When Employees Act Fishy

August 06, 2009 - by: Troy Foster 3 COMMENTS

Tonight we revisited the episode “Heavy Competition,” which is rife with the kind of employee misconduct that keeps us lawyers busy. Last time we looked at this episode, we talked about trade-secret violations as well as Dwight Schrute’s personal liability for his bizarre antics, which included placing a dead fish in an air-conditioning vent in Michael Scott’s new office. (Can you imagine Dwight trying to explain to a judge –- “Your Honor, a dead fish in a vent has long been considered by generations of Schrutes to be a traditional welcome gift!”)  Ultimately, we decided that Dunder Mifflin probably would not be responsible for Dwight’s crazy actions.

So why isn’t Dunder Mifflin responsible for Dwight’s poor judgment?  This time around, let’s talk a little about what has to happen for an employer to become vicariously liable for its employees’ bad behavior. As a general rule, an employer may be liable for an employee’s actions when he is acting within the scope of his employment. Conduct is not “within the scope of employment” if it is unauthorized or doesn’t serve the employer’s purpose. Determining the scope of employment is hardly a black-and-white issue, and courts often consider whether the bad behavior was foreseeable.

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Who Owns the Inventions of an Entreprenerd?

July 23, 2009 - by: Troy Foster 0 COMMENTS

Tonight featured two more repeats of The Office. Summer is great, well, except for the TV (come on, is NYC Prep really giving you your fix?). Since I figured we pretty much covered everything blogworthy in those episodes when they first aired, I turned to the show’s official website for inspiration this week.

NBC’s fun site features “The Office Addictionary,” which gives us this word of the day: “Entreprenerd (noun) A person obsessed with inventing useless or bizarre products.” Many of us know these types of people — I think of the guy in the movie Office Space who invented a “Jump to Conclusions Mat” where you could literally jump onto various evenly spaced conclusions.

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Categories: Trade Secrets

Documentation Can be Your Golden Ticket

July 16, 2009 - by: Kylie Crawford 1 COMMENTS

This week was a rerun of the episode “Golden Ticket,” where we learned that Dwight keeps a diary, mostly about what Michael does.  While I’m not recommending that you document every little thing the people in your office (and particularly your boss!) do, the episode is a good reminder about the importance of documentation.

It is to an employer’s benefit to immediately document workplace performance issues.  For one thing, a supervisor’s documentation will be the best evidence of what actually happened at the time, rather than asking the supervisor to recall incidents that may have happened weeks or months ago during an employee’s review period.  And when it’s time to terminate an employee for work performance issues, employers need to be able to prove that the issues existed in the first place.  Documenting the issues in writing bolsters an employer’s credibility and also demonstrates that the employee was not subjected to harsh discipline without warning (or, in Dwight’s situation, asked to fall on his sword).  On a more practical level, it’s important to remember that the employee’s supervisor may not be working for the company when it’s time to discipline or terminate the employee, but the written reprimands and other key documentation will still be there.

Categories: Policies

Been There, Done That!

May 29, 2009 - by: Troy Foster 0 COMMENTS

Employment law attorney Troy Foster reflects on the “Stress Relief” episode of The Office and reminds employers that while reruns may work in prime time, letting workplace problems reoccur is dangerous.

Litigation Value: $615,000 and rising . . .

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Back to Business

April 30, 2009 - by: Dominic Verstegen 1 COMMENTS

Litigation Value: $0

Since Troy is away on business, I’m guest-blogging again. And what a week to do so –- there’s a lot to talk about from the “Casual Friday” episode.

Although many HR folks can appreciate HR director Toby Flenderson’s dilemma dealing with employees taking casual Friday too far, there wasn’t a lot in terms of litigation value with everything that was happening. Arguably, Meredith Palmer flashing everyone for what seemed like an eternity could lead to a hostile work environment claim. But Toby did step in and rectify the situation pretty quickly, which would help prevent a claim. He also dealt with Angela Martin’s complaint about Oscar Martinez pretty well –- if you don’t like Oscar’s sandals, don’t look at his feet.

