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.

When I first saw this episode, I thought, surely initiation pranks don’t really occur at work. After all, adults know that the workplace is not an extension of their fraternity houses. I did some research. I was wrong.

In one case, Los Angeles firefighters mixed dog food into the spaghetti dinner of a co-worker who referred to himself as the “Big Dog.” The firefighters called it a prank — the recipient called it racial harassment. And the city almost paid the employee $2.7 million to settle his claims. That was, of course, until photographs surfaced on the Internet of the plaintiff hazing other firefighters.

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LITIGATION VALUE: $0.00 – $1,000,000+ (depending on how bad the car accident caused by a drunk Dunder Mifflin employee is)

Having an open bar at an employee party with no way to limit alcohol consumption is not a great idea. Hosting a “booze cruize” on the Lake Wollenpaupack Princess in January with no way to limit alcohol consumption is a downright terrible idea. Making the party mandatory, calling it “leadership training,” and refusing to tell employees about the location ahead of time so they can arrange safe transportation home? I smell punitive damages. Well, at least in those states that recognize “social host” liability.

I’m not saying that you can’t have alcohol at a company-sponsored party. You can. But some steps should be taken to limit the company’s exposure. Some tips to avoid liability? Arrange free transportation services for those who over-imbibe; use drink “coupons” to limit the amount of alcohol served to each person; and assign a few responsible folks to monitor the evening. As you might have guessed, saying those things doesn’t make employment law attorneys and human resources the most popular party guests. Was it just me or did anyone else notice that Toby was not at the party?

“Branch Closing” exemplifies how there is a right way to notify employees that they are losing their jobs and a wrong way.  And, in case you were wondering,  wandering around the office muttering “do your work – while you still can” and “we’ll all be gone soon anyway” is definitely the wrong way.  That being said, it probably won’t cost Dunder Mifflin a whole lot of money.  While employers can be sued for intentional or negligent infliction of emotional distress based on the manner in which they terminate an employee, these cases are very hard to win.  Generally, employees must show that the employer’s conduct was so atrocious as to be utterly intolerable to the civilized community.  So, what kind of things meet this standard? In one case, the court said that illegally wiretapping an employee’s home telephone line and then using the taped conversations to threaten an employee’s job might be enough.  So was planting company checks on a employee to give the appearance that he was stealing the company’s money.  Well, at least Michael hasn’t done that…..   Yet.

Tonight’s episode serves as a good example of team building exercises gone wrong. Very wrong. But, believe it or not, Michael’s efforts to enlighten his staff about Kelly’s Indian culture was not the worst example of “team building” I’ve ever seen. It was a close call, but the award for “worst team building exercise” belongs to a California company that sponsored a contest between its sales teams where the winners threw pies at the losers, fed them baby food, and spanked the losers with yard signs. That’s right. They spanked them. Not surprisingly, an employee took exception and sued. The jury awarded $1.7 million. And all Michael did was unknowingly mock Kelly’s ethnicity and distribute the Kama Sutra…..

In case you are wondering, there is one case out there that deals with a supervisor who, among other things, gave a copy of the Kama Sutra to his subordinate. The employee called it sexual harassment, and the case settled for an undisclosed amount. Go figure.

Litigation Value: $3,000 – $ 5,000 (the amount that Dunder Mifflin will have to pay an attorney to write a brief supporting its motion to dismiss the case).

The lesson from this episode is that, try as we might, there are some bad things that happen for which you can’t sue your employer. Or anyone else for that matter. Of course, this is not to say that people haven’t tried. A Pennsylvania man sued God (as well as all members of the 100^th – 105^th Congress, the President, every major news network, including NBC, and Janet Reno) in a lawsuit alleging that his constitutional rights were terminated when he got fired. Not surprisingly, that case was dismissed. Quickly. In another case, a man sued Satan for causing him misery and placing deliberate obstacles in his path to cause the man’s downfall — in Federal Court. I’m not kidding. The court dismissed the case because the plaintiff could not figure out a way to serve Satan with a copy of the complaint. With tongue in cheek, the court even pondered whether the case should be a class action.

While it wouldn’t be unheard of for a grieving employee such as Michael to sue his employer for the distress caused by losing his former boss, the claim would likely be dismissed pretty soon after it was filed. Maybe not as fast as it would be if Michael sued God, but pretty fast nonetheless. And if Michael is actually able to find God to serve him with a lawsuit, I’d say we have much bigger issues to deal with.

Litigation Value: $65,000 (but could have been much more)

Having Dwight stand on his desk with the word “liar” hanging from his neck is not what I would consider the most effective method of employee discipline. Nor was tricking him into believing that he got Michael fired. But, without more, Michael’s actions may not be considered to be “utterly intolerable to a civilized community” and, thus, are not actionable in a claim for intentional infliction of emotional distress.

What could be more extreme you ask? Well, after digging around I found some examples. In one case, an Alabama manager allegedly required his employee to keep seeing a management consultant for “training” after learning that the consultant would hypnotize the employee and then ask her to remove her shirt and answer questions of a sexual nature. In another case, a Washington dentist tormented an employee, who routinely regaled the office with stories of her pet pot bellied pig named Walter, by implanting tusks as a temporary dental apparatus while the employee was under anesthesia and then gathering the other employees around to take pictures. The employee didn’t think it was nearly as funny and sued him. In retrospect, maybe Michael’s conduct wasn’t so bad after all….

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Throwing a virtual rave in a company-sponsored hotel room complete with black lights and a full assortment of hard liquor, while at the same time seeking to secure business opportunities, is a recipe for disaster. Luckily for Dunder Mifflin, Michael was miserably unsuccessful in creating the bacchanalian setting he so desperately longed for. But other companies have fared far worse. By way of example, one company found itself embroiled in litigation for injuries suffered by its employee who, after spilling his beer on a fellow reveler at a karaoke bar on Bourbon Street, was kicked in the groin during a bar fight. Employers are also frequently held liable for injuries caused when their employee gets drunk at company-sponsored parties and then get behind the wheel. In one case in Alaska, the jury awarded $635,000 when an employee imbibed at a convention and then crippled a pedestrian on his way home.

This may be one time when Michael’s ineptitude actually saved Dunder Mifflin some money!

Total Litigation Value: $6,635,500+

There is no doubt that the crew from Dunder Mifflin (primarily Michael) had some expensive snafus this season. In approximately 20 weeks, Michael managed to out a gay employee; announce his affair with a Vice President at the CFO’s party; invite a pervert dressed as Ben Franklin to an office party; invite a stripper to the warehouse; ask a female employee to act out a lesbian love scene during anti-harassment training; and lock his staff in a conference room. If you are thinking that no work place could possibly have this much drama, think again. Using each week’s episode as a starting point, I am going to post new entries every week with real-life examples of situations where truth was, indeed, stranger than fiction. Who knows? Maybe we can give Toby some ammunition to finally stand up to Michael. With just a little push, I think that Toby would be quite the adversary.