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The Madness of March

The annual NCAA Basketball Tournament, a/k/a March Madness, starts today. More on that below but there is another kind of “March” for employers to be concerned about.  With the beginning of the Trump presidency, political protests, demonstrations and marches are all the rage.  With increasing frequency, corporations are getting in on the act and taking political stands or encouraging employees to do so.  From an employment law perspective, this is a minefield.  A recent Inc. article reported on a company’s press release announcing that it was giving female employees paid time off on March 8th to celebrate International Women’s Day.  Presumably, this decision was intended to support the widely reported “A Day Without A Woman” protest, which included women staying home from work.  In response to questions about the press release, the company’s PR person stated that men had to work but women did not.  Further questions clarified that the company was giving all employees an extra vacation day to use as they please but the language of the original release certainly indicated a violation of anti-discrimination laws as did the PR person’s initial response to questions.

The moral of this story is that if you as a company are going to wade into political waters, particularly those involving protected classifications, it would be wise to consult with legal counsel to make sure there is no discrimination or perception of discrimination in the company’s actions or statements. The good news is that we can all take a break from politics and enjoy college basketball – have you filled out your bracket in the office pool?

Of course, we should consider the question of whether workplace gambling is legal. The answer is probably not.  Among the federal laws arguably violated by NCAA Tournament betting pools are the Interstate Wire Act of 1961, the Professional and Amateur Sports Protection Act, and the Uniform Internet Gambling Enforcement Act.  Ohio law also bans gambling with some exceptions, e.g. casinos, certain charitable events, but none that would cover a workplace NCAA pool.  While it is extremely unlikely that law enforcement would go after a company for having a NCAA pool, there are still concerns in the employment law arena.

First, since the pools violate state and federal laws, an employee who complains is protected by Ohio’s Whistleblower statute. In addition, some employees could have religious objections to gambling that could create accommodation issues or lead to harassment claims.  While gambling addiction is exempted from the ADA, other related conditions such as depression are not.  Moreover, many companies have policies regarding workplace postings, internet and email use and gambling that are obviously violated by a NCAA pool but ignore these rules because of tradition or other reasons that wouldn’t carry much weight in court.  Finally, there is the whole issue of productivity.

Obviously, the simplest approach to the issue is to ban gambling in the workplace but bear in mind that this would include not only the NCAA Pool but fantasy sports, lottery pools, raffles, etc. If this is not an appealing option, companies should consider where to draw the lines and ensure that their policies are consistent and being applied consistently.

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