This blog has always focused on bad behavior.  We tease out employment law issues by writing about the characters who do things in the workplace that one simply does not do. So last night’s series finale of the The Office poses quite a challenge in that most of the characters, with a few notable exceptions, exhibited exemplary behavior.

Take Dwight, for example. There was hope early on when he gave Kevin his “Get Out”  that he might fuel a few lawsuits. It was not to be. By the end of the episode, Dwight was careful to turn Pam and Jim’s departure into a termination just so he could offer them a generous severance package. After all these years, Jim has gone from Dwight’s mortal enemy to his bestest mensch.

The return of Michael Scott created many possibilities for employment-related mischief. But aside from one of the greatest “that’s what she said” moments in the history of the show, even Michael was on his best behavior. Same with Oscar, Angela, Phyllis, Erin, and Meredith. As for Jim and Pam, they have always been the “straight man” in this comedy, and the finale went out of its way to confirm the strength of their relationship.

This is not to say that the episode was free of legal issues. Ryan is going to have to answer for abandoning his baby to run off with Kelly (trading one baby for another?). Mose is looking at serious hard time for kidnapping Angela and keeping her in his trunk. Toby may be stalking Nellie. And Creed … well, it’s Creed. He’ll be fine.

And so will we. The Office is over, but there is plenty of employment law fodder out there in the world of TV and entertainment. We’ll be launching a new site soon, so stay tuned. We want to keep giving you more of what you’ve come to love.

That’s what she said.

As John Krasinski explained in a recent interview with Jimmy Fallon, Thursday’s episode marked the first half of a two-part series finale for The Office. As a side note, I definitely recommend you check out the interview on www.nbc.com.  The lip-syncing competition, which featured a bearded Krasinski passionately singing “I’ll Make Love to You” to Fallon, was comic gold.

As for our friends at Dunder Mifflin, Dwight and Jim banded together in an effort to eliminate all nonsense from the workplace (thereby creating even more nonsense, of course), Darryl returned to give a musical farewell to his former colleagues, and Jim helped Dwight realize what the rest of us have known for years–he and Angela are meant to be (cats, beets, and all). As with previous office romances, Angela and Dwight’s relationship makes for a great storyline and a happy ending, but such relationships can lead to major headaches and even litigation in the real world. In our court systems, all too often the plot follows more along the lines of manager meets subordinate, they date, the relationship sours, tensions flare, and suddenly the company is left defending a sexual harassment claim brought by the subordinate. This is exactly why some companies insist that employees sign “love contracts,” like the one Jan and Michael entered into all those years ago.

Aside from the more typical Title VII sexual harassment litigation we have often blogged about with regard to office romances, consider the more unusual theories of liability employers have faced regarding paramours and failing to prevent office liaisons. Employees have sued for sex discrimination based upon being passed over for a favored employment position due to a supervisor’s preference for his/her love interest or paramour. Nearly all courts have held that this type of action isn’t viable under Title VII because it doesn’t constitute discrimination on the basis of sex, given that all other employees (male and female) are similarly disadvantaged. Regardless, it is a recipe for poor employee morale and office conflicts leading to distractions and decreased productivity.

Furious spouses have even sued employers for failing to prevent extramarital affairs in the workplace. In Texas, for example, two employees entered into an extramarital affair. Their spouses sued the company for negligently interfering with their familial relations by failing to take action to prevent the affair. The case went all the way up to the U.S. Supreme Court, which ultimately affirmed the trial court’s grant of summary judgment in favor of the employer. While Dwight and Angela are no strangers to illicit affairs (indeed, that’s how Phyllis ended up in charge of the Party Planning Committee over Angela), it seems Stanley has more to worry about when it comes to angry spouses, even without Michael around to spill the beans on Stanley’s extramarital activities. As Stanley pointed out, we all know where to start looking if he ever turns up missing.

Tune in later this week to catch our recap of the final episode. This blogger is looking forward to seeing: whether Meredith thinks she truly did come off smelling like a rose, given that she has supposedly been on her best behavior all these years; what (if anything) happens with Creed’s mom after the documentary airs; whether we’ll have a lovely Schrute wedding; and the storybook ending I’m sure is in store for Pam and Jim (P.B. & J.).

I think The Office gods have been reading my blog entries and decided they’d give me an hour-long episode with very few legal issues.

