How much do you know about workplace holiday parties? Take our quiz and find out! As always, the answers appear at the end of each question, so you can cheat all you want, and we’ll never know. If you do well, you’ll get a Secret Santa gift, selected especially for you!

Ready? Here we go:

No. 1: Which major holidays fall between December 15 and January 15?

A. Hanukkah

B. Christmas

C. Ramadan

D. Kwaanza

E. Martin Luther King Day

F. New Year’s Day

G. Valentine’s Day

H. All of the above

I. A, B, D, E, and F.

ANSWER: I. Hanukkah starts on December 18 (a week from Sunday). Christmas is on December 25 (the Sunday after start of Hanukkah). Kwaanza begins on December 26 and runs through January 1, the latter of which is also New Year’s Day. Ramadan is observed in the spring, and Valentine’s Day —

— are you kidding?

Dr. King’s birthday was January 15, and the holiday is celebrated on the third Monday of January. If January 1 falls on a Monday (as it will in 2024), then the second Monday in January would be the 8th, and the third Monday would be the 15th. But usually this holiday would be after January 15.

No. 2: What is respondeat superior liability?

A. When an employer is legally responsible for the negligence of its employee.

B. When a person is sued for answering a question in a haughty (or “superior”) manner.

C. None of the above.

D. All of the above.

ANSWER: A. Respondeat superior liability is a very big deal when an employer has a holiday party or other work-related event where alcohol is served. If an employee acts negligently (for example, drives home drunk on the wrong side of the road and causes a head-on collision), and if a court finds that the workplace party was “in the course and scope of the employee’s employment” (for example, because attendance at the party was required or “strongly encouraged if you want any kind of a future with this company”), then the employer as well as the employee will be liable for any damage or injuries that occur.

No. 3: What are some things an employer can do to minimize its potential for respondeat superior liability in connection with a workplace holiday party?

A. Serve cannabis instead of alcohol, but only if cannabis is legal in the state where the party is being held.

B. Serve Perrier instead of alcohol.

C. Serve alcohol, but provide taxis and hotel rooms for employees who have had too much to drink, and insist that they be used.

D. Serve alcohol, but transport everyone to and from the party in a “party van.”

E. B, C, and D.

F. None of the above.

ANSWER: E. Soda pop would work as well as Perrier, as would any beverage containing nothing more potent than caffeine, sugar or sugar substitute, and/or carbonation. Company-supplied taxis and hotel rooms are also a good option if you do serve alcohol — the only problem is that someone has to determine who’s intoxicated and make sure they take the cab or sleep over. That may require more employee monitoring than is realistic. (Plus, not every drunk is a sloppy drunk, so your “picks” might not always be accurate.) The party van is a great idea because no one has to decide who’s had enough and who’s sober. Just make sure the van driver abstains, and you should be good.

No. 4: Which of the following is NOT a legal risk for employers who have workplace holiday parties?

A. Sexual harassment

B. Theft of trade secrets

C. Workers’ comp claims

D. Wage-hour claims

E. All of the above

F. None of the above

G. A, C, and D.

ANSWER: G. As far as I know, there is no increased incidence of trade secret theft at workplace holiday parties. (I could be wrong.) Sexual harassment claims in connection with workplace parties are, I hope in this day and age, self-explanatory. Workers’ compensation and wage-hour claims may be less so.

If attendance at the party is mandatory or “strongly encouraged,” and if an employee gets hurt at the party, then the injury is likely to be covered by workers’ compensation. That’s because there is usually comp liability if the injury arises out of the course and scope of employment. If attendance at the function is genuinely optional, then maybe not.

The wage and hour issue is similar. If attendance is required, or if employees are pressured to attend, then the employer should consider it “time worked” for employees who are non-exempt under the Fair Labor Standards Act or applicable state wage and hour law. And if that puts them into overtime, then so be it. On the other hand, if attendance is truly optional, then the time would probably not be compensable.

And there is one other wage-hour wrinkle. If non-exempt employees “help” at the party (for example, setting up tables and chairs, or serving), then that is time worked, and they have to be paid for it. This would be the case even if attendance at the party were optional, and even if “helping out” were optional. Non-exempt employees have to be paid for all time that the employer “suffers” (allows) them to work, even if they volunteered for the duty.

PRO TIP: One way to avoid wage-hour issues would be to hold your party during the regular work day.

No. 5: Workplace parties are hard! I liked it better during COVID, when we did our parties by videoconference. Would having a virtual party protect my company?

A. Yes

B. No

ANSWER: B. If you recall, some pretty nasty things happened on videoconferences during the height of COVID-19. For example, drinking that was completely out of control because employees could do it off camera (fictional situation at the link, but it could have happened), inappropriate comments made where everybody on the videoconference could hear them (see same link), and Jeffrey Toobin. So, no, in addition to being not nearly as much fun as getting together in person, parties by videoconference won’t even necessarily protect your company from liability.

Source: Constangy Brooks Smith & Prophete LLP – Robin Shea

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