Though no repeat on NBC tonight, I have very good news to report! The cast of The Office will appear on a celebrity version of the Family Feud on NBC, Tuesday night at 8 p.m Eastern / 7 p.m. Central. Undoubtedly, with that cast (and others on that night - namely American Gladiators), there will be much to report. Stay tuned and check in on Wednesday morning for a run down and some HR advice!
Have a great holiday weekend!
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).
Obviously, there is a staggering amount of behavior that would make us reach for the Tums. From Ron telling Veronica that she was “just a woman with a small brain” to Brian and Champ objecting to Veronica doing the news by saying that she doesn’t belong in the newsroom, as “it is anchorman, not ‘anchorlady.’” Now, these comments sure aren’t subtle and would make it easy to make a claim against Channel 4. (Remember, sexual harassment was first recognized by the courts right around the time this movie was set!)
Though we very rarely see such obvious and explicit harassment and gender discrimination claims, Anchorman still points out a more subtle and equally troublesome issue. The most significant — complaints of women and men being treated differently — are on the rise and open employers up to liability. Here, Veronica was upset that she was left covering unimportant stories (like kitty fashion shows) while men covered the real news. Now, there could be good business reasons for the decision, but we always need to evaluate that and document the reasons if anyone complains — formally or informally.
Addressing the issue (even if not to the complainant’s liking) sometimes nips a lot of claims in the bud. As you well know, some employees just like to feel like their complaints and concerns are being treated seriously. I think Ron put it best when he said that we’re not just co-workers, but we’re also co-people. Recognizing that we’ll never be able to satisfy some of our co-people (because they are really monsters in human clothing), we can limit our exposure by addressing all complaints consistently!
I could write about Michael’s deposition all year long. But for this post, I’ll focus on Michael’s rights. Yes, I said Michael’s rights to privacy. Not only did some e-mail get used in the deposition, but also his performance review and even his diary were used.
Granted, having one’s diary read out loud at a deposition in a wrongful termination case is probably quite rare — you can’t blame Michael for “throwing himself at the mercy of the deposition” — but this should remind us all (and most importantly your managers and front-line supervisors) that nothing at work should ever be considered completely private. E-mails, performance reviews, and every other comment that employees make at the office might rear their ugly heads some day, maybe in a deposition.
Hopefully, that is the extent of the disclosure, and they don’t end up having their most private personal thoughts from home disclosed to their bosses — or the outside world. Like Michael said, “You expect to get screwed by your company. But you never expect to get screwed by your girlfriend.” That’s what she said!
With another week with no episode of The Office, I had to find something interesting to get your attention! In that endeavor, I stumbled across a couple of blogs — one by Dwight and the other by Creed.
Without getting into too much detail, I’ll tell you that Dwight’s most recent entry was titled, “The Curious Rise of Tentacle Sex in Manga,” while Creed’s entry was about flatulence (er, “seat orchestra”), rashes, and cakes. Give Dwight credit because he opens up his blog with a warning not to read his blog at work, not because the subject matter was inappropriate for work (which it was), but because the blog had “nothing to do with your job, unless you are an anime scholar, sexual education expert, cultural examiner with a focus on bizarre sexual matters, or a marine biologist.”
What came to my mind when reading this (while at work, of course) wasn’t people reading blogs at work, but rather employees blogging about their jobs to the public. As you are undoubtedly aware, this has become commonplace and an issue that us HR folks are dealing with quite often. There’s even a word in the dictionary for being fired because of an Internet posting (being “dooced”).
While banning employees from blogging or posting about work on sites like Facebook and MySpace is unrealistic and might violate certain states’ laws, you still can address the issue short of that. It is a good idea for companies to create policies that clearly define what is acceptable (say, discussing how great management is at the company) and not acceptable (say, company trade secrets . . . or Japanese cartoon pornography). Of course, the boundaries are not that black and white in real HR life — but setting parameters is important to protect yourselves from the Dwights and Creeds within your organization!
My love of “The Office” causes me to lament these weeks where we don’t get a new episode (or even repeat) to enjoy. But while I certainly miss my weekly dose of Michael and gang, I need not look further than our very own United States Supreme Court to provide us with more scintillating material for HR nuggets of wisdom.
