Are you ready for some football?

January 29, 2008

Employment Law Alert

Author(s): Christopher G. Gegwich, Jeffrey B. Gilbreth

Super Bowl Sunday is eagerly anticipated and enjoyed by millions throughout the country. True fans can take it very seriously, but for most, it is just a fun and exciting event. For a few employment lawyers, however, it is our annual time to cause eyes to roll by taking a few minutes to remind employers about the potential impact of the game in the workplace.

By Christopher G. Gegwich and Jeffrey B. Gilbreth

The Super Bowl is considered by many to be one of the greatest sporting events in the world. In the United States, it consistently ranks as one of the most-watched television events each year. The media scrutinizes the event from every conceivable angle. Big screen television sales take off, and friends and families gather together to watch the big game, gorging themselves on chicken wings, pizza, soda, beer, and other items that destroy New Year’s diet resolutions.

Super Bowl Sunday is eagerly anticipated and enjoyed by millions throughout the country. True fans can take it very seriously, but for most, it is just a fun and exciting event. For a few employment lawyers, however, it is our annual time to cause eyes to roll by taking a few minutes to remind employers about the potential impact of the game in the workplace.


The Super Bowl is reported to be the single most heavily betted sporting event of the year. The most common form of Super Bowl gambling in the workplace is, of course, the office betting pool. While most office pools involve relatively low stakes (as an example, a $5 box on a Super Bowl grid), depending on the size of the organization, the stakes, and the number of employees participating, winners of such pools can potentially receive hundreds, if not thousands, of dollars.

Office betting pools are not, per se, illegal, but prudence dictates that employers should not be running such pools in any event. The actual legality of an office betting pool depends on the location of the workplace, as various states and municipalities take drastically different views as to whether the standard office pool constitutes illegal gambling or the taking of “bets.” At a minimum, employers should review their local and state laws and regulations to determine whether the running of an office betting pool is legal. If legal, office betting pools should be operated in strict compliance with state and local laws and regulations. Even if such betting pools are legal, however, there are a few areas that employers should specifically avoid. For example, employers generally should not take a “cut” of the winnings as the “house,” and minors should be strictly prohibited from participating. Allowing participants from outside the organization could also be problematic, especially if bets are taken across state lines from locations that do not allow this form of gambling. Finally, employees (and employers) should be discouraged from using the Internet in connection with these office pools, as it could potentially be viewed as an online gambling site—which may or may not be permissible. If legal, it’s best to keep office betting pools simple, voluntarily organized by employees, and limited to participants within the organization. If illegal, nothing more needs to be said.

Aside from the potential criminal liability, the traditional office pool may also create other issues for employers. Many companies have policies that prohibit gambling, of any type, in the workplace and/or maintain a code of ethics or conduct that prohibits such activity. Additionally, most organizations have adopted policies limiting the use of the email system to only business-related purposes. Obviously, a companywide email sent by the organizer of the office pool inviting employees to participate would certainly violate both of these policies. While it seems easy enough to overlook these seemingly innocuous transgressions since they likely happen only once or twice a year (the Super Bowl and the NCAA basketball tournament are the most popular for office pools), the failure to enforce the company’s policies can have significant unintended consequences. Inconsistent application or enforcement of company policies can lead to questions as to the reasons for such disparate treatment (i.e., discrimination or retaliation) or make it more difficult to discipline employees for similar offenses (unwanted precedent). It appears to be a safe bet (pun intended) that your company, if it has such policies, should uniformly apply them without exception.

Inconsistent application of a company’s e-mail policy was front and center in the recent decision by the National Labor Relations Board (NLRB) in The Guard Publishing Company d/b/a The Register-Guard and Eugene Newspaper Guild, CWA Local 37194, Cases 36-CA-8743-1, 36-CA-8849-1, 36-CA-8789-1 and 36-CA-8842-1 (December 16, 2007). The employer in Guard Publishing, a newspaper publisher, maintained an email policy that prohibited, among other practices, “all non-job related solicitations.” After the local union president was disciplined multiple times for using the company’s email system to send emails to bargaining unit employees, the union filed an unfair labor practice charge with the NLRB. The NLRB held that an employer has a “basic property right” to “regulate and restrict employee use of company property,” and therefore, the policy restricting the employee’s use of the email system did not violate the union’s rights under the National Labor Relations Act. The NLRB did find, however, that the employer committed an unfair labor practice when it discriminatorily enforced the policy to prohibit the union president from using the email system for non-work-related purposes while, at the same time, allowing others to do so. The foregoing is a good example of an employer’s need to enforce its policies in the workplace uniformly, and without exception.

