Extraordinary Workplace Misconduct: No Pokémon Go While Policing!!

By Fiona W. Ong - Shawe Rosenthal LLP

February 9, 2022

Here’s another entry in our occasional series of really bad behavior in the workplace – police officers who decided to continue playing Pokémon Go rather than respond to a robbery in progress! And then had the chutzpah to challenge their firing despite the fact that their gaming activity – and astonishing decision not to respond to the call for assistance with the robbery – was recorded by their in-car video-system!

For those of you who may not know or remember, Pokémon Go is an augmented reality video game that users play on their mobile phones. The point of the game is to battle and catch creatures that are found in various real-world locations. Back in 2016, when the Pokémon Go craze was exploding, we blogged about the workplace (and frankly, personal family) issues it was causing. And this case just goes to prove that point.

As reported by CNN, two officers were parked in an alley when they received a call to respond to a robbery at a nearby shopping mall. A police captain was driving by the mall on his way to a homicide scene when the call came in. He saw the officers’ car in the alley, but did not hear them respond to the radio call, so he radioed that he would respond to the location of the robbery. He then noticed their car leaving the area. Meanwhile, through the tracking system, the patrol supervisor noticed the officers’ car in the area and requested them to be backup for the robbery, but they did not respond. He later noticed that they were supposedly reporting to another location, which seemed odd. So he asked them about it – and they said that they didn’t hear the  robbery call because they had been in a park with “loud music”….

But then the patrol supervisor had the bright idea of checking the patrol unit’s in-car video system. And what he found was that officers heard the original call and the follow up request, decided not to respond (“Aw, screw it”) and further stated “I don’t want to be [the police captain’s] help.” (!!!) But wait, there’s more! The recording also captured their discussion, over the next 20 minute period, as they drove to different locations where the Pokémon Go creatures were popping up on their phones. And their play-by-play of the battles as they were happening. One officer remarked to the other, “I got you a new Pokémon today, dude.” Well, my son would have been thrilled. Understandably, the police department was not.

The officers were charged with a whole slew of on-duty misconduct counts, including failing to respond to the robbery call, failing to respond to the radio, making “misleading statements” (aka “lies”), and playing Pokémon Go while on duty. In the disciplinary hearing, among many other dubious arguments, the officers claimed that they were monitoring a “Pokémon tracker” application on their phone, but not playing the game itself. And they even denied that it was a game, because, according to them, it wasn’t advertised as one. (Eye roll here.) It should surprise absolutely no one (other than apparently the officers) that they were fired.

Like many teenagers who dig in when you catch them doing something wrong (well, at least mine were like that), the officers then challenged the termination decision in court. The trial court, unsurprisingly, denied their challenge.  And then, not knowing when to stop (my teenagers again), they then appealed the trial court’s ruling, arguing that the recordings were improperly admitted as evidence. In a January 2022 ruling, the appellate court also shot that down, finding the recording to be admissible and calling their behavior “egregious misconduct.”

I think we can all agree that we want our police officers to be stopping crime and not playing  Pokémon Go (or whatever the latest smartphone gaming app craze is) – and that also holds true for employees generally doing their work. And while the police department is a public employer subject to all kinds of rules and regulations, here are some tips for private employers on ensuring that employees are focused on their work, and not their play:

- Remind employees that work time is for work! Employers can certainly prohibit playing of games (and engaging in other personal activities) during working time.
- Employers can also prohibit personal activities on company equipment – although if they do so, they need to be consistent in application and enforcement of this rule.
- If employers choose to use monitoring technology in the workplace, they need to make sure that employees are aware of it. In addition, they need to comply with any state laws on surveillance and monitoring.

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