That's What She Said

Turf War; Smurf War

Litigation Value: Wait, Dunder Mifflin might actually be a plaintiff in an employment dispute? In a surprising turn of events, the company may have claims against Andy Bernard for stealing a major client and against Jim and Dwight for stealing from the company. Not surprisingly, Dunder Mifflin is looking at liability ($150,000+) for Robert California’s “filthy” messages to his subordinate, Nellie. Also, Pam’s acquisition of Nellie’s cell phone raises several privacy issues in the workplace. WARN Act violations could also cost the company another $100,000.

This episode was like a law school exam. So many issues; so little time.
First, we see the Syracuse and Scranton salespeople fighting over the Binghamton office’s (former) clients. The Binghamton office seemingly closed with little warning. Assuming that Dunder Mifflin employs over 100 full-time employees overall and terminated more than 50 at this site, the company needed to comply with the notice requirements of the Worker Adjustment and Retraining Notification Act (WARN) and any New York-state counterpart. Damages under the federal WARN Act include lost wages (up to 60 days per employee), a civil penalty, and attorneys’ fees.

Next, we learn that Dwight and Jim have created a fake persona to avoid the company’s commission cap. While it’s nice to see these adversaries actually work together for a change, creating a fake employee out of thin air just to steal from the company carries plenty of legal issues — breach of fiduciary duties, violations of the Immigration Reform and Control Act of 1986 (requiring all employers to verify that newly hired employees have been authorized to work in the country), etc. Moreover, Toby’s involvement in the scheme only makes matters worse since presumably HR oversees the compliance of such matters.

Third, we hear only suggestions of Robert California’s voicemail message to Nellie. Nellie simply responds to Robert the next day with, “yes, yes, yes, and never.” I think it’s safe to assume that Robert probably did not ask, in order: Do you love spotting legal issues in pop culture? Did you know that Scranton is the county seat of Lackawanna County? Did you know that PJ Carlesimo is from Scranton? And, would you ever turn down a free cheese steak from Pat’s? Nellie later confides in Pam (because Robert pressured her into investigating) that Robert is a “filthy beast” and talks of nothing “but sex.” Robert’s open sexual harassment of a subordinate is, obviously, a big problem for the company. Because employers are strictly liable for supervisor harassment that results in tangible employment actions, Robert’s actions create bigger problems for the company (as compared to co-worker harassment).

Fourth, Pam’s taking of Nellie’s cell phone and listening to her stored messages with Robert raises all kinds of privacy issues. Title Two of the Electronic Communications Privacy Act of 1986 (the Stored Communications Act) prohibits the unauthorized access to stored communications. Common law invasion of privacy claims may exist here, too. Whether Nellie knew and/or consented to the company’s access of any data stored on her phone will affect the company’s liability. A strong employer policy would be effective to show that Nellie’s expectation of privacy is limited. Of course, it’s safe to assume that the company’s handbook — which we learned in this episode actually permits one employee to choke another — probably does not have a strong electronic communications policy.

Finally, Andy Bernard makes a move on one of Dunder Mifflin’s biggest clients while creating his own paper company. A valid noncompetition agreement would have provided nice protection for the company; however, Andy’s use of client data and pricing information may still give the company a claim under a state’s uniform trade secret law and/or trade secret common laws.

Send us your thoughts on last night’s episode, any additional issues you have spotted, and whether you would turn down a free cheese steak from Pat’s? Geno’s?