April 18, 2021

Volume XI, Number 108

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Company E-Sports Leagues Present New Twist on Traditional Employment Law Issues

Agrowing trend among employers that are turning to new and updated methods of fostering employee collegiality and team bonding involves e-sports leagues. Similar to the traditional company softball team, e-sports leagues provide a modern method for employees to form teams that compete at video games against squads of workers from other businesses. This competitive medium has gained in prominence during the COVID-19 pandemic as employers seek innovative ways for employees to interact while observing social distancing precautions. Employers can view these competitive outlets as a means of fostering creativity, building rapport, and developing trust among personnel.

E-sports leagues help employers develop camaraderie among employees. Despite the benefits, they present a potential source for several well-known employment law risks. Early identification of these risks and incorporation of strategies to mitigate liability can help a company’s e-sports team be successful.

Employee Harassment

Competition through video games typically involves communication by electronic chat or audio among teammates and competitors. Employees who are engaged in the heat of battle may lose sight of company rules that prohibit disrespectful and derogatory conduct that is directed toward coworkers. Such an oversight may lead to the use of language or behavior that targets an employee during a game in a manner that could support a claim of harassment on the basis of a protected category under federal, state, or local law. Even when conduct takes place in a forum that is outside the workplace, an employer may be required to respond when the misconduct occurs between coworkers.

Employers that sponsor or have knowledge of employee involvement in e-sports leagues may consider providing participating employees with a refresher on appropriate communication and the consequences for engaging in harassing, bullying, or discriminatory misconduct. Such a reminder can be especially important for supervisory personnel for whom an employer may be held accountable for their conduct toward lower-ranking employees. Further, employers may want to be prepared to respond to complaints of employee activity that arise out of participation in e-sports leagues. Even if an employer does not promote, endorse, or require participation in a team or league, it may have an obligation to respond to allegations of harassing or discriminatory behavior when they are brought to its attention.

Discriminatory Selection Tools

As with other team-building exercises, employers may come to rely on e-sports leagues as tools to evaluate participants during competition for potential leadership qualities and promotion. Employers may see transferable skills when gaming participants are able to identify and harness employee strengths to carry teams to success.

Before using e-sports performance as a metric by which to assess suitability for the next promotional opportunity, employers may want to consider who is participating in e-sports leagues—and, perhaps more importantly, who is not participating. Close review of team members may reveal that certain groups of employees enjoy high rates of involvement while other groups of employees tend to avoid the gaming arena. A significant disparity in participation in e-sports activities, when they are utilized to consider candidates for job opportunities, may lead to claims that an e-sports league is a discriminatory device for job selection. To avoid such allegations, employers may want to consider alternative means by which nongaming employees can demonstrate the skills and abilities that make for ideal promotional candidates.

Questions of Leave From Work While Gaming

E-sports league participants may include employees who have taken periods of unpaid leave from work due to a serious health condition under the Family and Medical Leave Act (FMLA) or as a reasonable accommodation under the Americans with Disabilities Act (ADA). An employer may question employee participation in an e-sports league when it occurs simultaneously with an employee’s exercise of leave under the FMLA or ADA—which could lead to disciplining the employee for what is perceived to be an abuse of leave.

An employer may want to conduct an investigation before determining whether to take adverse action in response to what may seem like a conflicting use of leave from work and e-sports league participation. An employee’s health condition that supports the need for leave from work may allow for the employee to participate in recreational activities such as video gaming. If involvement in an e-sports league comports with an employee’s medical restrictions, an employer’s disciplinary response could arguably support a claim of interference with leave rights or retaliation for exercising leave rights.

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© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 56
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About this Author

Jesse R. Dill attorney Ogletree Deakins
Attorney

Jesse has a wide range of employment law litigation and compliance counseling experience. He has obtained successful verdicts for his clients in multiple forums, including state circuit courts, Federal Mediation and Conciliation Service arbitration proceedings, and administrative hearings before the Equal Rights Division. This litigation experience complements Jesse’s compliance counseling for clients on all aspects of the employment relationship. He regularly assists clients to assess legal liability related to personnel decisions, prepare employment law policies that...

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