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Workplace Holiday Parties
How to Avoid an Expensive "Hangover"
By Vikita Poindexter, SPHR
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Holiday parties - what could go wrong? Food, employees, booze, loosened inhibitions, driving. As it turns out, plenty can go wrong.
Just like mom always said, it's all fun and games until someone gets hurt, and the odds of someone getting hurt (and/or sexually harassed) increase exponentially anytime you host a booze-soaked shindig for your workers. Even if you're extremely careful about serving liquor, or avoid it entirely, you still take on a lot of responsibility and potential liability when you assume the role of party host.
The holidays themselves are a time of increased stress, as well as cheer and merriment. Combine stressed employees, alcohol and an event hosted outside of the office? Wouldn't you know it, a whole string of liabilities seem to pop up. Employers and employees alike can access a tremendous amount of resources without ever leaving the office.
We often point out the obvious risk associated with holiday parties-- sexual harassment. If employers are not aware that mixing alcohol with co-workers in a festive setting can be a recipe for harassment claims, that employer probably has larger HR issues than just those arising at the holiday party.
Here are other issues for employers to be aware of. They fall into two categories, both, not surprisingly, may relate to alcohol.
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Drinking and Driving
At many holiday parties alcohol in one form or another is served. Most employees will behave responsibly but experience dictates that some will get intoxicated. If the employee then gets into an accident on the way home will the employer be held liable for any resulting deaths, injuries or damages to property?
Until recently or so, the answer under most states’ laws generally was "e;no."e; There are some courts though, that are finding legal theories under which employers may be held responsible for injuries caused by an employee who drinks at a business function, such as an office party and then drives while under the influence. Other times these claims are handled under "dram shop" laws which impose liability on a commercial establishment for selling liquor to an intoxicated person.
The law varies greatly from state to state. Employers with offices nationwide should be aware that some courts have extended the social host theory to employers and imposed “business host” liability. Nevertheless, an employer ought to be concerned about being liable for injuries to third persons caused by an employee who gets drunk at an employer function and then drives. For this reason, putting limits on alcohol being served may be a good tool for the employer to use at such parties.
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Workers’ Compensation Claims
Suppose a drunken employee falls down while doing the Electric Slide, or takes a tumble down the stairs? Will workers compensation apply? Some workers’ compensation laws impose liability on employers for injuries to employees which arise out of and in the course of their employment, without regard to the fault of the injured employee.
Holiday parties can be a major liability risk for any employer, whether they are company-sponsored or impromptu gatherings of employees.
Employers who serve alcohol at company-sponsored events may be liable, if an employee chooses to drive under the influence and causes an accident, according to the U.S. Department of Labor. Some companies have been held liable for fatal accidents when the courts ruled that employees attended the parties within the scope of their employment.
When parties are held on work premises, or during work hours, an employee who is injured may be eligible for workers’ compensation. This is true whether the party is officially sanctioned or a spontaneous gathering of coworkers.
In one extreme example, a Chicago-area boutique employee suffered a spinal injury at a holiday party in a local bar. The employee was dancing with her boss’ husband when the inebriated man tried to lift her off the floor and twirl her around. He dropped the employee, who hit her head on the floor. Because the accident occurred at a company-sponsored event, the court ruled that it was “within the scope of employment” and the worker collected a multi-million-dollar workers’ comp settlement.
According to the National Highway Traffic Safety Administration or NHTSA, each year employers pay more than $9 billion for accidents by employees who are under the influence of alcohol.
Many employers are cutting back on holiday parties this year as a cost-saving measure. There are guidelines that employers can implement to limit liability and encourage responsible behavior at employer-sponsored or impromptu holiday parties.
Implementing these guidelines can reduce the risk for employers. These guidelines include extending the workplace substance abuse policy to include any work-related situations or employer-sponsored parties, including office functions.
Employers should also remind managers that they are on duty and must supervise employees’ actions even during parties. Many companies have switched to events at local venues that do not serve alcohol, such as amusement parks or a volunteer activity with a local charity.
