Taking a Chance

October 12, 2007 - by: Troy Foster 5 COMMENTS

LITIGATION VALUE: $450,000 (could be more if several employees file claims)

As Julie has been called upon to practice law this week, she asked me to blog in her place. I’m Troy Foster, a fellow labor and employment attorney with Ford & Harrison and also a big fan of the show. Thankfully this week’s episode gave me plenty of material.

Mama Mia! Andy’s not only “taking a chance” on Angela, but also with Dunder Mifflin’s pocket book. Things are ripe for a sexual harassment claim that will be difficult to defend. Angela is probably in the driver’s seat with this one. In addition to Andy’s serenade, his asking her out for dinner “and maybe more,” touching her back, and commenting to others about her attractiveness are making this an uphill battle for Dunder Mifflin. Add to that Dwight’s constant badgering her to get back together, and her rejection after rejection of his advances, and we’ve got a real problem. And, that’s only what happened in one day. (Don’t forget that Jim’s claim could be next if Meredith keeps lifting her dress up and whispering sweet nothings.)

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Categories: Michael Scott

Dunder Mifflin Infinity

October 05, 2007 - by: Julie Elgar 2 COMMENTS

Litigation Value: $600,000 (eventually)

One day soon, when all is said and done, Ryan’s comments are going to cost Dunder Mifflin about $600,000. Maybe more. Managers really should know better than to tell employees that the company is launching a new technology initiative for a “younger” and “more agile” company. They really should know better than to say it twice. Add to that Dunder Mifflin’s history of attempting to “squeeze” out older branch managers with a mandatory retirement age and the routine mocking of the human resources department, and you’re looking at an age discrimination case that has very little hope of getting thrown out before trial (and a half-decent chance of losing once you get there). Just not yet. After all, Dunder Mifflin didn’t take any adverse actions against anyone this week. But give it time, I’m sure they will give someone every reason to challenge them.

I’m not sure who the $600,000 will go to yet, but if I had to guess the lucky recipient, then my money would be on Creed. Especially if Dunder Mifflin finally learned about the “Debbie Brown” cover-up (where Creed attempted to hide his failure to stop the distribution of paper containing watermarks with cartoon ducks engaged in lewd conduct by blaming it on an innocent employee) and fired him. We all know that Creed will do anything for a few extra bucks. This may just be his lucky day.

Categories: Ryan Howard

Fun Run

September 28, 2007 - by: Julie Elgar 6 COMMENTS

Litigation Value: Approximately $450,000 (depends on how much Meredith’s medical bills are)

It is good to be back and last night’s episode was a great start for a promising season!

When a manager runs over an employee with a company car on company property, it’s time to contact the finance department about setting aside a pot of money to pay the large verdict that will eventually be awarded against the company. Especially where, as is the case here, the accident may not be covered by workers’ compensation. Add to that Michael’s admission to his boss that the accident was caused by his “negligence,” and Meredith has the beginnings of a nice little lawsuit. Maybe this would be the time for Dunder Mifflin’s attorneys to remind Michael of my favorite saying: “If you can’t be good, then, for the love of God, just be quiet.”

Speaking of God, we generally recommend that our clients refrain from calling a staff meeting for the express purpose of inquiring about their employees’ religious beliefs. And we really try to discourage managers from suggesting that the staff perform animal sacrifices to some creature with the body of a walrus and the head of a meerkat. Suffice it to say that what Michael calls an ‘investigation” into whether his branch is cursed, the Equal Employment Opportunity Commission calls “evidence” of religious discrimination.

The Job – Somewhat Revisited

September 21, 2007 - by: Julie Elgar 0 COMMENTS

Almost time for the season opener! Be sure to tune in next week for my recap of what promises to be a hilarious show. As for today, business calls and I’m in New Orleans with a malfunctioning computer. I’m re-posting my earlier post from the season finale. More to follow just as soon as my technology is up and running!

LITIGATION VALUE: $50,000 (with the potential for a whole lot more)

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Beach Day Revisited

September 14, 2007 - by: Julie Elgar 1 COMMENTS

Companies that use pre-employment tests to screen applicants should, at the very least, make sure that the skills being tested are those skills that the position requires. Holding a Survivor-like contest to determine who will be recommended for a promotion to regional manager does not pass this test. Not even a little bit. Indeed, tests that are more job-related have been found to have a discriminatory impact on applicants in protected categories.

