My colleagues and I have written on this blog about all of the costly potential lawsuits the Scranton branch has spawned since Sabre acquired Dunder Mifflin. Let’s assume some of these incidents have become actual lawsuits alleging discrimination or harassment. David Wallace, former DM executive and inventor of the Suck-It, is going to purchase Dunder Mifflin from Sabre. Question: Does Wallace inherit these lawsuits?

The answer depends (we’re lawyers, after all). It depends first on the structure of the transaction. If Wallace purchases the controlling shares of Dunder Mifflin in a stock transaction, then he steps into DM’s shoes and assumes all of its liabilities, end of story. On the other hand, if Wallace purchases Dunder Mifflin’s assets, then the general rule is that the purchaser of corporate assets does not acquire the seller’s liabilities.

But, where federal rights are involved, such as the right to be free of discrimination and harassment in the workplace, many courts hold that the purchaser may inherit the seller’s liabilities if (a) the purchaser is put on notice of the claims and (b) there is substantial continuity in the business operations before and after the sale. These courts have weighed the need for unfettered business transactions against rights created by federal law and come out generally in favor of the latter.

Will Wallace navigate his way through the sale successfully? Maybe. Hopefully, we find out next season. If we’re lucky, we’ll also find out how Robert California made out with his Eastern European college-age ex-gymnast mentoring program.

This episode was like a law school exam. So many issues; so little time.
First, we see the Syracuse and Scranton salespeople fighting over the Binghamton office’s (former) clients. The Binghamton office seemingly closed with little warning. Assuming that Dunder Mifflin employs over 100 full-time employees overall and terminated more than 50 at this site, the company needed to comply with the notice requirements of the Worker Adjustment and Retraining Notification Act (WARN) and any New York-state counterpart. Damages under the federal WARN Act include lost wages (up to 60 days per employee), a civil penalty, and attorneys’ fees.

Next, we learn that Dwight and Jim have created a fake persona to avoid the company’s commission cap. While it’s nice to see these adversaries actually work together for a change, creating a fake employee out of thin air just to steal from the company carries plenty of legal issues — breach of fiduciary duties, violations of the Immigration Reform and Control Act of 1986 (requiring all employers to verify that newly hired employees have been authorized to work in the country), etc. Moreover, Toby’s involvement in the scheme only makes matters worse since presumably HR oversees the compliance of such matters.

Third, we hear only suggestions of Robert California’s voicemail message to Nellie. Nellie simply responds to Robert the next day with, “yes, yes, yes, and never.” I think it’s safe to assume that Robert probably did not ask, in order: Do you love spotting legal issues in pop culture? Did you know that Scranton is the county seat of Lackawanna County? Did you know that PJ Carlesimo is from Scranton? And, would you ever turn down a free cheese steak from Pat’s? Nellie later confides in Pam (because Robert pressured her into investigating) that Robert is a “filthy beast” and talks of nothing “but sex.” Robert’s open sexual harassment of a subordinate is, obviously, a big problem for the company. Because employers are strictly liable for supervisor harassment that results in tangible employment actions, Robert’s actions create bigger problems for the company (as compared to co-worker harassment).

Fourth, Pam’s taking of Nellie’s cell phone and listening to her stored messages with Robert raises all kinds of privacy issues. Title Two of the Electronic Communications Privacy Act of 1986 (the Stored Communications Act) prohibits the unauthorized access to stored communications. Common law invasion of privacy claims may exist here, too. Whether Nellie knew and/or consented to the company’s access of any data stored on her phone will affect the company’s liability. A strong employer policy would be effective to show that Nellie’s expectation of privacy is limited. Of course, it’s safe to assume that the company’s handbook — which we learned in this episode actually permits one employee to choke another — probably does not have a strong electronic communications policy.

Finally, Andy Bernard makes a move on one of Dunder Mifflin’s biggest clients while creating his own paper company. A valid noncompetition agreement would have provided nice protection for the company; however, Andy’s use of client data and pricing information may still give the company a claim under a state’s uniform trade secret law and/or trade secret common laws.

Send us your thoughts on last night’s episode, any additional issues you have spotted, and whether you would turn down a free cheese steak from Pat’s? Geno’s?

This week’s episode illustrates some of the dangers of a disgruntled ex-employee. A recently fired Andy and his newly blossoming life crisis take center stage at a local fundraiser.

