Litigation Value: Andy’s vocal hatred for Nelly = fodder for her brewing constructive discharge and breach of contract case; New versus Old Dwight dynamic = possible future age discrimination issues; watching Old Dwight’s jealous alter ego attempt a terrifying stunt in the parking lot to put New Dwight in his place = priceless.

The Office kicked off its final season with quite a bang. With a New Dwight (“Dwight Jr.”) and a New Jim (“Plop”), Oscar’s secret affair with The Senator, growing tensions between Jim and Pam over career issues, and the big reveal about the paternity of Angela’s baby, this season should be an interesting one. Andy is back and relishing his role as Regional Manager except for one small problem–Nellie is still lurking around. Hopefully Outward Bound has not resurrected angry wall-punching Andy.   

read more…

Litigation value: $8.99 + tip for Michael’s “free” lunch, although Michael’s tort action for false imprisonment against Mr. Chu and the Chinese restaurant will more than cover it.

From an employment liability perspective, it is probably a good thing for Dunder Mifflin/Sabre that Michael’s character is leaving the show soon. One suspects that his soon-to-be-rekindled relationship with coworker Holly will not end well. Which is too bad because we learned this week that Holly and Michael are quite literally of one mind. But this is The Office, and when the relationship goes down in flames (and it will), one of my colleagues will write about it on this page.

The main plot line in this week’s episode, “The Search,” is — wait for it — the search for Michael as he roams the streets of Scranton sans wallet and phone. But the real action for the employment lawyer is back in the office where Pam has done a drawing and is putting on a caption contest. Consider Gabe’s contest “ground rules”:

read more…

Litigation Value: Inappropriate Comments by Kevin, Creed, Michael, and Darryl = Yet More Expensive Fodder for Hostile Work Environment Claims; Cost of Sparkly Resolution Board = $4; Michael Force-Feeding Broccoli to Kevin = Priceless.

It’s a brand new year, and our friends at Sabre are determined to start off on the right foot by sticking to their resolutions . . . at least until Michael assaults Kevin with veggies and Creed cracks under the pressure of learning to do a cartwheel. It looks like we have many more Office antics to look forward to in 2011.

read more…

Litigation Value: In the aggregate, $100 million; most of which is punitive damages

OK, so tonight’s episode – The Banker –- didn’t really bring us much new material, but it indeed highlighted five years of near-catastrophic employee-relations failures. As Dunder Mifflin verges on economic collapse, a potential investor dispatches its self-proclaimed “fact-checker” to conduct a due-diligence assessment of the company’s “H.R. liabilities.” While interviewing HR representative Toby Flenderson, the fact-checker poses a series of provocative questions that invoke Toby’s vivid recollection of why he so dearly hates his job. In essence, we rewind the tape a few years. Let’s take a look:

• Racial/national origin harassment/discrimination: Michael Scott mocking Kelly Kapoor’s Indian heritage.
• Inappropriate and/or sexually-suggestive language and innuendos: Michael’s skilled reliance on the phrase “that’s what she said” to transform seemingly innocuous comments into sexually charged double entendres; Michael’s lewd references to Stanley Hudson’s teenage daughter; Michael exposing himself to Pam; Meredith Palmer exposing herself to the entire office; and Michael kissing Phyllis Lapin to dissuade her from complaining to human resources about his sexually offensive language, and then immediately rewarding her graciousness with sexually offensive language.
• Sexual harassment/sexual orientation harassment: Michael kissing the visibly-horrified Oscar  Martinez on the lips to illustrate his tolerance of same-sex relationships; again, Michael kissing Phyllis; and, yet again, Michael’s unbridled references to “that’s what she said.”
• Age harassment/discrimination: Several mean-spirited references to Creed Bratton’s age and his “distinct old man smell.”
• Workplace violence: Andy Bernard ramming his fist through the wall; Pam slapping Michael; Kelly slapping Michael; Jim Halpert slapping Dwight Schrute; Dwight punching Michael, and later pounding him in the face with a shoe; Phyllis hurling a wad of paper into Angela Martin’s face; and Oscar shoving Angela.
• Potential workers’ compensation claims: Michael running down Meredith in the employee parking lot; Andy plunging from a transfer truck into an empty refrigerator box; and Michael ramming the warehouse forklift into a storage rack, causing a cascade of flying metal, boxes, and paper.
• Health and safety violations: Dwight purposely igniting a trashcan paper fire to instigate an unscheduled fire “drill”; and, again, Michael ramming the warehouse forklift into the storage rack.
• Property damage/waste of company resources: Michael and Dwight bouncing a watermelon from the office roof onto a parked car; several mutinous employees shoving paper, books, and supplies to the floor; an employee shattering a plate glass window with a toy-gun projectile; again, Michael overturning the storage rack; Jim disassembling Dwight’s desk and contents (classic) and enveloping them in holiday wrapping paper; and Jim encasing Dwight’s stapler in a Jell-O mold.
• Invasion of privacy/HIPAA violations: Dwight demanding that each employee publicly identify his or her personal medical condition to determine its legitimacy.
• Supervisor-subordinate romantic relationships/inappropriate public displays of affection: Dwight making out with Angela; Angela making out with Andy; Kelly making out with Ryan; Michael’s painfully inappropriate workplace relationship with his boss, Jan (and discussing his repeated vasectomies before the entire office); and Jim’s and Pam’s eternal office romance, despite Jim’s supervisory role (OK, we turn a blind eye to this because we really like them).
• Hostile work environment/miscellaneous inappropriate and outrageous behavior: All of the above, and too many to mention.

read more…

Litigation Value: $50,000.

In this week’s episode of The Office, Michael Scott is on camera calling Kelly Kapoor dusky and exotic, and then Dwight Schrute, the assistant to the regional manager, refers to her southern India birth before he threatens her. A jury somewhere will find against Dunder Mifflin for race discrimination. Of course, that jury would have to ignore Kelly sabotaging Dwight’s and Jim’s bonuses and then claiming she was raped when she was caught in her misconduct. (“You cannot just say that you’ve been raped and expect all your problems to go away. Not again, don’t keep doing that.”) But still, some people will sympathize with Kelly.

It’s fitting that the Dunder Mifflin gang brought race discrimination to our attention this week, after the historic election of Barack Obama. The Civil Rights Act of 1964, which outlawed racial segregation in schools, public places, and employment, is not even 50 years old, and now we have a black President. (The Civil Rights Act of 1964 also outlawed discrimination based on religion, gender, and national origin — interestingly, gender was added at the last minute by a Virginia congressman who thought its inclusion would kill the bill.) This piece of legislation drastically changed the face of employment law. It allowed the Kelly Kapoors of the world to file lawsuits when the Michael Scotts of the world called them dusky.

read more…

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.

read more…