Over the course of the year, there are a lot of reasons to remind employers of potential pitfalls or the need for a workplace initiative: Avoid embarrassment and liability at the holiday party; harness New Year’s resolution to enroll employees in your wellness program; remind employees about harassment and the risks of dating a co-worker around Valentine’s Day, etc. In comparison, March Madness is generally off the radar when it comes to reasons to issue a reminder. March Madness, however, can boast of being both the single biggest talked about annual event in the workplace, while also being the most overlooked potential legal headache. In other words, everyone is getting pulled in by the madness, but no one recognizes the impact (present and potential) of such madness.
Don’t get me wrong, I am no killjoy. I love college hoops. I want my Wildcats to win their second national championship this year, but I have two things that give me pause for concern. First, I never gamble or wager. Second, I am an employment lawyer. The first one simply means I don’t participate in the office pool, and that is a good thing, as I’ll explain. The second one is an occupational hazard: I can’t help but think of the worst-case scenario.
Leaving Las Vegas… for Gamblers
If you want to see Las Vegas humming with excitement, the first weekend of the NCAA tournament is the time; four raucous days of reveling rivaled only by Super Bowl weekend. Those who can’t make their way to Sin City compensate by placing some friendly bets in the office pool, spending hours surfing the Web for intel on the Horizon League automatic berth in hopes of being the one who identifies the first 16-seed upset (don’t laugh, here! The Green Bay Phoenix is for real). All that research, bracket preparation, live game streaming and co-worker taunting is taking place on the clock at the company’s expense.
Yes, March Madness is horrible for productivity, and in many workplaces around the US, it is also a bastion of improper gambling. If you don’t think it’s a big deal, call Rick Neuheisel. Not only is office gambling a potential violation of state law, but in many companies the betting also takes place in between offices in different states, bringing a further element of potential violation federal law.
The Employment Law Pitfalls
Where do I see dangerous scenarios? First, you do not want to be seen as promoting gambling, which is becoming easier to do every day on a computer or smart phone. Yes, there’s an app for it, too! If you openly endorse the office pool, drawing a distinction with an after-hour poker game may be difficult. Your technology resources are being used to engage in solicitation of contribution to the pool. At that point, you may have created a situation where you have sanctioned a violation of your anti-solicitation policy or your technology usage policy. If you try to enforce those during a union organizing drive later, expect a charge of violation of the NLRA. If an employee with genuinely held religious limitations on gambling is badgered for non-participating by co-workers, expect an EEOC charge.
I recognize that there can be an office bonding component in this process. Companies can capitalize on the March Madness bond but avoid the pitfalls by turning the pool into a charitable fundraiser. All proceeds collected serve as a charitable donation on behalf of the winner of the pool. All three of the pitfalls above disappear while the company retains and even increase the beneficial camaraderie by having participated in an office pool and raised money for a good cause.
Greenberg Traurig, LLP Shareholder Laurent Badoux focuses his practice on domestic and international labor and employment law with an emphasis on compensation and employee relations issues.