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As I’ve written about before, Connecticut has basically turned a blind eye towards office pools — particularly when the organizer doesn’t take a cut of the prize money. 

But what should companies do?

Well, lawyers like to come up with a laundry list of reasons that there exists some risk with allowing office pools or March Madness at your company. For example, as one lawyer put it, employees who feel excluded “could” file discrimination claims. 

But experience has not shown that those risks are something out of the ordinary.  A quick search for discrimination cases where office pools are used as evidence of discrimination turns up, well, nothing of substance.  Yes, there was one case where a supervisor refused to allow an employee to move a television into the warehouse so he could watch March Madness games (you can’t make this up), but the court was rightfully not concerned by that fact. 

So, what’s the takeaway for employers? Even with the attorney general’s blessing a few years back, a company should probably not sponsor the pool directly. If a few employees want to organize, so much the better. But if that happens, someone should inform those individuals that any money collected should be distributed and they are not allowed to keep a cut of the money. 

 And if company resources are being used significantly for such efforts, the employees ought to be counselled to keep work computers out of it. 

Of course, the company can always sponsor a contest (different from an office pool in that participants do not need to submit money to play) for employees to get involved with. For example, the company could give away a free vacation day to the winner of the office “pool”. It’s a fun, low-cost way to build morale within a department or office.

Despite the low risk that your office pool is going to lead to trouble, if you have any concerns about this, talk with your local lawyer to get a sense whether what you’re doing is truly kosher.  And check out this post which talks about some of the approaches companies take on this too. 

Does your office sponsor a pool? Do you think the legal risks are overblown or underrated?

It doesn’t get much better than this for Connecticut residents.

Giants vs. Patriots for the Super Bowl. 

Go Giants!

In a state where the loyalties are divided, a Super Bowl rematch from four years ago is nirvana. 

And with such interest and enthusiasm, friendly wagering among friends will no doubt follow. But what happens when those people want to bring such wagering into the workplace in Connecticut?

In Connecticut, gambling and wagering are prohibited by various state laws. There is no clear exception for “workplace” bets, or small bets. According to the statutes, a bet is a bet, regardless of where it is placed. (The obvious exceptions to this general rule are the Indian casinos in the state — Foxwoods and Mohegan Sun.)

However, there is one well-worn exception to the “no gambling” rule. Specifically, Conn. Gen. Stat. Sec. 53-278b states that people (not companies) are:

exempt from prosecution and punishment under this subsection for any game, wager or transaction which is incidental to a bona fide social relationship, is participated in by natural persons only and in which no person is participating, directly or indirectly, in professional gambling.

And what about the office pool?

(The traditional office pool is a game where people pay, say $5, for a “box” on a 10×10 grid.  The grid then has the last number for each team’s score ranging from 0-9.  If the score is 21 to 14 in favor of Giants, then the person who has the corresponding 1-4 box, in favor of the Giants, would win.) 

No less than Attorney General (now U.S. Senator) Richard Blumenthal chimed in on the subject a few years ago and blessed the office pool so long as the person or company running the pool doesn’t take a cut of the money.

“Office pools are generally legal unless they’re done for a profit by the person organizing it,” Blumenthal said at the time. “In other words, if there’s a house, so to speak, or an organizer takes a cut (then it’s illegal).” 

So, what’s the takeaway for employers? Even with the attorney general’s blessing, a company should probably not sponsor the pool directly. If a few employees want to organize, so much the better. But if that happens, someone should inform those individuals that any money collected should be distributed and they are not allowed to keep a cut of the money.

Of course, the company can always sponsor a contest (different from an office pool in that participants do not need to submit money to play) for employees to get involved with. For example, the company could give away a free “vacation day” to the winner of the office pool. It’s a fun, low-cost way to build morale within a department or office.

Regardless of your favorite team, this a fun time of year.  My loyalties are squarely with the New York Giants.   Go Big Blue!

Last year, Connecticut football fans were in nirvana. Giants versus Patriots. In a state where loyalties are divided among those two teams, you couldn’t ask for a better match-up.

This year? Well, let’s just say that many people will need to find some alternative reason to get excited about the matchup.

Which is where office pools come in. 

At many employers, either formally or informally, employees can contribute a small sum (a few bucks up or perhaps $20) to get a box on a 10×10 grid, which corresponds with the last digit of the football score for each team (0-9). Get a box that matches the score at the end of a quarter or game, and you might will a few hundred bucks. 