If alcohol is served, make sure plenty of non-alcoholic beverages are also available. Encourage responsible drinking and have designated drivers on hand. Employers should offer free taxi service to any and all. Employers should consider providing drink tickets after which time the employee must pay. For example our firm provides two free drink tickets per person after which time it is on the Employee's dime.
If you are planning a holiday party and you would like to implement guidelines to reduce your potential liability, contact Poindexter Consulting Group, Inc. at (951) 926-9069 or visit us in the web at www.pcghr.net for all your Human Resource needs.
Vikita Poindexter, SPHR is the CEO of Poindexter Consulting Group, Inc. a Certified Management and Human Resources Consulting firm committed to providing the total Human Resources infrastructure your business needs to succeed in today’s complex work environment. With over two decades of experience, our team understands the intricacies of labor law, workers compensation claims, Americans With Disabilities Act (ADA), sexual harassment training and prevention, EEOC complaints and compliance, training and development, conflict resolution, discrimination claims, Family Medical Leave Act (FMLA), employee benefits, recruiting and so much more. The rules and regulations governing human resources change constantly. Let us interpret and assist your company in implementing what in many cases are complex, confusing and seemingly contradictory requirements. Poindexter Consulting Group, Inc,. A Partner You Can Trust.
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WILL THE STIMULUS PACKAGE HELP YOU?
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What a year! The economic mess that began in December of 2007 shows little signs of letting up if you're one of the unfortunate souls standing in the unemployment line. When this recession bottoms out is anybody's guess. Some say the last quarter of 2009, others say mid-summer of 2010. The stock market in recent weeks has begun to show a pulse, but even that barometer does not accurately foreshadow an improving employment future. So how do you get through this rough patch?
Earlier this year, President Obama signed the American Recovery and Reinvestment Act. This was the first part of a larger strategy to give the nation's economy a boost. While it's too earlier to gauge the Act's impact, the Obama Administration and several state governor's are optimistic this package will give the economy a much needed shot in the arm. Part of this stimulus has provisions employers and employees should be aware of.
For starters, most middle class taxpayers should be receiving reduced federal withholding---meaning less taxes and higher paychecks. This provision is set to go into effect in June 2009, but many employers have already made the adjustments. Workers making less than $75,000 a year ($150,000 for couples) will receive $400 per individual or $800 per couple. This amounts to approximately $13 per week in additional income per worker.
For those making between $75,000 and $95,000 you will be receiving a prorated tax deduction. While all of this may not seem like much, every extra dollar counts in a tight economy.
Anyone who has suffered the indignity of a layoff knows the cost of medical benefits under the Cobra program is like getting a second punch in the gut. Cobra is simply the most expensive healthcare on planet earth. The Obama administration and members of Congress recognize the problem and have addressed it as part of the stimulus. Certain employees affected by involuntary termination or layoff between September 1, 2008 and January 1, 2010 will be eligible to receive a 65 percent subsidy on Cobra premiums. This 65 percent subsidy will be paid directly to the employer in the form of a payroll tax credit.
Employees who lose their jobs to foreign competition will also be eligible for the Cobra subsidy if their former employer has applied for relief under the Trade Act of 2002. This subsidy is available until the employee becomes eligible for another employer-sponsored health plan or for a period of nine months, whichever comes first. Employees who earn more than $145,000 a year ($250,000 for couples) are not eligible for this subsidy.
Ok, confused yet, well let's move on to unemployment benefits. The stimulus package extends unemployment insurance benefits for nine months. That's an additional seven weeks of unemployment.
The stimulus package also increases by $25 a week the amount paid out in benefits. It's important to note that federal involvement in the funding of unemployment benefits ends March 10, 2010. That could mean more changes to the program next year to include losing the extra $25 a week increase in the current stimulus package. While nothing has been decided on that front just yet, stay tuned for further announcements as we approach the termination for federal involvement.
I have heard complaints for years from unemployment recipients about being taxed for receiving these benefits. I can hear it now. "I paid into the system while I worked and was taxed then, now when I'm most desperate they want to tax me again." Well, here's a little good news, unemployment recipients will not be taxed on the first $2,400 of unemployment insurance funds they receive. While it's not much, any extra dollars in your wallet helps.