Although voluntary, employee-run Super Bowl betting pools can create issues for employers, they may also have some unexpected benefits. Office pools and the like may increase morale and encourage friendly competition and camaraderie among coworkers. Efforts by employers to stifle, restrict, or curtail legal office pools may lead to resentment among employees. Unless productivity is substantially impacted, employers may want to simply accept and even actively embrace the excitement that is generated by the Super Bowl. What might be lost in productivity could be gained with increased morale in the workplace.

In summary, some tips for employers:

  • Determine whether office betting pools are legal and permitted in your jurisdiction, and respond accordingly.
  • If your company has adopted policies that prohibit gambling in the workplace or limit the use of the email system to business-related purposes only, these policies should be uniformly enforced without exception.
  • Unless illegal, allowing employees to participate in an office betting pool can increase morale, as well as the employer’s relationship with its employees.

Super Bowl Parties

For some, the Super Bowl party is as important as the game itself. Some fervent footballs fans have argued that Super Bowl Sunday—or, for those who imbibe too much that night, the day after—should be considered a national holiday (with the day off, of course).

Most employers do not sponsor company-sanctioned Super Bowl parties, but they will have any number of employees planning and hosting private gatherings for the big game. Even when such parties are not on-site or company sponsored, social gatherings involving groups of employees can create issues for employers. On a simple level, even the initial question of who gets an invitation can become more problematic in the workplace. More important, however, you do not need a law degree to know that mixing employees and alcohol in an unsupervised social setting means that the potential for offensive or inappropriate comments or behavior will increase.

All employees, especially supervisors, should be reminded that inappropriate and harassing behavior occurring outside of the workplace may still be unlawful and/or violate the company’s discrimination and harassment policies. Supervisors, especially, should be aware that they cannot completely take off their management hats at the door when they attend or host a Super Bowl party with coworkers. Rather, supervisors should know that inappropriate off-duty conduct can be damaging in the workplace and can potentially subject them and their employers to liability.

A few tips and pointers to help employers get through Super Bowl parties:

  • Remind employees, especially supervisors, that they may well be perceived as representatives of the company even when off-duty, and they need to comport themselves in compliance with the company’s code of conduct, antidiscrimination, and sexual harassment policies at all times. Supervisors should be trained in preventing, reporting, and addressing complaints of discrimination and harassment.
  • Remind all employees not to drink and drive.
  • In the event of a company-sponsored social gathering involving alcohol, avoid an open bar and watch for those employees who appear to have had too much to drink. In addition to the possibility of liability for inappropriate behavior, an employer may face potential liability for an alcohol-related accident or injury that occurs after a company-sponsored social event. For company-sponsored events, the employer may want to prearrange for designated drivers or some other form of safe transportation for employees after the party.

Lost Productivity

Finally, some believe that the Super Bowl’s most significant impact in the workplace is the lost productivity employers will experience in the days preceding and following Super Bowl Sunday. In the week preceding the game, employees may use work time to participate in office betting pools (which, as discussed above, can pose other problems), talk about the game, organize Super Bowl parties, and the like. The impact on productivity does not end with the Super Bowl’s final whistle: “Super Bowl Monday” is well-known for having high levels of absenteeism.

While employees talking about the Super Bowl should really not cause any concern for most employers, when this lost work time is aggregated, the amounts are truly staggering. Challenger, Gray, & Christmas, Inc., an outplacement consultancy firm, estimated that employers would lose $800 million dollars in lost productivity in the week preceding the 2007 Super Bowl and an additional $156 million in lost productivity on the following Monday. So those few minutes can add up!

This said, there is very little that employers can or should do about such lost productivity except under truly egregious circumstances. Any attempt to police typical Super Bowl behavior would be very difficult and would likely be viewed as heavy-handed.

Enjoy the game!

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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