That's What She Said

Safety Training (with Guest Blogger Jason Loring)

Litigation Value: $40,000

Duty calls and Julie is not able to blog this week due to work. I’m a fellow labor and employment attorney with Ford & Harrison and also a fan of the show. This week’s episode certainly did not disappoint.

The episode starts with the Dunder Mifflin employees gathered around for a “safety meeting” that is intended to teach the “office workers” about safety. (Can’t you just feel the lawsuit coming?) Darryl, the meeting leader, is on crutches. Why? Michael kicked a ladder out from underneath Darryl while he was reaching for a supply box on a top shelf. Not a good idea. If Michael was acting in the scope of his employment when he kicked out the ladder, Dunder Mifflin could certainly be on the hook for all of Darryl’s medical expenses, which could cost upwards of $40,000. Given Michael’s speckled past as a less than stellar manager, Dunder Mifflin might also be exposed to possible claims of negligent hiring and negligent retention of Michael.

As Oscar Wilde so insightfully observed, “Life imitates art far more than art imitates life.” So, I wouldn’t be surprised to see the following real-life story parodied on The Office. Lacey Hindman of Chicago is suing her boss’s husband for “negligent dancing.” (Yes, that’s correct, negligent dancing.) Lacey claims she suffered a fractured skull and brain injuries when her boss’s husband dropped her while dancing at a local bar during an office party. Recovery, in my opinion, is questionable. Questions remain as to what kind of duty her husband’s boss owed her, if he was acting reasonably, and whether Lacey was contributorily negligent (perhaps by drinking too much alcohol herself). This case has yet to be decided, but if negligent dancing turns out to be a crime, a lot of us are in trouble.

In other “Legal News of the Weird,” the Montana Supreme Court recently held that a Costco employee could challenge his termination for eating a stale danish without paying for it. In Johnson v. Costco Wholesale, Ellery Johnson, a Costco employee for more than 10 years, was terminated for violating Costco’s “no grazing” policy, which prohibits the eating of merchandise, even a baked good that is about to be thrown away. Costco didn’t regularly enforce the policy, until a new manager announced it would be strictly monitored. Johnson ate a danish from a box that was about to be thrown away and he was promptly let go. (I know, if you’re going down, why not go for the fresh pastry?) In most states this story wouldn’t have made the news, but Montana has an unusual just cause law – the Wrongful Discharge from Employment Act (WDEA). The state Supreme Court ruled that the case could proceed because “Costco’s enforcement of the grazing policy may have been false, arbitrary, or capricious.”

This case demonstrates the need for employers to consistently enforce company policies to avoid such problems. Because of their inconsistent attempts at monitoring the no grazing policy, firing their employee could set Costco back more than $100,000 in attorney’s fee to take the case through trial, and another $50,000 for an adverse verdict.

As evidenced by these cases, labor and employment law is certainly never dull!