After a great cold open where Ryan tries to show off how seriously he’s mourning the loss of Smokey Robinson, we spend a little time at work before heading to a fundraiser thrown by Angela’s senator husband. Andy, who was terminated last week by Robert California, stops by the office as Erin’s date to the fundraiser. While waiting for Erin in the parking lot, Dwight informs the office that Andy is outside sitting in his car. This gets a few people worried that he is there to kill everybody. Erin and some others head out to his car to make sure everything is OK. Andy says he is. Kevin says he isn’t. This motif is repeated throughout the episode.

At the fundraiser, Andy shows up and clearly isn’t fine. He talks about his rock opera with the villain Thomas Oregon, and when Robert asks him to leave he buys a table for himself. He runs into David Wallace, which was nice. Apparently he sold the Suck It! to the military and is now very rich. After buying an entire table full of well-peppered salads for himself to sit alone at, Andy attempts to one-up Robert’s speech by adopting 12 sick and elderly dogs. Nothing else happens for Andy until the end of the episode when he is receiving the many complicated instructions for taking care of his new friends and Kevin of all people calls Andy out for not admitting he’s having a hard time. Once Andy finally admits he’s not doing so well with the recent termination, the episode ends. Thankfully, however, most of the dogs were adopted by other members of the office.

An interesting sub-plot was also running throughout the episode. Nellie attempts to connect with Darryl, and her main goal tonight was to get Darryl to treat her with less disdain. She sits beside him at the fundraiser and tries to bond by mentioning tacos even though she doesn’t know what they are. Nellie hopes they are neither slimy nor have eyes. Darryl takes the $30 Nellie pays for two tacos and pockets the change. Although the show didn’t say her thoughts about Darryl were sexual, I can’t be the only one who thought that Nellie was interested in him in that way. In which case, this could lay the groundwork for an interesting dynamic in the weeks to come.

As far as employment law concerns, there’s not much to take away from this week’s episode. It does help to illustrate, however, some of the dangers that can occur when an employee is not terminated properly and becomes disgruntled. Andy already has a claim for intentional infliction of emotional distress (discussed last week), and now that he has been fired for refusing to accept a demotion he could have an additional claim for wrongful discharge. With that potential liability in mind, the best practice would be to avoid situations where an ex-employee is in contact with former managers and supervisors. As always with The Office, however, best practices are almost never followed.

This week’s episode had its moments, which included Dwight’s inability to understand a silent auction and Nellie’s inability to eat a taco. As a whole, however, it leaves us wondering where the story with Andy is going to go? Will the termination stick? Not likely, but for now it’s providing us with a good ride through the emotional turmoil of a recently terminated employee.

What do you think? Let us know.

Not subtle. Not subtle at all. Nellie has already usurped Andy’s manager status. Then she hauls Andy and his coworkers into a conference room and writes “IMPOTENCE” in bright red letters on the flip chart. Robert California sits there, amused by the whole spectacle.

The tort of intentional infliction of emotional distress has four elements: (1) extreme and outrageous conduct (2) inflicted intentionally or recklessly (3) that caused emotional distress, and (4) the distress was severe. Applying these factors to this episode, Andy has a viable action against Dunder Mifflin.

The conduct was certainly extreme or outrageous. Nellie, with Robert’s authority, convened a meeting that revealed Andy’s impotence to the rest of the staff. The conduct was intentional. Nellie, again with Robert’s authority, wrote IMPOTENCE on the flip chart in flaming red caps. The conduct clearly caused Andy emotional distress that was severe. “That poor wall,” Daryl sighed, as Andy punched his fist through it for the second time. And on top of all this, Robert legitimized Nellie’s mutiny by ordering Andy to step down from his manager position … and he may have done so because he wants to sleep with Nellie. This is a lawsuit for a future episode.

There’s really no takeaway lesson from the “Angry Andy” episode. The company’s conduct was obviously deplorable. One almost wishes the show’s writers had just gone all in and let Dwight show everyone in the conference room why he described himself as The Washington Monument.

That’s what Dwight said. What do you say? Let us know.

Another week, another party in Scranton. Last night on The Office, Robert had the party-planning committee working hard on a party to welcome Nellie into the fold. Problem is, the party-planning committee doesn’t actually like Nellie. Nor does anyone else in the office, for that matter. So Pam comes up with the idea to throw a terrible party for Nellie. The gang strings up black streamers, buys bad food (a carrot cake — it’s like a salad bar, as Kevin indignantly points out), and hires Creed to play “all originals.” And the piece de resistance — they hire a magician, because Nellie hates magicians.

But in the process of helping Nellie move into her new apartment while the party-planning goes on, Jim and Dwight learn that Nellie — prejudice against the Irish and Oscar notwithstanding — isn’t all bad. In fact, much of her abrasive attitude is rooted in having to start her life over in a new country after getting her heart broken by “a bloody stage magician.”

