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 Meyer 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?

This week’s episode raises some interesting issues for employers. The one that first comes to mind is whether an employer should host internal social networking websites for their employees. Frankly, I’ve got mixed feelings about it. On the one hand, social networking websites are great for recruiting, communicating information, answering employee questions, and allowing employees to get to know colleagues in far off places. A virtual water cooler if you will. But (and this is a large “but”) they also have some significant downsides if not maintained properly. Internal social networking websites must be monitored for inappropriate content (like, for example, the sexual predators who infiltrated the Dunder Mifflin website), disclosures of the company’s confidential information, and for those people who try and use the website as their own personal dating service. I shudder to think about what Michael will do with this feature once Dunder Mifflin 2.0 is up and running.

LITGATION VALUE:  $6,000 - $10,000  

Despite what you might think, Michael’s demand that all employees provide him with candidates to serve as the mother of his children does not violate any major employment law.  After all, Michael made the demand of all employees and not, for example, only female employees or employees of a particular race.  Continuing to employ an incompetent manager isn’t illegal.  Yet.   

That being said, allowing managers to require their subordinates to act as match-makers as a term and condition of their continued employment isn’t a good idea.  In fact, it is as far away from a good idea as you are likely to get.  Employment law cases don’t exist in a vacuum.  And while this incident, standing alone, is not per se illegal, it will surely come up in the inevitable sexual harassment or gender discrimination trial that arises from Michael’s prior conduct.  As a result, Dunder Mifflin is going to have to pay someone like me between $6,000 and $10,000 to draft a motion asking the Court to exclude testimony about this incident from trial, which they may or may not win.  Somehow, I just don’t think that Michael (or his boss) will think that the coffee date with Pam’s landlady was really worth it.   

LITIGATION COST: Paying lawyer to review corporate ethics policy: $1,500; paying Michael severance: $5,000; avoiding corporate scandal: priceless.

Does any company really want its regional manager to hit up subordinates for money? Does it matter that he did it in his condo rather than his office? The answer to both of these questions is, quite simply, no. While Michael’s conduct may not technically violate the law, it surely violates Dunder Mifflin’s code of ethics. That is, if they have one.

An effective workplace ethics policy deters employee misconduct, avoids conflicts of interest, and provides guidelines for resolving sensitive issues. Tricking your subordinates into coming to your house for dinner to “work” on them for an “investment opportunity” in your girlfriend’s candle company just doesn’t cut it. And, in case you were wondering, making employees believe that they will be forced to work overtime on a fake project isn’t going to pass muster either. Unfortunately for Dunder Mifflin, a culture that gives only lip service to corporate ethics is not enough. Management must also “walk the walk.” Clearly, Dunder Mifflin (or at least the Scranton branch) hasn’t quite grasped that yet.

Well, apparently Michael Scott has moved to
Boston and obtained a medical degree.  Last week, the Boston Globe reported that a neurosurgeon at
Boston’s Brigham and Women’s’ Hospital was suing for gender discrimination.  Her evidence?  The antics of her boss, the chief of neurosurgery, who keeps an 8 inch sculpture of a penis and a box of bikini underwear on his desk; refers to female colleagues as “girls”; and who downloaded drawings from the Kama Sutra to the plaintiff’s PDA.  Somehow, I just can’t help but be reminded of Michael’s Diwali seminar.   

I can’t help but wonder if we should expect to see a new sculpture on Michael’s desk next week?  Maybe next to his “World’s Best Boss” mug? 

In the truth is stranger than fiction category, I recently re-discovered a case in which a Hooter’s waitress in Florida sued her employer for tricking her about a prize in a beer-selling contest.  The waitress thought she would win a Toyota if she sold the most beer.  However, after she won the contest, her manager blind-folded her; led her to the parking lot; and presented her with a plastic “toy Yoda” character from Star Wars.  The manager claimed the prank was an April Fool’s joke.  Funny, right?  Apparently, the employee didn’t think so– she sued her employer, a Hooter’s franchisee, for breach of contract and fraudulent misrepresentation.     

We all know that subjecting employees to ridicule and disappointment is not a great motivational technique.  But, as the employer learned in this case, conducting business this way can also lead to protracted, and ultimately, expensive litigation.  While cases usually aren’t this egregious, the lesson is the same:  “I was only kidding” is never going to be your strongest defense.    

Remind you of anyone in Scranton? 

Here is an interesting one. Earlier this week, the mayor of a small town in Oregon was fired after the town learned that there were pictures on the Internet of their esteemed leader posing in front of a fire truck in a black lace bra and panty set. The photographs were taken before she was elected and were posted on MySpace by a family member who wanted to help improve the mayor’s social life. But the mayor left the photographs up after she was elected, and her opponents found this to be inappropriate. So she lost her job.

The ouster raises an interesting point: Can/should an employer check out employees or prospective employees on the Internet? After all, there is wealth of information on the world wide web. On the other hand, there is a lot of information the employer just doesn’t want to know. After all, just what should human resources do after discovering photographs of a job candidate doing keg stands on the employee’s MySpace page? Does it bring forth any issues under the Americans with Disabilities Act? What if a current employee’s page shows her doing bong hits or the page contains racially or sexually offensive content?

While some states have laws saying that an employee can’t be fired for off-duty conduct, most don’t. It looks like this is going to be something that the courts will have to sort out over time. In the meantime, I’m hoping that I don’t have to see any other elected officials in their underwear…..

Finally, the strike is officially over. And, according to the New York Times, new episodes of “The Office” will start airing on April 10, 2008. Thank God! In the meantime, there are plenty of real life cases with facts so bizarre that they rival the plots dreamed up by Hollywood writers. To get us started, check out my friend John Phillips’ recent blog entry on the Philadelphia anchorwoman who appeared on Dr. Phil; e-mailed photographs of herself in a bikini to a colleague; and allegedly slugged a cop.

Here’s a shocker: the network terminated her contract. Presumably, she had a “morals clause” in her employment agreement. A “morals clause” is standard in celebrity contracts (or so I’m told in the attached article). Essentially, these clauses provide that an employee can be terminated for engaging in behavior that will cause scandal, public contempt, or disrepute. One can only imagine what type of trouble Michael would get into if he had a contract with a “morals clause.” Certainly food for thought….

The people have spoken.  And, as you might have guessed, the worst HR moment in The Office occurred when Michael handed out the Kama Sutra to all employees during a staff meeting.   

On a related note, I’m encouraged to hear that the writers guild and the studios have reached a tentative agreement.  With any luck, we’ll have a new episode soon.  Keep your fingers crossed.