Take, for instance, the Supreme Court’s “BONG HITS 4 JESUS” case – decided last term. Don’t know why this one caught my attention. I am still trying to figure out what “BONG HITS 4 JESUS” even means. Part of me wishes that it was a local church’s way of trying to attract some more youthful congregants. But anyway, the Court said that it was okay for the principal to suspend a student for unfurling a fifteen-foot banner with the words “BONG HITS 4 JESUS” right in front of television cameras as the Olympic torch passed by the high school on its way to
Salt Lake City in 2002.
So what do you do when an employee hangs a “BONG HITS 4 JESUS” (or similarly expressive) banner in his cubicle? First, as you know, though many employees of private companies claim to have “free speech” rights (and so many others) – they don’t. But, even though private companies can discipline employees for speech because we don’t like it, I suggest chilling out first! Toke on what we want to limit and why, and make sure that we’re going to enforce it across the board. A well-crafted company policy on workplace behavior should set forth what types of speech are unacceptable. Consistency is key, dude! Peace out.
LITIGATION VALUE: $200,000 (should Hunter lose interest in Jan and sue); $30,000+ (in emotional distress for those who had to witness Jan’s ”love dance”).
You know it’s a funny episode when you laugh out loud, even though you are all by yourself — and you’ve seen it before! For the second time, the “Dinner Party” does not disappoint. Tonight’s episode introduces us to yet another surreptitious hook-up: Jan and her former assistant, Hunter — who has recorded a CD titled, “The Hunter.” His song about “that night” could have been a harmless-enough love ballad, except that we see Jan enraptured by its sound when she plays the song for her guests. She was having such a time of it that I was embarrassed for her (forgetting for a brief moment that this is just a show). By all appearances, “The Hunter” caught himself a real cougar.
As we all know, inter-office relationships — especially between a supervisor and a subordinate — are very problematic and plant the seeds for sexual harassment claims when things sour, which they almost always do. The employees generally claim that they felt compelled to continue in the relationship with the supervisor — or it would be their job on the line. Here, Dunder Mifflin is lucky to have Hunter’s ode to Jan, which will be very useful in refuting any claim that Jan’s advances were unwanted — please! But most of us can’t count on (nor do we want to listen to) that type of evidence. Instead, we have to turn to policies and enforcement. Crafting a thoughtful policy on employee dating should help us sleep a little sounder at night. But the key to any policy is the proper enforcement behind it. We definitely don’t want to create a policy that we’re not going to enforce or just enforce parts of; that just makes the policy empty and could create other disparate-impact claims.
So, knowing that inter-office relationships are just going to happen (hopefully not quite like at Dunder Mifflin), we need to sharpen our pencils and think about what our realistic parameters are going to be. Is a straight ban workable? Or are we going to require that employees report, and we resolve any issues with the reporting structure? The answers to these questions will differ with your company’s needs. But the main thing that you need to do is make sure that you’re willing to enforce what you write! Otherwise, the “hunters” and “cougars” in your office will be roaming free — exposing your company to liability.
Last week’s episode sure gave us plenty to chew on. So, I’m taking advantage of this week’s break to turn to another Dunder Mifflin pickle presented by the finale — Kevin. As we saw, Dwight planted the seed with Holly that Kevin is mentally disabled. Kevin’s natural demeanor certainly drove the point home. His disturbing (and often inappropriate) grin, his signature wave, his tone (or odd drone), and his apparent excitement over Holly’s pride in him for driving himself all just seemed like the traits of the Kevin that we all know and love — until Dwight’s joke!
Even though I think Dwight might be onto something (and I’ll never look at Kevin the same again), Dunder Mifflin could get into hot water with a potential claim under the Americans with Disabilities Act. Even if Kevin is not disabled, the fact that Dunder Mifflin management (Holly) is treating him as though he were leaves us with no legal difference. Suppose Michael gives Kevin a poor performance evaluation, demotes, or even fires him (not a big stretch). Kevin can now claim that the adverse action was only taken because Dunder Mifflin “regarded” him as disabled and discriminated against him because of it.
