Q&A: A gambling-addicted property manager is not disabled under federal law

QUESTION: A few months ago our homeowners association hired a new manager. At first she was very conscientious and we were thrilled all of our issues were being addressed. Then she started taking more time off and getting involved with the board in ways that should not concern her. She recommended we get rid of vendors we’ve used for years that have proven to do a good job and bring in vendors and contractors that she uses at her other associations. Next, we noticed that the things we asked her to do weren’t being done, and work was piling up.

One of our maintenance workers complained to the board that he was having problems getting supplies he needs for his job. He explained that every time he goes into the office to ask for supplies, the manager is on her computer gambling online. Apparently the manager does this throughout the day and tells maintenance workers she’s “busy” and to come back later. Yesterday, during lunch, the manager mentioned she would be much better off financially if she wasn’t “addicted” to gambling. At the last board meeting I sat next to a bidding contractor. He joked that all he needs to do is “comp” our property manager a couple of gambling weekends out of town and he gets the contract with our association.

The manager was employed to work, not gamble and not use our association’s opportunities to benefit herself. What does the board do now?

ANSWER: The board should handle this situation the same way it would any other breach of the employment relationship. Although gambling and addiction are sensitive subjects, the awkward nature of this situation does not insulate your manager from disciplinary action nor does it insulate the association from any legal liability attributed to her behavior.

Compulsive gambling is recognized as a condition that deserves proper treatment. Indeed, aside from purely social and professional gambling, the American Psychiatric Assn. calls gambling an impulse-control disorder. However, from an employer’s prospective it is not classified as a “disability” under the Americans with Disabilities Act. Specifically, section 1630.3(d)(2) of the act states that “Disability does not include: Compulsive gambling....”

Bringing vendors and contractors to the association that the manager knows are comfortable providing out of town gambling weekends or other “perks” in exchange for contract awards obviously creates a conflict. Gambling during working hours also affects the association’s productivity. When needed supplies are not ordered because the manager is preoccupied with her online gambling, her activity interferes with the business of the association.

If the manager is an employee of a management company, the board should speak with the proprietor and ask for a replacement manager. If the manager is an employee of the association, the board needs to address the problem in a swift and direct manner. Because this is a confidential matter, the discipline meeting should be private.

The association can obtain tracking software to install on its computers and gather data related to her performance. Generally an employee has no reasonable expectation of privacy in their personal use of an employer’s computers or other equipment. Illegal gambling is monitored based on the login address for activity, which could implicate your association in an investigation if her gaming were tracked. The potential for liability far outweighs any potential right to privacy.

Even if your manager’s gambling habit is not illegal, it is still improper for her to engage in this activity at work. Using association computers and Internet access for anything other than association business is a misappropriation of its resources and a breach of the employment relationship.

If you are not terminating this manager immediately, then she should receive a formal reprimand detailing her unacceptable behavior, as well as a definitive time frame to rectify the situation. Make certain your expectations are very clear. If she does not comply, then reevaluate terminating her employment.

Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 ornoexit@mindspring.com