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The Garden State Law Podcast discusses all things legal in the state of New Jersey. Presented by lawyers from Saiber LLC, the Garden State Law Podcast highlights trending topics in litigation, transactional law, real estate, and more.
Tim Lough 0:03
Welcome back to a very special holiday edition of the Garden State law podcast. I'm your host Tim Lau Joining me today are several Saveur employment law attorneys who will discuss the do's and don'ts of holding holiday office parties. Now our first topic is something that exists outside of the holiday party itself. It's very much a part of the holiday season. And that is Office gift giving. Joining me now is DanaLynn Colao, who is one of the leaders of Sabres employment law practice group, DanaLynn, thank you for joining us.
DanaLynn Colao 0:28
Thank you for having me, Tim.
Tim Lough 0:29
So daylon, what are some of the few key pieces of advice that you would give members of HR and senior management about gift giving and the overall gift exchange, whether it's one on one gift giving, or it's the kind of the general gift exchange exchange that some companies do? At
DanaLynn Colao 0:47
the outset, it's super important to remember that while it's important to encourage participation in any type of gift exchange, just to be sensitive to the fact that not everyone in your organization may want to participate in a gift giving exchange. And there could be a lot of different reasons for it. And it's important not to put any pressure on anyone to participate and respect the fact that they may have their reasons. And that includes even just joking you know about people calling them Scrooge or other you know, potential names, although intending to be joking, it may be offensive to someone, especially because you don't know why they don't want to participate, you know, maybe they're just very, very busy, you know, the holidays is such a busy time of year. Or maybe it's just a very stressful, anxiety provoking time of year for them, maybe they've lost a loved one. And unfortunately, a lot of people do suffer from depression around the holidays. So we just want to be sensitive to that, you know, the point of a gift exchange is to be fun and an enjoyable activity. And it can be for those that want to participate. And so in one way to maybe eliminate some of the stress that might be associated with it is to take really some time and think about your organization, and you know, what might be an appropriate type of gift exchange, and, you know, even just the selection of the recipient, and how you go about doing that can be important, you know, maybe making it anonymous, so that no one feels pressured, you know, encouraging people to keep who they receive anonymous, and not engage in gift swapping, saying, Oh, I don't want Bob, you know, you take Bob, like, I'll take Mary, you know, because you know, that can make Bob or Mary feel badly. And again, I know, that's probably not your intention, but we just want to be sensitive to make sure that the activity is a positive one for everyone.
Tim Lough 2:29
So in terms of providing advice, or guidance, in my experience, HR advice for holiday parties, and gift giving has always been very informal. What are your thoughts as to providing formal advice or informal advice to your employees?
DanaLynn Colao 2:46
Again, this will, you know, have to vary based on your organization. And some people will be like, Oh, seriously, we really need a policy on gift giving, like, where's the fun in that. And you know, you're not trying to take away anyone's fun. But you also for the reasons that I just identified, you want to be careful about how you go about carrying on any activity within your organization, because it is still a professional place of work. And we need to be mindful so that we don't inadvertently offend anyone or upset anyone. Because unfortunately, as I've seen, in my 25 years of practice, even little things can result in legal claims. And so having some strict or more specific guidelines really is really all that I would suggest, you know, even just about the gifts themselves, because while we all think that as adults will exercise good discretion and picking good gifts for people, not always the case, you know, we all have a different sense of humor. And so sometimes those gifts are not appropriate for the workplace.
Tim Lough 3:45
So I know, price is a concern for a lot of people, especially those who don't really want to be participating this in this to begin with, I think people try to be good sports, but we want to be sensitive as well to prices and proposed prices. So what are your thoughts on setting proposed prices or caps or maximums in the workplace?
