Smooth Transitions : Rob Radcliff : Texas Non-Compete Lawyer & Attorney : Langley Weinstein LLP Law Firm : Dallas Employment & Employee Departures : Smooth Transitions Law Blog

A few years ago,  I profiled an employment termination based on an employee's overuse of company time and computers for his Fantasy Football league.  Fantasy Football has literally changed both the way fans watch football and the amount of time they devote to following football and making league decisions during work time.  There is a nonstop scroll on the bottom of every television screen during game coverage identifying the individual statistics for every player.  It seems like now we are more concerned with individual production as opposed to game scores. 

Nevertheless, as leagues continue to grow in their popularity, it is not surprising that participants use work time to adjust their teams, make trades, and follow the waiver wire for that one  player that may push them over the edge.  Fantasy Football is a big business, and literally millions of people participate in it each season.

So the question for the employer is, there is no doubt some employees are participating on company time, but what can you do about it?  Fantasy Football is no different than any other "online" participation forum.  There is really no difference between Fantasy Football, Facebook, Twitter or the employee who excessively shops on eBay.  The extreme position is to prevent employees from accessing any of these types of sites from their work computers.  Some businesses do that, but it certainly creates a big brother mentality.  The most pragmatic choice is to simply let employee access these sites in accordance with social media and other policies that may apply to the use of company computers, networks, etc. for personal use.  Employers will have to do their best to try to monitor these type of activities and reinforce any policies through e-mails about these types of issues.  

The reality is, employees are going to use some of the employer's time for personal hobbies like Fantasy Football or filling out the NCAA Tournament basketball bracket.  The expectation has to be clear to the employee that while some of this type of participation is expected, it should be kept to a minimum.  Make sure all company policies are up to date and make sure all employees understand what is expected.    

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Bruce Carton of law.com tracked down a great story about a Victoria, Texas hospital (in between San Antonio and Houston) that has implemented a hiring policy that requires potential employees to have a Body Mass Index of less than 35.  According to the Texas Tribune, the policy shapes up like this:

1. Existing employees who become obese over the course of their employment are not terminated;
2. The hospital offers to help job candidates get their body mass index down;
3. The policy is based upon the concept that an employee's physique "should fit with a representational image or specific mental projects of the job of a health care professional."

Suzanne Lucas provides her take on the policy and points out that  BMI is not a good indicator of obesity.  Of course, we can always debate over what constitutes obesity, the bottom line is that this country has a weight problem.  

Now the legality of the policy is another issue.  Being overweight is not a protected class, but a policy like this that has a disparate impact on a particular group could be.

"Health qualifications" for potential jobs are here to stay.  Earlier in the year, a Texas hospital implemented a no smoking hiring policy.  It would appear that health care business have a pretty good argument that nondiscriminatory policies which promote health, such as a no smoking or obesity policy make sense.  

The bottom line is that more and more employers are going to implement these type of policies.  Whether or not President Obama's health care legislation is upheld by the Supreme Court, the cost of health care continues to rise for private employers.  This is going to force private employers to consider health-related issues as they related to their health premiums, and will flow through into the hiring process.  Employers will have to be very careful in terms of what policies they ultimately implement to ensure they are not discriminatory.

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The Case

FINRA recently fined Merrill Lynch $1 million over a Texas Ponzi scheme.  The case, which involved a San Antonio broker who was sentenced to prison was covered in a recent blog post in the Stockbroker Fraud blog. 

The Merrill broker persuaded investors to put money into a partnership and used at one point $1.4 million of those funds for personal spending and to support his house-flipping business.  FINRA alleged that Merrill failed to properly supervise the broker and failed to monitor the accounts that were used to operate the Ponzi scheme. 

The Cause of Action

Texas employers will always have to be aware of a potential cause of action against them for the wrongful or negligent acts of their employees.  The negligent hiring/negligent supervision is a catch-all claim where the Plaintiff alleges that the employer either (1) improperly screened the potential employee during the hiring process; or (2) failed to properly supervise the actions of the employee. 

The latter is very difficult to defend in terms of obtaining a summary judgment because there is always the argument that the employer could have done something a little bit more to prevent some type of damage to the plaintiff.  That said, strong pre-employment screening policies and supervision policies mitigate against these type of claims. 

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• Email - Does the company monitor employee email - probably not.  As distasteful as it may sound someone in HR or someone on the business side may need to examine the substance of the employee's emails (from the company email address).  How far back? Depends on the situation.  The employee's  emails need to be scrubbed to determine if they are offloading or have offloaded proprietary information to competitors or personal email accounts for future use.  Further, the IT department needs to maintain and preserve the email account but end the employee's access to the account either immediately or upon some agreed time.

• The network - Most employees are not going to email company information to a competitor or even a personal email account - some still do though.  The delivery device of choice is the thumb drive.  It's small, cheap, and can hold a lot of information.  I'm no IT expert but many IT folks can determine what type of downloading an employee has been up to including the use of zip drives or thumb drives.  How far back should the company go?  As far as necessary to obtain some "comfort" level.  

• Beyond email and the network - Many companies have proprietary databases where customer/client information is maintained.  In one non-compete case a client was able to show that the former employee had dumped the entire database (through printing) the night before they were fired.  Can you do the same?  Many databases require an additional log in and indicate the when, what and where of the employee access.  Was there a middle of the night access prior to quitting or strange access from home? Find out.

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It's that time of year - the NFL season is drawing to a close and fantasy football leagues are in the midst of the playoffs.  Fantasy leagues are as popular as ever and cover all sports, not just football.  Fantasy leagues based on the NFL are by far the most popular and in many instances are comprised of co-workers and in some cases the use of company resources like email.

Which leads us to the firing of four employees in Fidelity Investments' Westlake, Texas office for playing Fantasy football.  Fidelity's take on the firing:

We have clear policies that relate to gambling. Participation in any form of gambling through the use of Fidelity time or equipment or any other company resource is prohibited. In addition to being illegal in a lot of places, it can also be disruptive. We want our employees to be focused on our customers and clients.

One of those fired, Cameron Pettigrew, knew that Fidelity did not permit playing fantasy on company time but claimed he never used company email for the league.  Fidelity did find two instant messages that included fantasy content.  Pettigrew explained:

One of my buddies sent me something about how bad Trent Edwards was playing or something like that, So they called me in and talked to me for about 90 minutes on everything I ever knew about fantasy football. They interrogated me as though I was some sort of international gambling kingpin. Then they released me for the day, and I was like, 'OK.’ I never thought they’d fire me for this, but, the next day, I get the call saying I had been terminated.

Tough time of year to be fired and Pettigrew knew he wasn't allowed to play at work, but was he really playing?  The Ft. Worth Star Telegram asked its readers if Fidelity overreacted:

Did Fidelity overreact by firing fantasy football players?
(1) No. (19%, 60 votes)
(2)Yes. (57%, 185 votes)
(3)Depends. (There's no way outsiders can know the whole story.) (24%, 78 votes) 

It seems unlikely that Pettigrew and his cohorts have any legal challenges to the firing as Texas is an at-will employment state.   If a company has a policy against playing in a fantasy league during work time, don't play.
 

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