In last night’s episode, three main characters made significant career moves. Dwight received the manager promotion, Andy quit his job to pursue fame, and Jim decided to stay in Scranton rather than pitch his other business nationwide. These actions alone create very few legal issues for the company to address.

Dwight’s promotion will eventually, of course, lead to all kinds of good legal issues to discuss. I’m sure there will be all kinds of weird directives, decisions, and comments that will keep this blog busy as the season winds down. I’m guessing that Angela’s confession to Oscar that she’s in love with Dwight, her supervisor, will lead to an entire blog about sexual harassment involving supervisors. That blog post will discuss how even if the relationship truly is consensual (i.e., not a quid pro quo situation where a supervisor expects the relationship to continue in exchange for certain treatment), the problem remains that the relationship creates a conflict of interest. In other words, Angela’s co-workers might sense a certain level of favoritism toward her. That blog will also discuss how the level of sexual banter may increase in the workplace when consenting employees are in a romantic relationship in the office. This could lead to sexual harassment claims, and when a supervisor is involved, many of a company’s traditional affirmative defenses are inapplicable. Unfortunately for me, that blog is only theoretical. Maybe Angela and Dwight will not get together in the end?

Andy’s resignation right before he was about to be fired is interesting from an unemployment-benefits perspective. Generally an employee who voluntarily quits isn’t entitled to state unemployment benefits, while an employee who is terminated for poor performance would be entitled to such benefits. Thus, the timing of Andy’s decision may have had some practical benefits for the company. His decision to defecate on Wallace’s car might have rendered those benefits moot (had he been fired for that act).

For now, we can only imagine the humor (and legal issues) that will come with Dwight’s promotion. Stay tuned…

This week, we all got to relax a bit, as the Dunder Mifflin employees let their hair down and their competitive beasts out and took part in a paper airplane-throwing contest. The contest was structured tournament-style, much like March Madness, and ended in a showdown between Dwight and Angela, which is always good fun. Of course, Toby ended up with a paper airplane injury to his eye, which could give rise to a workers’ compensation claim — even though he wasn’t actually working when he incurred the injury — if he can prove that he was injured while participating in an activity that his employer made mandatory. Of course, he’s a bit culpable too, wandering across the “playing field” while Pam was throwing her airplane. Cue the collective “Tobyyyyyyy” groan.

But enough about Toby: I want to talk about an opportunity that employees often appreciate: team-building! Plenty of employers have found that the occasional fun activity — office parties, picnics, or little competitions — can do wonders for morale and, by extension, often has the effect of boosting productivity. Michael Scott had this concept mastered, although he often took it too far. (Indeed, several seasons ago, one of the employees — I want to say it was Phyllis, but I could be wrong about that — remarked that Michael distracts them so much that they then have to work extra hard to squeeze all of their work into a fraction of the day, thus boosting their productivity.)

Last night’s episode brought back particularly fond memories for me. Personal anecdote: Some years ago, at another job, I participated in a paper basketball league that my supervisor dreamed up. The “PBA” was exactly what it sounds like: a bunch of us standing at varying distances from the trash can, tossing wadded-up pieces of paper at it and distracting the rest of the office by occasionally erupting into loud cheers. But we turned it into something special. We had “league events.” We had competitions. We had a union. We had labor disputes. I was the league publicist; it was my job to post notices of “PBA Tournaments” all over the office, annoying everyone who didn’t participate. At the end of the day, we had a grand time, and we somehow managed to get our work done, too.

Of course, our PBA wasn’t organized — or sanctioned — by our employer, the way last night’s paper airplane-throwing contest was.  But if it had been, I’d like to think that the agency I worked for would have reaped some benefit, too.  After our “paper basketball” breaks, we always returned to our desks refreshed, energized, ready to input some data. (Yes, it was a data entry job.) I got through my work faster, and with fewer errors, after getting my blood pumping with some good, old-fashioned paper-hurling and fun with my office friends.

Indeed, early in my career, I stumbled upon the theory that employees are more productive if they feel invested in their co-workers. I did my best work when I felt I was working with friends, and my PBA pals certainly were friends. It’s the theory behind many an office picnic or March Madness pool, too. Give people something to look forward to — aside from just lunch and 5:00, that is — and they’ll work both harder and smarter.

