LITIGATION VALUE:  $200,000 (should Hunter lose interest in Jan and sue); $30,000+ (in emotional distress for those who had to witness Jan’s ”love dance”).

You know it’s a funny episode when you laugh out loud, even though you are all by yourself — and you’ve seen it before!  For the second time, “Dinner Party” does not disappoint.  Tonight’s episode of  The Office introduces us to yet another surreptitious hook-up:  Jan and her former assistant, Hunter — who has recorded a CD titled, “The Hunter.”  His song about “that night” could have been a harmless-enough love ballad, except that we see Jan enraptured by its sound when she plays the song for her guests.  She was having such a time of it that I was embarrassed for her (forgetting for a brief moment that this is just a show).  By all appearances, “The Hunter” caught himself a real cougar.

As we all know, office romances — especially between a supervisor and a subordinate — are very problematic and plant the seeds for sexual harassment claims when things sour, which they almost always do.  The employees generally claim that they felt compelled to continue in the relationship with the supervisor — or it would be their job on the line.  Here, Dunder Mifflin is lucky to have Hunter’s ode to Jan, which will be very useful in refuting any claim that Jan’s advances were unwanted — please!  But most of us can’t count on (nor do we want to listen to) that type of evidence.  Instead, we have to turn to policies and enforcement.  Crafting a thoughtful policy on employee dating should help us sleep a little sounder at night.  But the key to any policy is the proper enforcement behind it.  We definitely don’t want to create a policy that we’re not going to enforce or just enforce parts of; that just makes the policy empty and could create other disparate-impact claims.

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Last week’s episode of The Office, “Goodby Toby,” sure gave us plenty to chew on.  So, I’m taking advantage of this week’s break to turn to another Dunder Mifflin pickle presented by the finale — Kevin.  As we saw, Dwight planted the seed with Holly that Kevin is mentally disabled.  Kevin’s natural demeanor certainly drove the point home.  His disturbing (and often inappropriate) grin, his signature wave, his tone (or odd drone), and his apparent excitement over Holly’s pride in him for driving himself all just seemed like the traits of the Kevin that we all know and love — until Dwight’s joke!

Even though I think Dwight might be onto something (and I’ll never look at Kevin the same again), Dunder Mifflin could get into hot water with a potential claim under the Americans with Disabilities Act.  Even if Kevin is not disabled, the fact that Dunder Mifflin management (Holly) is treating him as though he were leaves us with no legal difference.  Suppose Michael gives Kevin a poor performance evaluation, demotes, or even fires him (not a big stretch).  Kevin can now claim that the adverse action was only taken because Dunder Mifflin “regarded” him as disabled and discriminated against him because of it.

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Litigation Value:  $300,000 per claim (until respected HR manager is in place).

Though there is so much to write about — office romance, sexual harassment, what Kevin might be regarded as, pranks involving animals, and fraud — tonight, in honor of Toby’s departure, I want to focus on monsters.  It is no secret that Michael thinks Toby is one of the worst out there.  Not known for his subtlety, Michael referred to Toby as “His Horribleness,” called him an “idiot” several times, and compared him to Satan — all in between beeps on his watch alarm.  Over the last 12 years, Michael has mocked (and blocked) Toby’s HR efforts every step of the way.  The “Suck This” rock best sums up Michael’s feelings toward Toby.

Unfortunately, we sometimes see that companies in the real world have similar (though rarely as impassioned) views of HR.  Some on the business side see HR as an obstacle rather than a tool — and want us “Tobys” to all go off to South America.  Now, we know that this mindset is very dangerous and can create significant liability.  When employees see that management doesn’t take HR seriously, they don’t either.  This causes even more violations of policy — usually left unreported (because why bother).  And it really opens the company up to more claims and being blind-sided because HR can’t possibly have a pulse on an organization in this type of environment.

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HARASSMENT CLAIMS: $200,000 – $300,000.

NEGLIGENCE/PERSONAL INJURY CLAIMS: $50,000 – $75,000.

WATCHING ANDY EAT IT IN THE SAND PIT: Priceless.

It is truly my honor to take over this blog for my good friend, Julie Elgar. She has provided us all with great practical and legal tips over the past year, and we will miss her. Though big shoes to fill, I promise to do the same, and I guarantee that we’ll all have fun. As a former HR professional myself, I understand the importance of humor in the face of our daily challenges.

Well, this week’s episode gives me the opportunity to talk about HR Rule #1: Never offer up your employee’s body for bidding. Michael’s attempt to lure Justin to Dunder Mifflin by letting him know that Pam is the “office hottie” and that she will “do” him given her reputation for dating her co-workers is just not good manners. That aside, it is obviously really bad evidence. A less obvious complication is that Oscar (who Michael referred to as “Oscar Mayer Weiner Lover” in last week’s show) was visibly offended. Though not the target of Michael’s comments at the job fair, Oscar could also bring a harassment claim because he took offense to these sexually-charged comments about Pam. And, Michael’s comment when witnessing Pam and Jim making out in the office is generally not the type of reprimand that we advise employers to give employees for such inappropriate conduct. Instead, “kiss her real good” is more probably another sexually-charged comment that is simply the cherry on top of Pam’s (and possibly others’) harassment claim.

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LITIGATION VALUE: $450,000 (if
Stanley ever quits or is fired)
It is with great sadness that I announce that I am leaving “That’s What She Said.” I have taken a new job and am leaving the private practice of law. But don’t despair. Our beloved blog will continue. I have passed the torch to my colleague Troy Foster, who is not only one of the funniest people I know but who is also a huge fan of the show.

At least the writers made my last post an easy one: tonight’s episode was full of Dunder Mifflin management missteps. Had Stanley really been fired (or if he had just quit in disgust after the “faux firing”), he would have found it substantially easier to make those alimony payments to the former Mrs. Stanley Hudson (not to mention his future ex-wives). His claims for race discrimination, age discrimination, wrongful termination, and intentional infliction of emotional distress would have been pretty solid. You just don’t get to “faux fire” the only over-40 black employee after asking him for suggestions on how to “pep up” and “energize” the workplace by recording an “urban” message in a staff meeting. Plus, juries are rarely impressed by managers who publicly humiliate their employees. That being said, Michael’s blunders don’t excuse Stanley’s conduct. As much as we all have wanted to blow up at our boss during some point in our careers, the cold hard truth is that you just don’t get to do so without adverse consequences.

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