And finally, the stimulus package includes something called the Employ American Workers Act. This program forbids employers who receive funds under the Troubled Asset Relief Program (TARP) from hiring additional H1-B foreign workers unless the employer has complied with the H1-B dependent employer rules.
What is TARP you ask? It's the $700 billion program passed by Congress last year to bailout mainly troubled financial institutions. The easiest way to remember TARP---think bank bailouts.
For those of you unfamiliar with H1-B visas, it's a program whereby U.S. employers are allowed to temporarily employ foreign workers in specialty occupations.
Employers have 90-days to certify that no laid off U.S. worker can fill the position of a person hired under the H1-B program. It's meant as a safeguard to hire Americans first.
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Male Employee Awarded $2.4 Million for Sexual Harassment Retaliation
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Most publicized cases of sexual harassment involve a female victim. Well, the case of James Stevens proves sexual harassment is a two-way street. Stevens, a former inventory clerk at a Vons store in Simi Valley, alleged that manager Laura Marko had harassed him and other employees by making sexually explicit comments. After Stevens complained, Marko claimed Stevens was a pervert, and he was harassing her at home. Vons conducted an investigation and found Marko's claims were unfounded.
Stevens was transferred and eventually fired from Vons for making $76 worth of donations in the form of expired coffee and filtered water to a church without authorization---a donation Vons routinely made to the same church.
Stevens pursued legal action, concluding that his firing was in retaliation for the sexual harassment allegations against his former boss.
A California jury agreed and awarded him $18.4 million, later reduced to $2.4 million on appeal.
So what did Vons do wrong?
To find out, join Poindexter Consulting Group on June 18, 2009 at the Temecula Valley Chamber of Commerce for an in-depth training session on Sexual Harassment.
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2009 Brings New Legal Challenges for Employers
Are
you Prepared?
by Vikita Poindexter, Poindexter
Consulting Group
It’s not easy being an employer in California.
Disgruntled employees and their big shot lawyers bend
the legal system in ways totally unimaginable to the
average employer to extract revenge, even when it’s
unwarranted. These lawyers are often preaching to
sympathetic California jurors famous for their
generosity to fired employees. Creative interpretation
of state law is an art form in California leaving all
employers at the mercy of ever-higher jury awards, even
if the employer is in total compliance with federal
laws. Make even one little employment mistake, and in
this era of gotcha journalism your organization is
plastered all over the evening news or in the local fish
wrap. Here’s why; attorneys used to be satisfied with
suing employers under well defined federal laws like the
ADA, FLSA (Fair Labors Standards Act) and the FMLA. Not
so any more. In steps California with even stricter
compliance standards than the federal government. That’s
fertile ground for a creative legal mind to find a
reason to sue.
And just when you think it couldn’t get any worse
here comes 2009 and a whole new set of challenges for
the employer. Yes, you guessed it another round of new
laws to further protect that disgruntled employee. How
can an employer stay on top of the constant changes in
the law?
In an already tough economic climate one
innocent mistake and you could be adding your name to
the ever-increasing unemployment rolls. Are you
prepared? As an employer you must remain vigilant to
protect yourself from what you may think are frivolous
lawsuits. Trust me, the people who are filing these
lawsuits don’t think they’re frivolous and neither
should you no matter how unwarranted they appear on the
surface.
While 2008 saw just a handful of new state laws—it
was eventful on several legal fronts. It saw the passage
of a bill making massive changes to the Americans with
Disabilities Act, a historic economic bailout bill
contained some workplace-related provisions that you
might not be aware of, a landmark law barring genetic
discrimination, and changes to family and medical leave
rights. The California and United States Supreme Courts
were busy, too, issuing a range of decisions affecting
employers concerning non-compete agreements, age
discrimination, medical marijuana, and retaliation.
