Hot or Not?

January 23, 2009 - by: Troy Foster 5 COMMENTS

Litigation value: $0

In the Prince Family Paper episode of The Office, the employees of Dunder Mifflin Scranton act inappropriately and potentially create liability for the company on two different fronts. But fortunately, as seems to be the case quite often this season, no one does anything to definitely create liability for the company. That doesn’t mean we approve of their conduct, though, as literally everyone in the office was in on the shenanigans.

First, let’s deal with Michael Scott and Dwight Schrute. Like in the 8th grade, Michael and Dwight’s spy mission to Prince Family Paper was inappropriate, awkward, and just felt wrong. However, as legitimate competitors, Dunder Mifflin is entitled to compete with Prince Family Paper, even if they’re slimy about it. And the customer list Michael and Dwight got from Mr. Prince could have been a trade secret –- if he hadn’t just given it to Michael so freely. So, at the end of the day, Michael’s and Dwight’s behavior might not have been ethical, but it was probably legal.

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Take a Seat

December 05, 2008 - by: Dominic Verstegen 0 COMMENTS

Litigation value: $0

While everyone at Dunder Mifflin seemed a little more animated than usual on “The Surplus” episode of The Office, fortunately there was nothing that I saw that anyone did to create liability for the company in terms of a lawsuit. Obviously, I don’t recommend secretly marrying a coworker against her will, but that isn’t going to lead to a verdict against Dunder Mifflin.

Despite this, there were still things that we can learn from “The Surplus.” The thing that stuck out to me the most was Pam’s kissing up to Michael when she was trying to get him to choose new chairs over a new copier. She dolled herself up and made several flattering comments about how nice Michael’s back side looked in those $9 pants.

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Dunder-Sponsored Drinking

November 14, 2008 - by: Troy Foster 4 COMMENTS

Cost of drinks: $500
Litigation Value: $100,000 – $1,000,000 (depends on how seriously someone gets hurt and who it is)
Watching the Drunken Debauchery: Priceless, but probably not worth the risk.

The problem that caught my attention during the “Business” Trip episode of The Office was the company-sponsored drinking event that led to Andy and Oscar drunk-dialing Angel and Michael going home with the concierge. When employees get drunk at office parties, the company can be held liable for their actions.

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Anchors Away

June 26, 2008 - by: Troy Foster 4 COMMENTS

Another week without even a rerun, so to find something to write about, we turn to Steve Carrell’s movie catalogue. Anchorman proves to provide plenty of HR lessons — lessons that are strikingly similar to those we see with Michael Scott and gang in Scranton.

LITIGATION VALUE: $1,000,000 (in pre-inflation, 1976 dollars).

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Pimping Out Pam

May 08, 2008 - by: Troy Foster 4 COMMENTS

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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Chair Model

April 18, 2008 - by: Julie Elgar 2 COMMENTS

LITGATION VALUE:  $6,000 – $10,000

Despite what you might think, Michael’s demand that all employees provide him with candidates to serve as the mother of his children does not violate any major employment law.  After all, Michael made the demand of all employees and not, for example, only female employees or employees of a particular race.  Continuing to employ an incompetent manager isn’t illegal.  Yet.

That being said, allowing managers to require their subordinates to act as match-makers as a term and condition of their continued employment isn’t a good idea.  In fact, it is as far away from a good idea as you are likely to get.  Employment law cases don’t exist in a vacuum.  And while this incident, standing alone, is not per se illegal, it will surely come up in the inevitable sexual harassment or gender discrimination trial that arises from Michael’s prior conduct.  As a result, Dunder Mifflin is going to have to pay someone like me between $6,000 and $10,000 to draft a motion asking the Court to exclude testimony about this incident from trial, which they may or may not win.  Somehow, I just don’t think that Michael (or his boss) will think that the coffee date with Pam’s landlady was really worth it.

Ripped From The Headlines

April 03, 2008 - by: Julie Elgar 0 COMMENTS

Well, apparently Michael Scott has moved to Boston and obtained a medical degree.  Last week, the Boston Globe reported that a neurosurgeon at Boston’s Brigham and Women’s Hospital was suing for gender discrimination.

Her evidence?  The antics of her boss, the chief of neurosurgery, who keeps an 8 inch sculpture of a penis and a box of bikini underwear on his desk; refers to female colleagues as “girls”; and who downloaded drawings from the Kama Sutra to the plaintiff’s PDA.  Somehow, I just can’t help but be reminded of Michael Scott’s Diwali seminar.

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Women’s Appreciation

August 31, 2007 - by: Julie Elgar 3 COMMENTS

LITIGATION VALUE: 1,000,000 +

The “women’s appreciation” meeting was a bad idea that was poorly executed. I’m not saying that Dunder Mifflin cannot or should not recognize the achievements of its female employees. It should. I just think that the meeting shouldn’t be announced by saying “I know the crap out of women” and should not end by taking the women to a shopping mall because the office is too much of a “male environment.” If the trip to the mall wasn’t bad enough, it was “game over” when Michael offered to buy them some new panties at Victoria’s Secret. The only way it could get worse would have been for Michael to use a company credit card and for Dunder Mifflin to actually approve the expense.

Should the women of Dunder Mifflin (collectively or individually) later choose to challenge the company’s employment practices as discriminatory, then this type of evidence is going to seal its fate. And, as for Michael’s inquiries whether female employees who are upset with him are having their periods and his reenactment of the “flasher” who exposed himself to Phyllis by putting his finger in his zipper and pretending it is a penis, well, that just introduced Dunder Mifflin to seven-figure damage calculations.

Ben Franklin

July 20, 2007 - by: Julie Elgar 0 COMMENTS

LITIGATION VALUE: $800,000+

If an executive learns that a regional manager has sponsored a bachelor party in the warehouse, hired a stripper, offered to “deflower” the bride, taken an employee to a sex store, received a lap dance, and allowed a pervert dressed up like Benjamin Franklin to make a lewd statement to the receptionist, she should fire him. As soon as possible. Anything else and the company is looking at significant liability. Of course, at Dunder Mifflin, Jan is likely caught in a Catch-22. As soon as she fires Michael, she could be facing a charge for her own conduct in having an affair with her subordinate. Ah, what a tangled web we weave….

As this week’s episode colorfully illustrates, it is not enough to have an anti-harassment policy. Dunder Mifflin has one (as Michael mentioned- twice) and look what happened. Rather, employers must demonstrate that they take the policy seriously and that they are committed to stopping sexual harassment in the workplace. If they can’t, a court is likely to find the policy ineffective. And when it does, the company can say goodbye to its affirmative defense and say hello to punitive damages.

Back From Vacation

July 13, 2007 - by: Julie Elgar 1 COMMENTS
LITIGATION VALUE: $150,000

I empathize with Michael. There is nothing worse than the sinking feeling in the pit of your stomach when you realize that you just accidentally forwarded that witty e-mail (which you worked on all morning) mocking your boss’s bad suits and strange habits to your boss, herself, rather than to your clever cohorts in accounting. Not only could such an error get you fired, but careless e-mails often cause even bigger problems.
Indeed, e-mail is fast becoming the “smoking gun” of employment litigation and threatens to become even more so with the implementation of new e-discovery rules that require employers to retain and produce volumes of electronic information during the course of litigation. And, just a hint, even if you are able to “recall” the e-mail, most people have already read it. My advice is to think twice before sending any e-mail and, if you would not feel comfortable printing the same message on company letterhead, then don’t send it. Well, that and to ALWAYS, ALWAYS double check the recipient.

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