(And office pool "experts" will tell you that numbers like 0, 3 and 7 are decent draws, while 2, 5 and 9 are remote possibilities). 

But for employers, this raises an interesting question — are office pools legal?

Well, last year, Connecticut Attorney General Richard Blumenthal chimed in near game time to say, in essence, yes office pools are legal, so long as the "house" (or the employer sponsoring it) doesn’t take a portion of the money.  An article in the Norwich Bulletin, quotes Blumenthal as saying: “Office pools are generally legal unless they’re done for a profit by the person organizing it.  In other words, if there’s a house, so to speak, or an organizer takes a cut (then it’s illegal).”

The actual law is a bit hazier as I explained in a fairly detailed post last year (available here). But since it is pretty clear that the state’s top enforcement official has no interest in prosecuting office pools, there doesn’t seem to be much harm in jumping in.

Just hope you don’t get the dreaded 5-5 combination. 

For football fans in Connecticut, it doesn’t get any better than this — Patriots and Giants in the Super Bowl. With loyalties evenly divided in this state between the Giants and Patriots, interest in the Super Bowl will be at an all-time high. (My allegiance has always been with the Giants, particularly since Robert Kraft’s tease of moving the Patriots to Connecticut in the late 1990s). 

And with such interest and enthusiasm, friendly wagering among friends will no doubt follow.  But what happens when those people want to bring such wagering into the workplace in Connecticut? The short answer is "Player Beware". 

In Connecticut, gambling and wagering is prohibited by various state laws, including Conn. Gen. Stat. Sec. 52-553 and 52-554.  There is no clear exception for "workplace" bets, or small bets. According to the statutes, a bet is a bet, regardless of where it is placed. (The obvious exceptions to this general rule are the Indian casinos in the state — Foxwoods and Mohegan Sun.)

However, there is one well-worn exception to the "no gambling" rule.  Specifically, Conn. Gen. Stat. Sec. 53-278b states that people (not companies) are:

exempt from prosecution and punishment under this subsection for any game, wager or transaction which is incidental to a bona fide social relationship, is participated in by natural persons only and in which no person is participating, directly or indirectly, in professional gambling. 

Thus, the language appears to create an exception to the idea of professional gambling — if there is a "bona fide social relationship."  Would workplace relationships qualify for this exemption? That’s obviously an open question.  Some might quality; others clearly won’t.  As the Office of Legal Research for Connecticut’s General Assembly stated in August 2007:

The law does not define “incidental to a bona fide social relationship”; the legislative history of the law does not indicate the legislature’s intent in enacting the exemption (see House and Senate debate attached); and we found no controlling Connecticut court ruling on the meaning of the term as it pertains to gambling.

For employers, this exception does not apply however.  Clearly, by referencing only "natural persons" (meaning people, not "corporations"), the law is intended to only protect individuals, not employers, from prosecution.  Thus, company-sponsored Super Bowl office pools would appear to be out. (That goes for Oscar Award wagering too.)

But what about the smaller, employee initiated ones? Again, the statute’s language focuses on "social relationships".  A few people wagering may appear to be better than a 100-person office pool.  However, there is no "sure bet" that a small office pool among peers will pass muster under review.  And thus, "Player Beware" is the surest answer to this.

Is there any real likelihood of prosecution? Probably not. It does not appear to be a priority for enforcement. But for employers in the state, that doesn’t mean it should promote such pools either.  Having a clear and established policy on gambling (that would include, for example, a prohibition of company computers to help run such a pool) may be a good start to avoiding further issues down the road.

For background on office pools in general, some posts have already gotten a jump start on the topic.  John Husband, of the Colorado Employment Law Letter, has a fun article on the subject here.  Despite lawyers’ tendency to be cautious on the subject, Husband reminds us that office pools can be more than simply money:

As with many aspects of employment law, there is no clear-cut rule regarding workplace gambling that will fit every company and every situation. Office pools, Oscar pools, and group lottery tickets often constitute significant ways that managers build camaraderie and teamwork and relieve employee stress.

Perhaps, over the next two weeks leading up to the Super Bowl, instead of worrying about office pools, employers in Connecticut can have fun with the topic.  Nothing in the law prohibits Super Bowl parties, and displays of team spirit in the workplace.  Imagine a workplace "rally" where employees can cheer on their favorite sport with the employer giving away football-related gifts. That certainly would build workplace morale.  Enjoying the time leading up to the Super Bowl is something that I think all football fans in the state can agree on. 

