Litigation Value: In the aggregate, $100 million; most of which is punitive damages
OK, so tonight’s episode — The Banker –- didn’t really bring us much new material, but it indeed highlighted five years of near-catastrophic employee-relations failures. As Dunder Mifflin verges on economic collapse, a potential investor dispatches its self-proclaimed “fact-checker” to conduct a due-diligence assessment of the company’s “H.R. liabilities.” While interviewing HR representative Toby Flenderson, the fact-checker poses a series of provocative questions that invoke Toby’s vivid recollection of why he so dearly hates his job. In essence, we rewind the tape a few years. Let’s take a look:
- Racial/national origin harassment/discrimination: Michael Scott mocking Kelly Kapoor’s Indian heritage.
- Inappropriate and/or sexually-suggestive language and innuendos: Michael’s skilled reliance on the phrase “that’s what she said” to transform seemingly innocuous comments into sexually charged double entendres; Michael’s lewd references to Stanley Hudson’s teenage daughter; Michael exposing himself to Pam; Meredith Palmer exposing herself to the entire office; and Michael kissing Phyllis Lapin to dissuade her from complaining to human resources about his sexually offensive language, and then immediately rewarding her graciousness with sexually offensive language.
- Sexual harassment/sexual orientation harassment: Michael kissing the visibly-horrified Oscar Martinez on the lips to illustrate his tolerance of same-sex relationships; again, Michael kissing Phyllis; and, yet again, Michael’s unbridled references to “that’s what she said.”
- Age harassment/discrimination: Several mean-spirited references to Creed Bratton’s age and his “distinct old man smell.”
- Workplace violence: Andy Bernard ramming his fist through the wall; Pam slapping Michael; Kelly slapping Michael; Jim Halpert slapping Dwight Schrute; Dwight punching Michael, and later pounding him in the face with a shoe; Phyllis hurling a wad of paper into Angela Martin’s face; and Oscar shoving Angela.
- Potential workers’ compensation claims: Michael running down Meredith in the employee parking lot; Andy plunging from a transfer truck into an empty refrigerator box; and Michael ramming the warehouse forklift into a storage rack, causing a cascade of flying metal, boxes, and paper.
- Health and safety violations: Dwight purposely igniting a trashcan paper fire to instigate an unscheduled fire “drill”; and, again, Michael ramming the warehouse forklift into the storage rack.
- Property damage/waste of company resources: Michael and Dwight bouncing a watermelon from the office roof onto a parked car; several mutinous employees shoving paper, books, and supplies to the floor; an employee shattering a plate glass window with a toy-gun projectile; again, Michael overturning the storage rack; Jim disassembling Dwight’s desk and contents (classic) and enveloping them in holiday wrapping paper; and Jim encasing Dwight’s stapler in a Jell-O mold.
- Invasion of privacy/HIPAA violations: Dwight demanding that each employee publicly identify his or her personal medical condition to determine its legitimacy.
- Supervisor-subordinate romantic relationships/inappropriate public displays of affection: Dwight making out with Angela; Angela making out with Andy; Kelly making out with Ryan; Michael’s painfully inappropriate workplace relationship with his boss, Jan (and discussing his repeated vasectomies before the entire office); and Jim’s and Pam’s eternal office romance, despite Jim’s supervisory role (OK, we turn a blind eye to this because we really like them).
- Hostile work environment/miscellaneous inappropriate and outrageous behavior: All of the above, and too many to mention.
As we’ve illustrated in our blog over the years, in their own right, most of these incidents could have resulted in significant liability, lawsuits, damages, injuries, and the like. As Toby gently reminds us, Dunder Mifflin has escaped countless near-misses, with zero improvement on the radar. Will the company’s new ownership tolerate Michael’s lackadaisical office decorum or, better yet, permit him to keep his job? We’ll see.
[hulu:http://www.hulu.com/embed/XAGrA_PRkgRPY9q_oHYz5A]
Is there any potential liability for Toby withholding important information from the fact-checker? Or is it the fact-checker’s responsibility to verify Toby’s claims?
Would Michael’s discussion of his many vasectomies actually count as being in front of the “office” if they were conducted at his home in a setting that was supposed to be …..not office-related?
I think the vasectomy comment could count. I don’t recall that episode in its entirety but I wouldn’t put it past Michael to have made that dinner party mandatory…thus making it technically office related. Otherwise I’d say it was stupid, but maybe not crossing a legal line.
Raymond: That’s a good question. Typically, the purchase agreement would include assumption of liability clauses that would either include or exclude known/existing employee claims/liabilities. If Dunder Mifflin failed to disclose any known/existing claims, then the company could face liability under a breach of contract theory. But, I’m not sure that past events, even loose management practices, that resulted in no claims would create a duty of disclosure, at least not as to Toby. Moreover, I’d have to think a potential investor would want a less superficial examination than that provided by the fact-checker.
To your point, Joe, in some instances, off-duty misconduct — particularly by a member of management — can create liability for the company. It all depends on the context, the nature of the “workplace,” the extent of the conduct, and, as Alicia points out, whether attendance was mandatory.
What a great touch — having Michael tool around The Office on a Segway to show the visiting due-diligence guy that his workplace management know-how remains on the advanced cutting edge of the paper products industry. And what great product placement if that was indeed a Segway product. So, I just now went to Segway’s site to see if they took notice of this national plug and are appropriately ballyhooing it.
Lo and behold, Segway and Dunder Mifflin have more in common than I imagined. According to the top entry today on Segway’s blog (see link below), the company was just purchased by a United Kingdom firm in December. In other words, Segway in real life just finished going through what the Dunder Mifflinites are bracing for. Art does indeed imitate life. Michael should keep his Segway helmet handy! tk
http://bit.ly/d6AwNM