectations Clear

There are a lot of 'common sense' things that we should be able to take for granted.  Unfortunately, we can't.  Reminding employees before the party that you expect them to drink responsibly, plan a safe ride home, and avoid workplace-inappropriate or offensive conduct, helps to set the tone.

It's also helpful to point the employees to any relevant policies - the anti-harassment policy, any anti-fraternization policies, drug & alcohol policies, etc.  (Note that, if it's the employer's practice to permit alcohol consumption at after-hours events, the drug & alcohol policy should reflect this, setting out expectations that employees act responsibly.)

Notably, while employees need to be careful to avoid sexual harassment, it's also important to remind employees that they should not stay silent in the face of unwelcome conduct.  If somebody is trying to flirt with me, and I am made to feel uncomfortable, then I should say something - make sure the person knows that the behaviour is unwelcome.  (This is the keystone of 'informal resolution', the first level of dispute resolution under most sexual harassment policies.)  If the harasser persists, then under those circumstances I should be bringing the matter to the attention of management.  But the reality is that a huge majority of sexual harassment issues can be resolved informally - if I stay silent, the person may well continue, and my evening will get worse and worse.  But if I speak up, the odds are reasonably good that the person will back off.

To the extent that the regular dress code might be relaxed for a social event, it may still be prudent to set out clear expectations.

As well, consider if there are workers with identified issues of alcohol dependency.  Depending on the nature of the workplace and the accommodations necessary for such an employee, it may be worth querying whether you really need to have alcohol served at the party at all, or if there's some other prudent approach you might take.

2.  Offer Safe Rides Home

There are a lot of ways of getting your people home safely.  Encourage Designated Drivers, refer to "Operation Red Nose" services, offer taxi chits or hotel rooms, even rent a bus.  Whatever avenue you choose, you should make sure that you take an interest in seeing that nobody drives drunk, whether it's by providing transportation, or by having sober managers tasked with identifying and diverting people who are too intoxicated to drive.  Also bear in mind that a host's liability doesn't necessarily stop at the door - you want to get them home, not to the bar across the street.

Other strategies include an early cut-off for alcohol (closing the bar an hour or more before it's time to go home), serving food to slow the absorption of alcohol, or limiting the number of drinks for each employee.

3.  Supervise the Party

Managers want to party, too, but they of all people should be staying sober anyways.  So make sure that there are trusted managers tasked with overseeing the party.  If somebody is acting inappropriately, there should be people responsible for identifying and addressing the conduct on the spot (i.e. by cutting them off, or perhaps sending them home in a cab).

Giving managers that kind of responsibility also highlights the fact that they're still kind of on the job.  Some trouble-making employees enjoy encouraging their bosses to have a couple more drinks than they should.  (Of course, I've never done such a thing.  Back in my days as an employee, I never got management information out of a supervisor who had drank one pint too many...  Of course, there are possible consequences far darker than that, too.  As I said, of all people, managers should not get drunk with subordinates.)

As well, whether it's a private function or in a public venue, bartenders should not be serving people who appear intoxicated...however, in a private function, the employer should probably be reminding the bartenders of that expectation.  (I have seen plenty of private functions where the usual rules go out the window, but that's less likely to happen if the 'client' has clarified expectations that things be done by the book.)

4.  Consider Limiting Alcohol

Drink tickets are a reasonable way of making sure that your employees can drink casually without overdoing it.  People generally shouldn't be looking to get drunk at an office party anyways, but there's value in a glass of wine with dinner or a couple of cocktails, for a social occasion.  So it's understandable that people want to be able to drink a bit, but highly unnecessary to let people drink to excess.

However, giving people two or three drink tickets does not necessarily mean you don't have to be alive to intoxication.  Some people have surprising effects after a couple of drinks, and you won't necessarily know if they may have had a couple of drinks before arriving in the first place.

5.  Why Throw It On A Work Night?

On some level, being able to highlight  "I expect you alert and at your desk at 9:00am tomorrow" might emphasize to people why they shouldn't drink to excess.

But, realistically, in many workplaces, you expect that 'office party night' will run late, even if it doesn't include excessive drinking.  I've been in workplaces where groups of us went out to clubs after the office party.  So throwing it on a work night kind of invites a reduced-productivity day the next day.  Which you might be okay with.  In which case, alright, but there's something else to bear in mind, particularly for employees in safety-sensitive positions:  Sleeping it off doesn't do much - the only thing that sobers you up is time, and if you're drinking heavily, you need a lot of time.

It's a well-known reality in policing that they can catch a lot of impaired drivers the morning after a big drinking night.  People know not to drink and drive.  So on a night out, they get hammered, they take a taxi home, they sleep it off, then they get up and drive to work as normal.  Except that they might still be drunk.  Alcohol is removed from our bloodstreams at approximately 0.015 per hour.  So if you stop drinking at midnight after an evening of heavy drinking, bringing your BAC up to 0.2 (2.5x the legal limit for driving), then you aren't going to get rid of all the alcohol in your bloodstream until around 1pm.  Indeed, if you hit the road at 7:30am, you're almost certainly driving over the legal limit.

So if people do drink to excess, then not only do you need to worry about them getting home alright, but you also need to worry about them showing up to work drunk.

A Word On Political Correctness

"Merry Christmas" isn't generally a big deal in Canada.  I seldom hear people actually taking issue with it. I subscribe to an 'inclusive' approach to holidays, but for me that means proactively seeking to respect and honour everyone's beliefs, rather than simply watering down the tradition to the point of being generic.

(Once I saw a workplace celebrating "Festivus"...which would have been really innovative, except that the "Festivus" newsletter included a "Festivus Tree" and a lot of other distinctly Christmas-y imagery.)

I'm an advocate of reaching out to the workers and inviting input regarding religious or cultural traditions they might want honoured, and engaging in a dialogue regarding how to do so.  I believe that holiday celebrations present an opportunity to embrace and celebrate the diversity of the workplace.

Consider, for example, that I live in a community in Thornhill which has a predominantly Jewish demographic.  The building I live in openly celebrates the Jewish high holidays.  Against all odds, I'm a Christmas-observer.  I don't object to the Hannukah-related observances in the building, but I do appreciate that, nonetheless, there's a Christmas tree in the lobby.  To me, that's what a multi-cultural society is all about - about different beliefs and traditions co-existing side-by-side.

And a word on workplace Secret Santas:  Don't.  That's not for legal reasons.  Just...they're don't.

I can't put it any better than Rick Mercer:
But then there's the flip side, the madness of the season.  Things like the secret Santa office pool, which, I'm sorry, I'm just gonna say it, does not bring joy to anyone.  It's the opposite.  It brings anguish, resentment, and re-gifting.  If you are a grown man or woman there is nothing you need at the dollar store for under ten dollars.  Oh look, it's's a mug.

This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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