DanaLynn Colao 4:05
Sure, I think it's an excellent part of the guidelines is to have some sort of price limit, you know, I would I would limit the types of gifts like you know, we want to prohibit you know, gifts that have any kind of like sexual innuendos or offensive language or would otherwise be inappropriate, as well as alcohol because that can really be inappropriate, we don't really know what everybody's background is and affiliation or comfort level with alcohol is so I would avoid that in the workplace. And then setting a good time. Cost is very important because we you know, if you just say a token gift, that can mean a lot of different things to different people. And presumably you'll have people that will be participating with different financial resources and you know, we don't want anyone to feel compelled to spend more money than they're comfortable with and imposing burden on them. Or we don't want someone to maybe give a gift that's far more expensive than the gift that they receive and then that will also you know, leave them feeling you know, on uncomfortable and maybe not happy that they even chose to participate. So just having some guidelines will help eliminate some, you know, awkwardness, maybe among the employees, as well as just ensure some consistency, and how the whole event runs.
Tim Lough 5:14
Finally, when we think about venue, and where and when we're doing this, I mean, I've been a part of many of these gift exchanges in the past, and sometimes you're in a room of 3040 people, and everybody is watching you open up a gift, there's a certain amount of pressure, I think, on people to make sure that you're gracious and whatever. And I can imagine, well, I've never experienced myself that there can be, it can be very anxiety provoking, and a variety of different things and feelings and emotion. So do you have any suggestions or thoughts as to the venue and how gifts are exchanged as well
DanaLynn Colao 5:46
Keep in mind how big of an you know an event this is going to be. But I think oftentimes it might be best if you arrange for the gift itself to be left at the person's workstation or desk, with a note obviously from the person who purchased it, so that they can open that gift in private. And whether they love it, they don't like it, or they're uncomfortable by it, it gives that person a moment to kind of experience the moment themselves without being on display in front of a roomful of maybe 50 or 100 people. And then I would organize some sort of common meeting place for everyone that participated in the exchange to meet up shortly after maybe they open their gifts so that they can say thank you to the individual, you know, have a cookie, maybe some hot chocolate, much like we would leave for Santa, you know, before you go to bed at night. So something that would just assimilate a little festivity without having someone be on display. Because I do think that, as you said a moment ago, it can be a little bit awkward to open a gift in front of others. And when picking that general common area to have that little nice festive exchange, you know, thank you exchange later, just be mindful of those in the organization that didn't participate. We don't want to make them feel badly. So just make sure it's sufficiently isolated or, you know, off to the side, not in the middle of your bullpen, so to speak, if you have such a thing so that everyone that didn't participate doesn't feel badly. Well, thank
Tim Lough 7:13
you very much, DanaLynn, I hope to have you back on the podcast soon.
DanaLynn Colao 7:16
It was my pleasure. Thank you for having me, Tim.
Tim Lough 7:18
Joining us now is our first recurring guests, Vince Cirilli, Vince, thank you for coming back to the podcast.
Thanks, Tim.
So Vince, you and I will be discussing alcohol and the impact of alcohol on holiday parties. And I think it's safe to say that a lot of the issues that arise from holiday parties can be directly attributed to the consumption of alcohol. So employers need to be mindful of how they go about this process. So can you take us through, you know, maybe provide us a few recommendations as to what employers should consider when serving alcohol at holiday parties?
Vince Cirilli 7:56
Sure, and look not to be a buzzkill. Pun intended, not regretting that at all, the first step I would say is to just limit alcohol consumption. And there are a couple of ways you can do that. One way is to hire a professional bartender or go to a place where there is a liquor license, because that bartender will then be able to limit the amount of alcohol being served, you don't want any self service going on at your holiday parties.
Tim Lough 8:23
Even if he is bringing somebody and if you're hosting internally, right, you could bring in a bartenders.
Vince Cirilli 8:27
Right. And, and the benefit of that is also you get better drinks. But that's not the that's not the point of this podcast. Another suggestion that I would say would be to, you could implement something like a drink ticket system, give everyone a couple of tickets. That also has, it's a simple way of ensuring that no one drinks in excess. Any other tips? Well, I mean, other than limiting the amount of alcohol being consumed. Another suggestion would be to serve food at your holiday parties. It's something that I would prefer, you don't want to have people drinking without also supplying food because food limits or slows down the absorption of alcohol into the system. So you definitely want to have some food there. And you also want to just make sure that you're monitoring employees to make sure that no one is also drinking in excess. You could have dedicated monitors, or everyone could just just be on the lookout for one another make sure that no one is drinking too much. You could do you could also implement a last call system. So maybe an hour before the party ends. You could just stop the flow of alcohol. Give everyone a chance to sober up before everyone heads on.
