LIMITING YOUR LEGAL EXPOSURE DURING THE HOLIDAY SEASON

While this may be the season for holiday parties and the spreading of good cheer in the workplace, too much cheer can cause liability. If your plans include serving alcohol at holiday parties or even sponsoring department “happy hours” at a local pub, your organization could be at risk for legal liability if a drunken employee harms himself or others.

(Contact HR now! to develop a customized policy to address this particular issue)

It is important to remember that Employers can be sued for their intoxicated employees’ misdeeds under a number of different legal claims and theories, ranging from workers’ compensation to sexual harassment to negligence. Fortunately, despite overall increases in litigation, you generally are still shielded from liability in most situations.

Even with this shield, and regardless of actual negligence, the employer remains a tempting legal target and is considered the “deep pockets” when damages are sought. And, no one wants to be in the position of defending an unpleasant case involving injuries or death. A better approach is to prevent these accidents and problems altogether by taking some common sense steps to limit alcohol consumption and its effects.

Below, you get a look at the legal issues and some cases addressing employer liability for alcohol-related incidents. Plus, you also will find nine tips to help prevent alcohol-related problems, or at least limit your liability exposure if they do occur.


Workers’ Compensation Laws

Workers’ compensation laws deal with employer liability to its own employees or their survivors. In general, these laws cover all work-related injuries regardless of fault. However, they do typically exclude injuries that are incurred at employer recreational events where attendance is not required or that are the result of the employee’s intoxication on the job.


Wrongful Death and Survivorship Statutes

Employers may also be sued for alcohol-related incidents under state wrongful death or survival acts. Under these laws, the personal representative of a deceased person may file suit, on behalf of the surviving spouse or next of kin, against any party whose actions caused the death. The purpose of these laws is to compensate survivors by providing the financial benefits that would have been received had the person lived. However, survivors have had little success suing employers for wrongful death based on the intoxication of employees if they could not show that the employee was within the scope of his employment or under his employer’s control.


Negligence

Persons injured by intoxicated employees sometimes claim employer negligence. These claims often arise in the context of the office party where an employee becomes intoxicated, leaves the party, and injures another person on the way home. The theory behind this claim is that the employer owed a duty to the injured party to exercise reasonable care and breached or violated that duty thereby causing harm to the injured third party.


Courts have been hesitant to find that employers have a duty of care to third parties except in situations where, for instance, the employer continues to serve drinks to an obviously intoxicated employee. In these situations, the deciding factor may be the employer’s authority to deny alcohol to the inebriated employee.


In another interesting development in negligence theories, a few courts have found that an employer may be held liable to third parties if it has taken action, but which proves to be inadequate, to exercise control over the employee after the employee becomes intoxicated. In other words, if you are going to be a Good Samaritan, make sure you get the job done.


Harassment

Besides personal injury claims, employers are also vulnerable to harassment claims when inebriated employees make inappropriate advances toward coworkers. In fact, the Seventh Circuit Court of Appeals, in Place v. Abbott Laboratories, 215 F.3d 803 (7th Cir. 2001), specifically noted, “office Christmas parties also seem to be fertile ground for unwanted sexual overtures that lead to Title VII complaints.”


The court went on to cite approximately 20 cases where employees complained of harassment occurring at employer-sponsored parties. These cases underscore the potential problems associated with alcohol consumption at any employer-sponsored event.


To Serve or Not to Serve

So what’s an employer to do? Your most conservative policy option is to ban alcohol consumption in all business settings, including holiday parties. However, many may view this prohibition as unduly restrictive or unrealistic, especially for essentially social or team-building functions.

Therefore, a more practical solution may be to have a clear policy statement requiring employees to exercise moderation and good judgment when drinking at a business function. Obviously, for such a policy to be effective, top management must support it and set a good example.

In addition, if your organization decides to serve alcohol at its business functions, your best bet is to manage the situation carefully, enforce certain limits, and require employee moderation and good judgment. The following nine steps can help you do that:


1. Have a clear policy prohibiting the use of alcohol (and illegal
drugs) while working. The policy statement should include any
exceptions you want for business social functions and entertaining.
(Contact HR now! to develop a customized policy)


2. Emphasize that attendance is voluntary and that the function is a
social event so there is less chance that the function will be considered
directly related to work.


3. Make it clear that employees who become intoxicated at
employer-sponsored events will be subject to discipline.


4. Remind employees that work rules regarding appropriate
behavior and harassment apply to employer-sponsored events.

5. Limit the availability and consumption of alcohol by stipulating
that it may be served only for a set period of time.

6. Do not allow supervisors to purchase alcoholic drinks for
employees.

7. Serve substantial food that can offset the effects of alcohol.

8. When possible, hold events at restaurants or other sites not
operated or staffed by the employer.


9. Have a designated monitor to make sure that intoxicated or
impaired employees do not drive themselves home.
Have a tax service on stand-by.


Alcohol, business entertaining, and employee functions are a volatile mix. You need to understand your organization’s needs and responsibilities before setting policy. If you don’t want to prohibit alcohol consumption totally, and then take the above steps to control consumption, require accountability, and limit your exposure.

Discrimination Claims for 2008 Hit A Record High!!!

According to MSNBC; Record numbers of discrimination complaints were filed with the Equal Employment Opportunity Commission:

Discrimination claims filed with the Equal Employment Opportunity Commission jumped 15 percent in fiscal 2008 to 95,402 — the highest level since the agency opened in 1965, said spokesman David Grinberg. That is up from 82,792 claims filed the year before by workers who believe they were discriminated against because of age, race, religion, gender or other reasons.

Keep in mind that the unemployment numbers for 2008 didn't even start to spike until the last few months and this is for the fiscal year ending September 30, 2008. If you were to extrapolate that same trend for 2009, it's entirely plausible that we could exceed 100,000 claims filed in 2009.

Sources say "It's possible we have yet to see the full impact of the recession on discrimination charge filings as the economy continues to spiral downward”.

What is the makeup of these increases? Well, according to the MSNBC report, retaliation claims are up nearly 23%, age claims up nearly 29% and gender and religion claims up 14%. By contrast, race claims are up only 11%, while disability claims are up a mere 10%. Interestingly, Equal Pay Act claims -- which will get a boost from the Lilly Ledbetter Fair Pay Act -- were already up nearly 17% last year, before the passage of that bill.

What Does This Mean For Employers and Small Business Owners?

The EEOC numbers indicate that claims are on the rise..and in a big way. Every decision to terminate or discipline or simply coach an employee carries an even greater risk of a complaint. With jobs becoming more and more scarce with each day, laid-off or terminated employees may view a complaint as their own way to stay afloat and their only option. Disgruntled employees will do just about anything to save their job, if they view it as “in jeopardy”.

These numbers emphasize the point that decisions to terminate employees should be made cautiously and carefully. What are the consequences? You could end up being part of next year's statistics.