Legal Update                    
May 2019

Sound Advice. Effective Representation. Exceptional Results. 
The "Spirited" Office Party - A Word of Caution
 
By Angela M. Rossi, Esq.
Can an employer be liable for an employee’s car accident during his/her commute to and from work? Under the “going and coming” rule, employees are generally considered to be outside the course and scope of their employment while commuting between work and home. However, there are exceptions to this rule under applicable California case law, and these exceptions are expanding the definition of “course and scope” of employment. What about a company sponsored party? Do the same rules apply?

The employer sponsored office party is a great way to boost office morale and build camaraderie. Often alcohol is served. But what happens if your intoxicated employee gets into an accident on his/her way home from the party? Are you, as the employer, liable for the damage? The answer, of course, is “it depends,” based on the facts of each case.

It is always a risk for you, as an employer, to provide alcohol to your employees. Although there are no hard-and-fast rules, California courts determine whether an employee’s wrongful acts are committed during his “scope of employment” by one of two ways: (1) was the act required by the employer or incidental to the employee’s duties; or (2) was the employee’s misconduct reasonably foreseeable by the employer?

If you, as the employer, sponsor an event and pay for the alcohol served at that event, you may be liable for your employee’s accident on his drive home and the resulting damage. Consider the following situations:

●    The Company sponsors an event and serves alcohol.

An employee attended a holiday party hosted by his employer where alcohol was served. He became intoxicated but drove home, arriving safely. He did not consume any additional alcohol after leaving the party. Twenty minutes later, he left his house to drive a co-worker home, during which time he was involved in a motor vehicle accident where another person was killed.

The Court of Appeals held that the employee had become intoxicated at an employer hosted function/party, with the employer’s stated or implied permission; therefore, the social or recreational activity was considered within the course and scope of the employee’s employment. It was irrelevant when the accident happened since it was foreseeable that drinking and driving could result in a motor vehicle accident. Additionally, a drinking event with employees may benefit the employer simply because it improved employee-employer relations, morale, and camaraderie. ( Purton v. Marriott Internat., Inc.  (2013) 218 Cal.App.4th 499.)
●    Management knows about drinking sessions that regularly take place on employer’s premises but turns a blind eye.

At a 24-hour construction site there was a “dry house” which had showers and lockers so employees could shower/freshen up/change clothes after their shift. Although the dry house had a sign prohibiting alcohol, it was not unusual for the men to drink beer there after a shift, particularly on Friday nights. The supervisors made no effort to stop the drinking and in fact they frequently joined in.

One Friday after their shift ended at 4:00 p.m., two workers went to the dry house and changed clothes. While working on one of the worker’s pickup truck in the employee parking area, they consumed three to four beers. The office manager was present and also drank beer.

About 8:00 p.m. the two workers decided to leave and began to search for a fellow employee from whom they could borrow money so they could continue drinking in a nearby town. They approached Rodgers, who was operating a bulldozer, and asked him for a ride, which he refused. Both workers began beating Rodgers, who sustained serious multiple injuries, necessitating numerous surgeries.

The employer was found liable for Rodgers’ injuries because the evidence showed it was customary for employees to drink beer with their supervisors on the premises after work. Moreover, the employees were allowed to remain on the premises after their shifts in case the employer needed additional workers for overtime, thus benefiting the employer. ( Rodgers v. Kemper Constr. Co.  (1975) 50 Cal.App.3d 608.) 

●    Employer has strict rules regarding alcohol.

Each year after the plant closed at noon on the last working day before Christmas, a group of employees would hold an informal potluck luncheon in the office area. The employees were 100% responsible for the event—from spreading the word to paying for and preparing the food and beverages—and everyone understood that attendance was completely voluntary. Because of the company’s anti-alcohol policy, no alcohol was served or consumed at the party or within the facility’s fenced-in premises.

Some of the employees exchanged gifts at the party, including bottles of liquor. At about 1:00 pm some employees went to a nearby store, bought some beer, parked in a parking lot outside of the facility’s fenced-in premises, and continued the party out there. Even the plant foreman joined in for a few minutes before going back inside. After the luncheon was over and the gate was locked, the drinking party continued in the parking lot until around 4:00 p.m. The participants consumed one of the bottles of whiskey that a party-goer had received at the luncheon.

On his way home, one of the employees drove across the center line and hit a vehicle head on, killing one of his passengers. The employer was held not liable for the accident because the employee was not performing any work-related service to the employer. The drinking was neither required, nor an incident to his job; it was purely for his own personal benefit, and prompted by his own personal motivations. ( Harris v. Trojan Fireworks Co.  (1984) 155 Cal.App.3d 830 . )

The bottom line

As one California court noted, if an employer permits or encourages the consumption of alcohol among its employees for the benefit of the enterprise, “fairness requires that the enterprise should bear the burden of injuries proximately caused by the employees’ consumption.” ( Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d at 810.) Thus, the safest course of action for employers here is simple: Don’t serve or pay for alcohol at company functions and don’t allow alcohol to be consumed on company premises. And remember, now that marijuana consumption is fully legal in the state of California, this same advice applies to other intoxicating substances as well. If you do not serve or authorize alcohol, you might recommend that the employer pay for a ride share or a taxi for anyone that wants it, as well as to offer round-trip so the employee can come the next day to pick up his or her car.
Angela M. Rossi, Esq.  is an experienced attorney who has over three decades of solid expertise practicing law. She is an accomplished litigator both in and out of the courtroom with experience that includes countless trials and binding arbitrations. Her law practice includes products liability, premises liability, security guard law, construction defect, trucking company defense and personal injury. In her construction defect practice, Ms. Rossi is highly skilled in defending small subcontractors to general contractors and large developers. 

