You may remember a few years ago there was a big kerfuffle about a Fidelity Investments employee in the North Texas who was fired for allegedly discussing fantasy football at work under an anti-gambling policy. Arguments were had whether fantasy football is gambling and whether it was fair that the employee was fired. It went nationwide and the employee received a lot of positive press in the sports media. Eventually he found employment elsewhere in the financial services industry.
Employers continue to find themselves at odds with employees who play fantasy football at work and fantasy football seems to hold growing interest with no signs to stopping. Even the NFL seems to encourage fantasy football and the fantasy football industry is growing at a nice pace.
While some businesses make money from fantasy football, the majority of employers feel the productivity drain due to fantasy football. Studies estimate up to $6.5 billion dollars in productivity lost each year due to fantasy football play at work. That is a huge loss for employers. (Not to mention how much time people spend on social media and streaming.)
So it is no surprise that some employers have strict rules against fantasy football and other employers use other workplace policies to discharge employees who spend too much work time on fantasy football.
Texas at-will employment and employment policies regarding fantasy football
So the question is: can your employer really fire you just for playing fantasy football? Absolutely (unless you scored an employment contract that permits you to play fantasy football at work).
In an employment at-will situation your employer can fire you for almost any reason. Even if you think the reason is stupid. You may pursue unemployment benefits and require the employer to prove a legitimate reason for the discharge.
If you work under an individual employment contract or a union contract then you may have a “good cause” requirement that requires the employer to show violation of a workplace rule to justify a discharge.
So let’s talk about some of those workplace rules that may be violated by playing fantasy football at work:
This was the rule used in the 2009 Fidelity Investments situation, where Fidelity carries a broad and heavy-handed anti-gambling policy at work that prohibits not only gambling on employer time or property but also even discussing gambling. Whether you believe your fantasy football pool is gambling is not important.
If the employer’s policy prohibits games of chance for money then it likely prevails in showing a violation. You may play fantasy football without money. That may skate past an anti-gambling policy; but the employer’s policy may still be broad enough to cover fantasy football.
Internet/Computer Use Policy
Many employers have restrictions on how you may use the internet and computers in the workplace that may limit personal use and in particular social media outlets and personal email accounts where you may be communicating trades and other fantasy football content.
Employers are free to track and monitor activity on their computers so it isn’t hard for an employer to find out what you are doing and when you are doing it. This policy can apply even during off-work hours and breaks. Be aware of your employer’s policies for using their equipment at any time.
Mobile Phone Policy
Some employers have policies prohibiting employees from using personal phones during work hours or within the workplace and if you are using your phone in violation of this policy then your employer has legitimate grounds to discharge you even if the employer cannot prove what you were using the phone to do.
Professional Conduct Policies
Many employers have conduct codes that prohibit employees from discussing certain non-work topics or avoid certain activities on work. These policies may be broad enough to target fantasy football.
Your employer undoubtedly expects you to do work while at work and all that time you spend on fantasy football is certainly not work unless you work for a company who is in the business of fantasy football. If you do not perform to standards because your attention is on trades then your employer has an easy reason to fire you. Employers rarely lose firing an employee for failing performance standards because he or she spent work time on non-work issues.
Time Clock Policies
In addition to productivity, your employer expects you to work during hours you receive pay. Even if you hit productivity standards your employer may fire you for conducting personal business on company time. The employer will have an easy time proving legitimate termination when the employee spends copious work time on a hobby.
How employees can protect themselves from termination for playing fantasy football
Unfortunately under Texas employment law an employer has wide latitude to fire workers for both on and off the clock activity. Employment laws in states like Colorado prohibit employers generally from firing employees for off the clock activities.
Texas employees have to be careful about their employers’ rules around gambling or discussing gambling in the workplace.
If your employer has an anti-gambling policy make sure you keep your participation and discussions off company equipment and out of the workplace. With smartphones most people can conduct their gameplay away from company computers and communicate through messaging apps on their phones so this is less of an issue than a decade ago.