After a long year of hard work, holiday parties, whether company sponsored or at a co-worker’s house, can be a great opportunity to get to know your co-workers better and make friends. However, both the employer and the workers should consider the work force as a team and not a family. At a family gathering, some family members may get drunk and spew their views as to politics, religion, or other sensitive topics, and even critique other family members for their countering views. Although such behavior is inappropriate, perhaps the worst that can happen is that they are not invited to Thanksgiving dinner again. However if those individuals act that way with co-workers at a holiday party, they may find themselves out of a job.
Some workers believe that what they do on their off-company time is their own business, yet they are wrong when they are dealing with co-workers. There is no constitutional freedom of speech that prevents an employer from taking action based upon what a worker said to a co-worker. By way of example, as noted in last month’s article on political speech, if one worker demeans and belittles a fellow worker outside the work place about their political views, the employer may decide to take disciplinary action including, but not limited, to firing that worker and would be allowed to do so under New Hampshire and Massachusetts law, albeit the worker may be entitled to unemployment payments.
The employer has an interest in keeping a harassment-free workplace and having a team of workers who work together well. Both under New Hampshire and Massachusetts law, workers are employees at will which means that either they or the employer can terminate the relationship with or without notice and with or without cause other than for certain exceptions, of which acting up at a party or bar with co-workers is not one of them.
Another issue that arises in social gatherings of co-workers, especially when alcohol is involved, is sexual harassment. Employers have an obligation to keep the workplace free from sexual harassment. If the harassing event occurred off premises, the employer still has an obligation to investigate it and, when appropriate, take disciplinary action including possibly firing the accused individual depending if the allegations are proven true and the severity of the conduct. For example, if a worker at a bar gropes a co-worker, he may find himself out of a job on Monday morning even though the conduct was off premises and off the clock. “Hooking up” at a party or bar with a co-worker could also result in a false claim of sexual harassment because one of the participants regrets the conduct afterwards and does not want to admit it was consensual. While the worker may be proven right and not a harasser, most of us would prefer to not be the target of a sexual harassment investigation.
In summary, ‘tis the season to be jolly, but not boorish, snarky, opinionated, or drunk in that not only would that decrease your reputation among your co-workers, but it may result in you being out of a job or, at a minimum, having a setback in your career path because of one night’s bad choices.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at email@example.com.