Here is a list of new changes impacting employers for
2009
• The ADA Amendments Act of 2008 (ADAAA)— one of
the most sweeping pieces of employment legislation in
the past decade
• The newly amended California
overtime exemption for certain computer software
professionals
• The Genetic Information
Nondiscrimination Act (GINA)—designed to curb the abuse
of genetic information by employers and insurers
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The two new types of workplace leave for family members
of military personnel
• The Financial Bailout Act of
2008 and its changes to employer-sponsored healthcare
plans
• SB 28: Don’t text and Drive
• AB 10:
Computer Professional Exemption
• AB 2075:
Limitations on Wage Releases
• SB 940: Payment for
Temporary Services
• Usage of medical marijuana as a
protected class
• Mandatory Paid Sick leave
•
Rollback of 2004 Workers’ Compensation Reform
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Legislation further limiting designation of individual
as independent contactor
• Amendments to ADA
•
Increase Minimum Wage to $9.50 in 2011
• Applying
FMLA to employers with 25 or more employees
• I9
Changes effective April 3, 2009 just to name a few
Wage and Hour Case Update - The Trilogy
Continues
Brinker and Brinkley: The Saga
Continues
Brinkley v. Public Storage, Inc., which
held that employers are required merely to provide
employees with meal and rest periods, not ensure that
employees actually take them.
The Brinkley decision came on the heels of a Division
of Labor Standards Enforcement memo adopting the
rationale of the appellate court in Brinker Restaurant
Court v. Superior Court—which, like Brinkley, held that
employers do not have a duty to ensure that employees
take their meal and rest periods.
Meal and rest period ambiguity got you down? Last
September, the California Supreme Court agreed to review
the Brinker decision. And now, it has also decided to
review Brinkley—which means that you cannot rely on
either Brinker or Brinkley for guidance until the
Supreme Court has issued its rulings in these cases. The
Court is schedule to begin reviewing Brinker sometime
this week. Given the uncertainty surrounding meal and
rest periods, employers should err on the side of
caution by strictly following meal and rest period
rules, implementing a clear meal and rest period policy,
and by diligently ensuring that employees clock in and
out for their meal periods. It is imperative that if an
employee works 5 hours or more that they are entitled to
a 30 minute unpaid meal period. Timekeeping procedures
are critical in fending off any FLSA claim. (Fair Labors
and Standards Act) An employee needs to clock in for the
day, out for lunch, back in from lunch, and out for the
day. Now that you are thoroughly confused, let’s make it
even more complicated…
Anyone who deals with payroll has probably gotten a
headache or two trying to understand out how bonuses
figure into overtime calculations. Under both state and
federal law, non-discretionary bonuses must be included
in an employee’s "regular rate of pay" in order to
calculate overtime pay. Unfortunately, differences
between federal regulations and California law have long
made determining the regular rate a confusing process. A
recent California appeals court decision provides some
guidance for employers—well, sort of.
In Marin v.
Costco Wholesale Corp, employees brought a class action
lawsuit alleging that Costco’s method for including
bonuses in overtime calculations violated California
law. Costco rewarded its long-term employees with
semi-annual bonuses, provided that the employee remained
in Costco’s employment at bonus time and had worked at
least 1,000 hours in the six months preceding the bonus
cutoff date. Because the bonuses were paid
semi-annually, the overtime calculation pay-rate had to
be done retroactively when the bonuses were paid, as
required by state and federal law, rather than for each
employee’s weekly paycheck.
Obama’s First
Move—Signing Equal Pay Bill
On January 29, 2009,
President Barack Obama, in his first official bill
signing, signed the Lilly Ledbetter Fair Pay Act into
law. This law essentially makes the practice of
gender-based pay discrimination illegal.
You can bet
some attorney in California is chomping at the bit to
bring the first case on pay discrimination to court.
Keep in mind we have a new administration and a new
attorney general who has pledged to fight this and other
forms of discrimination. If its been elevated to a
prominent position in the U.S. Attorney General’s
office, you can bet state and local authorities will
have their eye on it as well. The burden is now on you
the employer to prove that pay disparities are not
gender based and prohibits retaliation against employees
who raise pay discrimination complaints. In dealing with
ANY employment issue, follow the time tested philosophy
that an 'ounce of prevention is worth a pound of
cure.'
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LABOR LAWS: Struggling companies that slack off on following the rules could be courting some risky business, experts say.
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http://www.pe.com/rss/business/stories/PE_Biz_S_wageshours25.1cd6ad1.html
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