Alaska Employment Law

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Introduction

Everyone enjoys a party, and we are now entering the season for parties.  Good parties require planning.   For employers, that planning should include evaluating common risks and potential liability issues.  This summary briefly reviews some of the more common risks related to holiday parties, and offers a few recommendations to help all enjoy a safe and happy holiday season.

Major Liability Risks for Employers

Should employers serve alcohol?  Alaska confers social host immunity on hosts who furnish alcohol to guests.  See AS 04.21.020.  A social host is a person that does not have liquor license.  Social hosts are not civilly liable for injuries resulting from another person’s intoxication just because the host provided alcohol to the person who caused the injuries.  Employers are treated no differently than any other person.  This means that employers may not be held liable for the simple act of providing alcohol. See Mulvihill v. Union Oil Co. of California, 859 P.2d 1310, 1312 (Alaska 1993).  In Mulvihill, an employee was killed in an early morning car crash after an employer’s holiday party.  He had been dropped off at his home by co-employees. He then got in his car and attempted to drive to Anchorage from the Kenai area to see his fiancée.  The Estates of the persons killed in the crash argued that Unocal was liable.  The superior court applied the social host statute and granted Unocal summary judgment.  The Alaska Supreme Court affirmed.  The Court held that Unocal was a social host no different than any other person or individual, and that it was therefore immune from liability.

However, although an employer cannot be liable simply for providing alcohol, that does not mean that an employer could never be liable under any circumstances.  Instead, employers may still face negligence claims based on theories independent from providing alcohol.  For example, in Gordon v. Alaska Pacific Bancorporation, 753 P.2d 721 (Alaska 1988), the plaintiff was injured in a fight at a company-sponsored party. Id. at 722.  The employer argued that it was not liable because it was merely a social host and the fight was alcohol-related.  Id.The superior court agreed and granted the employer summary judgment.  The Alaska Supreme Court reversed.  The Court held that the social host statute provided no immunity because the plaintiff’s claim was that the employer was liable for failing to provide adequate security. 
Id.at 723.  The Court observed: 

The jury could find a duty to anticipate outbreaks of violence on the following facts.  There was a large crowd of people to whom large quantities of free liquor were given.  No effort was made to limit dispensation of alcohol to those apparently sober.  One of the activities was a dance, where jealousies, proposals for sexual transactions, and social slights might play a motivational role.

It necessarily followed that there was a genuine issue of material fact concerning whether or not the employer provided adequate security.  

It is also still theoretically possible for an employer to be held liable under a respondeat superior theory in rare cases.  Respondeat superior is a theory of liability under which employers are liable for the negligent acts of their employees that are undertaken in the course and scope of employment.  There are two potential theories of liability.  The “control” theory applies when the employee’s act was undertaken at the employer’s request or under the employer’s express or implied authority.  The “enterprise” theory applies when the employee’s act was undertaken for the employer’s benefit. Alaska has not squarely rejected respondeat superior theories in the context of holiday parties. 

The Alaska Supreme Court held that respondeat superior could not apply in Mulvihill because the employee’s act in driving to Anchorage to see his fiancée hours after the party (and after he had been dropped off at his home) did not fit either the control or enterprise theories.  However, the Court did not hold that such liability could never be imposed as a matter of law.  Although it is rare for employers to have liability imposed in the holiday party context, it has happened.  See Harris v. Trojan Fireworks Co., 120 Cal.App.3d 157 (1981); Wong Leong v. Hawaiian Independent Refinery, Inc., 76 Haw. 433 (1994); Dickinson v. Edwards, 105 Wn.2d 457, 468-69 (1986).   Courts imposing liability under a respondeat superior theory for injuries related to a holiday party have done so where attendance at the party was required or expected, the employer derived some benefit from the party (such as when customers or clients are present), and the alcohol-related accident had some connection to the employer’s business interests.  

As one might imagine, sexual harassment claims can arise from office holiday parties.  Usually a one-time problem (for example an unwelcome kiss at a holiday party) would not be sufficient to establish conduct that is severe or pervasive enough to alter the terms and conditions of employment, and therefore not enough to sustain a sexual harassment claim. However, if the unwanted conduct rises to the level of groping (something that fits the definition of an assault), a different result could follow.  Moreover, even if a sexual harassment claim is defensible, the employer still incurs needless fees and costs.

Workers’ compensation claims may also be linked to an employer’s social events, including of course office parties.  This is not a common risk, but it can happen in some jurisdictions.  Where courts have recognized workers’ compensation claims related to holiday parties, there has usually been some work-related connection such as required attendance, benefit to the employer, a party held on the employer’s premises, and employer participation or sponsorship, to name some relevant factors or considerations.  See Kim v. Sportswear, 10 Va. App. 460 (1990).   In Alaska no compensation is paid for a claim based proximately caused by an injured employee’s own intoxication.  See AS 23.20.235(2).   However, the concept of an activity “arising out of and in the course of employment” is sufficiently broad enough to support a claim includes employer-sanctioned activities at employer-provided facilities.  See AS 23.30.395(2).  

Finally, employers should be sensitive to religious-based messages that could be misinterpreted or that could cause needless friction in the workplace. Successful employers tend to draw upon a diverse workforce.  Holidays can accentuate differences or, conversely, emphasize unity.  Employers who seize upon the occasion to emphasize unifying themes are better at promoting workplace harmony and productivity. 

These are not the only risks that are related to holiday parties, but do seem to reflect some of the more common liability issues that employers face.   
 

Tips from the USDOL and Others

The United States Department of Labor and other private and public organizations offer a wide range of tips for employers that are planning holiday parties.  Here is a brief list of recommendations condensed from these sources:

Hold the party off work premises and during non-working hours.

Have a licensed caterer handle food and beverage. 

Make sure that the caterer has TAMS or TIPS trained servers who will not serve underage or intoxicated persons, and who can detect signs and symptoms of intoxication.  

If alcohol is provided, consider avoiding an open bar and instead providing a cash bar or offer tickets for a limited number of free drinks (for example, two tickets).

Do not invite clients or customers.

Make sure that everyone knows that attendance is voluntary.

Consider arranging for alternative transportation. 

Reward designated drivers.

Check your insurance policies. 

Provide brief and polite reminders beforehand to all employees concerning appropriate conduct at holiday parties (“Let’s have a good time, but drink and act responsibly”).

Consider use of managers or supervisors to “chaperone” the event. This can be done in an informal manner.

Consider adopting a Social and Business Responsibility Conduct policy.

In addition to this condensed list, there are numerous holiday party tips and suggestions available for employers on-line.  Try searching “employer tips holiday party” for different websites. 

As with any other policy-related issue, be sure and check your existing employment manual to make sure that any action you take is consistent with your existing policies, and confer with counsel (in-house counsel or retained outside counsel) before implementing any policy changes or other guidelines.