UPDATE 1/30: Attorney General Richard Blumenthal recently chimed in that he viewed office pools as okay, so long as the house did not profit from it.  “Office pools are generally legal unless they’re done for a profit by the person organizing it,” Blumenthal said. “In other words, if there’s a house, so to speak, or an organizer takes a cut (then it’s illegal).”

With the UConn Women’s Basketball Team on a 72 game winning streak (and the University of Hartford riding high as well), it’s hard not to get excited about the NCAA Men’s and Women’s Basketball Tournaments that start in a few days.  (Let’s just quickly forget the UConn’s men’s team for the moment, shall we?)

Part of the fun of the tournaments is filling out the brackets to the tournament. And offices are not immune to bracket fever.

But are they legal?

I’ve discussed office pools and such in detail in a previous post, but the short answer is that they’re mostly fine.

Attorney General Richard Blumenthal chimed two years ago in that he viewed office pools as okay, so long as the house did not profit from it. 

“Office pools are generally legal unless they’re done for a profit by the person organizing it,” Blumenthal said. “In other words, if there’s a house, so to speak, or an organizer takes a cut (then it’s illegal).”

So, what’s the takeaway for employers? Even with the attorney general’s blessing, the company should probably not sponsor the pool directly. If a few employees want to organize, so much the better. But if that happens, someone should inform those individuals that any money collected should be distributed and they are not allowed to keep a cut of the money.  

Of course, the company can always sponsor a contest (different from an office pool in that participants do not need to submit money to play) for employees to get involved with.  For example, the company could give away a free "vacation day" to the winner of the bracket. It’s a fun, low-cost way to build morale within a department or office.

football1My New York Football Giants are 0-2 so far this year.  It’s been ugly.

But all is not lost for me. Why? My fantasy football team — the Hartford Hotspurs (with a wink to my favorite soccer team, the Tottenham Hotspurs) — is 2-0 so far.

Now, you may be wondering what this has to do with employment law.  Well, as it turns out, lots. (And, in fairness, I’ve covered this topic before in posts such as here, here and here.)

Fantasy Football and March Madness have made it into the workplace like never before. (Note to my fellow partners — my fantasy team is strictly an outside endeavor).  Indeed, some employees are bound to make a friendly bet or wager (or enter a “daily fantasy league”) on company time while on company property and with company equipment.

While seemingly harmless, gambling, whether legal or illegal, is a huge pastime in the US and often creates unwanted legal issues. In some states gambling can range from a Class B misdemeanor to only a social relationship.

Employers may also open themselves to liability by sponsoring or permitting gambling in the workplace.

On October 20th, the American Bar Association is producing a webinar on the topic.  And I’ll be one of the panelists to discuss the employment law implications.

As a whole, the program will discuss:

  • Legality of the most common forms of workplace gambling
  • Ethical guidelines to consider
  • Enforcing/developing policies
  • Liability and organizational risk
  • Preventing disruption at work if office pools are allowed

It promises to be an entertaining and informative talk. Be sure to join us.  You can register from the program, which will run from 1-2:30p ET, here.

 

A confession first: I’m in a fantasy football league. Actually two of them.  It’s fun and makes weekend football watching a heck of a lot more interesting.

But did you know that fantasy football has led to all sorts of real issues in the workplace?

Well, longtime readers may remember an incident from five years ago when Fidelity Investments fired a number of employees for participating in and running a fantasy football league claiming it was part of a “gambling” operation.

The tips I gave at the time still hold true today:

  • 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.

But I was curious: Has fantasy football been the subject of actual allegations in other employment cases? In other words, is fantasy football something other than a fantasy in the workplace?

A quick Google Scholar search turned up more cases than I would have thought.

  • There was the 2004 New Jersey case where two employees alleged religious harassment.  For example, “One of the ‘Jewish’  comments ascribed to [the alleged harasser] related to the office fantasy football league when [that employee] allegedly said, ‘This is the gentiles against the Jews and the plaque should never hang in anybody’s office that doesn’t celebrate Christmas.'”  Despite this allegation, the court upheld summary judgment in favor of the employer.
  • In a 2013 case, an employee claimed that his termination was racially motivated.  The employer, as part of its defense, pointed to an earlier performance review where the employee’s usage of worktime was criticized. The review indicated that the employee “showed up late for meetings, worked on fantasy football during a “boot camp” training session in August 2004, and failed to contribute in staff meetings.”  The employee’s discriminatino claim was allowed to proceed to trial by the Sixth Circuit after further consideration (and more facts.)
  • Lest you think that fantasy football is merely virtual, there was constructive discharge case filed against a fantasy football statistics company and a claim for unpaid stock worth in the millions of dollars.
  • A more common claim is the type found in some sexual harassment claims — that the employee was ostracized.  In a Minnesota case from a few years ago, a female employee alleged that “she was excluded from Fantasy Football leagues and other social events, like campfires, and her co-workers would talk about these activities around her, even though she wasn’t invited to participate. ” (Campfires? Do companies still do that?) The employer’s motion for summary judgment was denied in this case as well.