Oops. Jim tries to convince Pam to call off the “ironic party,” but it’s gone too far. So Pam convinces the gang to give Nellie a code name to use when they want to insult her. (Their choice: “Pam.”) And Jim ruins the magician’s show, putting perhaps the first smile on Nellie’s face since she moved to Scranton.

The party didn’t lead to any major liability for Sabre … this time. Of course, office parties are fertile ground for hijinks — especially when alcohol is served. (Meredith has proven that on multiple occasions in the past.) And if they’re mandatory — or at least appear mandatory — as Nellie’s party likely was, any injuries are probably going to be covered by workers’ compensation. Still, the only one who managed to even make a start at causing legal problems for Sabre was Nellie herself, with her comments about the Irish and Hispanics in the cold open. Nellie seemed almost Michael-esque in her inability to filter her thoughts before putting them out there … which made me hope she sticks around for awhile. We could use the entertainment, and the legal fees.

Finally, a quick word about the B-plot. Andy, having convinced Erin to get back together, attempts to break things off with Jessica while she attends her friend’s bachelorette party. In an effort to make it easier on himself, he tries to wiggle out of the relationship by telling Jess that he’s gay. Jess doesn’t buy it — they’ve been together for awhile — and Erin is furious to discover that he told Jess that she “wasn’t relationship material,” even though Andy reasonably explains that he said what he had to say since he was dating Jess at the time. Erin’s chilly reaction prompts Andy to turn around, drive back to the bachelorette party, and make a bad situation worse by proclaiming that he is, in fact, NOT gay, he’s in love with Erin, and she is definitely relationship material.

The romantic in me, who has been rooting for Erin and Andy since Jim and Pam’s wedding, was thrilled. I love those two as a couple, and as individual characters, and I’m dying to see them happy with each other. The lawyer in me (sometimes she drowns out the romantic — it’s pretty loud inside my head) just wants to remind you all that while workplace romances seem like fun, they can go sour quite quickly, leaving everyone worse off. I certainly hope it doesn’t happen with Andy and Erin, but if they do break up, Erin might suddenly forget that the relationship was consensual, and Sabre could find itself fighting off a pretty damaging sexual harassment lawsuit, particularly given that Andy is the boss and Erin is a subordinate. Although I suspect (I’m not entirely clear on this, though) that Erin reports to Pam as Office Manager (or Director of Administration, whatever title Pam gave herself), Andy would be Erin’s second-level supervisor and there’s no department that doesn’t report to him. So a relationship will be fraught with some legal concern and, as much as we’re all hoping for a happy ending for Erin and Andy, Toby’s going to have his hands full no matter what happens.

This was certainly not our first Dunder Mifflin party, but it was our first Office pool party which meant much hilarity and debauchery.  My colleague thoroughly covered this episode when it first aired in January.  As this period of re-runs continues, I wanted to take this opportunity to go over my top 5 tips for work-related pool parties. 

1.  Ask yourself whether a work-related pool party is ever a good idea.  Do you really want to see (or be seen by) your coworkers in swim gear?  I thought not.

2.  If you do decide to attend/host a work-related pool party, please keep your bathing suit on at all times.  Leaping into the water and swimming happily around in all your naked glory can only lead to regret (and a new nickname around the office, assuming you are still employed).

3.  While chicken fighting in the pool, please try not to strangle the person who is holding you in the air, especially if he has kindly agreed to assist you in an ill-conceived plot to win back your lost office love.

4.  Never ever offer to play erotica for your host, especially your boss, even if he does indeed have the right cords to sync with your iPhone as well as a room devoted to viewing erotic cinema.

5.  Resist the temptation to engage in the dangerous game of chugging wine straight from the bottle, even if your host offers you expensive bottles from his wine closet because he is mourning the nights that never were and hoping for one last hoorah.

Robert California has managed to make quite a splash in his short time with The Office.  That’s what we say.  What do you say?

As tonight’s episode is a rerun, I thought I’d go back and review the March 15th episode (“Get the Girl”) that we managed to miss somehow. (For a recap of tonight’s repeat, “Mrs. California,” check out Kristin Gray’s excellent post from when it first aired — http://blogs.hrhero.com/thatswhatshesaid/2011/12/02/stand-by-me/).

Two plots run throughout this episode: Andy’s impetuous decision to drive to Florida to try to convince Erin to return to Scranton with him, and the shocking revelation that Nellie has been hired at the branch — and how she takes advantage of Andy’s absence to stage a coup and take his job. The first plot, though interesting for those of us who want the show to reach some sort of resolution about Andy and Erin already, has no obvious employment law liability issues. Erin no longer works for Dunder Mifflin, plus she’s sweet on Andy, so no risk of a sexual harassment claim against the company there.