Take, for example, the Dial Corporation. Earlier this year, the Eighth U.S. Circuit Court of Appeals upheld a $3.4 million jury verdict for Dial’s use of a discriminatory “work tolerance test” that asked applicants to carry a 35-pound bar back and forth between two frames for seven minutes in front of an occupational therapist. If that cost $3.4 million, imagine how much Dunder Mifflin is on the hook for after using fire walking, hot dog eating, and sumo wrestling as tests for becoming the regional manager of a paper company.

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Categories: Hiring

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.

Product Recall Revisited

August 24, 2007 - by: Julie Elgar 1 COMMENTS

Remember when I said that being a jerk wasn’t illegal? Well, that may change. According to an article in the L.A. Times, legislatures in New Jersey, New York, Vermont and Washington are considering bills which would give employees the right to seek damages if their employer creates an “abusive work environment.” I’m not really sure what “abusive work environment” will mean, but it looks like these bills may create a cause of action for bad manners.

And, even worse, it appears that there will be no shortage of cases. In an online contest sponsored by the AFL/CIO, employees submitted horror stories about their bosses for the chance of winning an all expense paid trip to Vegas. My personal favorite was the boss who treated his employees to lunch by taking them to a discount warehouse to eat free samples. Another good one was the lawyer who called his office every morning while brushing his teeth and “conducting other business” in the bathroom. But these didn’t win the grand prize. That went to the company who, during a fire, did not allow its help desk employees to immediately evacuate the building. Instead, the company required that the employees leave their desks every five minutes in order of seniority, which resulted in the most junior employees having to remain in a smoldering, smoke-filled office for up to forty-five minutes.

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Categories: Workplace Violence

The Negotiation Revisited

August 17, 2007 - by: Julie Elgar 0 COMMENTS

Litigation Value: $350,000

Employers who fail to fire employees who tape pepper spray canisters, nunchucks, and throwing stars to the bottom of their desks are playing with fire. Expensive fire. Sure, Roy started it, and I’m glad Dunder Mifflin fired him. But what about Dwight? After all, the man kept weapons at work for God knows how long. And if Roy can prove that Dunder Mifflin knew about them and failed to take action, then he just might have a claim for damages (e.g., eye doctor appointments, pain and suffering, etc.). Maybe Toby should go ahead and start to prepare for this deposition, too, while he is at it.

To make matters worse, Dwight admits having the weapons during Toby’s investigation into the incident. The time has come for Dunder Mifflin to part ways with Dwight. And unlike they did with Roy, the bosses should spring for the fifteen bucks and just FedEx Dwight’s last check to him.

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Cocktails Revisited

August 10, 2007 - by: Julie Elgar 0 COMMENTS

Litigation Value: $75,000 (I’m sticking with my earlier assessment)

A number of people have asked me whether Jan could really be fired for dating Michael. My answer? Probably. Well, at least in most states. Employers can, and often do, implement policies prohibiting their employees from engaging in romantic relationships with co-workers and, certainly, with subordinates. And Courts typically uphold those policies. Or at least they used to. In February, the Court of Appeals for the District of Columbia struck down a company’s policy prohibiting any fraternization, dating or becoming “overly friendly” with co-workers on the theory that the policy could be interpreted by employees as prohibiting employees from discussing the terms and conditions of their employment, which violates the National Labor Relations Act.

A policy prohibiting any employees from being “overly friendly” with one another — can you imagine what would happen if Dunder Mifflin enforced such a policy? My guess is that Stanley would be the only employee left in Scranton.

Business School Revisited

August 03, 2007 - by: Julie Elgar 0 COMMENTS

Litigation Value: 33 million????

Typically, the workplace is not an appropriate location to practice “creative discipline.” Such “creativity” can be, and often is, misconstrued. Take, for example, Ryan. Michael was retaliating against him for making disparaging remarks about the company. Probably not illegal but easily could have been had Ryan engaged in an activity protected by law — such as complaining that Dunder Mifflin engaged in illegal practices. Then, the fact that Michael moved Ryan’s office to an annex where Michael knew it would upset Ryan and (obviously) disrupt his work could very well be actionable.

Dunder Mifflin would not be the only company that was being sued over a change in an employee’s office location. On May 26, 2007, the New York Daily News reported that a Connecticut secretary sued her former employer for $33 million because it moved her — along with her entire department — to another part of the office and declined her request for a desk closer to the window. According to the article, the secretary suffers from “seasonal affective disorder.” As it was, the new desk was just three feet away from the window. I guess that just wasn’t close enough for her.

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