All Bets Are Off: Employer Considerations for Workplace Gambling Policies

by Pepper Hamilton LLP
Contact

A version of this article was originally published in the March 2015 issue of The HR Specialist. It is reprinted here with permission.

Did you make a wager on this year’s Super Bowl with a co-worker? Did you join the office NCAA tournament pool this year? The honest answer for many people is a resounding “yes.” Sports gambling is a big, and largely illegal, enterprise. The 2015 Super Bowl saw an estimated $4 billion wagered on its outcome. Last year’s NCAA tournament involved approximately $3 billion and a significant number of unproductive work hours spent on “bracketology.” Yet, most employers fail to specifically prohibit workplace gambling, and many sanction the behavior as harmless fun and good for comradery among co-workers.

There is a generally held belief that NCAA office pools and other types of gambling in the workplace do not cause a disruption or have an adverse effect on employee productivity. And, even though such gambling is against the law, the risk of criminal prosecution is considered too remote to prohibit workplace gambling. Therefore, employers tend to look the other way when it comes to friendly wagers. Nevertheless, company management should consider the potential problems with workplace gambling and, at a minimum, avoid officially sanctioning the behavior.

Although employees may find it fun to bond over intra-office bets and money-making gambling opportunities, not all employees will have the same perspective. The non-participants may feel excluded, or perhaps even offended, by the pro-gambling atmosphere. And, although the primary focus is on having a good time, employers may unintentionally find themselves contributing to an employee’s gambling problem. Gambling addiction and disorders affect an estimated one percent to three percent of the adult population in the United States according to the National Center for Responsible Gaming. Because less than 15 percent of people with a gambling problem seek formal treatment for their condition, the estimates of individuals who suffer from a gambling disorder may be low.

When the Americans with Disabilities Act (ADA) became law in 1990, it specifically excluded compulsive gambling from the definition of a disability. Accordingly, employers are not liable under the ADA for discriminating against or failing to accommodate a compulsive gambler. Yet, an individual who suffers from a gambling disorder may suffer from another impairment that is covered by the ADA. A 2008 study found that 96 percent of people with gambling disorders also suffered from other psychiatric or addictive disorders. Related complications that have been linked to compulsive gambling include alcohol and drug abuse problems, anxiety and depression — all conditions that employers routinely assess in connection with their ADA compliance obligations.

Although scientific research on gambling compulsions lags behind drug and alcohol addictions, the American Psychiatric Association revised its definition of “pathological gambling” in the 2013 edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM), the key reference book for mental-health professionals. What was formerly referred to as “pathological gambling” is now known as a “gambling disorder” and is classified similarly to drug and alcohol disorders in the current DSM.

Office pools and hallway bets on football games are historical means of workplace gambling, but online gaming presents a new option and a new concern for employers. Nevada, New Jersey and Delaware permit online gambling, and other states, including Pennsylvania, have introduced legislation to legalize online gaming. Computer and Internet policies generally prohibit using company equipment for nonbusiness-related purposes, but it is commonplace for most employers to allow some nonbusiness use of their computer networks. Allowing, or not prohibiting, online gambling during work hours or with company resources creates an unnecessary risk for employers. Employers should consider having a written policy regarding workplace gambling, which defines the prohibited conduct and what disciplinary steps may be taken against employees who violate the policy. Even if online gaming is legal in a given state, an employer has the right to circumscribe the conduct in the workplace. As with most workplace drug and alcohol policies, consuming alcohol is legal for an adult but is not permitted in the workplace. Employees with drug or alcohol problems are routinely provided guidance and resources under an employer’s employee assistance plan, and a workplace gambling policy should also recognize that employees may suffer from a gambling disorder and may need professional help.

As the scientific community continues to draw parallels between alcohol/drug addictions and gambling addictions, it is inevitable that these issues will arise in employment litigation. Employers will be prepared to address these issues during litigation if they have considered the issues in advance, have adopted and communicated a workplace policy on gambling, and understand that other impairments may be affecting an employee with a gambling problem.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Pepper Hamilton LLP | Attorney Advertising

Written by:

Pepper Hamilton LLP
Contact
more
less

Pepper Hamilton LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!