Fire in the hole

Litigation Value: Fire in the Hole prank = potential assault and battery charges for Dwight (not to mention the dry cleaning bill); Toby’s awkwardly affectionate overtures to Nellie = fodder for a potential hostile work environment claim against the Human Resources Manager; and using the Dunder Code to hunt for the fake holy grail = priceless. 

The Scranton office is heating up as the show moves towards its inevitable conclusion. Things are getting flirtatious between Erin and Pete as well as Nellie and Toby, illustrating why we have long warned in this blog against the dangers (and potential liability) arising from office romances. Also, the writers have re-introduced tension between Jim and Pam as a plot device, only this time it’s due to Jim’s stress at his new office and their long-distance relationship. Did anyone else wonder whether the writers were hinting of a future plot line involving Pam and crew member Brian? 

Romantic relationships were not the only ones tested in last night’s episode. Dwight has become increasingly concerned about Jim “poaching employees.” In an interesting twist on Dwight’s character, he decided to tackle the issue head-on with . . . FUN! Well, actually it was more like kidnapping, with which Dwight has some experience (remember Ryan and those confused, terrified day laborers?). 

Not only did this misguided strategy end in Dwight scrubbing a restaurant’s floor and getting nailed in the face by his own icy prank, Dwight also tried to trick his co-workers into signing a “Dunder Mifflin Loyalty Pledge.” The loyalty pledge sounds like a noncompete and/or nonsolicitation agreement.  While the enforceability of such agreements varies by state and depends heavily on the contents, a number of courts have held that continued employment is not sufficient consideration to support such agreements.  Indeed, to be enforceable, such agreements have to come with (for example) a pay raise, a new position, or additional training, etc. Further, you certainly can’t trick employees into signing one by pretending it is something else.

It will be interesting to see how this season progresses. In the meantime, I recommend avoiding anyone carrying a suspiciously large milkshake.

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  Kristin Starnes Gray, FordHarrison
  Kristin Gray represents management in labor and employment matters in the courts, in arbitration, and before government agencies, including the EEOC, the U.S. Department of Labor, the South Carolina Department of Labor, the South Carolina Human Affairs Commission, and other agencies at the federal, state and local level. She concentrates her practice on representing management in matters related to employment issues including discrimination, harassment, and retaliation claims under Title VII, the ADA, the ADEA, and state law. Kristin also assists management with issues related to HIPAA compliance, employment policies, handbooks, the FMLA, contracts, separation agreements, wage and hour, and other workplace matters. Find her on LinkedIn here.