However, Andy’s unexplained absence in his pursuit of love (including lying about being sick and refusing to answer numerous phone calls to determine where he is) leaves the door wide open for Nellie to waltz in and lay claim to his manager’s position. You have to hand it to Nellie, despite her mishandling of the Sabre retail store concept, despite her own admitted lack of qualifications and skills, she manages to take advantage of an inexplicably weak and nonplussed Robert California and insert herself into the manager’s role. Clever — psychotic, but clever. With Robert unwilling or unable to put his foot down, all that’s left for Nellie to cement her position is to bribe the rest of the branch by giving them “performance” reviews, followed by substantial raises. Even when this is brought to his attention, Robert doesn’t put a stop to it, instead explaining his lack of action to Jim by citing Nellie’s relationship with Jo Bennett (and by sharing weird and inappropriate metaphors).  Not surprisingly, chaos ensues, with Dwight attempting to take Darryl’s office by force. And we can expect the chaos to increase exponentially when Andy returns to find Nellie in his seat.

Although no employment liability arises from their actions, everyone in a management position — Robert, Andy and Nellie — covers themselves in dishonor. Andy’s decision to abandon his job without explanation or leaving anyone in charge shows that perhaps he wasn’t the right choice for the branch, or any other management position. Robert’s failure to lead, by not establishing clearly who is in charge and what Nellie’s role and scope of authority are, leads to confusion among the employees. Nellie’s silent coup and effort to garner employee support via bribery (and by having the office turn on Jim by threatening everyone else’s increases if he doesn’t play ball) are not effective ways to manage in the short-term or the long-term.

The episode shows the importance of being clear and communicating well in the workplace. Nellie wasn’t told what her role at Scranton would be, so she stole Andy’s job. The rest of the branch (with the except of HR manager “Tony” Flenderson) didn’t know that Nellie was joining or what her position would be, so they were willing to believe she could give them all raises. When it became clear what Nellie was doing, Robert didn’t step in and put a stop to it, leading to further confusion.  When lines of authority are communicated promptly and clearly, everyone benefits. And ticking time bombs like Nellie don’t have the chance to blow up.

Well, Dwight has a lot to thank Jim for after this week. I’d like to think that he might improve his attitude and behavior toward Jim — and the rest of the office, for that matter — but I don’t see that happening. Still, after Jim saved Dwight’s job, one hopes Dwight will be grateful. Discovering that Robert California was planning to tank the retail store idea and make Dwight the scapegoat — it turns out Robert hated the idea, but couldn’t veto it outright because “the great Jo Bennet” wanted retail stores — Jim showed an admirable determination to save Dwight’s career, despite Dwight’s incessant needling and taunting about his “victory.”

Personally, I wouldn’t have blamed Jim if he walked away after the first attempt to reach Dwight. (Being called a six-foot Hobbit had to hurt.) After all, Dwight hasn’t made much of an effort to be a good co-worker over the years we’ve known him. Who among us would have been sorry to see him go, if we had to work with him? Still, some of my favorite “Office” moments are those when Dwight and Jim team up, or when we see flashes of possibility for a friendship to develop between them. It probably never will — there’s too much bad blood there — but Jim’s gesture last night certainly gave me a lot of respect for him. (And for Pam, too, for encouraging Jim to help Dwight out.)

There’s not much litigation value for Dwight in this situation. In some cases, an employee may choose to argue that he was “set up to fail” by management, in order to give management a pretext for firing him — but that the real reason that he was fired was discrimination. However, Dwight doesn’t seem to have a discrimination case, so being made a scapegoat – or attempted scapegoat, if you will, since ultimately it was Todd Packer who took the fall – likely won’t lead to any litigation for him. Oh, and a word about Todd Packer: As amusing as I’ve always found him, and as good value as he was (for us blogging attorneys, anyway), Sabre may have gotten a good result there. While he didn’t deserve to be fired over the retail stores, he certainly did deserve to be fired for many past transgressions. Sabre may have jettisoned a big legal liability there — lucky break for Robert California.

Meanwhile, as Super Jim saved Dwight’s job in Tallahassee, it was business as usual in Scranton. Darryl and Toby were at odds selling their daughters’ Girl Scout cookies. Darryl, tricky man that he is, offered to split the “sales territory” and “give” Toby the sales and administration departments, and keeping only accounting for himself. Of course, accounting contains Kevin, who revealed himself as the prime cookie buyer of the season, promising to purchase more than a hundred boxes. (Having sold Girl Scout cookies myself, I can testify that’s quite the expensive proposition.) Kevin made Darryl and Toby dance — literally — for the right to sell him cookies, until both would-be salesmen walked away in disgust, leaving poor Kevin cookieless.

