Members of the Employment Law Alliance contributed to the Law360 byline article "World Cup 2014: Employer Considerations." The article was adapted from the recently published guide "Watching 2014 FIFA World Cup Brazil." Text of the article follows:
With the World Cup — soccer’s premier international tournament — on the pitch for this June in Brazil, employers across the globe need to consider how best to balance business as usual with employee engagement and excitement over the matches.
There is no doubt that the World Cup is a major draw. The tournament, which occurs every four years, posted robust ratings in 2010. That year’s finale between the Netherlands and Spain drew 16.8 million Spaniards and 8.6 million Dutch, representing 91 and 86 percent of each country’s total population, respectively. In comparison, the recently completed Sochi Winter Olympics opening ceremony drew 31.7 million viewers in the United States, a mere 10.1 percent of the nation’s total population.
Absenteeism, misuse of workplace information technology equipment and alcohol use and abuse are all very real concerns for employers with a presence in football-crazed countries.
Absenteeism and Adaptation
Major live events such as the World Cup can lead to employees calling in “sick.” These workplace absences can threaten the day-to-day operations of a company and lead to major sanctions and possible termination of employment for offenders who take leave without following protocol. Employment Law Alliance member attorneys Cassia Pizzotti of Demarest Advogados; Enrique M. Stile of Marval, O’Farrell & Mairal; and Juan Carlos de la Vega of Santamarina y Steta, provided the following look at such procedures for Brazil, Argentina and Mexico, respectively.
In Brazil, the games have an added level of attraction as the country is not only hosting, but is favored by many to win the tournament. In the event of an unjustified absence, a company may deduct missed work time from an employee’s monthly salary and, depending on the situation, take disciplinary action. Pizzotti notes that a case-by-case analysis is necessary. An important caveat is that if an employee’s absence results in losses for an employer, more severe sanctions may be applied.
Argentina, also a heavy favorite to win the World Cup, has a slightly different set of guiding principles when it comes to workplace absenteeism. Companies in Argentina are entitled to ask employees to justify any absence from the workplace. Employees, in turn, are obliged to give notice to a company about any upcoming absence, which can be done by any means, as there is no formal process. Failure by employees to notify employers of absences can lead to sanctions, the nature and scope of which depend on the employee’s background and the circumstances involved.
In Argentina, the relationship between employers and employees is based on trust and the principle of good faith. Any breach of this covenant may result in termination of employment. For instance, an employee who produces a false medical certificate to justify an absence from work may be dismissed by an employer. Termination of employment, however, needs to be addressed on a case-by-case basis as, oftentimes, sanctions may be deemed sufficient.
Mexican legislation has established that an employer has legal cause for terminating the employment of a worker who has more than three unjustified absences within a 30-day period. Further, workers are not entitled to receive the salary corresponding to those days for which they have an unjustified absence. However, just as in Argentina, employees presenting false medical certificates are subject to termination of employment.
While unexcused and habitual workplace absenteeism has serious consequences, employers need not be stone-faced and unmoved by the World Cup’s pageantry, tradition and excitement. Adaptations are available that minimize the games’ impact on workplace productivity and allow both staff and management to enjoy the contests.
For instance, Pizzotti points out that there is actually an expectation that the Brazilian government will declare some days during the World Cup as holidays. When days are not declared holidays, employers have wide discretion to set employee work hours. However, company-wide shifts of work time need to be negotiated as a World Cup-specific collective bargaining agreement in unionized workplaces.
In Argentina, Stile notes that oftentimes companies will allow employees to leave their work station to watch Argentine contests in a company break room, although this allowance generally has been only for national games. Employees are not forced to watch matches, but attendance usually is high. Stile adds that he sees low risk of a complaint by an employee unmoved by football — the national sport — on the grounds of discrimination.
Mexico, like Brazil and Argentina, allows for company-wide time shifting of work to accommodate matches, notes de la Vega. He also sees low legal risks for employers to face a discrimination claim with respect to this temporary accommodation.