Dwight won $2,000 in the paper airplane-throwing contest. And aside from Angela’s stalking off and Erin’s meltdown, the rest of the crew won a mental break and a fun afternoon. I’ll bet they really appreciated the opportunity to enjoy some time with their co-workers, away from their desks, and that they returned energized and ready to sell some paper. So Dunder Mifflin wins, too.

On a separate note, to speak my truth — all kidding or sarcasm aside — I’ve really appreciated the opportunity to geek out over “The Office” and share my enthusiasm for employment law on this blog.  Thanks, friends.  If you need me, I’ll be the one throwing wadded-up paper balls at the trash can and scolding anyone who gets into an office romance.  Cheers!

Tonight’s “previously aired” episode takes us back to the first episode of this, the last season of “The Office.”  The film crew apparently took the summer off, as the characters start the episode by discussing what they did over the summer (including Kevin’s unfortunate encounter with a turtle in the parking lot), Andy returns from a corporate Outward Bound adventure, and we are introduced to Clark (“new Dwight”) and Pete (“new Jim”), the “new guys” of the title.  We also get the first hint of what later will be developed as trouble in paradise between Jim and Pam. (Personally, I cannot believe that, after finally getting those two together, much to the viewers’ delight, the producers decide to manufacture problems between them.  But I digress.)

From an employment law perspective, the two major issues involve Andy’s understandable unhappiness in finding that Nellie is, inexplicably, still employed. Based on Toby’s statement that she can only be terminated for “just cause,” Nellie apparently wheedled some sort of employment contract out of corporate. Undaunted, Andy tells Toby he intends to create a basis for terminating Nellie.  Toby accurately points out that Andy just made Toby a witness against him by telling him that (not to mention that it is all caught on tape). If Andy actually carried through with his threat to manufacture just cause to terminate Nellie, or if he constructively discharged her by making her work environment so hostile that no reasonable person would be expected to put up with it (such as by having garbage regularly lobbed at you, as happens to Nellie), Dunder Mifflin would be hard-pressed to defend a breach of contract suit by Nellie.

The other employment law issue arises when “old Dwight” tries to emulate “new Dwight’s” success in walking on a makeshift tightrope. Dwight falls several times, bloodying his mouth, before Toby finally and mercifully calls an end to the debacle. Although unrelated to his job duties, the involvement of everyone at the office, including the manager and HR, in this competition could well satisfy the “work-related” element of Dwight’s injury, exposing Dunder Mifflin to workers’ comp liability.

As the final episode of “The Office” looms, I can’t help but wonder what surprises might lie in store. Will Michael return? Will Jim and Pam work through their issues? Will Andy make an appearance on “The Voice” — and if so, will they let him play his banjo?  What do you all think we might see in the last few episodes?  Post your thoughts below!

This is an employment law blog.  So when tonight’s episode opened, and I saw that Dwight had shut down the building’s elevator for repair, leaving the stairwell as the only option to reach Dunder Mifflin’s offices, I thought it might be interesting to explore the ADA’s regulations on elevators in public buildings.  Or maybe Stanley’s adamant refusal to attend the school district sales pitch was an opportunity to discuss the definition of insubordination. Such interesting choices.

And then Dwight shot Stanley with a triple dose of bull tranquilizers, encased him in bubble wrap, and slid him down the stairs headfirst.

Not only has Dwight violated Dunder Mifflin’s workplace violence policy (again) but he likely also violated the company’s drug and alcohol policy. Tranquilizers are a controlled substance, and I doubt Dwight has a prescription. Mose, maybe, but not Dwight. When we write about the rerun, maybe we can address whether Stanley’s treatment for his tranq addiction is covered by Dunder Mifflin’s health plan.

Last night’s episode of The Office gave the characters their first glimpse into their upcoming documentary. Surprisingly, this seems to be the first time any of them contemplated that the world (literally) will be able to see their personal and professional antics that have entertained all of us for the past 10 years (well, mildly entertained us for the past three or four).

Pam sums up her beliefs when she asks, “So, we haven’t had privacy in 10 years?” Putting aside the issue of whether they all consented to the documentary producers in the first place (and what that consent included), workplace privacy is a hot-button issue given the widespread use of technology at work. Although there are no broad federal workplace privacy statutes, the common law and various state statutes affect how employers should monitor their employees.

