Wednesday, April 20, 2022

Your office might be open, but the bar should remain closed

According to The Wall Street Journal, some businesses are using alcohol to entice their employees to return to the office.
As businesses work to settle employees into offices, some are pulling out the stops—literally, on kegs, casks and wine bottles—in an attempt to make workplaces seem cool. Sure, executives could simply order people to return to their cubicles, and some have, but many want their workers to come back and like it.

That means giving people what they want, or at least what bosses think they want. People like to wear comfy hoodies, right? OK! They miss their dogs when they go to work, don't they? The canines can come! They love an afternoon cocktail, yes? Check out our new office bar! … 
It isn't that companies are encouraging people to get hammered … for the most part. … Many do, however, want the office to feel a bit more edgy and exciting than it did before the pandemic. At a minimum, it has to be more alluring than the sofas, kitchen tables and spare bedrooms where so many people have been doing their jobs for the better part of two years.

As much as I love an IPA or an old fashioned as much as the next office worker, as a lawyer the idea of an office open bar makes my compliance skin crawl. 

Here are 7 reasons why.

  1. Alcohol breeds informality and loosens inhibitions, which in turn can lead to inappropriate incidents such as harassment.

  2. Do you have employees with a current substance abuse problem, or a history of such? Or employees for whom alcohol is against their religion? You may not know the answer to this question, but do you want to make alcohol part of your company culture if it will make some employees uncomfortable or worse?

  3. When will the bar be open? At all hours? Lunches and breaks? Only after hours? If it's anything other than the latter, do you really want employees consuming alcohol and returning to perform their jobs? You better have a high tolerance for errors, mistakes, and potential safety issues, and high limits on your insurance policies.

  4. Do your insurance policies contain alcohol-related exclusions? If so, employees' on-premises consumption might leave you exposed and without coverage.

  5. Who's pouring? Is it an open bar, a supervisor, or a trained and experienced bartender? Anything other than the latter is a recipe for over-consumption and added risk.

  6. Someone has to play den parent. You should absolutely designate one or more managers or supervisors to refrain from drinking and monitor for over-consumption. Who? And will they want the job?

  7. How are employees getting home from work after consuming? Are you letting them get in their cars and drive? Do you have designated drivers, cab vouchers, or a corporate Uber account for those who can't drive? Will you give breath tests (likely allowed in this specific instance under the ADA) before allowing employees to drive? 

Better yet? Find something other than alcohol around which to build your workplace culture and to incentivize employees to return to the office instead of working from their homes. But if you're going to provide alcohol at work, you need to have a policy that designates when it's permitted and how much, reminding employees of their anti-harassment, safety, and other workplace obligations, and prohibiting employees from driving home after over-consuming. And please check those insurance policies to make sure you're covered "just in case."

Finally, for my craft beer audience, drinking is the culture (or is at least as large part of it). And the "shift beer" (a free pint at the end of a shift) is a time-honored employment perk in the industry. Free drinking by employees, however, might be illegal, depending on your state's laws. 

Under Ohio law, for example, it is illegal for a holder of a liquor license to give away any beer or intoxicating liquor of any kind at any time in connection with the business. There is an exception that allows a permit holder to give away, free of charge, no more than four tasting samples per paying customer in a 24-hour period. Employees, however, are not "paying customers" and therefore may not receive these complementary tasting samples. The "shift beer" might be iconic in craft breweries, but it's also illegal in Ohio. (Mileage may vary in your state.)