An Employer’s Guide to the Super Bowl

By Fiona Ong and Evan Conder - Shawe Rosental LLP

February 9, 2023

Well, Super Bowl Sunday is almost here. Unlike March Madness or the World Cup, which extends over weeks, it’s a single event. However, there’s a high level of interest in the game – last year, the NFL estimated that approximately two-thirds (!!!) of the U.S. population watched the Rams defeat the Bengals in Super Bowl LVI. (And those of us on the East Coast stayed up late to do so). So, we can still expect the Super Bowl to have an impact in the workplace. And as we did for March Madness and the World Cup, we offer employers a little guidance on the Super Bowl at work.

Cybersecurity! Sports betting is flourishing, as are the number of sports-betting websites. If employees access sports-betting or other sports entertainment sites through their employer’s computer systems, they could potentially expose the systems to malware. To avoid this possible harm, employers could implement a policy prohibiting the use of company computer systems and equipment for all or some personal activity, such as gambling or entertainment. The policy should clearly state that the employer may monitor employees’ computer or internet usage, and that employees should have no expectation of privacy in their use of company systems and equipment. It is important, however, that employers be consistent in enforcing such policies, in order to avoid discrimination claims.

In terms of that monitoring , some employers have software that can track an employee’s actual computer activity. Some states have laws that require employers who engage in electronic monitoring to provide notice to employees. So it is important for employers to be aware of and compliant with any applicable state electronic monitoring laws.

Of course, employers may also block gambling and other inappropriate websites so that employees cannot access them on company systems.

Gambling in the Workplace. And as to gambling, some employees might be interested in some sort of office betting game involving money, like betting squares. However, federal laws prohibit betting across state lines. In addition, while many states allow low-stakes sports betting, like office pools, others regulate such betting games while some prohibit them altogether. Realistically, of course, the chance of enforcement by either federal or state authorities is pretty low. (But I’m a lawyer, so of course I focus on the risk…)

But as we previously noted in the context of March Madness, such betting games can be a source of tension in the office. Some employees might not wish to participate based on religious objections, gambling addictions, lack of money or just a lack of interest. Those employees may feel either excluded or pressured to join in. And having large amounts of cash floating around the office is usually not the best idea. Some employers may wish to implement no-gambling policies, or remind employees of existing policies, in order to avoid these issues.

On the flip side, employers could sponsor their own, non-monetary and fully voluntary betting pools, with non-cash prizes. This could be a fun, inclusive, and legal way of fostering employee morale.

Dress Code and Civility Policies. For your in-person employees, there may be dress code and social interaction issues. Most employers will consider relaxing dress codes to permit team wear. But there may be safety or health issues involving the use of machinery (manufacturing) or hygiene (like healthcare or food service). Employers should consider and then clearly communicate what is considered acceptable for the workplace.

In addition, people may feel deeply and passionately about their teams. My sister’s mother-in-law (a UNC fan) threatened to disown any grandchild who went to Duke. Not kidding. This degree of passion can sometimes result in workplace conflict. Employers can certainly prohibit employees from engaging in disruptive conduct or speech, and ensure that they treat co-workers and visitors with respect and courtesy. Again, such requirements must be applied consistently.

Attendance! No one should be surprised that there often is a spike in attendance issues in connection with major sporting events. Employees may miss work on Monday to recover from Super Bowl parties (i.e. “hangover leave”). The consulting firm, Challenger Gray & Christmas, estimated last year that employers suffered $6.5 BILLION in lost productivity on the Monday after Super Bowl (although to be fair, it was also Valentine’s Day), between absences and post-Super Bowl distractions at work (re-hashing the game and collecting those winnings)!! And as COVID and the flu continue to hang around, some parties may act as super-spreader events, resulting in sick employees a few days later.

Many employers voluntarily provide, or are required by state or local law to provide, sick leave. Of course, sick leave is not intended to cover hangover leave (but certainly applies to COVID, flu and other infectious diseases). Almost all of the existing sick leave laws, however, prohibit employers from seeking verification for the use of sick leave if an employee calls out sick for fewer than three or four days – which leaves the possibility of sick leave abuse. But employers should continue to enforce their attendance and call-in policies consistently. And if an employer discovers that an employee has lied about the need for sick leave, it may discipline the employee for the dishonesty.

Productivity? Challenger Gray & Christmas also estimated that, in 2021, the loss in productivity in the week leading up to the Super Bowl cost employers $1.6 BILLION. Now, they calculated that based on 10 minutes of distraction per workday per employed viewing adult – so really, that’s pretty minimal. While employers certainly should be concerned about employees engaging in inappropriate activities related to the Super Bowl at work, such as prohibited gambling (see above), I might suggest you let this one slide….

Drugs and Alcohol? Some people really like to party, which could involve illicit substances or massive amounts of alcohol, and if they perform safety sensitive functions at work, employers will want to make sure that they are not impaired. One option is drug and alcohol testing – but any such testing should be based on observable indicia of impairment, and must be done in compliance with any applicable state drug testing laws – including recently -enacted laws that may restrict employers from testing for recreational use of marijuana (although many of these laws have exceptions for safety-sensitive positions).

And now, because my beloved Ravens are out, this one’s for my daughter in Philly: Go Eagles!!

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