By Christopher Morehead
For the Oregon Beer Growler
November is here, which means two things. First, you’ve probably recently tried a new pumpkin beer. Second, it’s the middle of fantasy football season, and you can bet that employees are spending work time managing their fantasy team.
According to a 2016 study conducted by Challenger, Gray & Christmas, employers across the country suffered an estimated $17 billion in lost wages due to employees working on their fantasy football teams while on the clock. That number is based on an estimated record 57.4 million fantasy football enthusiasts — 38.5 million of whom are employed full-time — taking an hour out of each work week for the course of the 17-week fantasy season. Those numbers have been growing annually across demographics, particularly with the enhancement of smartphone technology. Simply put, employees at all levels are generally spending more work time trying to find that next waiver wire player that will push their team — probably named something corny, like “Belichick Yo Self” — over the top. After all, bragging rights over Bob from receivables is on the line!
Realistically, some employers probably don’t know (or even care) that much about the impact of fantasy football on their employees’ productivity. But if you are legitimately concerned that employees are spending company time deciding whether to sit or bench Marcus Mariota on their fantasy team, there are few options that some employers have used over the years to address the issue.
One option is to ban fantasy football in the workplace altogether. Employers may lawfully demand that employees focus exclusively on their job duties during the workday and discipline those who play fantasy sports while working, provided such actions are done on a consistent basis and in accordance with clear, written company policies.
Of course, you should also understand that employees can just as easily use their iPhones to manage their fantasy teams. Many employers have realized that using this approach doesn’t really get them anywhere, and so it is not usually recommended go this route.
If that level of enforcement sounds too authoritarian and isn’t in line with your company’s culture, perhaps you are willing to accept the reality that many employees will, inevitably, check Facebook, Twitter and Instagram regularly. So if employees tweak their fantasy football lineup just prior to kickoff, you’ll realize that isn’t that much different than popping into a social media site.
Provided that expectations are still being met, why discipline an employee simply because he or she is managing a fantasy team? You might even check your own social media accounts while on the job. A workplace with managers who set the same expectations for themselves as they have of their subordinates is generally appreciated and fosters loyalty.
Some employers even go the extra distance and organize office fantasy leagues. Studies have suggested that short periods of unproductiveness can actually have positive impacts, like increasing morale and long-term productivity. In fact, if you’ve ever participated in an office league or an NCAA basketball tournament pool, you may have already experienced beneficial results. Of course, if you do organize an office league, it’s important to make sure people don’t go overboard with smack talk. A little banter is fine, but you don’t want anyone to turn into a real life Terry Tate, Office Linebacker.
The bottom line is that fantasy football in the workplace does impact overall productivity. Just make sure that when you choose how to address it, everyone is on the same page.
Chris Morehead is an attorney in the Portland office of Ogletree Deakins, a national labor and employment law firm. He focuses on hospitality employers, with an emphasis on the craft beer industry. He can be reached at firstname.lastname@example.org or 503-552-2140.
By Chris Morehead
For the Oregon Beer Growler
Most people I come across are unfamiliar with the term “gig economy,” even though they’ve already had some experience with it. Simply put, the gig economy is the digital marketplace that connects contingent workers with consumers. It is the increasingly app-based system where skilled individuals can offer their services and perform specific tasks or “gigs” in exchange for some agreed-upon pay. The most common examples are Uber and Lyft drivers. However, the possibilities are endless, as you can now use apps to find someone who will walk your dog, fix your plumbing or even draft a legally binding contract (note: this is not necessarily an endorsement for finding your lawyer by “swiping right”).
Indeed, just like the craft beer industry, the gig economy is booming and here to stay. Just four years ago, there were approximately 75,000 workers in the gig economy. That number has exploded and will continue to do so, since an estimated 19 percent of the current workforce engages in project-based work. And in just 10 years, that number is expected to balloon to 66 percent. Meanwhile, the number of workers in traditional 9 a.m. to 5 p.m. jobs is expected to decline from 86 percent to 60 percent during the same time span. Many people will work in both economies, while others will leave the established model behind entirely.
So, what are the driving forces behind this revolution? For one, consumer demand for ultra-convenient services has pumped hundreds of billions of dollars into this burgeoning economy. Millennials — who, like the craft beer industry, make up a massive portion of the gig workforce — love it because of the flexibility and the freedom it provides when compared to a traditional career. And gig companies, which have been treating gig workers as independent contractors, are saving tons of cash by avoiding payroll taxes, health insurance, office space and training.
But with drastic changes come the inevitable uncertainty and risk. By far the biggest challenge facing the gig economy is how to appropriately classify gig workers: are they truly independent contractors, or are they actually employees? This is not always an easy answer, as even traditional employers often mistakenly classify workers as independent contractors when they should be employees due to the amount of control exercised over the worker. That error can turn into a legal nightmare. For example, Uber recently tried to settle a misclassification lawsuit for $100 million before that amount was rejected by a federal judge.
So what’s the solution for gig companies that don’t want to pay taxes for “employees” that they may never see or tell when to show up for work? That remains to be seen, as courts and legislatures grapple with this very issue, but it is possible that a third category of workers will emerge: the “dependent contractor,” which could create some middle ground between the competing interests of the gig worker, the gig company and the government’s interest in regulations and taxes.
The bottom line is that the gig economy will have a profound effect on all workplaces, including the craft beer industry, where talent acquisition and retention continues to be a challenge for employers. While we’re already seeing some craft beverage gig companies pop up across the country, I wouldn’t be surprised if in five years, for example, tap rooms and hop farms “hire” workers via apps on a flat-fee-per-shift, as-needed basis. Virtually every facet of the industry will have new options to get tasks completed. And when that happens, it will be essential for all employers and gig companies engaged in the craft beer industry to pay close attention to the not-so-glamorous pitfalls of the evolving employment law landscape.
Chris Morehead is an attorney in the Portland office of Fisher Phillips, a national labor and employment law firm. He focuses on hospitality employers, with an emphasis on the craft beer industry. When not in the office, he’s collecting badges on Untappd. He can be reached at CMorehead@fisherphillips.com or 503-205-8099.
Stories from the print edition of the Oregon Beer Growler.