That's What She Said

When Employees Act Fishy

Tonight we revisited the episode “Heavy Competition,” which is rife with the kind of employee misconduct that keeps us lawyers busy. Last time we looked at this episode, we talked about trade-secret violations as well as Dwight Schrute’s personal liability for his bizarre antics, which included placing a dead fish in an air-conditioning vent in Michael Scott’s new office. (Can you imagine Dwight trying to explain to a judge –- “Your Honor, a dead fish in a vent has long been considered by generations of Schrutes to be a traditional welcome gift!”)  Ultimately, we decided that Dunder Mifflin probably would not be responsible for Dwight’s crazy actions.

So why isn’t Dunder Mifflin responsible for Dwight’s poor judgment?  This time around, let’s talk a little about what has to happen for an employer to become vicariously liable for its employees’ bad behavior. As a general rule, an employer may be liable for an employee’s actions when he is acting within the scope of his employment. Conduct is not “within the scope of employment” if it is unauthorized or doesn’t serve the employer’s purpose. Determining the scope of employment is hardly a black-and-white issue, and courts often consider whether the bad behavior was foreseeable.

In Dwight’s case, he often acts with a mixed motive -– his own competitive nature to win at all costs and his loyalty toward his employer. Our guess, however, is that any court would recognize that no company is asking for the kind of loyalty that leads to stolen rolodexes and strange smells in competitors’ offices. When it comes to competing with Michael, Dwight seems to be operating on a deeper, more personal level.

Just six weeks until Season 6 premieres! Tune in next week.