So to answer my own question in the title: No, fantasy football is not a critical threat to your business. But sometimes, fantasy football can be used support a claim of harassment or discrimination.

Fantasy football, despite its name, is a real industry and those companies that treat it as mere child’s play, do so at their own risk.

Since I’m a lifelong Connecticut resident (and big UConn basketball fan), it seems almost a requirement that I dedicate a post today to the Huskies’ NCAA Men’s Basketball Tournament championship last night.

And of course, this being an employment law blog, I’ve spent some time thinking that there must be a way to translate that victory into lessons for employers.  (After all, if we can learn lessons from a Yankees victory, surely there are some nuggets to pull from last night.)

So here are a few things employers can learn from this year’s Huskies:

1.   Experience is great, but hard work and determination can carry the day. 

Overall, the Huskies were a young and inexperienced team. But they still won. Why? In part because of the hard work and determination that they put in.  When dealing with employment law issues, it’s great to have some experience, but there’s no substitute for hard work and effort to ensure compliance.  You can always learn the new laws but without the work behind it, that knowledge may not be enough.

2.  Even great leaders can be disciplined.

There is no doubt in my mind that Jim Calhoun is one of the greatest basketball coaches of this era.  But sadly, his legacy will be forever tied with the findings that he broke the NCAA rules by failing to oversee his program.  And ultimately, he has been disciplined for those violations (by being suspended for the start of the Big East season in 2011-2012).  For employers, it is an important lesson that even your superstar — your head coach — is not above the law or rules.   It is no doubt painful to watch, but rules are rules and when they broken, there have to be consequences.  

3.  Even with discipline, life can and must go on.

For some, it seems incongruous that we are celebrating the Huskies and Jim Calhoun, even in light of the NCAA findings.  But this merely illustrates another important point: discipline need not be a death penalty.  Employers may have to discipline their top employees or even shuffle the organization, but ultimately, life and the business must go on.  "Business as usual" must prevail. Otherwise, your employees — and your organization — will be left without closure only to have those problems fester and reappear down the road.  When you’ve instituted your penalty, follow through but don’t let it hang over your organization forever. As some point, there’s an end.

4.  March Madness Still Rules

The last few weeks have been downright fun.  Everyone’s office pools are a mess, but overall, the tourney has given everyone something fun to enjoy.  Within your own company, it’s easy to get caught up in the day-to-day grind.  Every once in a while, it’s ok to have some fun.  Not everything your company does (a holiday party, or office pool) is going to lead to a lawsuit. 

UConn had its ups and downs this year, but their post-season run (an incredible 11 wins in a row in a do-or-die format) has truly been inspirational.  As all of Connecticut grabs an extra cup of coffee this morning for another late night, I raise mine to salute them. 

Today is a memorable day. For some, its Rosh Hashanah – the start of the Jewish New Year and one of the holiest days of the year.  It is common to wish everyone a happy and sweet new year.  (If you really want to get into it, get a fresh Connecticut apple and dip it in some honey today too.  My preference is the Macouns or the Honeycrisp ones)

But for many others, today is a big day too. It’s the start of the NFL season. And along with that, the start of many "fantasy football" leagues. 

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.  (Disclosure: I am participating in a no-money league this year.)  Look at any sports website and you’ll see tons of pages devoted to it.

But this is an employment law blog — what does fantasy football have to do with employers? Plenty.

Last year, for example, several employees were fired for running a big fantasy football operation out of the workplace.  In that case, the employer deemed the league to be a form of "gambling" that was prohibited by company rules.  As I said back then, that criticism seemed a bit over-the-top and no more upsetting than the Super Bowl or March Madness Office Pools that dot the landscape.

A better way to regulate such pools may be to say that such activities cannot interfere with work or use company resources.  As a result, employers may want to think about the following guidelines as fantasy football season begins again:

  • 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.  This is work, after all. 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.

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.courtesy "football" - morguefile

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.