Weekly HR - Avoiding Holiday Liability - Holiday Parties
Weekly HR - Avoiding Holiday Liability - Part 3 of 4
Holiday parties should be a morale booster and unforgettable because of the celebrations and the fun, not as a result of the legal consequences that occur because of poor decisions. In addition, many citizens will ask questions such as is this a good use of tax dollars? Or with a quorum of elected officials in attendance, isn’t this a violation of the Open Meetings Act?
The first question that almost always comes up is in regards to the use of taxpayer money on a holiday party. Keep in mind that although a final determination as to whether hosting such a party would violate the spirit of the public purpose spending restrictions of the Kentucky Constitution has yet to occur, many cities pose a strong argument that such an expenditure is for a public purpose. The touchstone of the public purpose spending analysis requires a determination as to whether the expenditure lends itself to the benefit of the community as a whole rather than a private individual or group of private individuals. The purpose behind the city having a social event for its employees is to boost and maintain employee morale, comradery, and loyalty to the city. Thus, the expenditure could potentially result in improved customer service, a better working environment, a greater ability to recruit and retain employees, and increased productivity. These would, in turn, provide an invaluable benefit to the citizens of your city. Concluding that cities did not have the ability to do this for employees could have the effect of driving public employees away from public service and into jobs where they would feel more rewarded and valued for their contributions - a result that could be harmful to city government’s ability to adequately meet the needs of its citizens.
With regard to the Open Meetings Law, the Attorney General’s Office has long recognized in its decisions and opinions that conventions, training, and other social events are not considered public meetings when attended by a quorum of a public agency AND members of the agency do not engage in discussions of public business. The most recent opinion discussing this issue is 03-OMD-178, which cites 00-OMD-147, 95-OMD-136, and OAG 78-634 as supporting the above conclusion. Keep in mind, that the requirement is that members of the public agency are prohibited from any discussion of public business. A failure to refrain from such discussions would result in a violation of the Open Meetings Law.
Another question that often comes up is whether or not the city can provide alcohol at a social event? As often is often the case with municipal law, there is no black and white answer to this question. There is no case or opinion in Kentucky that is directly on point. However, the city must be satisfied that if challenged, this type of expenditure comports with the public purpose spending requirements of the Kentucky Constitution. Leaving the potential political issues aside, the courts of the Commonwealth have given broad discretion to governmental entities to determine what constitutes a public purpose. As a result, the courts have afforded great deference to the determination of legislative bodies if the public purpose of an expenditure is challenged. In the case of Dannheiser v. City of Henderson, the Kentucky Supreme Court articulated the general rule that "the determination by the [c]ity as to a valid public purpose is conclusive so long as the purpose to be achieved has a reasonable relationship with the public interest."
Ultimately, the answer lies in the sound determination of the city and in its ability to articulate some benefit provided to the public by making the expenditure. Because alcohol has traditionally been a contentious political issue, it may be more likely to come under public scrutiny than other types of expenditures that similarly fall into this "gray area" of the law.
Additionally, cities should consider the following holiday party tips to protect itself and its employees:
- Avoid using religious terms when describing city workplace celebrations. Rather than referring to a party as a “Christmas party,” it should be referred to as a “holiday party” or “annual celebration.”
- Holiday parties often present situations for unwanted sexual overtures that could also lead to complaints of sexual harassment. Employers have a legal duty to prevent harassment at city sponsored holiday parties, just like they have a legal duty to prevent harassment during work hours. Therefore, provide a copy of the city’s sexual harassment policy before the holiday party takes place. Remind employees that holiday festivities do not offer an excuse for violating a sexual harassment policy. If your city does not have a written policy on harassment, this would be a good time to implement one. If you need a sample let us know.
- Invite spouses, significant others, and family members. Inviting employees’ families can change the atmosphere of a workplace party and discourage inappropriate behavior.
- Most importantly, if there is a problem, be sure to deal with it promptly! Every act of harassment or sexual harassment, whether by a co-worker or supervisor, must be taken seriously. Prompt action to stop any further harassment not only exhibits that the employer does not tolerate such behavior, but may prevent certain behavior from being attributed to the employer. Also, a record of consistent and effective response to incidents is important because the employer’s entire record of dealing with such matters is considered when assessing liability.
- If alcohol is served, keep consumption in check. Limiting access to alcohol by placing restrictions on the type served, the time available (such as by closing the bar well before the party ends) or the number of drinks served (such as through drink tickets) may reduce the possibility that employees will drink to excess. Providing food is also a good idea, as it typically slows the absorption of alcohol into the bloodstream. Providing plenty of non-alcoholic beverages is also a wise choice.
- Hire professional bartenders and require IDs from guests who do not appear to be 21 years of age or older. Ask the bartenders to keep their eyes open for obviously intoxicated employees.
- In the event someone does have too much cheer, arrange designated drivers or cabs to ensure that all persons have a safe way to get home. Consider offering incentives to employees who offer to be designated drivers and/or pre-paid cab vouchers to employees.
- Make clear that employee attendance at the holiday party is voluntary and that employees are not required to attend.
- The time and place of the party can go a long way toward setting the tone, and selecting the right ones can help to eliminate problematic behaviors. A daytime event is far less likely to result in excessive drinking, or otherwise result in employees behaving inappropriately. Additionally, an event on a weekday, when employees know they have to work the next day, is likely to be tamer than one on a weekend. As far as location goes, if alcohol is being served at the party, the city may be better off in hosting an event offsite.
For more information, sample policies or questions contact Andrea Shindlebower at email@example.com.
Next week: Avoiding holiday liability … gift exchanges.