The big news this week on all the blogs has been about the Supreme Court’s acceptance of a case that will potentially look at employee privacy rights in text messages for public employers. I believe it’s impact is going to be quite limited to public employers with little or no impact on private employers so I’ll write about that another day.
Frankly, there’s a more fascinating story that’s out there and combines to current interests — Fantasy Football and employment law.
And this is definitely not a fantasy story.
Fantasy Football, for those unfamiliar with it, is a game in which participants (called "owners") are arranged into a competitive league, earning “fantasy points” by using the statistics of real football players.
In some cases, the players pool money for a winner, but in many many other cases, it is done for glory and pride. Over recent years, it has grown exponentially in popularity — so much so that magazines like Sports Illustrated run columns on the subject.
(In the interests of full disclosure, I joined a fantasy football league this year for free and, ahem, am doing pretty well in it so far.)
This week, it was reported that Fidelity Investments fired four employees (including relationship managers to various clients) who were running various fantasy football leagues.
What was curious about the company’s statement for the rationale for the firing was not so much using company time and resources for the league but rather it’s designation of fantasy football as a form of "gambling".
Said Fidelity spokesman Vin Loporchio: "We have clear policies that relate to gambling. Participation in any form of gambling through the use of Fidelity time or equipment or any other company resource is prohibited. … We want our employees to be focused on our customers and clients."
That seems to be a slippery slope for the company to go down. To be clear, the company is well within its rights to fire employees for using company resources and time to run an activity that is not work-related.
Fantasy football owners may complain about the decision or deem it to be overly harsh, but employers typically have a great deal of flexibility in setting rules of behavior in the workplace.
Where the company may have missed the boat is its designation of fantasy football as "gambling" in its purest form. It’s not really betting or wagering — its mainly just a game. While the "owners" who were fired put up $20 each, it was part of a social relationship as well, which is typically another exception to the no gambling rule.
And so, to come down on the employees here, opens the company up to criticism around Super Bowl time or March Madness. Are they so restrictive that they prohibit anyone from participating in simple office pools (which, as I’ve discussed before, are fairly innocuous under Connecticut state law). I’m going to guess that the answer is "probably not". Does that mean its decision here is wrong? No. But it does open the employer up to criticisms that it is being unfair and arbitrary.
So what’s the takeaway for employers?
- Set up clear rules for your employees; if participation in fantasy leagues or office pools is prohibited, say so. And then enforce that rule evenly.
- If those types of activities aren’t prohibited, make it clear that participation in those activities during work time is not allowed. Restricting off duty conduct is — for the most part — well outside the bounds for an employer to consider.
- Consider "blessing" such activities in a non-monetary fashion. Some employers have small office gatherings around some sports event to build morale and teamwork.
Again, I’m not advocating turning a blind eye towards employees who are misusing company resources. But setting up clear expectations to your employees and enforcing those rules evenly, will ensure that if problems do develop, they’ll be handled in a fair and appropriate manner.