Retaliation is Reality TV

I think it’s safe to say that now, in 2013, we as a society are overrun by reality TV.

The Truman Show starring Jim Carey debuted in 1998. In case you have forgotten, that was the movie where the whole world watched one man’s every move on a daily basis, from brushing his teeth to mowing the lawn to sleeping. While it’s hard to imagine a creepier plot line for a show, that’s pretty much all that’s on TV nowadays. Well, that and . . . CSI [insert your city here]. YEEEEEEAAAAHHHHH! (We miss you, Horatio Caine.) 

So it should come as no surprise that the ubiquitous genre of reality TV lends itself to the occasional employment law lesson. And today’s lesson comes from that epic engineer of entertainment–A&E–and its hit show Storage Wars. The show follows professional buyers who purchase the contents of storage lockers based only on a five-minute inspection of what they can see from the door when it is open. The goal is to turn a profit on the merchandise. (And you thought your college degree meant something.)

In December 2012, David Hester, one of the former stars of Storage Wars, sued A&E Television Networks claiming, among other things, that he was wrongfully terminated after he complained to producers about alleged illegal conduct behind the scenes. Specifically, Hester claims the producers staged entire units, planted items in lockers after having them appraised weeks in advance, and funneled cash to weaker teams to buy lockers they could not have otherwise afforded, all of which Hester claims violated a relatively obscure federal law intended to prevent viewers from being deceived when watching a show involving intellectual skills.

While the facts of Hester’s lawsuit are certainly unique, so-called “whistleblower” retaliatory discharge actions like this one are fairly common. Let’s face it: Revenge is a natural human reaction. In recent years, the U.S. Supreme Court has issued a series of rulings broadening anti-retaliation coverage and protection. In addition, Congress has passed legislation expanding the range of damages for retaliation claimants and expanding anti-retaliation protections for private litigants. Add to that the fact that juries frequently find in the plaintiff’s favor on a retaliation claim, even when they are skeptical of the individual’s claims of unlawful activity, and you’ve got yourself a very attractive cause of action for plaintiffs’ attorneys nationwide.

Of course, A&E denies Hester’s allegations and maintains the show is 100% real and in no way staged. Just last week, the trial judge issued a tentative ruling rejecting A&E’s attempts to have Hester’s retaliation claims dismissed on free-speech grounds. Hester’s attorney has since called A&E’s argument “absurd,” adding that Hester is “looking forward to having this case decided by a jury.”

So it appears this saga will continue. And, since this case may actually get to trial, I think I have a good idea for the next big reality show…