If your IT organization takes a well-deserved break this week to celebrate the holiday season, here's a fair warning for you: Regardless of whether you party at work or at an outside location, if it's a company-sanctioned event, the company is liable for the behavior of its employees.
That warning comes from Patrick Boyd, a labor and employment attorney in New York. When I spoke with Boyd last week, he noted that during the holidays, people tend to blur the lines between workplace conduct and personal conduct. And that can be a very bad idea:
Employers sometimes think that if they have a holiday party, and it's not on the company premises, all of a sudden they escape liability. As a reciprocal observation, the employees will, on occasion, think that since they're no longer at work, they can act like they would at any regular bar or social occasion, as opposed to continuing to comport themselves in a manner consistent with the company. That is a big mistake in terms of what people tend to do as a result. For example, people will sometimes drink too much and take a little bit more of an affectionate interest in people. Or people will drink too much and tend to say things, expressing political or religious or other views that might be insulting or inappropriate. The rule of thumb here has to be that workplace conduct is workplace conduct, regardless of whether you've been drinking, regardless of whether you're out of the office or in the office. You shouldn't say or do anything that's not going to be seen as professional.
Exacerbating the problem, Boyd explained, is the fact that cell phones tend to be brought out at parties to capture the merriment:
Electronic communication of any sort can be the focal point of litigations that get as big as federal court litigations. I would guess that 30 percent to 60 percent of the holiday party pictures being taken this year are being taken by cell phones. It would be very important for managers and employees to think long and hard about how they conduct themselves at the parties, and what means they use to memorialize the way they conduct themselves. Certainly, the wrong holiday picture, the wrong holiday conduct, the wrong e-mails sent after a couple too many glasses of eggnog, can expose you to some horrible liability.
So suppose someone at a company-sponsored party outside of the office takes a photo with his personal cell phone, and transmits it using his personal e-mail account. Could that photo be a liability for the person who takes it, and for his company, from an employment law perspective? Boyd's response:
It absolutely could be. There's no added escape or freedom from the legal discovery process just because it happened to be your BlackBerry, or not at the company office, but at the local restaurant or wherever the party's being conducted.
Bottom line: Educate your colleagues, keep your wits about you, and be careful out there. And have a safe and enjoyable holiday.