Due to the legal issues associated with gambling, employers should watch out for employees who claim they are “blowing the whistle” on such activities and then allege retaliation. For example, under Ohio’s whistleblower law, employers are prohibited from disciplining or taking retaliatory actions against an employee who makes a report authorized by Ohio’s whistleblower law, which includes reports for workplace conduct the employee believes violates criminal law. In states where gambling is illegal, employees may try to use the employer’s involvement in, or acquiescence in a workplace NCAA pool as the basis for a whistleblower suit.

Issues with productivity

Millions of people watch the NCAA tournament, in which many of the games occur during the traditional work day. While many employers may attempt to deter employees from watching the games at work, these attempts are becoming less effective given employee’s increased accessibility to mobile applications. Distracted employees can reduce productivity, cause workplace accidents and potentially impact the bottom line. Further, just a few employees streaming games on work computers can significantly slow the business’s computer networks. As such, employers that are concerned with such productivity issues should take steps ahead of time to get proper procedures in place to address these issues head on.

Controlling gambling in the workplace

Based on the information above, there are sound arguments that March Madness bracket gambling is likely prohibited by law, including in Ohio; however, this legal/illegal distinction has never seemed to stop the gambling tradition. As such, employers need to figure out how to deal with these issues as they creep into the workplace over the next few weeks.

Of course, the safest and easiest approach for employers is to prohibit gambling, including NCAA bracket pools, in the workplace altogether and describe acceptable and prohibited behaviors. For example, an employer could draft a policy to prohibit use of company-owned computers and servers for gambling purposes or to identify work areas, such as offices, cafeterias and parking lots, where gambling is prohibited.

Recognizing, however, that many employers will not want to interfere, employers who choose to allow workplace gambling should consider implementing a workplace gambling policy, or update their current one, to include the following:

  • The policy should describe the type of permitted gambling. If gambling is limited to March Madness brackets, the policy should expressly say so. If, however, an employer wishes to allow for fantasy leagues, OSCAR polls, Super Bowl polls, etc., the employer should take the time to make sure all allowed workplace gambling is included in the policy.
  • The policy should require that the specific type of gambling being done in the workplace be approved by human resources to ensure it fits within the legal requirements set forth above.
  • The policy should define if and how the employer’s property can be used to engage in workplace gambling. For example, if workplace televisions, copiers, computers and email are not allowed to be used for such activities, the policy should expressly say so. If they are allowed, the policy should clearly communicate policies regarding employee breaks, email and Internet use so employees know when this type of use is acceptable.
  • The policy should inform employees that the gambling activities cannot interfere with production or work.
  • The policy should outline the employer’s complaint procedure in the event there is an issue.
  • The policy should outline the discipline that may be lodged against an employee in the event of a policy violation. 
  • As a bonus, employers that are particularly concerned about NCAA bracket pools should: (1) require employees to complete NCAA brackets on paper, instead of participating through online forums; (2) prohibit employees in offices located across multiple states from participating in the same pool; (3) prohibit employees from using company equipment, including email or copiers, to operate the pool; (4) limit entry fees; and (5) ensure all winnings go to the winner or a charitable organization.