Social Media and Employment Law: March Madness (and Yahoo!/Telecommuting) Causes Craziness In The Workplace

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Sharpen those pencils!  March Madness is about to begin!  Are you ready?  Is your employer prepared?  Selection Sunday is only a few days away and brackets will be published shortly.  Here are some important tips for employers and employees about how to succeed in the workplace during March Madness.  (You may not win your office pool by reading this post, but at least you may keep your job, or keep your company somewhat productive…)

Each year, March Madness wrecks havoc at workplaces around the country and makes even the hardest-working employee a bit less productive.  Frankly, workplace productivity takes a sharp nosedive.  This is so because March Madness is one of the most watched championship series in sports and about half of the games take place during typical weekday business hours.  Last year, according to an MSN.com survey regarding March Madness, approximately 86% of respondents said they planned to spend part of their workday following the tournament.  Specifically, 57% said they would read, watch and check stats online; 52% said they would talk to co-workers about their brackets; and 43% said they would check scores on their mobile phone.  Furthermore, more than 50% said they planned to devote at least one hour of their workday to the first two days of the tournament.  In fact, 6% stated they planned to be absent from work on the first Thursday and Friday of the tournament.

And, these numbers may actually be lower than reality.  A 2012 March Madness survey by Challenger, Gray & Christmas, an outplacement firm, estimated 2.5 million workers will spend an average of 90 minutes a day watching the tournament, and just in the first two days of the tournament, employers will lose approximately $175 million.

While productivity will drop, traffic on company resources, like company networks, internet and wireless systems will skyrocket.  According to a 2012 March Madness Survey by Modis, two in five (42%) IT professionals say March Madness has impacted their network with 37% reporting it has slowed down and 34% reporting it has shut down.  Further, nearly a third (29%) of IT Professionals said that preparation, execution, and consideration for March Madness season adds stress to their IT work life.  Whether or not these studies and estimates were accurate, the reality is that employees will be checking their smartphones and tablets, and perhaps using their employers’ computers and Internet access, for score updates, game highlights, and for game watching.  Never before have the games, highlights, and statistics been more readily available.  So here are some valuable tips to survive/thrive in the workplace during March Madness:

SOME TIPS FOR EMPLOYERS

  • Some employers may already block employee access to non-work related websites.  If so, your employees may be relying more on their personal smartphones and tablets for their NCAA fix, so employers should remind employees about their policies regarding use of such personal devices during work time.
  • Employers may also wish to take this opportunity to reiterate the company’s computer usage policies and Internet access policies.
  • Employers may also, or in the alternative, use March Madness as a way to boost employee morale by setting up a break room or empty office with the games playing so that employees can openly watch the games during breaks and build camaraderie with other employees.  This will also help your IT professional since company resources will not be taxed as much.
  • Employers who encourage, or allow, a March Madness pool/bracket competition should be careful to avoid violating laws against gambling and the company’s own policies on non-solicitation.  While gambling laws are rarely enforced regarding these bracket pools, to decrease risk, employers who allow such pools should make it open to any employee who wishes to participate, not require a monetary buy-in, and award a non-monetary prize (gift cards are better than a monetary prize).

SOME TIPS FOR EMPLOYEES

  • Plan ahead.  If you know you will be glued to watching a particular game, request to use a vacation day as early as possible.
  • Be truthful.  Don’t call in sick if you are not really sick.  Employers can discipline you for using sick days inappropriately.  Whether or not your employer will enforce the sick leave policy due to March Madness is a question to which you should avoid learning the answer.
  • Stay productive at work.  Turn your energy and excitement over your team into energy in your work and remain productive.  Missing a deadline, or making a costly error, because of a lack of focus may get you fired.
  • Watch the trash talking.  Be careful that your trash talking does not cross the line and become taunting, harassment, bullying or other conduct your employer prohibits.

A FEW WORDS ABOUT YAHOO!

For the second post in a row, my original post idea was cut a bit short due to an unexpected event.  (Last month it was a Court finding that President Obama had acted unconstitutionally).  As I was preparing for this post, Yahoo!’s CEO, Marissa Mayer, announced that Yahoo!, starting in June 2013, will no longer allow employees to telecommute.  Essentially, Yahoo! has approximately 500 employees who routinely work off-site/at home, and who are disconnected from the other 12,000 Yahoo! employees.  Some commentators have opined that Mayer’s decree is a step backwards, and working moms in particular, feel betrayed by Mayer (who is a new mother).   Others opine that Yahoo! is doing the right thing and this change in policy will help Yahoo!’s productivity and bottom line.  I’m not here to opine on either of these topics.  Instead, I’ve already been asked:  does Yahoo!’s new policy violate any employment laws?  The short answer is:  No.  Yahoo!, just like any other employer, is free to place requirements on where its employees must perform work.  This policy was announced with plenty of advanced notice (more than three months of notice in this case), and it applies across the board to all Yahoo! employees.  Thus, on its face, the policy change is legal.

There are creative plaintiff’s attorneys however.  And, I can see at least one early potential employment-law related vulnerability to the new policy.  Employees who telecommute as a reasonable accommodation for a disability or medical condition should still be allowed to telecommute if providing this type of accommodation does not pose an undue burden on Yahoo!  It will be very difficult for Yahoo! to claim that allowing the few employees who “need” to telecommute due to a protected medical condition that Yahoo! can no longer provide this accommodation due to an “undue burden.”  Admittedly, this scenario may pertain to only a few employees, but regardless, Yahoo! better know what it’s doing with those employees under the new no-working-from-home policy.

TELECOMMUTING POLICY BASICS

In contrast to the new Yahoo! policy, many companies encourage, or at least allow, telecommuting.  Any employer that does so, however, must be sure to have a clear and comprehensive policy on telecommuting.  Some of the issues the telecommuting policy should address (or, at the very least, the employer should be ready to handle), include the following:

  • Discrimination:  Employers need to be consistent when determining what positions are eligible for telecommuting.  Do not make decisions based on who the employee is, but rather on what the position requires.  Decisions should be made on objective criteria, and inconsistencies must be explained by legitimate business justification, otherwise the employer could face discrimination claims.
  • Wage and Hour Issues:  The company should require employees to keep records of their work time.  This is particularly true for non-exempt employees who may be entitled to meal and rest breaks, and overtime.
  • Confidentiality:  Companies would be wise to revisit and strengthen employee confidentiality policies since telecommuters, by the very definition, are accessing and using company information (including confidential and perhaps trade secret information) remotely, without managers around.
  • Workspace Conditions:  Here the issues range from OSHA requirements to workers’ compensation issues.  Companies need to be aware of whether the telecommuting employee has a safe and dedicated workspace, and how to handle workplace injuries that a telecommuter suffers.  Indeed, because telecommuters work in isolation, typically no witnesses will be on hand to verify a telecommuting employee’s claim of work-related injury.  Employers may also considering requiring telecommuters to allow the employer to inspect the workspace periodically.

What are your thoughts on Yahoo!’s policy change?  And, has the resulting chatter been “much ado about nothing?”  Does your employer have a clear and complete telecommuting policy?

Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.

James Wu
James Y. Wu contributes a monthly column on Social Media and Employment Law. For over 15 years, James has provided day-to-day counseling and advice to employers regarding compliance with employment laws and reducing the risks of employment-related claims and lawsuits. He also provides strategic litigation services when claims and lawsuits do arise. After practicing at some of the nation's leading law firms, James opened his own law office in order to continue to provide his top-notch service at a much more reasonable rate for his clients. James earned his JD from Boston College Law School and both his BA and MA from Stanford University. +James Wu
James Wu
Social Fresh West

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