Tim Lough 9:46
Now how about timing? I know from personal experience our own firm when we host our holiday party, we have it earlier on in the day. It's usually starts at 12 One o'clock it goes a couple hours and I think that curbs people, keep people's drink To a certain extent, whereas when you start at eight or nine o'clock, people might say, like, Well, I'm here for the evening, I'm gonna stay for as long as I can stay. Any thoughts on timing and the time of day or, or you know that, right?
Vince Cirilli 10:12
I think the time of day like psychologically has a big impact. So if you're having the party in the middle of the afternoon, or the early afternoon, people just might be less inclined to drink copious amounts of alcohol, as opposed to hosting the party at eight, nine o'clock in the evening, on a Friday night, before the weekends, now you're looking at a whole different set of circumstances and behaviors can can change.
Tim Lough 10:33
One other thought, you had mentioned food before. Food right off the bat, too, I think is important as well, because sometimes you have an open bar and you have a cocktail hour, an hour or two before food shows up. And the ball is already rolling for a lot of people. I know at our firms holiday party. When we get there, there's already kind of kind of some appetizers that are set up. So people are eating right when they grab their first drink that kind of curbs things as well. And I don't think that's always something that's considered it's like, alright, we'll have an hour or two where people are just kind of hanging out mingling, have some drinks, and then we'll bring out dinner. Having something right off the bat, I think probably makes sense as well.
Vince Cirilli 11:09
Yeah, you don't want to serve alcohol without the Yeah, that it's a pair. Yeah, I have one with athletes.
Tim Lough 11:17
So at holiday parties, people are drinking, even when people are being responsible, there's still other considerations as to what the employer should be doing. And the other thought is, we've got to get people home now. And, you know, as much as we hope that people will be very responsible, you can have a drink, leave it at that and then have a drive home. That's not a problem. But when people started having multiple drinks, there is the concern of drinking and driving thoughts as to transportation and providing transportation home, especially in rural areas, suburban areas where there's not a bus or there's not a train that people can go grab. And they have someone has to be driven home. Thoughts on transportation and alcohol.
Vince Cirilli 11:59
So the goal is to try to discourage your employees from driving to and from the holiday party to the extent possible, and there are a few ways you can do that. One is to provide transportation to and from the venue. Another suggestion would be to encourage your employees to use a service like Uber or Lyft. Maybe through the use of gift cards to the to your employees. Or if you don't want to do that your employees can you can offer to reimburse your employees for public transportation costs or other transportation costs to get to and from the venue.
Tim Lough 12:33
Well, thank you very much, Vince, I hope to have you back on the podcast again soon.
Vince Cirilli 12:37
And I'm expecting that limo service.
Tim Lough 12:39
Perfect. Thank you. We are now joined by Jack Losinger, another recurring guest of the podcast to talk about sensitivity and harassment in the office as well as at the holiday party. Now, Jack, when I think about inappropriate behavior around the office, the holiday party, I often think that people aren't even don't even realize they're being inappropriate. So what are some tips that you might give employers leading up to the holidays and the holiday season before they were even at the holiday party is how to remain sensitive in the workplace?
Jack Losinger 13:09
Well, Tim, I think the one kind of obvious thing is to make sure that the holiday party or any sort of holiday celebration is not focused on religious aspect of the holiday. Obviously, there are, there may be some employees who don't celebrate a particular religious holiday or don't celebrate a religious holiday at all. So it's important to to keep it neutral. And keep in mind that not everyone celebrates a religious holiday around the holiday season. I think it's also important to keep in mind that for some employees, the holiday season may not be a particularly joyous time of year, maybe due to the loss of a loved one, or some other personal situation where the holidays are just kind of a drag. And it's not that fun for them, for whatever reason, and they aren't that interested in wearing an ugly holiday sweater, or participating in gift exchanges, or doing these types of things which some people love. But as an employer, you have to be mindful of the fact that there may be some employees that don't love these things and aren't interested. And you have to be mindful of that. And don't put those employees in a situation where they feel as though they have to engage in these activities in order to fit in or make the make the boss happy.
