Seahawks or Broncos – Do Employers Care?

I certainly don’t care that much.  My team ended its year early, again.  However, many people do care, for various reasons.   There is, of course, the football game itself and the rooting interests that exist. The fact that the game is in cold New York has piqued the interest of many (though, frankly, the winter mess seems to be more newsworthy down South this January).  There are also some who are waiting to forecast how the financial markets will do this year based on the reported historical trends that have occurred depending on whether the Superbowl is won by the NFC or AFC.   Still, from my perspective, there are social media and employment law points to be made.   So here goes.

Before I officially move on emotionally to the next sport season, it’s worth finishing this NFL season with a thought on the world’s most popular one-day sporting event:  the Superbowl.    Fans of their Washington (state) and Colorado teams obviously have tremendous interest in this weekend’s game, but historical ratings show that the rest of the world cares too for financial reasons.   Much time will be spent this week in person and online trying to make money on the Superbowl.  And there’s the blog hook for today.

Online technology, and social media in particular, have made it much easier for employees to participate in all things Superbowl, and to sit in the office and participate with those outside the four walls of the office.  If you haven’t been asked to join a Superbowl pool yet, it’s more than likely that it’s not because you have no friends at work.   It’ll get to you (more than likely).    But are Superbowl pools legal?   And is there any impact of social media?   Many states exempt “social gambling” from their anti-gambling statutes.   “Social gambling” is generally defined as playing for money in a purely social context, where no player (or other person, such as a host) can make anything more or different than from simply being a player like any other player.   As long as the entire pool is distributed, with nothing taken “off the top”, it is generally ok in many states.

Nevertheless, the issue of office Superbowl pools and social media raise a few noteworthy points:

1.         Loss of Productivity and Time?   Superbowl blogging and posting, and surfing the ‘Net for all things Superbowl, will take a lot of time.    Time at work, and time during working hours.

2.         Can Bobby Come Out To Play?   Office Superbowl pools should be open to everyone, and shouldn’t be a means for violating other workplace policies, such as by harassing or discriminating against people who choose not to join or who are not asked to join.

3.         Social = Social?   Permissible “social gambling” generally requires some social relationship, meaning that the promotion of your office pool to those outside the company through social media may lead to a pool that includes those with whom there is no bona fide social relationship.

Employer Take Away:   What should you as an employer take away from this development?

There are bigger pictures that your company should consider when it comes to important issues and policies involving gambling and the impact that social media has had on workplace gambling.  For this week, however, the reality is that this may be just another example of a lawyer turned Superbowl Scrooge, as it is unlikely that the cast of Law & Order will be coming into your establishment merely as a result of this Sunday’s game.  So I guess you can just relax a little and allow for the morale of your employees to improve with the excitement and buildup of the year’s biggest one-day event.   There are only 3 working days left until the big sports buzz is over, after all.   That is, until pitchers and catchers report in 3 weeks.

About The Author

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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