The “Boss Button”
In the U.S., CBS Sports Network has for a number of years integrated a “Boss Button” into its NCAA Men’s College Basketball interface. When pressed a generic spreadsheet or webpage appears, masking an employee’s covert watching of the 64-team, multiple-day tournament. This “button,” however does not conceal the user’s activity entirely, as web traffic on company equipment is generally subject to monitoring and filtering. The same can be said for viewing World Cup matches on corporate equipment in England and Wales, the Netherlands and Russia, as Employment Law Alliance member attorneys Michael Leftley of Addleshaw Goddard LLP, Eugenie Nunes of Boekel De Neree and Anu Kaisko of Castren & Snellman Ltd., respectively, detail.
England and Wales
Employee use of corporate IT equipment may be monitored and filtered, unless employees are allowed to use this equipment for private use and personal email. If such an allowance is made, monitoring and filtering are then prohibited by law. Leftley notes that best practice is to prohibit private and personal email use at work altogether, ensuring that all sites and emails should be presumed to be solely business-related correspondence, and thus subject to surveillance and restrictions.
Similar to England and Wales, employee use of corporate IT equipment is subject to monitoring and filtering provided employees have been explicitly advised of what they can/cannot use equipment for, and care that has been taken to ensure employee privacy is respected. Nunes cautions that only business-related matters fall within the scope of an employer’s authority — and that authority exists only when it has been made explicitly clear to all employees.
Kaisko in Russia is quick to note that, while employers can monitor and filter employee Internet and email usage, preventative measures (e.g., restricting access, blocking access or using automatic alerts) should take precedence over detection activities performed by IT or human resource professionals. Doing so will better protect an employer’s interests.
With the prevalence of Internet-enabled smartphones and, at times, the overly restrictive nature of filtering programs (e.g., blocking nonobjectionable as well as objectionable sites), employers should be prepared to see ear buds sprouting at cubicles across the globe. However, being upfront and clear with employees — perhaps, again in advance of the matches — will ensure that expectations have been set and serve as a clear warning that activity may be monitored and content filtered.
When Alcohol Enters the Workplace
Employee excitement about the World Cup and new and creative — and possibly even disruptive — ways to catch the action are relatively benign when one considers the potential danger that consumption and overconsumption of alcohol create in the workplace, as Employment Law Alliance member attorneys Sophie Pelicier Loevenbruck of Fromont Briens in France, Jan Tibor Lelley of Buse Heberer Fromm in Germany and Jessica Handal Segebre of Arias & Munoz in Honduras detail.
Loevenbruck notes that, according to the French Labor Code, alcohol (except for wine, beer, cider and pear brandy) is totally forbidden in the workplace. Employers have to prevent against any breach of this rule by forbidding employees from smuggling and drinking alcohol while at work. However, employers are not allowed to subject an employee to a breathalyzer test unless specifically provided for in the company’s internal rules (“reglement interieur”). Such a test can be administered only under the following two conditions: (1) the employee must be able to contest the results; and, (2) based on the employee’s specific tasks and position, being under the influence of alcohol would be dangerous for both the employee and other people.
Operating within this framework, if a breathalyzer test reveals that an employee is under the influence of alcohol, or if an employee refuses to take a breathalyzer test, an employer may take disciplinary measures against that employee, including termination of employment.
Reporting to work under the influence of alcohol is considered a serious breach of the employment contract, even if no express regulation on alcohol exists, cautions Lelley. At a minimum, employees who appear at all intoxicated can expect a strong warning from their employer and, in serious cases, termination of employment.
In Honduras, according to Handal, employers can administer breathalyzer tests in the workplace. Employees found to be intoxicated are prohibited from working and can be dismissed with cause such that the employer needs to pay only the employee’s accrued rights (i.e., proportional vacations, 13th month [Christmas bonus] and 14th month salaries).
Few events truly attract the attention of the globe quite like the World Cup. Employers, who, of course, are often World Cup fans themselves, can take proactive steps to ensure that the workplace remains safe and productive while satiating employee passions for the matches. Preparations in advance of the tournament are critical for businesses located in football-loving countries and for businesses with suppliers and facilities in those jurisdictions. By thinking strategically, the one-month championship tournament can serve as a team-building event, generating enjoyable chatter around the water cooler, without grinding the gears of productivity to a halt.
—By Cassia F. Pizzotti, The Employment Law Alliance
Cassia Pizzotti is the partner-in-charge of the labor consulting practice area at Demarest Advogados, which is based in the firm’s Sao Paulo office.
This piece was authored by members of the Employment Law Alliance.
Originally published on Law360, May 2, 2014. Posted with permission.