The holidays are fast approaching, and many of us are looking forward to holiday parties, delicious goodies adorning the breakroom counters, festive decorations, gifts, and more. However, it is not all fun, as the holidays bring an abundance of ethical concerns for the workplace. Below are some helpful tips and reminders going into the holidays.

Holiday Decor

Although there are no specific rules regarding holiday decor, there is an Establishment Clause in the U.S. Constitution that forbids Congress from establishing a state religion. Also, the Second Circuit Court of Appeals stated, “No holiday season is complete, at least for the courts, without one or more First Amendment challenges to public holiday displays.” Skoros v. City of New York, 437 F.3d 1 (2006).

Regardless of whether you are in a private, public, or government sector, the general rule of thumb is to keep holiday decorations neutral and as inclusive as possible. You should stick to secular decorations such as trees, wreaths, poinsettias, snowmen (or women), gingerbread houses, etc. If you are using trees, wreaths, or garland, be mindful of your co-workers and visitors and opt for the artificial variety. Many people have allergies or medical conditions, and live greenery may be too overpowering for them. But before you put up any holiday decorations, be sure to check with your employer to make sure they do not have a ban on office decorations – whether religious or not.

Office Holiday Parties

Most everyone loves a good party, but remember, you’re still at work. These don’ts listed below should be common sense, but let’s face it – sometimes common sense departs us when in a relaxed environment, especially if adult beverages are flowing. No one wants to get sued over a holiday party!

Some Don’ts:

No Mistletoe – While the idea may be sweet when thinking of your significant other or prince charming, absolutely nothing good will come of it at an office party. You can pretty much guarantee there will be a sexual harassment or hostile work environment suit. One such suit went to the U.S. Court of Appeals, Third Circuit in 2017 involving claims of gender discrimination and sexual harassment by employee Sheri Minarsky against her employer and supervisor Thomas Yadlosky. Among the numerous claims of sexual harassment, testimony was presented regarding “Yadlosky’s conduct . . . during the holiday season each year, when Yadlosky asked Minarsky and other female employees to kiss him under mistletoe.” Minarsky v. Susquehanna County, 895 F.3d 303 (2018).

Gag-Gift or “White Elephant” Gift Exchange – While the idea might be fun with your closest friends, it is not appropriate for an office party. These types of gift exchanges encourage competitiveness and might be seen by some as harassment or hostile. If your employer is holding a gift exchange, it should be an appropriate and inclusive item of a nominal value, free from profanity and explicit or sexual content.

Driving While Impaired – If you plan to partake of adult beverages, then check with your employer to see if they have arranged transportation for those who need it, call an Uber if they have not, or consider limiting the amount of alcohol intake. No one wants a ticket, accident, or liability lawsuit as the result of impaired driving.

Inherently Dangerous Activities – Who doesn’t love participating in a fun activity at a party, or at least observing one? As entertaining as they may be, some activities are inherently dangerous and come with an assumption of risk . . . especially if those adult beverages are flowing. One firm (who shall remain nameless) had an axe throwing cage at their holiday party a few years ago. Thankfully, everyone escaped unscathed. Was it the best idea? That is certainly debatable, but everyone needs some fun and laughter in their lives. Just be aware of your surroundings and your faculties.

Holiday Apparel and Accessories

Some might say prohibiting an employee from wearing apparel and accessories of their choosing is a violation of the First Amendment, but an employer has the right to enforce internal dress code policies.

In 2009 Emilia Rose Sellick, a U.S. Department of Veterans Affairs employee, filed an employment discrimination suit alleging she was denied several job openings as a result of her religion. She cited one incident in the late 1990s when her supervisor demanded she remove a bell necklace “[b]ecause it annoys me . . .” The court sided in the defendants’ favor and found no evidence of employment discrimination based on religious beliefs. See Sellick v. Agency-Castle Point, 2010 WL 2813431 (S.D.N.Y.) (2010).

If you want to wear holiday apparel or accessories in the office, please consult with your HR director first to ensure that it is permissible.

Receipts

If you are in a private firm, it is not uncommon for vendors or clients to deliver small gifts to attorneys and paralegals. However, if you are employed by a lobbyist or other government or military sector, there are strict rules regarding when you may accept a gift and of the type and value of said gift. For the U.S. Department of Justice, here are just a few samples:

A qualifying gift must be of $20 or less per occasion, not to exceed $50 per year per source.
A gift may not be given in exchange for influence in the performance of an official act or for use of a public office for private gain.
An employee is only allowed to give their superior a gift for their birthday or a holiday where gifts are normally exchanged if the gift is of $10 or less in value, food or refreshments shared in the office environment, or personal hospitality in the employee’s residence that is equivalent to that the employee would give his friends.

The NCBA PD Ethics Committee wishes you a joyous (and litigation-free) holiday season and a happy New Year!

Sarah L. White, ACP, NCCP is a senior litigation paralegal with Ragsdale Liggett PLLC. She focuses in the areas of civil litigation and insurance defense, handling cases in all of North Carolina’s state and federal trial court divisions, including appellate courts. She also manages the firm’s eDiscovery platform and continuing education courses with the North Carolina Department of Insurance. Sarah holds a B.S. in Criminal Justice and Post-Baccalaureate Certificate in Paralegal Studies and advanced certifications from NALA and the NC State Bar. She was the recipient of the NC Bar Association’s 2018 Distinguished Paralegal Award. Her professional involvement includes serving as Chair of the NC State Bar Paralegal Certification Committee (2017-present) and Item Writer for the Committee (2014-2016); NCBA Paralegal Division Treasurer (2022-present), Ethics Committee Member (2022-present), Bylaws Committee Co-chair (2021-present), and Council Member (2019-2022); and member of the NCADA Paralegal Division and NALA.

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December 16, 2022/by Paralegals