With the Baker to Vegas relay just concluded for 2018, it seems timely to query whether company-sponsored trips that enhance team morale but are not strictly work-related are worth the liability exposure. Or perhaps it is better to keep these events on calendar but make sure your agency is taking any necessary measures to ensure that the government is not on the hook for out-of-town shenanigans. Of course, 120-mile running relays through the desert and up the Ibex pass aren’t the only type of employer-sponsored event that can create legal issues. The parties after the run, from the Homicide Department’s renowned Barbeque to the ALADS union party to various teams’ pool parties and the club night, are replete with alcohol, raising the stakes.
Holiday parties, sporting events, picnics, and or any other type of off-site teambuilding event can result in problems for the employer. Although the employees may be off the clock, and voluntarily participating in the event, various issues can arise from harassment, sexual assault, and physical injury or accidents leading to worker’s compensation claims.
There is no way to prevent claims, but measures should be taken to minimize exposure. What can your agency do?
If an employee is injured in a work-sponsored sports event, such as a relay race, or in a car accident traveling to or from the event, s/he may file a worker’s compensation claim for a physical injury. This does not mean the claim will be accepted; however, it is preferable for the claim to be handled by workers’ compensation as opposed to tort litigation. There are potential defenses, such as assumption of the risk in engaging in a sporting event such as a running race. You may wish to obtain an express waiver indicating the event is voluntary, not required by the agency, and that any and all risks are assumed by the employee. However, when your team wears identical shirts with your agency’s name, and travels to the event together in the name of teambuilding, it is difficult to prevail on an argument that it is not work-related.
Employee compensation may be a factor if employees are involved in helping to plan the race, post-race events, or group transportation. If they are hourly employees and not salaried, this is considered labor and paid time. If employees believe they are required to attend the event, or their standings will be damaged by non-attendance, then compensation is also required. Inform attendees that their participation is voluntary and they will not be paid unless you assign them duties above and beyond their voluntary agreement to run on the team.
Anytime alcohol is a factor, the potential for negative employee behavior increases. But banning alcohol at post-race parties is not a realistic option for B2V. At a minimum, your agency should not sponsor parties with alcohol unless behavior is monitored (and enforced) by a designated person, transportation is covered (no drinking and driving), and employees are reminded before the event about the department’s office alcohol and substance abuse policy and the rules of conduct that will be enforced at the party. Alternately, your agency may choose not to sponsor any pool cabanas or other post-race parties, leaving entertainment to the individuals’ discretion. Make it clear that attendance at any post-race events is voluntary and free of any express or implied pressure from supervisors.
In some cases, participants imbibe excessively and engage in sexual or other misconduct including fighting. Civil or criminal charges of assault can be brought, or sexual harassment allegations made, and employees will be looking to hold the agency accountable for misconduct on a work-sanctioned trip. It will reduce exposure if your agency reminds employees of the standard of conduct before the trip. You should also re-issue the policy on anti-harassment and have each employee sign an acknowledgment of receipt. If you do receive a harassment complaint after the event, take it seriously and investigate immediately.
A liability waiver is a good idea. However, it cannot exclude statutory or common law rights, and it won’t automatically preclude injured workers from bringing a worker’s compensation claim or a lawsuit. But it may help to indicate the expected range of behaviors and the agreement of the employee.
As with most legal issues, the answer depends on the circumstances. Having an activity off-site and on off-duty hours helps to reduce the odds it will be considered a work-related activity. If the employer sponsors the event, however, whether financially, allowing time off, advertising it, or even by emailing all staff, it is more likely within the scope of workplace liability.
This article is not meant to discourage participation in team events like Baker to Vegas, only to offer suggestions on ways to minimize your agency’s liability for events that may, unfortunately, occur during such trips.