Oswald Letter

Wild Thing, I Think I Loathe You

Dan read the following timely column by California Employment Law Letter editor Mark Schickman and thought Oswald Letter readers would enjoy it. Dan will be taking off next week but will return to his weekly column the following week.

by Mark Schickman

You’ve got an employee, Charlie, who has always been a wild thing. Too cocky, too cool, too sarcastic. But you’ve let him get away with it because your customers love him and he has brought in billions of dollars.

What you find annoying on a daily basis your customers find hilarious in 30-minute increments. He may be a sexual harassment claim waiting to happen, but he brings in more business than anybody, so he gets away with anything. Understandably, Charlie thinks he has no boundaries.

Things have now escalated. Charlie’s in a huge custody spat with his wife, he’s moved in with two centerfolds in a public ménage a trois, he’s insulting your CEO, Chuck, for mistreating him, he’s reportedly drunk and stoned all over town, and best of all, you have new, younger talent bringing in business without the balderdash. Charlie has four months left on his lucrative contract (and huge residual income after that), but Chuck is tired of his act, mad as hell and won’t take it any more, and fires him.

Nine and a half legal theories

Charlie Sheen has just sued Warner Brothers (WB), producer of Two and a Half Men, and its creator, Chuck Lorre, roughly on the facts described above. The context is glitzier here than usual, but it’s the same sad story.

Among other theories, Sheen alleged a breach of contract because WB pulled production on eight episodes for which he was under contract, saying the true motive for his termination was Lorre’s desire to punish him for his barbs toward Lorre (responding to years of Lorre’s abuse of Sheen) and Lorre’s desire to avoid competition for his two newest series, The Big Bang Theory and Mike and Molly. He calls Lorre an “800-pound gorilla” who forced WB to unlawfully fire him.

Sheen claims a violation of California’s disability laws because before firing him, WB called him “bipolar,” “manic,” and in a state of “rapid physical and mental deterioration” — dumb things to say by an employer that wants to avoid a disability discrimination suit. He also trumpets a blood-test report that supposedly proves he is clean and sober, and good for him because current use of illegal drugs or alcohol isn’t a disability protected by California law. He also is suing under California’s “Private Attorney General Act,” saying WB violated the California Labor Code by failing to pay him wages upon termination. If the Terminator can be governor, how about the SlackerKing for attorney general!

If you think this is bad, shoulda seen me last year
Though no claim was filed on this theory, Labor Code § 96(k) prohibits discharge for lawful off-duty activity. Cohabiting with two “goddesses” whose aggregate age is less than Sheen’s may raise eyebrows, but it is not unlawful. And since nastiness, promiscuity, and hedonism are what Sheen’s Two and a Half Men character is all about, it’s hard to imagine how his wild lifestyle harms his television role. To disprove the notion that Sheen’s bad behavior was the root of his downfall, he notes that he had a pending felony charge in May 2010 when WB nonetheless contracted for 24 new episodes.

Sheen’s 30-page, nine-count complaint attacks Lorre more than a legal document must, as the actor vies for the high curb in this gutter fight. In bold letters he writes that his suit is “for the benefit of the entire cast and crew” against “one of the richest men in television . . .  [who took] billions of dollars through Mr. Sheen’s work.”

And now, back to planet Earth
As “Hollywood” as this story is, there are lessons here for all employers. First, if you permit a long period of misconduct, it’s hard to correct it later, so be consistent and timely. Second, if you publicly spat with an employee (as Lorre did with Sheen), it’s hard to be punitive if the abuse is returned; indeed, some of Sheen’s comments about Lorre might be protected by the National Labor Relations Act (NLRA)! Third, unless you want to be sued for disability discrimination, don’t throw around words like “bipolar” or “nuts.”

Finally, for something less crazed and violent and more intellectual on Monday nights, maybe turn back to football?