A Publication of Pepper Hamilton LLP
Labor and Employment Law Update
Cinderella Teams! The Big Dance! Bracketology! Is March Madness Hype Problematic for Your Employees?
Wednesday, March 10, 2010
This article first appeared in the March 2010 issue of HR Specialist: Pennsylvania Employment Law (http://www.thehrspecialist.com/hrs/LearnMoreHRPA/). It is reprinted here with permission.
It’s March and again time for the NCAA basketball tournament, a.k.a. "March Madness." As the 65 teams are selected, the brackets are announced, the pools are printed, and the agony of whether to select a Cinderella team or your alma mater begins. Talk of "picks" and the "final four" seems everywhere.
Gambling in this country is widespread; some form of gambling is legal in almost every state, and about 85 percent of U.S. adults have gambled at least once in their lives. So, not surprisingly, March Madness means office pools and friendly wagers. Sports analyst Danny Sheridan estimates that about $6 billion dollars are wagered illegally on March Madness, making it the fourth largest sports betting event. A fair amount of that $6 billion is wagered through office pools. Office pools certainly can be a lot of fun, usually involve only a few dollars, and can be a source of great employee camaraderie, but they also can present some risk. So, should employers be concerned about office pools and the bigger issue of gambling in the workplace?
Yes, because employers must be sensitive to the presence of "problem gamblers" in the workplace. According to the National Council on Problem Gambling (www.ncpgambling.org), problem gambling is "behavior which causes disruptions in any major area of life – psychological, physical, social or vocational." That organization estimates that there are about 4 to 6 million U.S. adults who could be considered problem gamblers because they are experiencing some of these disruptions due to their gambling behavior. Anti-gambling groups therefore often urge employers to stop sanctioning office pools, such as the pools that spring around March Madness.
Generally, office pools do not cause significant disruption in the workplace or have a major impact on productivity. However, as with anything, there is a possibility that pools can get out of hand. It is important to remember that sports gambling, especially on college sports, is illegal in almost every state. Although companies that look the other way when a pool is circulated do not face a great risk of a criminal investigation, company management should not officially sanction gambling pools. It is advisable to keep the amounts wagered small and avoid using the Internet to distribute pools or post results.
An employer also should consider having a written policy regarding workplace gambling to prevent things from getting out of control. The policy should define gambling, what behavior is prohibited, and what discipline will be taken against employees who violate the policy. Are all forms of gambling prohibited in the workplace and on company property? Are there exceptions for sports pools, raffles, or company-sponsored events supporting a specific cause?
Employers that allow some forms of gambling must be prepared for the possibility of complaints from employees who may be uncomfortable with office pools. For example, a complaint of a hostile work environment by an employee based on religious beliefs would not be surprising if the employee is harassed or harshly ridiculed for his beliefs and refusal to participate in a pool. Employers should be prepared to handle these complaints in the same fashion as any workplace complaint. After an assessment of the situation, the appropriate action needed to resolve the issue should be taken, and there should be a follow-up conversation with the complainant to make sure the solution cured the problem.
For most employees, March Madness is an exciting time and is not problematic. However, for those employees who have a gambling problem or addiction, March Madness pools or other games of chance may accelerate or trigger a growing gambling problem. An employer’s supervisors should receive training on recognizing signs of problem gambling and on handling the situation. Some common signs of a gambling problem are:
- absenteeism and/or tardiness because of late nights of gambling-related activities, such as card games or trips to casinos
- long lunch periods or disappearance during the workday, especially in the afternoon
- use of vacation time in single-day increments instead of a block of days
- moodiness or irritability
- excessive use of the telephone, e.g., calls to bookies, off-track betting parlors, or creditors for money
- obsessive interest in sports scores or results
- theft, fraud or embezzlement
- garnishment of wages
- frequent requests for pay advances.
The Americans with Disabilities Act specifically excludes compulsive gambling as a disability. Therefore, an employer is not obligated to accommodate an employee who is a pathological gambler, and cannot be held liable under this law for discrimination or failure to accommodate. If an employee exhibits signs of problem gambling and this behavior is affecting his or her performance and productivity, the employer should express concern to the employee in a non-judgmental way. The employee should be reminded of the employer’s Employee Assistance Plan (EAP) or other support organizations, such as Gamblers Anonymous or credit counseling.
Maureen Q. Dwyer
