In Shakespeare’s Julius Caesar, a soothsayer warned Caesar to “beware the ides of March,” which he didn’t, and we all know what happened. In modern times, while the ides of March hopefully won’t augur such tragedy, it does kick off two annual events that employers should cautiously beware: The NCAA basketball tournament a/k/a March Madness and St. Patrick’s Day.

The advertising leading up to these events leave no doubt that alcohol consumption often becomes a major component of the festivities. Indeed, the NCAA has been under pressure to bar alcohol advertisements during its widely televised national tournament. And we know that, for some people, beers and pubs tend to be associated with St. Patrick’s Day like turkey and stuffing on Thanksgiving. It should therefore come as no surprise to the modern employer that mid-March means many of their workforce will be imbibing more than usual.

Drug/Alcohol & Business Conduct Policies

In this regard, it is an appropriate time for employers to review their drug/alcohol and business conduct policies. Clearly, bringing or using alcoholic beverages on company property or using alcoholic beverages while engaged in company business, consuming alcohol in the workplace or reporting to work under the influence of alcohol is forbidden and/or deemed inappropriate conduct. Most employers expect their employees to accept certain responsibilities, adhere to acceptable business principles in matters of personal conduct, and exhibit a high degree of personal integrity. This would include the expectation that employees, in their business and personal life, refrain from behavior that might be harmful to the employee, his or her coworkers, and/or the company, or that might be viewed unfavorably by current or potential customers or the public at large. Many employers include policy language that whether the employee is on or off duty, his or her conduct reflects on the company and should therefore observe high standards of integrity at all times. Inherent in these policies is the expectation that employees exercise good judgment.

Impairment by drug or alcohol use can constitute an avoidable workplace hazard under the Occupational Safety & Health Act. Additional guidance is provided by OSHA and the Department of Labor’s Working Partners for an Alcohol-and-Drug-Free Workplace program. While employers are entitled to expect reliable attendance and productivity, when enforcing their drug/alcohol and business conduct policies they should give due consideration to laws such as the Americans With Disabilities Act (ADA), The Family and Medical Leave Act (FMLA), Health Insurance Portability and Accountability Act (HIPAA), and state drug and alcohol testing laws where applicable. When dealing with employee drug/alcohol testing in the private sector, there is neither a constitutional nor statutory prohibition against the activity. In fact, in certain circumstances, such as pre-employment testing and testing based on reasonable suspicion, drug/alcohol testing by private employers is both permissible and common. However, testing should be administered in a non-discriminatory manner and be consistent with any statutory protocol applicable to your state.

The NCAA Brackets

Betting on sports (e.g., the NCAA brackets) for money is illegal in most states except Nevada. See, e.g., New York Penal Law Art. 225 et seq., and New York General Obligations Law § 5-401 et seq. While the likelihood of criminal enforcement of a casual office betting pool is slim, it would nevertheless be wise to avoid promoting or encouraging such conduct. The company should have a no-gambling policy, but be careful to enforce it in a non-discriminatory and consistent fashion. For example, if the company disallows office betting pools, it should not distinguish whether the betting is on a sporting event or American Idol. While much has been written about drops in productivity because of employees following their March Madness brackets at work on the web, the adverse effects on employee morale and camaraderie should be considered before deciding to enforce an outright ban on brackets and following the games on the web.

Erin Go Bragh

If prepared properly, March Madness and St. Patrick’s Day should be a spirited time of year for all, without causing disruption on the job.