Why you need a workplace gambling policy

by Matthew J. Maguire, Esq., Pepper Hamilton LLP, Berwyn

Are you planning to place a bet in the office NCAA basketball tournament pool this year? Join the club. Sports gambling is a big, and largely illegal, enterprise.

Gamblers wagered an estimated $4 billion on the outcome of the 2015 Super Bowl. Last year’s NCAA tournament involved approximately $3 billion worth of bets—and untold thousands 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 camaraderie among co-workers.

Harmless fun? Don’t bet on it

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. Non­­par­­­­tici­­pants 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 1% to 3% of the adult population, according to the National Center for Responsible Gam­­ing. Because less than 15% 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.

Gambling and the ADA

The ADA specifically excludes 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% 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.

Online gambling

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 resources.

Allowing, or not prohibiting, on­­line gambling during work hours or with company resources creates an unnecessary risk for employers.

Put it in a policy

Employers should consider establishing a written policy addressing 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 routinely receive guidance and resources under an employer’s employee assistance plan. 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 that possibility if they consider the issues in advance, adopt and communicate a workplace policy on gambling, and understand that other impairments may be affecting an employee with a gambling problem.