Congrats to ALEX, winner of our monthly “Spot the Bogus Workforce Celebration” Contest. Alex was the first astute observer to identify “Buy Something You Cannot Afford For Someone That Doesn’t Need It Day” as the fake holiday. Believe it or not, the rest are very real. Click here for the full list.

Thanks for your participation — enjoy the month!

In my humble opinion The Office is the world’s #1 employment law training aid. All you have to do is (1) watch it and (2) do the exact opposite of everything you see.

To help enhance your viewing experience, each week I provide a critique of the action from an employment lawyer’s perspective. We also conduct a weekly “Are You Smarter Than a Lawyer?” Contest. Anyone who leaves a comment below identifying a legal issue that I missed will win a valuable prize.

Last Night’s Episode: Spooked

The Plot: Here’s NBC’s official description: “Erin has a hard time trying to make the office Halloween party exactly how Andy and Robert California want.”

My Analysis:

1. Issue: How NOT to Police Halloween Costumes
   Description: Andy’s highly subjective and inconsistently applied costume approval process created at least a dozen potential lawsuits in the first minute-and-a-half of the episode. His first two “rules” (“Don’t be offensive” and “Don’t be cliché”) were quickly eclipsed by his third (“Don’t take the first two too seriously”). Andy rejected several perfectly appropriate costumes and approved several perfectly inappropriate costumes on purely arbitrary grounds, making several potentially discriminatory comments along the way. Dwight’s dreadlocks-and-coconut-bra costume was a walking sex/race/religious harassment suit waiting to happen. Meredith — dressed as Kate Middleton — made highly inappropriate comments about the royals. Oscar’s “costume” resulted in inappropriate comments by him and others.
   Risk: $$$
2. Issue: Misrepresentation
   Description: Andy lied to Meredith about the bunny costume already being “taken.” Meredith (sort of) lied to Andy about her whereabouts during the royal wedding. Toby told the CEO that he (Toby) is “so great,” which is clearly not the case.
   Risk: $$
3. Issue: Defamation
   Description: Meredith made several highly disparaging (and downright creepy) comments about various current and former members of the royal family.
   Risk: $$
4. Issue: Dating the Boss
   Description: Now that Andy is the boss, his are-they-dating-or-are-they-not relationship with Erin opens the company to even more potential liability than before. This quote from Erin sums up the dangers quite nicely: “When they talk about all the nice things about dating a co-worker, they don’t mention one of the best parts. After you’re done dating, you still get to work together. Every. Single. Day.” Yikes.
   Risk: $$$$
5. Issue: Emotional Distress
   Description: Jim’s initial refusal of Kevin’s request to join him and Darryl in donning Miami Heat uniforms as costumes made Kevin cry. Pam’s “rating” of Erin as 2 out of 3 as a receptionist almost made Erin cry. Angela’s and Phyllis’ de-decoration efforts almost made Erin cry. Andy’s request that Erin re-decorate to PG-13 standards almost made Erin cry. Andy’s request that Erin meet with him at the end of the day almost made Erin cry. Kevin’s disclosure of the ending of Rise of the Planet of the Apes almost made Andy cry. The CEO spent most of the episode discovering each employee’s fears and then told a highly inappropriate story that played on each those fears, visibly (and deeply) disturbing every single employee. Angela’s continuing efforts to mock Pam’s pregnancy-related weight gain clearly caused Pam pain.
   Risk: $$$$$
6. Issue: Dwight’s 1,000th Workplace Violence Incident
   Description: Dwight was shown committing a variety of acts of mayhem in various ultra-violent Halloween costumes. HR “Professional” Toby’s wholly ineffectual attempts to stop Dwight are best summed up in this quote: “Every Halloween I tell him the same thing: You can’t bring weapons into the office. And every year he says the same thing: As soon as I get my weapons back I’m gonna kill you.” If Dwight ever actually harms anyone, the company will have to pay lots and lots and lots (and lots) of money.
   Risk: $$$$$$$$$$
7. Issue: Dangerous (And Inappropriate) Decorations
   Description: Several of the Halloween decorations exposed workers to potentially hazardous conditions and/or were of a graphic violent/sexual nature (especially after Erin “upped” the overall theme to PG13). Erin also tried to convince her co-workers to play a highly inappropriate game of poker. The fact that Erin’s re-decorating was arguably in response to pressure from the CEO could expose the company to additional potential liability.
   Risk: $$$$
8. Issue: Child in the Workplace
   Description: The CEO brought his child (dressed in an ultra-violent costume replete with blood, etc.) into the workplace and allowed him to make lots of inappropriate comments and generally distract the employees. Dwight and other employees made a number of highly inappropriate comments to the child, quite possibly scarring him for life. Dwight and the child mutually each arguably bullied the other. While that’s not an accepted cause of action in many states, some courts are starting to consider such claims.
   Risk: $$
9. Issue: “Cinema of the Unsettling”
   Description: Gabe showed a highly inappropriate video (featuring several employees) that made his co-workers freak out and/or nearly vomit.
   Risk: $$$
10. Issue: Other Obscene Gestures and Comments
    Description: Pam and Oscar made highly inappropriate gestures. Virtually every employee made an inappropriate comment.
    Risk: $$
11. Issue: Theft of Company Time
12. Description: The employees were even more creative than usual in finding ways not to work. The all-day party sanctioned by the CEO and Andy (including the rather massive decoration and re-decoration effort and other preparations) distracted everyone. Pam told a ghost story. The CEO (as noted above) told a strange story about a swearing baby. Multiple skeleton-clad employees spent time choreographing and dancing. Dwight and the CEO’s son spent lots of time playing violent M-rated video games. The CEO’s son used Jim’s computer for several hours, preventing Jim from working. Andy spent time texting his buddies.
    Risk: $$

Sooooooooooo sorry to all of you who experienced technical difficulties during today’s webinar!

