That's What She Said

Blowing the Whistle

Litigation Value: $50,000 for the office meeting Michael called to discuss his sex life with his employees.

In this week’s episode of The Office, we saw two storylines, both of which provide interesting employment law issues: Michael’s quest to find out if Donna is cheating on him and Darryl’s attempt to play a prank on Andy that turns out to resemble a whistleblower complaint.

Michael is concerned that his new girlfriend, Donna, is cheating on him because he thinks she is too good-looking for him. So, in classic Michael fashion, he holds an office meeting to ask everyone what they think. Of course, Michael cannot resist telling the office how much sex he is having with Donna. This meeting is an obvious problem in the office. Michael, the boss, forced his subordinates to listen to him talk about his sex life. If any person in that room was offended, Michael will have a sexual harassment complaint on his hands. This type of sexual harassment requires that the harassment was “severe and pervasive” so as to create a hostile work environment. The meeting shown in the episode likely wasn’t severe enough to create a hostile work environment (and most employees actually seemed to participate willingly), but if Michael continued his banter throughout the day, then the employees could have a claim.

Next we saw Dwight harassing Donna at the gym. His highly inappropriate behavior, however, wasn’t actionable sexual harassment. Donna isn’t a Sabre employee, so she doesn’t have a claim. On a side note, did Dwight really think those moves would work?

The end of the episode brought sad news for Michael: Donna is cheating … but not how Michael thought. Poor Michael. I hope he doesn’t leave The Office. (Did you see that news story? What would The Office be without Michael Scott? Lower legal costs for Sabre.)

The second major storyline involved Darryl convincing Andy that Sabre was planning to “eliminate” him because Andy “knew too much.” Andy once caused trouble for Darryl so Darryl took this opportunity to get back at Andy. I like Darryl’s expanded role in the show. He helped Andy create a video that resembled a whistleblower complaint regarding the safety issues Sabre was overlooking with its printers catching fire. While they were filming the video, the printer actually caught fire and Darryl was shocked (see clip below). If Andy delivers his video to a government agency or a superior at Sabre, the video could be considered “protected activity.” Sabre cannot terminate Andy for complaining that it is overlooking safety concerns (assuming that overlooking the safety concerns is illegal). Andy blew the whistle on the company’s unsafe practices, and most states have laws protecting whistleblowers from retaliation by the employer.

To prevail on a whistleblower claim, Andy would need to prove that Sabre terminated his employment or otherwise treated him adversely because of the video and complaint about the company’s printers. Because Andy has not yet been terminated, this claim doesn’t have a litigation value yet. Given what we know about Andy’s performance (and what Sabre tolerates from its other employees), if Andy is terminated in the next two months, the litigation value for this claim will exceed $100,000, and the claim would likely go to trial if Sabre did not settle with Andy before then.

Next week will no doubt bring the employment issues that result from a depressed Michael. Maybe Jim will let Michael build Tube City to cheer him up. One can hope!