Frito-Lay Employee’s Injury in Hoops Tourney Out of Bounds for Workers’ Comp

A forklift driver for Frito-Lay who injured his achilles tendon playing in a company basketball game is not covered by workers compensation.

The Virginia Workers Compensation Commission (VWCC) upheld the denial of benefits because the employee’s voluntary participation in the off-premises and off-duty event could not be considered to be in the course of employment to qualify under the state’s workers’ compensation law.

Virginia workers compensation law defines an “injury” as meaning an “injury by accident arising out of and in the course of the employment” and excludes “any injury, disease or condition resulting from an employee’s voluntary participation in employer-sponsored off-duty recreational activities which are not part of the employee’s duties.”

The VWCC cited principles establishing when recreational or social activities may fall within the course of employment:

1. They occur on the premises during a lunch or recreation period as a regular incident of the employment; or
2. The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or
3. The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life.

In the case before the commission, Frito-Lay paid entry fees to have two teams in the tournament. Sign-up sheets were posted in the warehouse and 16 employees were selected from the sign-ups based upon their basketball experience. The claimant’s father, who previously worked for Frito-Lay and started a Frito-Lay team at the tournament in 2010, said he began the team as a way to “build morale” by having the warehouse team win a trophy and “bragging rights” for the company. His son, the claimant, said that his co-workers felt “a sense of pride” in playing for the company.

But the VWCC found that the claimant’s injury did not qualify as a work accident because Frito-Lay was only a limited participant in the basketball tournament and the employee’s participation was entirely voluntary and not required or expected by the company. The commission noted that the tournament was not on Frito-Lay’s premises. The players provided their own transportation and were not reimbursed for travel expenses. The players volunteered to play and were not compensated in any manner for playing. Notably, the claimant utilized his paid vacation days to participate. The employer did not provide jerseys, equipment, or food. There were no employer-led meetings, trainings, or sponsorship of the tournament.

In addition, the commission found there was insufficient evidence that employee morale was affected. Only a few employees out of 500 employees played in the event. A win or loss did not affect employee morale.

Finally, the commission noted that while positive public relations might be the goal of the company, the event was not designed to benefit the employer. Rather, the primary beneficiary of the tournament was a local community’s free clinic.