While the singing and dancing might be out there, the Girl Scout cookie-selling scenario is one that offices across the country are witnessing right now. And while Girl Scout cookies are great — I do love those Samoas — some offices may have anti-solicitation policies that prohibit selling anything, Thin Mints included, in the workplace. I know what you’re thinking: But who could object to someone selling cookies on behalf of their kid? And where will I get my Tagalongs if the anti-solicitation policy is enforced? Well, managers would do well to consider that if they bend the rules for one employee — allowing Darryl or Toby to sell cookies, or Ryan to advertise his new social media site, for instance — they won’t be able to enforce a no-solicitation and no-distribution policy against messages that they don’t want coming into the workforce. What happens when someone wants to distribute union literature, for instance? Andy may value having a direct relationship with his employees and not want to have to work with them through an outsider … but if he allows Darryl and Toby to solicit Girl Scout cookies, he won’t be able to stop someone else from soliciting union authorization cards. (Look, I’m not anti-cookie; I’m just pointing out a potential wrinkle.) It’s something to think about while we all munch our Do-Si-Dos.

“Bloggers are gross. Bloggers are obese. Bloggers have halitosis.”

— Dwight Shrute

Sticks and stones, Dwight. Sticks and stones.

Dwight should be less concerned about bloggers, and more concerned about the sexual harassment suit that Kathy will bring against him. It is not appropriate to direct her to “play a sexy character” to sell Pyramid phones.

When a male manager directs or overtly encourages female employees to use their sexuality or “flirt” with customers, it can give rise to a viable hostile environment claim under Title VII. In 1998, a federal appeals court in New York refused to dismiss a hostile environment lawsuit filed by a female salesperson. She alleged that a male manager made a number of sexually offensive remarks to her and others, such as telling the female sales employees that one of them was performing better because “she flirts and attracts all the male customers.”

Standard procedure in these circumstances is to recommend harassment training. But, really, what’s the point? Nellie just promoted Dwight to vice president. I doubt she’d listen to our advice. Maybe she’d change her mind if we told her that Dwight called a perfectly nice lady Fattie Gruesome?

That’s what he said. What do you say? Let us know.

This After Hours episode has the gang engaging in conduct that should make any human resources professional cringe. Tighten your saddles, because it is bound to be a bumpy ride. While the Scranton branch is working late, the Florida team is hitting the hotel bar scene for some debauchery. As we have mentioned in previous posts, the fact that the conduct occurs outside the workplace does not necessarily free an employer from liability, particularly when a supervisor instructs her employees that bar attendance is “compulsory.” 

After Nellie instructs the Florida team to meet at the bar, Dwight and Packer engage in a showdown for the Vice President job and the opportunity to sleep with Nellie for personal gain. Unfortunately for the company, Nellie is eager to avoid spending the night alone and welcomes the attention. Dwight’s wooing efforts are interrupted when Jim calls him to investigate a bedbug situation in Jim’s room (a.k.a. Jim’s excuse to get an increasingly flirtatious Cathy out of his room). Dwight recruits Gabe — or “GSL” — to make sure that Nellie doesn’t spend the night with Packer. A few spritzes of Gabe’s inhaler into Packer’s drink is enough to send a very sick Packer to bed alone. In Dwight’s words, “A real man swallows his vomit when a lady is present.” Despite having a clear shot to make his move on Nellie, Dwight can’t go through with it and leaves her outside his room with a defective key. Instead, he spends the remainder of the night eating dessert with Jim, who is more than happy to be rid of the real bedbug, Cathy.

Meanwhile, after Val’s boyfriend accuses Darryl of sleeping with his girlfriend, the Scranton branch’s late-night work session turns into an in-depth review of Darryl’s midnight messages to Val. In this age of technology, text messages can be damning evidence for employers. While Darryl’s text messages to Val about the moon and a few ambiguous dots are not enough on their own to constitute unlawful sexual harassment, they are certainly inappropriate and likely to escalate. The fact that Andy knows about this conduct and even encourages Darryl to pursue his subordinate romantically is bad news for the company. It is not yet clear whether Val reciprocates Darryl’s feelings or if the “love beanie” was really just a beanie.   Regardless, any company dealing with an office romance between a supervisor and an employee should keep in mind that such relationships are often consensual until they end and the company is left defending depositions.

Send us your thoughts on last night’s episode and who should get the Vice President job.