Tim Lough 14:26
I would imagine that a lot of these gatherings even prior to a holiday party, must be anxiety provoking for a lot of people. And that's something that's mental health is way more in the forefront nowadays than it ever was. And you see some of these events that we do and there's pressure put on people to put on a holiday sweater or to participate in a certain event. So I guess the main takeaway is just offer this, you know, offer these festivities offer some of the fun and then if people don't want to do it, just leave them alone.
Jack Losinger 14:54
That's exactly that's exactly right. Tim, I think that there are people that just don't want to be be the center of attention to where the funny sweater or have the pressure of thinking of a Secret Santa gift that everyone will like. And that can be difficult for people and some people just don't want to participate in that. And that's fine. That doesn't mean that this employee is a Grinch, or that they should be made to feel bad for not participating. That's their choice. And employers need to respect that.
Tim Lough 15:25
So let's turn our attention to the party itself. There's a lot of opportunity for things to go wrong. People are drinking having a good time. How do we best instruct our directors, our members of management or employers in general, how to remain sensitive at this the actual holiday party.
Jack Losinger 15:43
It's important for an employer to take a step back and think about what's the purpose of the holiday party? Why are we having this party. And the purpose should be to give the employees an opportunity to engage with with one another in a less formal setting than the workplace, it should be something that we're together, we're not in the office, and we can interact with one another in a, you know, less formal environment, you don't want to have a situation where the purpose of your holiday party is to encourage your employees to loosen up. Not all employees want to loosen up in a workplace setting, even though we're maybe not in the office where at some restaurant or some other place, many employees don't feel comfortable loosening up, and you know, engaging in banter with the boss. And that's okay, and that needs to be respected. And what we often see with holiday parties is not so much that managers are forcing people to engage in, quote, unquote, loosening up, you know, have a drink, you know, come standard mistletoe with me, we don't see that very often. But we do sometimes see is an outside vendor, like a DJ, or the leader of the band or the emcee at the party isn't thinking about this, as an employer, he or she is thinking about it as the person who was hired to get the party going. And then that person is saying, Hey, you come on and get up here on the dance floor. Hey, you, you know, a song comes on and there's some sexual innuendo to the song and the DJ makes a comment about people who are dancing on the dance floor, then you've got a problem, then this has become a situation where people are being pressured to act in a way that may make them feel uncomfortable. So I think it's important for the employer to think about, we're bringing in this vendor, we need to make sure that they are acting appropriately and understanding that this is a work function. This is not an 11pm party event, this isn't a wedding, this is still a work function where people can have a nice time in an informal setting. But it's different than a traditional party.
Tim Lough 18:07
So it really goes back to communication. I think this often does within employment and employment law. I didn't think about even communicating with your vendors specifically that hey, just keep in mind, this is not a birthday party. This is not a wedding, this is a holiday parties, corporate holiday parties seem to act appropriately. But also I'd imagine there's a certain amount of communication with your management as well, that they need to be mindful of all the employees and how they feel, and that you need to communicate properly to those who can be put in the position to make the field people feel uncomfortable. So it all goes back to a manner of communication.
Jack Losinger 18:43
That's absolutely Tim, the it's very important for managers to understand that they should not be putting employees in a position where they feel as though they need to participate in something to make the manager feel satisfied that they're having a good enough time. Some employees may want to just sit quietly in the background, and that's fine. They don't want to be boisterous and they don't want to be dancing and they don't want to have attention drawn to them. And that's okay. And managers need to be mindful of not pressuring those employees to act in some different way.
Tim Lough 19:18
Okay, well, thank you very much, Jack. I appreciate the insight.
