Chicago, IL (WorkersCompensation.com) – While Halloween may be time for employers to relax and celebrate a little with their employees, employers should be careful that they are not making themselves liable at the same time, one expert says.
Attorney Philippe Weiss, Managing Director of Seyfarth Shaw at Work in Chicago, cautions employers that even innocent pranks could result in scary workers’ compensation claims, if not employee and client backlash.
His office, he said, gets between 10 and 15 calls each year from employers and new clients following Halloween, concerned about events that have caused offense or potential injury and risk. Additionally, the firm has received more calls asking for training about Halloween conduct in recent years, he said.
In one Midwest accounting firm, Weiss said, an effort to construct a “haunted stockroom maze” resulted in an office temp running from a chainsaw-wielding accountant disguised as “Jason” from “Friday the 13th.” The temp ran headlong into a brick wall and broke her nose.
In another, Weiss told WorkersCompensation.com, the company was called in to train a C-suite after a company’s CEO showed up to a Halloween work event dressed as a grim reaper. The problem was the company had shortly before fired two beloved and long-term staff members.
“He had worn the get-up to a party the night before and received rave reviews from personal friends and family,” Weiss said. “So, he wanted to share the outfit with his ‘work family’ as well. The CEO (who donned white face paint, sunken-in black eye make-up and a black ‘Voldemort-like’ robe) had just told the staff that he was ‘very sensitive’ to morale issues in the wake of the terminations.”
In another case, Weiss said, a restaurant’s “Frightful Feast,” featured repulsive looking staff suddenly jumping out of hiding places and screeching wildly at patrons, including young children, who were trying to eat. The haunted house event ended up scaring away potential diners, and the promotion was cancelled immediately.
Consider all the possibilities, said Thomas A. Robinson on his Lexis Nexis blog. An employee could trip over the hem of an ill-fitting Halloween costume while disembarking from the office elevator. Or an employee could get sick eating “goodies” brought in by a co-worker. Or someone could pull their back out while participating in a team-building exercise at the company Halloween party.
Whether or not those incidents are workers’ compensation claims relies on two things, Robinson said: “(a) whether the event occurred on the employer's premises, during normal working hours, and (b) the degree of employer sponsorship of the activity.”
Robinson cited the case of Travis v. Robbins-Sykes Hardwood Flooring, in 1993, where an employee fell off of the stool she was sitting on while working, and broke her rib, when a fellow employee wearing a Halloween mask scared her.
“The…Travis case illustrates the essential issue in many work-related Halloween injury cases, indeed, in many other workers' compensation cases: did the injury arise out of and in the course of the worker's employment?” Robinson wrote. “Stated differently, was the activity sufficiently remote from the worker's duties so as not to be considered a part of the employment? In the (case) noted above, the court (or the parties themselves) had little difficulty finding a causal connection between the workplace and the injury.”
Jonathan Segal, an attorney with Duane Morris, said employers should also consider costumes when planning any Halloween events.
Segal said that if an employer chooses to allow its employees to wear costumes for the day, then the employer needs to stress that the costumes must meet the employer’s safety, equal opportunity and anti-harassment policies.
“The safety issue is one aspect of the costume employers should pay attention to,” Weiss said. “There are certain costumes that may not be safe because of machinery or because of the flammability of the material they are made of. But imagine if your employees on the manufacturing floor can’t wear costumes, but your white collar employees can — think about how that might affect relationships in the company.”
Segal stressed that this year, more than ever, it was important to explain to employees that costumes that mock or denigrate other cultures or religions would not be tolerated, as would costumes that are sexually explicit or include hate symbols.
“This year, where we seem more divided than ever, I just think that in the case of wearing costumes, this is the year that if it can go wrong, it will,” Segal said. “Rather than coming in costume, you may want to do something else, like letting employees come in business casual or blue jeans.”
Weiss agrees. In fact, Weiss said, instead of just relying on employees adhering to the dress code, he suggested redistributing the company dress code in early/mid-October as a precautionary step.
Segal said many companies are going away from holiday parties, Halloween or otherwise.
But, Weiss said, if a company is dead set on holding a Halloween celebration at work, employers would do well to remember to keep the celebration respectful, non-religious and completely voluntary.
“Don’t forget: Halloween may mean ‘free candy’ to some, but both the date and the holiday itself have deep religious resonance for others,” Weiss said. “Managers may consider an employee’s religious concerns regarding Halloween silly, frivolous or fake. This type of reaction can result in potentially failing to accommodate those who (have) (sic) sincerely-held beliefs, require adhering to certain traditions on Oct. 31, or those who object to participating in company-wide Halloween activities. The federal Equal Employment Opportunity Commission has made clear that employers may need to accommodate sincerely held religious beliefs even though others may even find such beliefs ‘incorrect’ or ‘incomprehensible.’”
While it may be hard to believe, that’s not something that’s common sense to some.
One travel industry client came to his company, Weiss said, after finding out that one of their location managers had a longstanding Halloween practice of requiring that all employees dress as their “favorite witch or warlock” and, in an unusual variation of the Secret Santa tradition, write a “Happy Halloween Spell and Wish” to be cast on an unsuspecting co-worker.
“Complaints were lodged by employees of multiple religions, including atheists,” Weiss said. “Many felt …embarrassed by the practice and felt that it had, as one employee put it, ‘Very weird religious overtones.’”
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