Just in case you weren’t aware, we restarted it @ 11:30. Looks like about 1,200 of you were able to stick around and that 1,000+ of you dropped off.

The recorded version is available here. Again, our sincere apologies for any inconvenience!

The Blawg will be taking a little vacation this week.

See you next week!

Mark

In my humble opinion The Office is the world’s #1 employment law training aid. All you have to do is (1) watch it and (2) do the exact opposite of everything you see.

To help enhance your viewing experience, each week I provide a critique of the action from an employment lawyer’s perspective. We also conduct a weekly “Are You Smarter Than a Lawyer?” Contest. Anyone who leaves a comment below identifying a legal issue that I missed will win a valuable prize.

Last Night’s Episode: Training Day

The Plot: Will Ferrell joins The Office and proves that he may be an even worse manager than Michael Scott.

My Analysis:

1. Issue: Workplace Drunkenness
   Description: Michael and his successor, Deangelo Vickers (played by Ferrell), got drunk at a local Scranton bar and then decided to head to the office. They ended up filming one another making inappropriate comments and then ran around the premises in a drunken stupor, damaging company property in the process.
   Risk: $$$
2. Issue: Failure to Follow Process / Negligent Hiring
   Description: It appears that the company hired Deangelo without following its own internal policies (and/or anything remotely resembling HR best — or even medicore — practices). That could easily lead to lawsuits from others who may have wanted the job (e.g., Dwight). Click here for additional tips on how NOT to hire.
   Risk: $$$$
3. Issue: Harassment
   Description: Kelly engaged in over-the-top flirtiation with Deangelo within about fifteen seconds of him starting his job. Deangelo didn’t exactly handle it in the most HR-y way. Michael made a highly inappropriate orgy reference. Michael aggressively hugged Deangelo for an uncomfortably long period of time. Virtually everyone engaged in extreme “sucking up” toward Deangelo, which resulted in a variety of inappropriate comments and actions.
   Risk: $$$
4. Issue: Misrepresentation
   Description: Dwight lured Michael into the stairwell under false pretenses (promising him that there was a turtle there). Michael seemed to suffer acute emotional distress when he realized that Dwight was lying.
   Risk: $$
5. Issue: Baldness Discrimination
   Description: Some courts have begun to consider appearance discrimination claims. Kevin made a hateful comment about bald people. Lawsuits have been filed on much less.
   Risk: $$
6. Issue: “Office Funny Guy”
   Description: Deangelo dubbed Andy the “Office Funny Guy,” which resulted in Andy engaging in an escalating series of potentially hazardous acts and discriminatory comments (including damaging company property, dumping hot coffee on himself, drinking dish soap and making inappropriate jokes about African-Americans and even Republicans and Democrats).
   Risk: $$$
7. Issue: Workplace Safety
   Description: Deangelo and Michael engaged in a “shave off.” Deangelo was shaved by a professional. Michael was shaved by a clearly nervous and unsteady Erin, which could have resulted in injury to Michael’s jugular vein and/or facial features. Michael endangered Deangelo’s health by tossing PB&J sandwiches around to the staff, knowing that Deangelo has a severe peanut allergy.
   Risk: $$$$
8. Issue: Other Inappropriate Comments
   Description: Deangelo made ill-advised comments regarding Native Americans, including comparing meetings to “pow-wows” and calling Kelly “that Native American girl.” Also, his statement expressing hatred for babies could potentially be considered “hate speech” in some states and municipalities.
   Risk: $$
9. Issue: Dress Code Violations
   Description: Darryl dressed up in a cowboy costume in an attempt to impress his Southwest-loving new boss. (He also brought toy guns onto company property, which could foreseeably result in emotional distress and workplace safety issues.) Andy’s eye-popping neon green sweater also violated any sense of fashion decency and may have resulted in nausea and/or gastrointestinal discomfort among his co-workers.
   Risk: $$
10. Issue: Theft of Company Time
    Description: Once again, the entire office performed virtually no discernible work, living up to its mantra of “Zero Productivity. Petty Behavior. All in a day’s work.” The new boss seems to be even better than Michael at ensuring that no one comes close to doing anything work-related.
    Risk: $$$$

One of the issues we’ll discuss in my webinar next Wednesday is the increasing impact of social networking (SN) on the workplace.

According to the brand-new survey by the Proskauer International Labor & Employment Group, 45% of employers still do not have SN policies — despite my (and others’) near-constant urging to do so.

Some other fascinating facts:

• 76% of companies now use SN for business purposes
• 55% believe that it is advantageous for employers to allow SN use for business purposes but disadvantageous to allow SN for non-business purposes
• Only 44% of policies cover both SN use at work and outside work
• 43% have experienced employee misuse of SN
• 31% have disciplined employees for SN misuse
• 29% block employee SN access
• 27% monitor employee SN use
• 25% ban SN use for non-business purposes

If you’re among the 45% that haven’t adopted a SN policy, you’re in luck. Click here for our FREE sample social media policy, provided by the fine folks at McGuire Woods. As always, please keep our official disclaimer in mind.

Click here for the full survey results, including a handy guide to SN law around the world.

Yesterday, I had the extreme privilege of speaking to a rather enthusiastic group of HR professionals in lovely Omaha, Nebraska. As promised, below is the SlideShare of my presentation. The Tool Box I referenced is at the rear.

A huge THANKS again to all who attended (and a special THANKS to Jessica McCormick for her amazing musical introduction — ManpowerGroup’s got talent!).