To avoid common law claims (e.g., tortious invasion of privacy), employers should widely disseminate how they are monitoring their employees (video, e-mail, phone, etc.) to ensure that staffers don’t  have an objectively reasonable expectation of privacy. See, e.g., Security & Law Enforcement Employees, Dist. Council 82 v. Carey, 737 F2d 187, 201 (2d Cir 1984) (employees warned of potential search lessened employee’s privacy expectations). The individual states also have statutes that require compliance. Some of those statutes are more commonsensical than others. Compare California Labor Code § 435(a) (“No employer may cause an audio or video recording to be made of an employee in a restroom, locker room, or room designated by an employer for changing clothes unless authorized by court order”) with Delaware Code § 705(b) (“No employer . . . shall monitor or otherwise intercept any telephone conversation or transmission, electronic mail or transmission, or Internet access or usage . . . unless the employer (1) provides an electronic notice of such monitoring . . . at least once during each day the employee accesses the employer provided E-mail or Internet access services; or (2) has first given a one-time notice . . . acknowledged by the employee[.]”).

Finally, and most obviously, Phyllis’ reaction to listening to “50 Shades of Gray” — albeit funny — theoretically could constitute actionable harassment toward her coworkers. Toby incorrectly suggested that she needed to touch herself for this to be actionable. Phyllis’ actions generally must only be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” This is a pretty “high threshold” and “the sporadic use of abusive language, gender-related jokes, and occasional teasing” isn’t actionable generally. The conduct also must be “both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.”  Although isolated incidents can be actionable, the characters here would have to show that they were subjectively offended, which I’m not sure is possible given everything we’ve seen over the last 10 years!

Given that my esteemed colleague, Jaclyn, has addressed the Moving On episode twice now, I thought I would focus on our upcoming finale. The word is that, although we will get to see Kelly and Ryan again before all is said and done, our beloved Michael Scott will not be returning for the final episode. I would like to think that he and Holly are too busy happily raising the children Michael has long dreamed of (and even considered adopting on his own until he heard about the pesky waiting period). Regardless, here is my wish list for the finale.

1.  Dwight and Angela finally get back together and proudly let their freak flags fly.  With his aunt’s farm to manage, I am sure that Dwight could use the extra hands, even Angela’s tiny ones. Plus, every kid should know how to milk a goat (and the difference between cows and goats).

2.  Oscar and the Senator live happily ever after. If anyone deserves a fairytale ending, it’s Oscar after dealing with Michael (and his unwelcome workplace smooches and colonoscopy questions) for all those years.

3.  Jim and Pam stop bickering, and Pam finally realizes that there truly is life outside of Scranton. I never thought I would see the former New York art school hopeful clinging to Scranton and Dunder Mifflin.

4.  Kelly finally gets her vengeance against Ryan for all those years of being strung along. Hopefully this time it will not involve trying to make Ryan jealous with Darryl or some other poor sap, who will only end up dumped when Ryan starts spewing bad poetry.

5.  More Creed! It seems he often gets less screen time than the other characters, but Creed is a long-time favorite of mine. Whether he’s reminiscing about his time as a cult leader or failing to catch pornographic watermarks involving some famous animated characters, Creed never ceases to entertain.

6.  Finally, maybe we can get through the entire final episode without ANY litigation value whatsoever. With it being a super-sized episode, I highly doubt it. Between Nelly, Dwight, and Andy, I’m sure there will be plenty of fodder for this blog.

Those are my thoughts. What would you like to see in the final episode? Any predictions for our Dunder Mifflin friends?

Last night’s episode of “The Office” was a repeat of “Move On: Part I,” which we covered in our post “Breaking Up Is Hard To Do.” There were plenty of shenanigans in Scranton during that episode, so we didn’t even get around to talking about Pam’s disastrous job interview in Philly. With Jim spending more and more time in Philadelphia working on developing his new company, Athlead, Pam is looking for employment opportunities in the area too. And hoo, boy, does she find one.

“Marky Mark, the horrible boss around here,” welcomes Pam for her interview with a tour around the office, complete with incoherent ramblings and bad jokes. He pokes fun at his employees, who have all so clearly heard the same jokes before – so many times – that they appear to have had their senses of humor beaten out of them. The interview then moves into Mark’s office, where he strums his guitar and serenades Pam with a spontaneous song – about her – under an “Odd Life of Timothy Green” poster. Pam, amused and intrigued, puts up with the interview until she discovers that what Mark is really looking for is a receptionist, not the office manager for whom he advertised.

