Safe Bets: Super Bowl Gambling, Monday Absenteeism


By Allen Smith February 5, 2016

Odds are that any Super Bowl gambling by employees won’t garner federal enforcement authorities’ attention, as long as the gambling is small-time, management attorneys say. Employers concerned that gambling may get out of hand, though, have tools to deal with this issue, such as gambling and Internet usage policies.

Higher absenteeism and late arrivals on Super Bowl Monday also are likely to occur. One in 10 U.S. workers—an estimated 16.5 million employees—may miss work the day after the Super Bowl, according to the Workforce Institute at Kronos. An additional 7.5 million Americans may show up late on that Monday. (The Workforce Institute is a think tank that addresses human capital management issues. Kronos is a time-and-attendance software company.)

Employers may limit absenteeism and tardiness on the day after the big game with either carrot or stick approaches to discourage workers from treating the day like a holiday.

Office Betting Pools

“It probably isn’t very likely that the FBI will break down your office door and raid the place if your employees engage in a Super Bowl pool of some sort,” said Sean Ray, an attorney with Barran Liebman in Portland, Ore. “That being said, it doesn’t mean it can’t happen. It’s just more likely to occur where there is large-scale illicit gambling occurring.”

“It’s exceedingly rare for the authorities to investigate your typical office pool,” agreed Richard Meneghello, an attorney at Fisher & Phillips in Portland, Ore. “As long as the organizers don’t skim money off the top, you restrict the pool to people in your office or close family members and friends (don’t advertise your pool on Craigslist), and the stakes are relatively low, the odds of the police or the FBI raiding your office are fairly slim. Another way to reduce the risk of legal liability is not to allow wagers from across state lines, even if your company operates in more than one state.”

Ray cautioned that employers should not sponsor the gambling. “If the employees decide among themselves to engage in a betting pool, that is one thing. If the HR manager or CEO is running the pool, that is an entirely separate issue,” he said.

Some employers have eliminated gambling pools and instead hold contests geared toward building morale, where employees complete brackets for free and the winner receives a gift card, he noted.

Prohibiting gambling can be beneficial if an employer is concerned about the potential liability of gambling on the premises, Ray said.

Preventing Problems with Policies

A different employer concern may be the potential drain on productivity. An Internet usage policy may help address this, Ray noted. A policy should limit the amount of personal time that employees can spend on company computer equipment.

Having a gambling policy is a “wise move,” Meneghello said, “as most employers do not want large amounts of cash floating through the office, nor do they want the distraction that gambling could cause or the sore feelings of those losing money to workers.” He noted, “Some studies have shown that employees with gambling problems could be more prone to commit embezzlement or theft, so it is worth drawing a bright line to limit those kinds of issues from cropping up in the first place.”

Another consideration, as John Snyder, an attorney with Jackson Lewis in New York City, pointed out, is that “the company may have certain nonsolicitation rules, so having a Super Bowl pool could potentially open up an employer to other forms of solicitation, such as for religious purposes, fundraising or other activities.”

Even though small-time betting is unlikely to be on the radar of law enforcement officials, it can raise potential discrimination and harassment issues if employees are excluded from participating or ridiculed for not wanting to participate, cautioned Christopher Caiaccio, an attorney with Ogletree Deakins in Atlanta.

“If an employer has a policy on gambling, the employer will want to make sure the policy is clearly worded,” Ray remarked. “What types of activities are precluded? Is fantasy football considered gambling under the policy, even if no money is at stake? What about legally purchased lottery tickets?”

Uniformly enforce any gambling policy, he said. “Some offices have ‘baby pools’ where employees wager on the birth date for a fellow employee who is an expectant mother. This can be just as much gambling as a March Madness pool or Super Bowl square-betting grid, so employers should be cognizant of all types of wagers that may be made in the workplace when developing a policy.”

Super Bowl Flu

Another perennial concern about the Super Bowl is tardiness or absenteeism on Super Bowl Monday.

It is estimated that three out of four employees will tell their boss the truth about why they missed work or showed up late when it’s due to a a personal reason, such as watching the Super Bowl, the Workforce Institute said. Other workers, though, may claim they have the flu.

Employers may give employees a late start option, pushing the start time back by one to two hours, to encourage them to come in on the day after the big game, noted Kevin Curry, senior vice president and national practice leader at Reed Group, an absence management company. A company might also provide an attendance incentive for showing up, like a gift card, free breakfast or extra paid time off.

Be aware, Ray cautioned, that “If an employee calls in sick the day after the Super Bowl, that leave may be protected under state law, though some states have carve-outs for suspected abuse of sick leave.”

Meneghello said that many state leave laws let employers request medical certification for workers who call in sick or late, especially if the employer suspects a pattern of abuse—such as repeated absences on Fridays and Mondays. “Let your employees know ahead of time that you will consistently enforce your attendance policies and will require certification where allowed, which might cause someone to think twice about their weekend activities.”

Working on Super Bowl Sunday

Some employees have to work on the day of the big game.

“Perhaps allowing those workers to wear football-themed attire, such as their favorite team’s jersey, would help ease the pain of working on Super Bowl Sunday,” Meneghello noted. “Throwing a lunch party with typical ‘football food’ might help, too.”

And, if the nature of the work permits, have the game on in the background, he said.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.


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