Before you kick back with a box of Thin Mints to watch the next NCAA championship game, you may want to take a moment to consider your company’s policies with respect to workplace gambling and solicitation. Sure, that March Madness office pool you’re participating in is fun, and those Girl Scout cookies your colleague sold you are tasty, but are these activities legal in the work place? Can employers prohibit them? And should they?
For New York employers, participation in an NCAA office pool may be illegal under state and/or federal law. Paying to enter the pool may constitute illegal gambling under New York’s anti-gambling statute, although it may be deemed to come within the exception for “social gambling.” As for federal law, this type of gambling may violate the Interstate Wire Act of 1961 if employees from multiple states participate in, for example, an online bracket pool.
Does this mean you should be concerned that the feds or the NYPD are going to raid your office and drag all the basketball fans away in handcuffs? Probably not. But while the likelihood of criminal prosecution is relatively low, office gambling may have other negative consequences. For example, the time spent on these activities may impact productivity. Studies have shown that the costs to American employers for this annual dip in productivity could be as high as $1.9 billion. In addition, office pools may lead to conflict among co-workers.
On the other hand, many employers may feel that March Madness pools and similar activities foster camaraderie and boost morale. Indeed, the passion many employees have for these activities may cause any manager who seeks to ban them to fear that her office will soon be stormed by an angry mob. So, for employers who do not wish to prohibit bracket pools altogether, it may be sensible to permit them with reasonable rules and limitations in place. A good start would be to prohibit brackets from being posted online and to impose a low dollar limit on entry fees. Other restrictions may be advisable depending on the size, location, and culture of the employer.
Solicitation in the workplace has become routine — whether it is someone selling goodies for his child’s school or scout troop, or collecting contributions for a charity fun run. While many employers do not oppose such small-scale solicitation, some find it to have the potential to be distracting or disruptive. After all, even small-scale solicitation may cause discomfort; being constantly hit up for cash while trying to do one’s job can grow tiresome and even stressful. Accordingly, some companies prohibit solicitation in the workplace.
However, a blanket policy against solicitation may be problematic under the National Labor Relations Act (“NLRA”). The NLRB has found certain companies’ anti-solicitation policies be too broad because they could be interpreted by employees to prohibit discussions, or distribution of materials, about unionizing.
While this does not mean that employers must permit solicitation to go entirely unchecked, it does mean that anti-solicitation policies must be very carefully drafted. Any employer who already has an anti-solicitation policy or who is considering instituting one for the first time should have the policy reviewed by one of the experienced employment lawyers at Portnoy, Messinger, Pearl & Associates, Inc.
Gambling and solicitation in the workplace are complicated issues that require careful consideration. In addition to the various issues discussed above, employers should also consider how their gambling and solicitation policies interact with their other rules and procedures. For example, gambling and solicitation policies may overlap with an employer’s policies regarding the use of company computers for non-work purposes.