The holiday season is nearly upon us. I’ve seen the TV commercials, and big box retailers have filled holiday sections with glitter and lights.

The holidays seem to arrive earlier every year. To quote Alfred, the Macys janitor from my favorite holiday movie “Miracle on 34th Street” (1947 version): “Yeah, there’s a lot of bad ‘isms’ floatin’ around this world, but one of the worst is commercialism. Make a buck, make a buck. Even in Brooklyn it’s the same. Don’t care what Christmas stands for, just make a buck, make a buck.”

It’s never too early, however, to consider the questions that come up every holiday season. Let’s discuss a few of the most common I receive every year.

What do we call our party? Is it a Christmas party? A winter solstice party? A Festivus celebration?

Employers should avoid parties or celebrations that single out one tradition, particularly if the event is held during work hours or employees are required or urged to attend. Consider events that celebrate all the faith and cultural traditions. Potlucks or buffets with different traditional foods are a lot of fun.

Can we serve alcohol at our holiday celebration?

More employers host fewer and smaller holiday celebrations. Still, many employers value the big holiday party around which the organization’s social calendar revolves. There’s no wrong answer. But there are steps employers should take to promote responsible drinking and limit liability for employees’ poor choices.

Under Colorado law, a social host is liable to third parties for injuries caused by its guests’ consumption of alcohol only when the host knowingly serves alcohol to persons under 21 years of age or makes available a place where underage persons can drink. In 2018, the Colorado Supreme Court held in Przekurat v. Torres, social hosts were responsible for injuries caused by a guest at a graduation party. The hosts knew the party was attended by numerous underage persons, but put no restrictions on serving alcohol. The host had constructive knowledge underage persons were drinking, and were held liable for an underage attendee who suffered life-altering injuries in a vehicle accident after the party. There’s no reason a holiday celebration can’t include responsible adult drinking. Consider conducting the event at a restaurant or other venue where the venue is responsible for preventing minors from consuming alcohol. If the organization runs the event, make sure its contract with any bartending service spells out the service may not serve alcohol to minors.

Even precluding liability for wrongful acts, no organization wants irresponsible behavior or injuries to result from a holiday party. Consider giving out drink tickets that limit consumption and either allow only ticketed drinking or put the cost for additional drinks on attendees. Consider providing rides to guests who over-imbibe. Make sure paid or volunteer servers watch for indications of intoxication and shut down drinkers who don’t know their limits. Organizations might consider events, such as lunches or happy hours, where time limitations and settings encourage less alcohol consumption.

Limiting alcohol also helps discourage another unpleasant and potentially illegal side effect of holiday parties — sexual and other harassment claims by employees against other employees or supervisors whose inhibitions are lowered by overconsumption or the informality of a social event. Want to discourage bad behavior even more? Invite spouses and significant others.

Our CEO likes to present an annual report during the holiday party and thank employees for their service. Can we make the party mandatory?

This creates a new set of problems. Holding parties during work hours or hosting parties where employees are required to attend, meet and greet clients or engage in activities that look like work raise issues around employee pay and workers’ compensation claims. As a rule, an event employees are required to attend and provide service for the employer is work time, and employers could be liable to pay employees for time spent in attendance. Injuries that occur during or because of the event could create workers’ compensation claims.

We want to close for a week or two around the holidays. Do we have to pay employees for the time we’re closed?

The short answer is no, but there are catches. An employer must pay non-exempt employees only for the time they spend actually working. Employers aren’t required to pay exempt employees for any full weeks in which they don’t perform work. But what about employees who must check email or perform minimal tasks during a seasonal shutdown? Make clear to all non-exempt employees they must report even for short periods of work so the employer can properly pay them. Employers could require exempt employees to substitute paid time off or vacation time for time missed on workdays on which they perform work.

Can I require employees to use vacation or paid time off during shutdowns?

An employer can require employees to use vacation or PTO during a shutdown even if the shutdown is imposed by the employer. The employer can always give employees the option to use PTO during the shutdown. But mandating the use of paid leave or leaving employees without pay can create morale problems, particularly in industries where seasonal shutdowns aren’t the norm. Telling employs to enjoy the holidays, but then informing them they won’t get paid places stress on employees and their families.
      The Employers Council grants employees flexible holidays that aren’t limited to the holiday season, but which employees may use to take time off around the holidays. At the least, employers should explain pay practices around shutdowns well in advance to avoid surprises.

There’s no single right answer to any of these questions for all employers. The Employers Council makes available to its members resources on how to make these decisions. Enterprise and consulting members may contact HR professionals and attorneys directly to discuss their legal obligations and best practices for these and other issues.