Actually, Angela’s comment about Oscar looking like he just got off the boat could have been a pretty good start to a hostile work environment claim, but she didn’t say that in front of Oscar, so even that wouldn’t end up costing Dunder Mifflin anything.

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The Michael Scott Paper Company

March 27, 2009 - by: Troy Foster 9 COMMENTS

Litigation Value: $100,000 * and possibly a permanent injunction

On the “Two Weeks” episode of The Office, Michael decided that since he was leaving Dunder Mifflin, he would start his own company, the Michael Scott Paper Company. This raises a lot of issues about what’s going to happen to the Scranton gang without their fearless leader -– and about unfair and unlawful competition.

The good news is that for once, we’re not talking about how much Dunder Mifflin might have to pay in court. Instead, we can talk about what the company might receive in court.

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Kevin’s Loan

December 23, 2008 - by: Dominic Verstegen 1 COMMENTS

Litigation Value: $0

It’s week 2 of our review of The Office webisodes. This time, we watched “Kevin’s Loan.” In this particularly hilarious webisode, it is revealed that Kevin has a gambling debt. He devises a scheme to pay off his debt by getting a loan to open up a mobile ice cream business. Unfortunately, there are some problems with his plan, although not with the name of one of his flavors — Fudge the Magic Dragon. Kevin enlists the help of Darryl from the warehouse, and hilarity ensues.

From a liability perspective, the main problem I see is that Kevin walks the line of committing fraud. Of course, since Dunder Mifflin isn’t in on the act with him, the company is in pretty good shape. One issue that is worth examining is: What should Oscar and Darryl have done when they became aware of what Kevin was doing on company time?

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Office Romance Leads to Robbery

October 24, 2008 - by: Troy Foster 4 COMMENTS

Litigation Value: $0.

Shockingly, I don’t think Dunder Mifflin can be held liable for any conduct in the “Crime Aid” episode of The Office. That doesn’t mean I think it’s advisable for Michael Scott and Holly to be messing around at work, for Phyllis to auction off sexual favors (“hugs”), or for Dwight to point to his crotch and tell Phyllis that Angela would be “saying goodbye to this.” But it does mean that I don’t think the company can be held liable for any illegal conduct. Yet.

As refreshing as it is to see the HR department represented more positively by Holly than it was by Toby, you have to worry for Dunder Mifflin when Holly does things like sleep with Michael — on the third date,  no less. And forgetting to lock up the place after an at-work make-out session, leading to a robbery.

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Sex, Flatulence, and Blogging About Work!

June 12, 2008 - by: Troy Foster 3 COMMENTS

Dwight Shurte and Creed Bratton from The Office both have blogs. Dwight warns readers that they shouldn’t be reading his blog while they are at work. Employment law attorney Troy Foster reminds HR and employers that they should have policies about employees blogging about work as well as at work.

With another week with no episode of The Office, I had to find something interesting to get your attention!  In that endeavor, I stumbled across a couple of blogs — one by Dwight and the other by Creed.

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Night Out

April 26, 2008 - by: Julie Elgar 4 COMMENTS

This week’s episode raises some interesting issues for employers. The one that first comes to mind is whether an employer should host internal social networking websites for their employees. Frankly, I’ve got mixed feelings about it. On the one hand, social networking websites are great for recruiting, communicating information, answering employee questions, and allowing employees to get to know colleagues in far off places. A virtual water cooler if you will. But (and this is a large “but”) they also have some significant downsides if not maintained properly. Internal social networking websites must be monitored for inappropriate content (like, for example, the sexual predators who infiltrated the Dunder Mifflin website), disclosures of the company’s confidential information, and for those people who try and use the website as their own personal dating service. I shudder to think about what Michael will do with this feature once Dunder Mifflin 2.0 is up and running.

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