Playing The Pokemon Go with blur background

Although Pokémon Go is only 21 days young, over 30 million users have downloaded and played the augmented reality game on their smartphones.  In the latest release of the pocket monster franchise, your mission is to capture and train pokémon—facsimiles of real and fictional creatures ranging from caterpillars and pigeons to electric mice and water dragons.  Unlike previous renditions, players must get off their couches and amble through their neighborhoods—picking up important in-game items at pokéstops and battling other players’ pokémon to take over gyms along the way.  The game is now bigger than both Twitter and Tinder, and while millennial nostalgia has contributed to its success, people of all ages are venturing into the world to “catch them all.” 

While Pokémon Go has been praised for pushing people to get fresh air and exercise and interact with their fellow humans, it is not without its pitfalls.  Players have fallen from cliffs and stumbled upon dead bodies.  Less scrupulous users have even used the game to commit armed robbery.  Pokémon Go has also caused issues at the office:  fallen productivity, trespassing, and premises liability issues have specifically plagued employers.

We at HR Legalist offer the following strategy guide for troubleshooting these issues in the workplace:

Shirked Responsibilities

Like Flappy Bird and Candy Crush, Pokémon Go has hooked users to the frustration of their employers.  Unlike those (or most other) mobile entertainment fads, Pokémon Go is adventure-based and literally requires players to stand up and move around.  Shuffling around the office corridors, eyes glued to one’s smartphone, is not discrete or attractive.  Throw in the fact that the game carries some stigma among adult users despite its ubiquity, and you have created a recipe for a workplace crackdown that, while reasonable in theory, may disgruntle employees and depress office morale if it is unfair in practice.

Of course, “pokémon trainer” is not a protected class, and disciplining or discharging employees for playing the game is not unlawful.  However, singling out Pokémon Go while turning a blind eye to similar productivity vacuums, like fantasy sports leagues and social media sites, may raise questions of pretext if an employee later claims discrimination based on a recognized protected trait.  Where an employment agreement governs, the employee could sue for breach of contract if the employer disregards or inconsistently applies its electronic device usage policy.

If your policy does not address personal mobile devices (company-owned or otherwise), now is a good time to update your employee handbook and specify the do’s and don’ts of using these technologies on company time.  For example, a bright-line policy that limits non-business use to lunchtime and other employer-sanctioned breaks may work well for wage and hour staff.

Unwelcome Intruders

People on the company payroll are not the only ones causing problems at work.  Outsiders wandering onto the premises have also created issues.  Because Pokémon Go players are divided into three discrete teams, hordes of people have shown up, unannounced, on private property to catch an elusive pokémon, raid a pokéstop, or overtake a gym.

Depending on workplace location, this may be easy to remedy.  Pokéstops and gyms are important in-game landmarks and spawn points for pokémon.  They also correlate with real-world places of interest.  As a result, densely packed cities and towns are often filled with them, while they are fewer and further between in suburban, exurban, and rural environs.

Employers based in the latter types of areas, such as a leafy green office park, may remedy the issue by requesting the removal of pokéstops and gyms located on or adjacent to their property.  If you are located in a central, downtown area, the spillover effect from lots of nearby pokéstops and gyms is more likely unavoidable—even if you successfully remove them from your own property.  The good news is that in these cases, players often do not need to invade company property since the game allows them to interact with pokémon, pokéstops, and gyms located within a 130 foot radius.

Areas that are less densely populated but filled with historic landmarks create more of a dilemma since employers might be surrounded by lots of nearby points of interest and have a lot more land to protect from invasion.  Under these circumstances, placing additional “no trespass” signs, paying closer attention to your surveillance cameras, and having a security guard patrol the perimeter may be worthwhile.  Employers may even post humorous—but unmistakable warnings—that specifically target Pokémon Go players.

Avoidable Injuries

Whether welcome or unwelcome on the premises, Pokémon Go players, like others who make a habit of texting, emailing, or browsing the web on their mobile devices while walking, are prone to bumping into people, walking into walls, and slipping and falling, which can lead to bruised knees, broken bones, or worse.  While the injured player would certainly be at fault, under the principle of comparative negligence, property owners may not be fully absolved of responsibility where the accident was also caused by an unmopped spill in the company kitchen or uneven pavement on an exterior walkway.

In the case of uninvited children, creative personal injury attorneys may even seek relief under the attractive nuisance doctrine.  Under this principle, landowners must take extra preventative measures when their property contains features, like swimming pools, that are likely to lure and injure minors.  While an employer can only do so much to control the presence of in-game landmarks, lawyers could argue that the existence of a nearby gym or pokéstop has placed them on notice that pokémon could generate on their property, justifying the construction of a fence or other secure barrier.

Conclusion

Like other mobile games gone viral, Pokémon Go most likely has a limited shelf life and could fade into obscurity before the end of the year.  However, employers who are tempted to wait out the clock should be aware that because Pokémon Go is the first massively successful augmented reality game, it will probably be the first of many mobile entertainment fads that distract employees and attract trespassers to their chagrin.

As a result, we at HR Legalist recommend that employers reach out to their legal counsel now and create a game plan that will protect them from the adverse consequences of this, and all future augmented reality games.


 

Alexander BatoffAlexander V. Batoff focuses his practice on counseling clients on federal and state employment laws and regulations and defending them in litigation.  He may be reached at 215-665-3048 or alexander.batoff@obermayer.com.