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Employment and Labor Law
‘Tis the season for holiday parties. Many of these are employer-sponsored holiday parties. Alcohol will be served at most of them.
Washington State has a general rule of nonliability for the server of alcohol. There are several exceptions. An employer-sponsored party with alcohol is one of those exceptions.
The Standard for Liability
An injured third party can sue the server and the employer sponsoring the holiday party if one of your employees is served after he or she is already "apparently intoxicated." The evidence standards for what is allowed as proof of apparent intoxication has been more lenient in employee party lawsuits than in other commercial overservice settings, allowing evidence of after-the-fact observations, the number of drinks consumed, and blood alcohol levels to be used to infer intoxication at the time of service.
In addition, if an employee is driving after the party, an injured third party may sue simply because the employee negligently drank until he or she became intoxicated. This would not even require the traditional service of an apparently intoxicated patron in order to establish liability.
Finally, if you allow service to minors to occur at your party, you may be liable for injury to the minors resulting from serving them alcohol.
As an overview, to avoid liability you must both avoid serving patrons/employees who are already apparently intoxicated and discourage intoxicated employees from driving or engaging in other hazardous activities. No one tactic will always be successful at achieving these objectives. Consider the following list of "dos" and "don’ts":
• Use professional servers. Washington law requires to facilitate their recognition of signs of intoxication and overservice;
• Have a policy in line with how professional servers have been trained to cut off anyone who is apparently intoxicated. This may require the use of a professional lead server whose job it is to assess individuals and communicate among the servers when someone has been cut off;
• DO NOT instruct the servers to "keep the alcohol flowing." Any such instruction will come back to haunt you;
• DO NOT serve minors. If minors are in attendance or might be in attendance, make sure all steps are being taken to avoid accidental or even indirect service to minors;
• DO NOT rely upon any substitution for direct observation for signs of intoxication. Systems such as giving everyone a limited number of tickets can be easily defeated. Such a system may serve to limit the total amount of alcohol consumed. It will rarely prevent individuals from collecting extra tickets from the nondrinkers;
• DO arrange for cab vouchers with return vouchers to pick up the car the next morning. Try to ensure ample cabs will be available. But, this is not a substitute for properly monitoring and cutting off individuals who are apparently intoxicated. Remember that intoxicated people have poor judgment. One of your employees may get home by cab and decide it is time to drive to the store. If that employee was served while obviously intoxicated, there may still be liability issues.
It is not uncommon in certain firms for employees to continue to party or socialize together after the firm party. If this is with a boss or supervisor, this may still be considered within the scope of employment and within the realm of risk for the employer. In that context, there probably is just as much risk buying drinks for employees after the party as there is in providing them at the time of the party, at least for the employer who is present.
Even if the employee is socializing on his or her own, there continues to be increased risk where it may be unclear when the employee became intoxicated. One case that became a reported opinion in Washington was just such a fact pattern. The employer may or may not have served sufficient alcohol for the employee to become intoxicated, but the employee was clearly intoxicated at a time no longer after the employee supposedly left the Christmas party. The fact that there was socializing afterwards where additional alcohol was consumed became a disputed fact that did not let the employer off the hook.
It is important to take steps to avoid letting someone become intoxicated and certainly to avoid letting them drive when intoxicated. You should also remember that coffee, while it might wake someone up, does not in any way sober up the employee. The employee’s judgment and reflexes will remain just as impaired although he or she may no longer act as sleepy. Similarly, although food may slow down the rate at which alcohol is ingested, it will not reduce the overall impact of the alcohol over time. It may just spread it out.
Always remember that one of the hallmarks of intoxication is poor, impaired judgment. If you sponsor a party where employees are encouraged or allowed to become intoxicated, you can anticipate that some may exercise exceedingly bad judgment, either for their own safety, or for the safety of others.
Finally, some companies have been tempted to adopt written policies or procedures regarding conduct and/or the consumption of alcohol. While written policies have their place, they may also be used against you in situations where you tolerate people not complying with the policy. If you put a policy in writing, you should be prepared to enforce it. If not, you will have set a standard by which you will be judged, but up to which you have not been living.
Alcohol can be served safely at a company party or other setting. There will be closer scrutiny of the consequences of alcohol served at a company party because your employees are either expected to attend or attend in furtherance of your general business purposes. It is in your business’s best interest to not let anyone go overboard. Be festive but monitor.