Though we all work with our share of “Kevins,” we must caution management against labeling employees as being “retarded,” “slow,” or “mental nut jobs” (all terms from real ADA cases). It can really turn into a special problem.
Next week, we’ll take another look at “The Dinner Party.” Fun will be had by all!
Litigation Value: $300,000 per claim (until respected HR manager is in place).
Though there is so much to write about — interoffice romance, sexual harassment, what Kevin might be regarded as, pranks involving animals, and fraud — tonight, in honor of Toby’s departure, I want to focus on monsters. It is no secret that Michael thinks Toby is one of the worst out there. Not known for his subtlety, Michael referred to Toby as “His Horribleness,” called him an “idiot” several times, and compared him to Satan — all in between beeps on his watch alarm. Over the last 12 years, Michael has mocked (and blocked) Toby’s HR efforts every step of the way. The “Suck This” rock best sums up Michael’s feelings toward Toby.
Unfortunately, we sometimes see that companies in the real world have similar (though rarely as impassioned) views of HR. Some on the business side see HR as an obstacle rather than a tool — and want us “Tobys” to all go off to South America. Now, we know that this mindset is very dangerous and can create significant liability. When employees see that management doesn’t take HR seriously, they don’t either. This causes even more violations of policy — usually left unreported (because why bother). And it really opens the company up to more claims and being blind-sided because HR can’t possibly have a pulse on an organization in this type of environment.
Like all finales are supposed to do, this one left us with a lot of unanswered questions. What’s going to happen with Angela and Andy/Dwight? Where is Mose’s raccoon? Is the force with Holly? Might she turn out to be E.T.? Might Kevin have special needs, as that would explain a lot? And the list goes on.
But two things remain certain. First, Dunder Mifflin will have plenty of problems for us to write about next season. And HR folks are not monsters at all. Ask your management: “Have you hugged your Toby today?” Okay, don’t — it might violate your harassment policy!
Now don’t miss That’s What She Said over the summer. I’ll look at the repeats each week and examine more juicy issues that we haven’t yet looked at. So, keep on blogging!
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.
After litigating the dead loser harassment claim or claims, Dunder Mifflin should probably settle all other potential claims for the out-of-office “experiences” that we watched. It is not generally a good idea to let folks like Andy drive a golf cart or let Michael near a ball in a crowd (or anywhere for that matter). Seriously, Dunder Mifflin is probably on the hook for Andy’s fall into the sand pit and the injuries suffered by any unfortunate student that didn’t get out of the way of Michael’s booted ball. And the beers after the last hole (though delicately downed by a straw for some) only add fuel to the fire and money to those claims. Even though they were out of the office, all of these employees were working – whether recruiting at the fair or attempting to develop business. As a result, the company is on the hook.
The only thing offsetting this bad HR day out of The Office is the likely recovery of the money Kevin took from petty cash. But, as you can tell a few hundred bucks is not going to cover this bill.
LITIGATION VALUE: $450,000 (if
Stanley ever quits or is fired)
It is with great sadness that I announce that I am leaving “That’s What She Said.” I have taken a new job and am leaving the private practice of law. But don’t despair. Our beloved blog will continue. I have passed the torch to my colleague Troy Foster, who is not only one of the funniest people I know but who is also a huge fan of the show.
At least the writers made my last post an easy one: tonight’s episode was full of Dunder Mifflin management missteps. Had Stanley really been fired (or if he had just quit in disgust after the “faux firing”), he would have found it substantially easier to make those alimony payments to the former Mrs. Stanley Hudson (not to mention his future ex-wives). His claims for race discrimination, age discrimination, wrongful termination, and intentional infliction of emotional distress would have been pretty solid. You just don’t get to “faux fire” the only over-40 black employee after asking him for suggestions on how to “pep up” and “energize” the workplace by recording an “urban” message in a staff meeting. Plus, juries are rarely impressed by managers who publicly humiliate their employees. That being said, Michael’s blunders don’t excuse Stanley’s conduct. As much as we all have wanted to blow up at our boss during some point in our careers, the cold hard truth is that you just don’t get to do so without adverse consequences.
On an unrelated note, just think how much Stanley could have added to his litigation windfall if he had accidentally fallen in the face imprint Michael made in the sidewalk on his way out the door?