It’s that magical time of year! Time for hot cocoa, warm fires, glad tidings – and office holiday parties! Office holiday parties are a time for co-workers to relax and for employers to show appreciation to employees, all of which builds office morale. Of course, office holiday parties also come with an extra serving of risk, especially when the employees get a little too, ahem, relaxed. In fact, inappropriate behavior at office parties is so common that a whole movie is based on this premise (coming out in theaters today)! The challenge faced by employers is finding a balance between providing a good time for their employees, while also preventing the horrors that can come in the holiday party environment.

Holiday Spirits 

Let’s get right to a common source of risk, shall we? Alcohol will be present at most office holiday parties. Of course, there’s nothing wrong with responsible adults enjoying adult beverages responsibly. But even just one employee who exceeds their limits can be costly. For example, there is case law suggesting that if an employee is provided alcohol at an office party, becomes intoxicated and is allowed to drive home, that employee may be considered still within “the scope of employment” and the employer may be liable for the employee’s conduct while driving home (including workers’ compensation benefits if the employee is hurt in a car accident). Of course, alcohol also lowers inhibitions, which can lead to increased risk of inappropriate behavior, as discussed below. Some possible ways of reducing the risks associated with serving alcohol are:

  • Serve with a meal, with servers controlling the portions
  • Give employees a limited number of “drink tickets” for the bar
  • Offer to provide transportation home (let employees know in advance that the company will call them an Uber or a cab upon request)

The Gift of Inappropriate Behavior

Most employees have at least reviewed company policies on appropriate conduct in the workplace – but many seem to throw those guidelines out the window when it comes to an office party! In the relaxed atmosphere of a party, especially when alcohol is lowering inhibitions, employees suddenly feel free to say and do things that they otherwise would never say or do in the workplace. Employees often feel free at an office party to make jokes and innuendos that they know are otherwise off-limits. Or the employee who has been harboring a crush on a co-worker is suddenly emboldened by holiday spirit (and spirits) to make his move, but those advances are not welcome. Of course, inappropriate behavior is not limited to sexual harassment! Employees may branch into inappropriate and even prohibited topics of conversation. For example, Supervisor Sally may know that she cannot discuss Employee Emma’s medical leave, but suddenly her inhibitions are lowered and she answers Employee Busybody when asked in a hushed tone, “so, what is the deal with Emma, anyway?” It is important to remember that workplace policies (and laws!) still apply at the office holiday party, and you may want to send out a reminder to that effect before the party, to at least your supervisors. Also, if there are any complaints about conduct at the holiday party, you must investigate and discipline appropriately, just as you would with any workplace complaints.

To Pay or Not to Pay

A common question is whether employees must be paid wages for time spent at the office holiday party (which could mean overtime wages). The answer hinges on whether attendance is mandatory. If you require employees to attend the party, then you will be required to pay wages, including overtime where appropriate. However, if you make attendance optional, no wages need be paid.

Best wishes and glad tidings as you navigate the tricky waters of the HR nightmare that is an office holiday party – and remember, we’re here if you need us to help recover the morning after!

Weintraub Tobin’s 2016 Labor and Employment Seminar and Training schedule is now available.   Click here for a copy of the schedule.2017 Seminar Series Logo

If you have any questions on any of our seminars or would like to inquire on private, custom-tailored training, please contact:

Ramona Carrillo
400 Capitol Mall, 11th Fl.
Sacramento, CA 95814
916.558.6046
rcarrillo@weintraub.com

Chuck-Post-07_webThe White House has issued new information about its policy position on non-competes, including a call to action from President Obama to state and federal lawmakers to curb and limit non-compete agreements.  To read the Fact Sheet, please click here.

Perhaps because of the unfortunate social tensions arising after the U.S. Presidential election which include some inappropriate threats against immigrants and people of color, the EEOC issued its Enforcement Guidance on National Origin Discrimination last week.  The Enforcement Guidance replaces the EEOC Compliance Manual, Volume II, Section 13: National Origin Discrimination (2002).

National origin discrimination is prohibited under Title VII of the Civil Rights Act of 1964 (Title VII) which applies to employers with 15 or more employees, employment agencies, the federal government, state and local government employers, and unions. Under Title VII, discrimination in employment based on national origin, race, color, religion, and sex is illegal.  Title VII also prohibits employers from retaliating against people who oppose workplace discrimination or who participate in an EEO complaint process.Beth-West-15_web

What is National Origin Discrimination?

According to the EEOC, national origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or shares the physical, cultural, or language characteristics of a national origin (ethnic) group.   For example:

  • An individual’s place of origin may be a country (such as Mexico), a former country (such as Yugoslavia), or a place that is closely associated with an ethnic group but is not a country (such as Kurdistan).
  • A national origin group is a group of people who share a common language, culture, ancestry, and/or other social characteristics (such as Hispanics/Latinos or Arabs).

Generally, national origin discrimination refers to:

  • Treating an individual less favorably because he or she is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin (ethnic) group;
  • Treating an employee less favorably because of the perception he or she belongs to a certain ethnic group or nationality (e.g. that the person is Hispanic/Latino even if he or she is not in fact Hispanic/Latino).
  • Using an employment policy or practice that disproportionately impacts people on the basis of national origin and is not shown to be job related and consistent with business necessity.
  • Treating someone less favorably at work because he or she associates with (for example, marries) someone of a particular national origin.

Harassment on the Basis of National Origin is Also Prohibited.

Title VII prohibits harassment on the basis of national origin.  Unlawful harassment is conduct that is severe or pervasive enough to create a work environment that an individual perceives as hostile, and a reasonable person would find intimidating, hostile, or abusive.   According to the EEOC, harassment based on national origin can take different forms, including ethnic slurs, ridicule, intimidation, workplace graffiti, physical violence, or other offensive conduct directed toward an individual because of his birthplace, ethnicity, culture, language, dress, or accent. Employer liability can result from the actions of supervisors, employees, or non-employees, such as clients, customers, or commercial contacts.

Takeaway for Employers.

Just as in the case of any other protected class, employers must take proactive steps to prevent and promptly respond to any form of discrimination or harassment on the basis of national origin.

A copy of the EEOC’s Guidance on National Origin Discrimination can be found at https://www.eeoc.gov/laws/guidance/national-origin-guidance.cfm.

As previously reported here, earlier this year a federal district court in Texas issued a preliminary injunction preventing the Department of Labor (“DOL”) from enforcing the new Persuader Rule, which was to go into effect as of July 1, 2016. Last week, the court issued a ruling converting its preliminary injunction into a permanent one, which now imposes a nationwide ban on implementation of the new rule.

By way of a refresher, the new Persuader Rule, proposed in March earlier this year, sought to require employers to report highly detailed information regarding their “indirect persuader activities.” Such indirect activities potentially included attorneys advising employers on how to respond to employees attempting to unionize or what actions might discourage unionization. Several experts in the district court proceedings provided evidence that the new reporting requirements effectively restricted employers’ ability to obtain any advice concerning unionization-related issues. Prior to the new rule, employers were simply required to report “direct persuader activities,” which only included activity where there was direct contact with employees to persuade them regarding their rights to unionize.

To read the rest of this article, please visit the HRUSA blog at http://blog.hrusa.com/blog/texas-federal-court-permanently-blocks-persuader-rule/