Jack Losinger 19:21
Thank you, Tim.
Tim Lough 19:22
Joining us now is Saiber litigator, Caroline Braga, Caroline and I are gonna chat a little bit about the holiday after party, which I know is one of the highlights of the holiday party for many people. However, it goes without saying that the holiday after party can be problematic for many reasons. I don't want to rain on anybody's parade here today. But I do think that from an employer's perspective, sponsored after parties are probably something we should avoid. So currently, let's start there. Why our firm hosted after parties from the holiday party a bad idea,
Caroline Braga 19:51
there's many reasons. Just first of all, your holiday party is a work related event, right? So you're sponsoring The holiday party and you're likely to be liable for anything that goes awry at the holiday party. And the after party is an extension of your holiday party, which you may also incur liability for anything that goes awry there. So you don't, you don't want to be putting yourself into trouble and adding more liability or incurring any trouble for yourself.
Tim Lough 20:21
So is this something that you would recommend that employers actively do not sponsor and make known that they're not sponsoring?
Caroline Braga 20:30
For sure, first of all, an after party, you have no control of what's going on. You don't know what's happening there. So you don't want it to happen. So as a recommendation, make sure that you're not, you're making it clear for everyone that you're not sponsoring the after party, you're not condoning people go into this after party, you want to make sure your managers and leadership are not attending the after party, you don't want to set an example of like, hey, my boss was there, you know. And you can do things to deter people from going if let's say it happens, you can discourage people from going by making sure that your alcohol intake at the holiday party is limited, giving tickets to people to per person, making sure that the bar is closed, like an hour before the party ends, or even hosting your party on a weekday. During the day, you know, people are less likely to get rowdy on a Monday afternoon or like a noon party. So there are things you can do to deter people from even attending or creating an after party as well. Sure. So
Tim Lough 21:33
is this one of the things that we're overthinking? Do you think to a certain extent, and that we are maybe a little too cautious at times? Or are there instances where we can point to quickly where, ya know, bad things happen in lawsuits are filed, and it's not worth the risk?
Caroline Braga 21:52
I think we're earning on the side of caution here. You don't want to like willfully put yourself in a position where you're incurring liability and opening yourself up to be liable for something that could be really bad. I mean, a simple Google search will lead you to find many lawsuits that were filed from things were happening at after parties like assault or like public intoxication, disorderly conduct, drunk driving. So these are things that you know, if you can avoid it, just don't, don't make it happen.
Tim Lough 22:21
One thing, I think we should be clear, as we had mentioned, sponsoring a party, correct. That could mean really anything, right? That can mean organizing, formally, that can mean paying. So you may there could be an instance where a manager, the firm, or a company may say we're not doing an after party, but someone in management can show up with their credit card and say like, I'm going to expense this, this is on us. And that can be considered sponsoring as well. So we really need to be clear about Sure. It could be construed in a lot of different ways. So we have to be hyper careful.
Caroline Braga 22:52
So like you for sure. Don't want to be the firm that's like, yeah, we're, we're the company that is like yes, join the after party, you definitely don't want that you want to make it clear that you're not sponsoring the after party, that you're not involved with the after party. You want to deter people from hosting an after party, because you can make it clear, and then you're at the holiday party. And people are like, Yeah, after party down the street at the pub. So you want to make it clear that you're not sponsoring condoning that, that you don't want that to happen. And you want to make sure that your leadership leadership and people in executive were roles managers, all the above are not setting that example of showing up at the after party paying for the after party, because these are all things that could lead you to be liable for something that goes wrong.
Tim Lough 23:35
So key takeaways, I think they're pretty straightforward, right?
Caroline Braga 23:38
Don't sponsor. Make sure you make it clear that you're not sponsoring anything related to an after party. And don't attend... don't show up to the after party as someone in a leadership role or even if you're an employee, just don't show up.
Tim Lough 23:54
Thank you very much, Caroline for joining us. I appreciate you being here. Thank you to all of our listeners and watchers and we will talk to you soon
Transcribed by https://otter.ai