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By MATTHEW BRODSKY, senior editor/Web editor of Risk & Insurance®

OK, maybe a full-blown risk map isn't necessary, and the holiday party doesn't need to be brought up at the next board meeting for the enterprise risk management committee to contemplate.

"Dropping trow and taking pictures of your privates never gets old," Enzo Der Boghossian put it.

As a partner in the labor and employment law department at Proskauer Rose LLP, Der Boghossian has heard too many anecdotes of such idiocy to share. There are the "unfortunately frequent" occurrences of people imbibing beyond the limits of their restraint and then expressing unrequited love to colleagues. More recent stories involve employees sexting (or sending explicit text messages) to another party attendee, sometimes with photos attached of the aforementioned dropped trow.

Good lord, employees anymore don't even need face-to-face contact, let alone empty-office contact, to cause mischief with each other at company festivities.

It's all holiday fun and games until somebody loses a lawsuit, however.

According to Der Boghossian, some employers fail to appreciate the risks of an office party until a claim arises out of one. It could be an industry thing, with those in the more creative industries being more carefree. Some employers, particular his clients, he stressed, are proactive about understanding that the company's usual "rules of engagement" for employee conduct should be uniform for all occasions and seasons.

Steve Miller, a partner in the Chicago office of Fisher & Phillips LLP, has clients who are concerned about the risks too, though he's not receiving a call every day of December from anxious employers.

For most clients, alcohol is the main worry. Here, perhaps the easiest solution is not to serve at all, but that decision is based on the corporate culture and whether the party is on-site or offsite, said Miller. If an employer decides to serve alcohol, then Miller recommends such common-sense tips as hiring a third-party bartender, encouraging the use of cabs, limiting the amount of drinks given to party-goers, serving food to function as a booze sponge and designating someone as the sober monitor to "be helpful at the end of the night."

Another great tip for taming the wilder urges: spouses.

"Theoretically ... bringing in the spouses tends to make the event more formal, if you will," Miller said.

For clients, Der Boghossian created a list of tips for mitigating the risks of the holiday party, many of them echoing what's already been said about booze. An additional one is to have the party at an outside establishment with its own liquor license and bartenders, as well as instructing that establishment before the party to refrain from serving anyone visibly intoxicated.

"It does help create an additional layer of protection," he said.

Other tips include a pre-party memo to employees reminding them it is still a business-related function, and even holding training sessions about the company anti-harassment policy beforehand. The list also includes keeping attendance voluntary; verifying attendance beforehand; avoiding any suggestive or possibly offensive door prices or gifts, provocative entertainment and slow dancing; and reviewing insurance policies ahead of time.

An employment practices liability insurance policy should cover a harassment or discrimination charge coming out of inappropriate contact between boss and intern, or a racist joke forwarded during the party by the head of IT on her Blackberry. Der Boghossian recommends employers contact their insurance broker if questions around coverage need answers.

Lastly, if an incident gets out of hand at the party and a claim arises, both attorneys recommend swift action following the employer's usual policies for investigation and discipline.

"There may be the desire to be sympathetic and give in to holiday cheer and holiday generosity and give someone a slap on the wrist," Der Boghossian said.

Don't be all that compassionate. Give the proverbial lump of coal as punishment, or even the kick in the rear out the company door, if the violation warrants it.

December 14, 2010

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