So you ask what does the Super Bowl have to do with the American workplace, except for lost productivity at the water cooler the Monday after the Big Game? Why, the Super Bowl is quite possibly the best reminder about the dangers of betting in the workplace.
Since the Seattle Seahawks and New England Patriots punched their tickets to Glendale, the media buzz around the Phoenix area has been massive and unrelenting. In other words, everyone is getting pulled in by the madness, but no one recognizes the impact (present and potential) of such madness. And with Tiger Woods in town, returning to the Phoenix Open, the PGA tour event already infamous as the wildest show on grass, the madness is in full swing this week in the Valley of the Sun. So what should employers do? Don’t make things worse!
The Letter of the Law
Of course, there will be talk after the Super Bowl about the game, its commercials, Katy Perry’s half-time show, and other parts of the overall pageantry, but one of the big problems relating to the Super Bowl has to be dealt with before the pre-game show even starts. Don’t let employees use your technology to access gambling sites and do not tolerate gambling within your office using company resources.
As a general rule, gambling is prohibited under Arizona law. Some exceptions exist, including so-called “amusement gambling,” which is generally understood to involve a primary element of skill darts, for instance, or “social gambling” — for example, when friends over the age of 21 gather to wager on events such as the time a friend’s child will be born.
To Pool or Not to Pool
An office pool is a gray area. An office pool where employees use company technology to promote, organize and maintain their gambling activities hovers dangerously into the dark gray boundary between lawful and unlawful, even more so if the “pool administrator” receives a percentage of the bets placed to compensate him/her for the trouble of organizing the activity.
If you think that I’m exaggerating (don’t worry, as a lawyer I’m used to it), keep in mind that just this month, new Arizona Attorney General Mark Brnovich conducted raids on half-a-dozen suspected gambling cafes and gave an interview to the local news warning people not to gamble in Arizona in any fashion if they wanted to stay clear of any violations of state law.
Now combine that mindset with estimates that Americans will wager some $10 billion in conjunction with the Big Game and the existence of thousands of websites promoting bets on every aspect of the Super Bowl (from the yardage of the first field goal made to the classic over-under on the score), to prop bets on the color of Belichick’s hoodie (odds are -150 for gray, +175 for blue and +700 for red), the number of times Gisele Bundchen will appear on the game telecast, and how many times the name John Travolta will be mentioned in connection with Idina Menzel, who will be singing the National Anthem (okay, I made that one up… I think).
Of course, if your employee handling the office pool is also reaching out to employees across state lines using the internet, you should add an element of interstate crime to the overall intrigue. Needless to say, no office manager wants to be the person who tells the employees to stop the fun, but there is nothing that prevents employees from enjoying the Super Bowl without having to use company resources to gamble.
Employment Law Pitfalls
So where do employers draw the line? 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! Once you openly endorse the office prop bets pool, not only does a company offers itself up as a potential example to be made by our new AG, but it becomes very difficult to limit other forms of gambling.
What’s the harm in a fantasy league where the commissioner/mail clerk gets paid a fee by the participants or an after-hour poker game in the conference room? 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 and that it is increasingly more difficult to monitor what employees do at work. If you want to capitalize on that bond but avoid the pitfalls, why don’t you turn the pool into a charitable activity? All proceeds collected serve as a charitable donation on behalf of the winner of the pool. All three of the pitfalls above disappear while you retain the bonding and increase the feel-good components of having raised money for a good cause.
All I hope is that this Super Bowl is as exciting as the last one that took place at University of Phoenix stadium!
Laurent Badoux is Chair, Phoenix Labor & Employment Practice at the Phoenix office of the international law firm Greenberg Traurig. www.gtlaw.com