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Here we are again, fast approaching the most sustained workday distraction of the year: March Madness. With employees watching for everything from whether their bracket gets busted to whose shoe next disintegrates, this can be a worrying time for employers. After all, studies show that the average worker will waste six paid working hours watching or otherwise involved with the tournament. Employers nationwide will lose $4 billion in revenue, while also paying out $1.3 billion in wages for work not performed. There is also the perennial worry about gambling in the workplace, questions about dress codes, problems with employees who slip away for a few drinks at lunch while watching games, etc. . . .
Despite these legitimate—if sometimes overblown—risks, more employers are deciding on a middle road between zero-tolerance and “free for all.” It is true that, left entirely uncontrolled, March Madness could cause problems for your operations, but many employers are now embracing the season as a morale boosting, team-building opportunity, which they find pays dividends in other ways. A recent survey found that 89 percent of workers reported that participation in workplace bracket contests “helped build better team camaraderie.” Similarly, a high percentage of workers agreed that office pools make their jobs more enjoyable, improve their levels of engagement at work, and help them look forward to going to work more. Employers are deciding that a predictable, short-term decline in productivity is outweighed by the long-term team-building that office March Madness activities can bring about. So, what are the real risks, and how can you embrace the fun of March Madness without exposing your company to legal liability?
A major decision last year from the U.S. Supreme Court struck down the primary federal law outlawing betting on amateur sports. Additionally, “social games”—which would generally include office pools so long as the employer is not taking a cut of the pot—are excepted from Oregon’s state law prohibiting gambling, but only if authorized by local regulation. Even where office pools are not authorized, there is little chance of law enforcement knocking at your door. On the flip side, though, even where a company-organized office pool is technically legal, it may not be the best idea for the company itself to organize a pool. Not all employees agree with gambling, and some may not appreciate that the employer is organizing a pool. Others may even believe that an office pool is illegal (rightly or wrongly), which could give rise to a whistleblower claim. Other employees may be sore losers and resent the employer.
Without being directly involved, you can allow employees to organize their own office pools. You should have a clear policy on gambling in the workplace, which prohibits exchanging and storing cash at work, requires that all bracket/pooling activities be limited to non-work time, and stresses that participation in any pool or bracket is entirely voluntary. If you would like to organize something on the company-level, you can host a bracket game in which there is no cost to enter and you provide some nice non-monetary prizes.
While it is necessary to create and enforce workplace policies restricting the kinds of activities your employees can perform on company time, you already know that employees often skirt these prohibitions by using personal smartphones and tablets to keep up with March Madness. So don’t focus your attention unnecessarily where it’s not needed.
Instead, you should enforce productivity standards in the days leading up to the tournament and during the games themselves just like every other business day. Many companies recognize that their workers will inevitably spend part of their working day on personal business. Accepting this fact, most companies ultimately care about whether the assigned work is completed to quality standards and will not seek to micromanage every moment of the day. You should follow this same approach—strictly prohibit three-hour lunches and enforce alcohol policies, but you can be more lenient when it comes to allowing employees to watch the final minutes of a down to the wire game on the company TV or computer system.
Of course, certain hourly workers and other employees have a responsibility not to “steal time” from you and need to continue to work diligently at all times they are on the clock. No matter your situation, make sure to consistently enforce productivity standards and associated policies. Be realistic when addressing these situations, and make sure you don’t single out one worker to come down inordinately hard on when they may not be acting much differently than their coworkers. Inconsistent treatment is the gateway to a discrimination claim.
March Madness is one of the wildest and most enjoyable sports exhibitions in the world. Rather than fighting the inevitable, consider embracing the season if it works for your workplace. Let employees show some team pride or show off their “skill” with a bracket, and you too might find that your employees are happier, more productive workers over the long term.
Alexander A. Wheatley is an associate with labor and employment law firm Fisher Phillips in Portland, Oregon.