She earned her Bachelor of Arts at the University of New York, Albany and then acquired her Juris Doctor from the Pepperdine University School of Law.

Ms. Rossi is registered to practice in all California courts, the United States District Court Central District, and the United States Supreme Court.

Speaking Engagements
Tom Lena CCC 2019
Lena CCC 2019
Mary Ciconte, Commercial Casualty Complex Loss Consultant for Nationwide Insurance Company, Thomas P. Gmelich, Esq. , and Lena J. Marderosian, Esq. , presented at the 31st Annual Combined Claims Conference on  Are You Ready for Your Close-Up? The Art of Using Videotaped Testimony in Litigation. This session provided an understanding of the benefits of using videotaped depositions both at mediation and trial.
Barry & Jaimee CALSAGA Security University
Barry A. Bradley, Esq. and Jaimee K. Wellerstein, Esq. will speak at a newly added second Southern California session of CALSAGA Security University on August 14 as the April session was SOLD OUT. Running a security business is complex. Make sure that you have all the knowledge and resources required to stay compliant with the law and competitive in the industry. This event is beneficial for new private patrol operators, those looking to advance in the security world and industry veterans!
Congratulations
Barry A. Bradley, Esq.
Jaimee Wellerstein, Esq .
Arin Norijanian
Arin Norijanian, Esq.
Congratulations to Barry A. Bradley, Jaimee K. Wellerstein, and Arin Norijanian for successfully settling a consolidated class action, combining 6 complex matters based upon alleged Labor Code wage and hour violations, as well as allegations under PAGA (Private Attorneys General Act). Our client is a large regional security company in the Bay Area and after a 12-hour mediation, plaintiffs agreed to accept a fraction (less than 3%) of their opening demand. This settlement was truly a B&G team effort over the last year.
Around the Office
Welcome to B&G!
Bradley & Gmelich LLP is pleased to introduce our newest Associate, Artin Sodaify, Esq. Artin graduated from the University of California, Los Angeles, where he earned his Bachelor of Science in Sociology. Mr. Sodaify earned his law degree from the University of West Los Angeles, School of Law. Prior to becoming a licensed attorney, he worked as a paralegal for over a decade, laying a solid foundation for his legal career.

Mr. Sodaify specializes in civil litigation and employment law cases involving wage and hour and discrimination claims. He also has expertise in other areas of the law, including business litigation and personal injury.

Mr. Sodaify is also trilingual. Please join us in welcoming Artin Sodaify to our B&G team!
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Jaimee Wellerstein and Annette Barber represented Bradley & Gmelich LLP, a proud sponsor of the Legacy Luncheon and Heart & Excellence Awards for the Glendale YWCA!
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May 4-5, Bradley & Gmelich supports its friends, Mike Hogsten's 2019 G4S Team , as they ride 100 miles on Saturday and 50 miles on Sunday to support the search for a cure to MS. This is Mike's 12th annual bike ride in support of his sister, Joy, and others like her that deal with MS daily.
Bradley & Gmelich LLP is proud of its second year as a Mile Marker Sponsor so runners and hikers will have another chance to conquer the mountains on Sunday, May 5, 2019, at the 9th Annual Verdugo Mountains 10k Trail Run & Hike . Produced by the City of Glendale's Community Services & Parks Department to benefit the Glendale Parks & Open Space Foundation, the course begins in beautiful Brand Park, climbs steadily to one of the highest points in the Verdugo Mountains, and then heads back downhill for a fast descent to the finish. Breathtaking views of the L.A. Basin, the San Fernando Valley, and the Pacific Ocean await you at every turn. From the race’s highest point, at 2,670 feet above sea level, the panoramic view of the San Gabriel Mountains is truly spectacular.
The Glendale Field of Honor , hosted by the Glendale Sunrise Rotary, is a temporary display to honor Veterans, Military Personnel, First Responders, community leaders or any Hero of Your Choice. The entire community will have an opportunity to participate in setting up the display and to honor their heroes by sponsoring one or more of the flags on display. Proceeds from the event will be directed right back into the community including Veterans Housing.
 
Bradley & Gmelich LLP is honored to sponsor and support this event which supports Veterans and service projects in the local community. Citizens and visitors to Glendale will experience an amazing display of patriotism with 1,000 U.S. flags flying atop 8‐foot poles in perfect rows at the entrance of Forest Lawn Glendale from May 18th to May 27th, 2019.
LEGAL COMPLIANCE REMINDER FOR CALIFORNIA EMPLOYERS:
Employers with at least 5 employees must provide sexual harassment training to all employees by January 1, 2020. Contact your attorneys at Bradley & Gmelich LLP to schedule your sexual harassment training now!
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