With just a few days before one of the biggest holidays of the year, many businesses choose to reward their employees by throwing holiday parties. These festive celebrations can help reward the employees for the company’s good year while inspiring thoughts of togetherness and good cheer. However, how often do we hear about the raucousness of some holiday parties? It seems like every year, there is some national news story about allegations of sexual assault or other wildly inappropriate and dangerous behavior by superiors to subordinates or co-workers to other co-workers (e.g. this story about a supervisor who installed a stripper pole for his employees). Often, these bouts of horrendous behavior are spurred on by alcohol. Many pop culture staples have taken on the “office party” tableau, including The Office and Mad Men. In fact, this year, Dreamworks and Paramount released a movie playfully mocking these workplace gatherings in the appropriately titled, “Office Christmas Party”. While these media mainstays may have us joyfully laughing at the actions of fictitious characters, these events cannot be treated as a laughing matter for employers.
Employers ought to be concerned with the actions of employees who may have imbibed a tad too much at their holiday gatherings. If that employee gets into an accident on the way home from such a gathering, the employer may have significantly more to worry about than terminating an employee with poor decision-making skills. While Courts in the “Live Free or Die” State held that “it is the drinking, not the providing, of alcohol that causes the harm,” duties for employers will still develop if they serve as their employees’ social host. Hickingbotham v. Burke, 140 N.H. 28, 34 (1995).
In New Hampshire, the law focuses on who provides the alcohol and where it is provided. While there is more than one theory of recovery, a quick primer on the law of social hosts and respondeat superior may help guide employers through the holiday season. Consider the following scenario: Smaller businesses may consider buying and providing alcohol to their employees at an office gathering at work to save some money. For peace of mind, these smaller businesses are better served by hiring a bartender for the event and/or renting a separate location. While larger businesses may not have the financial concerns that smaller businesses have the advice applies to them in the same measure.
Without the separation of location and alcohol provider, a business may be looked at as a social host, or worse yet, as holding the party within the confines of employees’ scope of work. Both theories are fact-based inquiries that will target the exact who, what, where, when, how, and why of the party and the alcohol served. If the employer is considered a social host, an injured third party would need to show that the social host placed their guests in such a position that the host “consciously disregarded a substantial and unjustified risk of a high degree of danger” through the (over) provision of alcohol to their guests. Id. at 33. The theory of respondeat superior would require the injured party to prove that the employer imputed upon itself a duty to third parties by holding an office party that was within the scope of the employee’s job, not as an employee individually. See Estate of Thompson v. McClure, 2001 N.H. Super. LEXIS 21, *4–5 (Super. Ct. 2001) (quoting Trahan-Laroche v. Lockheed Sanders, 139 N.H. 483, 485 (1995)); see also Everitt v. Gen. Elec. Co., 159 N.H. 232, 238 (2009) (leaving the door open for recovery under the theory similar to respondeat superior but for unrelated parties). Thus, by having off-campus parties, with separate bartenders, on time or days that are not during work hours, employers separate themselves from the actions of their employees. Employers do well to remember that while third-party liability is difficult to prove, it is not impossible. Thus, it is best to operate under the motto of, “spend a nickel to save a dime”.
Christmas and all the holidays celebrated this season, should be fun events that leave you with happy memories for a lifetime. Unfortunately, these times do not always pan out the way you hope. If you have been injured by slipping on a poorly shoveled walkway, you have had a car accident during icy conditions, the holiday money crunch has left you thinking about bankruptcy, or you are simply considering about divorce, the attorneys at Parnell, Michels & McKay can help.
We seek to counsel people through life’s difficult moments with personal empathy and countless years of legal experience. If you are interested in learning more about some of the topics mentioned in this post, or you have a pressing legal concern, please contact us to learn more. Let us help you get back to having a happy holiday season.