Super Bowl LIII is right around the corner, and March Madness will be upon us in the blink of an eye. You know what that means, right? Betting, brackets, office pools … and potential civil and criminal liability. So sorry to put a damper on the fun.
In 2018, Americans reportedly bet upwards of $4.5 billion on Super Bowl LII, and money wagered through office pools surely contributed to that total. With sports betting occurring in plain view on the office floor, what, if anything, should Florida employers do? Organize and participate in the pools? Look the other way as it occurs? Adopt policies that ban all workplace gambling (and all the fun)?
While office pools are widespread, they are illegal in many states, including Florida, when “real money” changes hands. In fact, in Florida, “whoever sets up, promotes or plays at any game of chance … for the disposal of money or other thing of value … shall be guilty of a misdemeanor of the second degree,” Fla. Stat. Section 849.11. Yes, it is a crime. We do not often hear about law enforcement breaking down the workplace door to cuff the IT director who picked the Patriots by three, but the law is the law, so Florida employers beware!
In May 2018, the U.S. Supreme Court, in Murphy v. NCAA, struck down the Professional and Amateur Sports Protection Act (PASPA), which had prohibited state-authorized sports gambling, with a few exceptions (including, of course, a carve-out for Nevada). Declaring the PASPA unconstitutional, the Supreme Court held that the regulation of sports gambling falls within the purview of the states, not the federal government.
Since Murphy, many states have legalized sports gambling in some capacity. Florida has not taken any legislative action, so, at least for now, the office pool remains illegal here in the Sunshine State.
Employers also run the risk of civil liability arising out of a workplace sports pool. Because the pool is illegal, an employee who suffers an adverse employment action (such as a demotion or termination) after voicing opposition to employer organization or sponsorship of the workplace pool could, theoretically, attempt to assert a whistleblower claim. Of course, the employee ultimately would bear the burden of proving the causal connection between the “blowing of the whistle” and the challenged adverse action.
Increasingly, employers are viewing office pools as a cybersecurity threat. Click-happy employees attempting to upload or update a bracket, or trying to catch the last few minutes of a game, inadvertently may subject the employer’s computer system to a crippling cyberattack. That attack could expose highly sensitive information belonging to the employer, its employees, and even its customers. In the end, the employer may pay a heavy price for the security and data breach.
And then there is the drain on productivity. At least one report estimated the cost of lost productivity at $6.3 billion during March Madness. With March Madness games televised during work hours and water cooler discussions (about the game and the commercials) on the Monday following the Super Bowl, the loss of productivity is easy to understand.
It is not all negative news. Many believe that office pools increase workplace camaraderie and morale. In many workplaces, the office pool is viewed as a “legitimate” excuse to socialize, build relationships, and, of course, circulate companywide emails announcing the pool or bracket rules (including the deadline to turn in your money to the organizer). Many employees find themselves socializing with co-workers with whom they interact very little during the rest of the year. That’s a good thing.
Are Office Pools Worth the Risk?
As long as office pools remain illegal in Florida, employers in Florida should refrain from actively organizing, sponsoring and promoting sports betting in the workplace. In an effort to distance the company from any legal problems, employers may even want to consider expressly prohibiting management-level employees from participating in office pools. Then, as for the rest of the workforce, employers should weigh the pros and cons and decide whether to implement policies that reduce exposure (such as policies regulating computer and internet usage) while, perhaps, safeguarding a little fun.
Andrew Rodman is a shareholder and member of the board of directors at Stearns Weaver Miller. In his labor and employment law practice, Rodman has represented employers in counseling and litigation for more than 20 years. He is a frequent lecturer on labor and employment law issues and a contributor to the firm’s employment law blog, BelaborThePoint.com.
Thomas Raine, a law clerk with the firm, is a JD/MBA candidate at the University of Miami.