Having worked under Michael Scott for many years, Pam immediately recognizes Mark as Michael’s Philly real estate twin – and if Pam wanted to be a receptionist again, her long experience of dealing with a boss who fancies himself much funnier than he actually is would have stood her in good stead. Still, we can’t blame Pam for walking out on this potential nightmare job, can we?

Pam’s experience got me thinking about some best practices for interviewing and hiring, for any employer who is looking to avoid being compared to Michael Scott. Here are a few tips:

• Be honest about the position you’re looking to fill and your expectations for the incumbent.  Mark advertised for an office manager, and Pam came in expecting to be interviewed as a potential office manager.  Most employers wouldn’t advertise for a higher-skilled, higher-paid position than the one they really plan to fill – but if applicants come in without an understanding of the position for which they are interviewing, awkward moments abound when they finally discover the truth.
• In that light, have a job description prepared, and evaluate applicants based on the needed skills for the position – not on their ability to appreciate spur-of-the-moment song composition (unless that’s a skill they need… and in Mark’s world, maybe it is).
• Avoid any questions that even come close to touching on discriminatory topics.  For instance, Mark, unless Pam volunteers information about her kids, don’t ask her about them!  If you elicit information about her family life, or plans for future kiddos, and then you decide not to hire her, you’ve handed her a pregnancy discrimination claim – or a claim for marital status or family responsibility discrimination, if you’re in one of the jurisdictions that recognizes those claims.
• Avoid poking fun at your current employees.  You may not give the applicant any fodder for discrimination claims, but you’re certainly going to raise questions about how much they really want to work for you.

We ended the storyline with Pam finally communicating to Jim that she really doesn’t want to leave Scranton.  Which is, of course, a problem now that Jim has started a business in Philadelphia.  I love those two, so I hope they can get through this new challenge together – and I think they will.  At the very least, Pam has to have a better option than going to work for Michael Scott Redux.  What are the odds that Athlead needs an office manager?

The disgruntled former employee returned ostensibly to apologize as part of a 12-step process. Pam quickly sees that he is just insulting his former co-workers “in the form of apologies.” Nevertheless, Packer provides cupcakes to make up for his past behavior. Although the cast members initially agreed not to, everyone except Pam ended up eating the cupcakes. Of course, the cupcakes were all laced with different drugs including laxatives and hallucinogens.

While the story line was relatively funny, unannounced (and disgruntled) employees returning to the workplace can be extremely dangerous. According to the U.S. Bureau of Labor Statistics, there were 458 workplace homicides in 2011 (78% involved a shooting). In Minneapolis last year, an employee who was terminated earlier in the day returned to shoot and kill his former supervisors at Accent Signage Company. The tragedy was especially sad (and personal) for this writer because the company owner was such a model citizen, family person, and innovative entrepreneur.

In addition to dealing with the personal side of these tragedies, companies often face tort liability. The primary theory here is that the company acted negligently in failing to protect its employees. While a state’s Workers’ Compensation Act may limit a company’s exposure, the analysis will almost always be fact-intensive (i.e., expensive to litigate). We recommend instituting a workplace violence prevention program for every company before tragedy strikes.

Finally, Packer’s offensive and harassing behavior–even though he is no longer an employee–can still result in liability for Dunder Mifflin. See Bronner v. Catholic Charities of Roman Catholic Diocese of Syracuse, Inc., 2010 U.S. Dist. LEXIS 23805, (N.D.N.Y. Mar. 15, 2010) (“Courts have held that an employer may be found liable for the harassing conduct of non-employees . . . if the employer knew or reasonably should have known of the harassment yet failed to take appropriate corrective action”). Thus, Andy Bernard’s lack of action while Packer continued his harassing behavior may lead a court to conclude that Dunder Mifflin should be held responsible for this behavior under the theory that “the employer either ratifies or acquiesces in the harassment by not taking immediate and/or corrective actions when it knew or should have known of the conduct.” Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754, 756 (9th Cir. 1997).

In short, Packer’s return has (not surprisingly) put the company in a precarious situation (again). But you certainly didn’t need to read this post to know that Todd Packer’s return wasn’t going to be good news for Dunder Mifflin.