The Academy has voted and the winner is…….Oscar. Stay tuned. We have more awards to come.

The Golden Globes were canceled, and it isn’t looking so good for the Oscars. So, in the spirit of the awards season, I have decided to give out a few awards of my own. And I’d like to invite all of you to be the Academy. My first category is “Best Plaintiff in an Employment-Based Lawsuit,” which honors the Dunder Mifflin employee who has been most egregiously wronged by the Company. And the nominees are:

Kevin: Kevin is nominated for his experience in having to admit that he has anal fissures in a room of his coworkers during Season Two’s “Health Care.”

Oscar: Oscar is nominated for having been mocked and ridiculed for his sexual orientation and then, upon his return from stress leave, having a “welcome back” party with a theme based solely on his Mexican-American heritage.

Kelly: Kelly is nominated for having her heritage mocked by Michael during diversity training and again in a meeting called to specifically discuss her religious beliefs. Kelly’s claim will be especially strong in light of Michael’s decision to mock the diversity training program and sign his acknowledgment of the training with the pseudonym “Daffy Duck.”

Phyllis: Phyllis is nominated for having been groped and forced to listen to sexually inappropriate comments by Michael and his cohort, Bob Packer, in Season Two’s “Sexual Harassment.” Phyllis’ performance as a plaintiff especially is bolstered by Michael’s announcement that he is afraid of getting a “boner” while forcibly hugging her.

I look forward to hearing from you as the members of the Academy. I’ll be selecting the winner soon – so check back mid-next week.

Well, David Letterman reached an agreement with the writers, and they are coming back to work. For him. No such luck for those of us who are anxiously awaiting the return of our favorite show. Nevertheless, the labor dispute is continuing to teach us valuable lessons. Like why companies should avoid this mess in the first place.

Here is a newsflash for you: Happy employees don’t unionize. Employees unionize because they perceive that their employers are not treating them fairly. While “fair” doesn’t mean that an employer has to roll over to all employee demands, it does mean that they should listen to them. Open communication between management and employees is vital not only to the company’s bottom line but also to remaining union-free.

My critics (and there appear to be a lot of them) will say easier said than done. Point well taken. So here are some tips for management on how they might better improve communication with their employees:

Have regular meetings with small groups of employees to discuss working conditions;

Encourage supervisors to build personal relationships with the people working for them;

Implement and maintain an “open door” policy for employees to raise concerns without the fear of retaliation.

Those are my suggestions. Take them for what they are worth.

No post today. Call it a sympathy strike (yes, I know that sympathy strikes are illegal – take it up with the NLRB). Well, better yet, call it a holiday hiatus as the truth is that I’m blowing off my responsibilities this morning and heading for the mall to finish up my Christmas shopping. In the meantime, check out my friend John Phillips’ blog entry about a sexually harassed mall Santa.

I hope you all have a wonderful holiday season and a safe new year.

It is not that I don’t support the writers of the Office.  I do.  But I also think their situation is different than most other industries in the private sector.  When I look at the issue of unionization from a more global perspective, I firmly believe that most employees and companies are better off without a union.  Not to say that there aren’t some workplaces out there were a union isn’t the right choice.  It is just that those instances are few and far between. 

Some have commented that employees need unions to obtain better pay.  This is a fallacy which is easily dispelled.  A union cannot guarantee better pay: it can simply try to negotiate for it  (much like employees can do without a union – and without paying union dues).  And when the union and the company do negotiate there are three possibilities:  (1) wages and benefits go up; (2) wages and benefits go down; and (3) wages and benefits could stay the same. 

A union also cannot guarantee jobs or benefits.  Jobs are protected only as long as a company continues to operate profitably.  Unreasonable union demands, if granted, could make the company uncompetitive or unprofitable and this could hurt both employees and the company.  If the union calls a strike to enforce its demands, it means lost revenue to the Company and lost wages to employees.  As Jerry said a few weeks ago, strikers are not paid.  And, in most states, they can’t get unemployment.  Worse, if a worker does decide to cross the picket line in order to earn money to support her family, the union may fine her.    

Employees absolutely deserve respect and dignity.  I just don’t think that the best way to get it for most employees is to vote in a union.  Respect and dignity can only be achieved by employees and management working together toward a common goal of making their business as efficient and productive as it possibly can be to remain competitive.   

The strike continues and it doesn’t look like it is going to end any time soon. Indeed, one blog reported yesterday that negotiations are actually going backwards! To make matters worse, it looks like several actors are honoring the picket line. I think we might be going without our beloved “Office” for several more weeks. I’m not sure that I can take it.

Some big names, such as Carson Daly, crossed the picket line and went back to work this week. Other big names have begun personally paying their staff’s salaries during the strike. But the reality is that many staffers have lost – and will continue to lose - their paychecks. I’m not talking about the fat cats who can afford to do so. I’m talking about those folks who work for them. At Christmas time. I can’t think of a better lesson for why companies should work hard to remain union-free. And I think its time that we started giving some tips on how they can do so. I’ve asked some experts in the area to chime in and give us some real-life guidance. So stay tuned.

We’ve been selected as one of the ABA Journal’s Blawg 100, a list of the 100 best blogs for lawyers as selected by the editors of the ABA Journal, the flagship magazine of the American Bar Association. And they’re running a contest to determine which are the most popular. We are under the “gossip” category. So vote for us!

Well, the strike continues.  I don’t do that much traditional labor work so I’ve asked my colleague, Jerry Coker, to help me out as he is the firm guru on all things traditional labor.  He is also a huge fan of the show.  Here is what Jerry had to say:

Nothing too funny about a strike.  Not to the writers, their families (strikers don’t get paychecks) and not for the fans of a fictional paper company in Scranton, Pennsylvania.   And certainly not to those employers who are trying to cope with one.  Federal law – the National Labor Relations Act – gives employees the right to strike in order to try and pressure their employer into agreeing with their union’s demands.  But what a lot of people don’t know is that companies have legal rights too (perish the thought!).  Seriously, an employer can hire replacement workers and – get this – can hire permanent replacements for economic strikers.  Sometimes the difference between a successful strike and one that’s a bust is whether the employer is in a position to actually hire replacements.  And – no surprise here – the more skilled the workers, the harder they can be to replace.  Like, for instance, talented Hollywood screenwriters……

Unions also hope that people do things like “respect the picket line” or “show solidarity.”  That’s when an actor or talk show host joins the writers on the picket line.  Like Rainn Wilson.  Or Steve Carrell.  But that is a topic for another week.  Well, unless the strike ends.

Looks like the folks at Dunder Mifflin will still be teaching us valuable lessons — even when they don’t know it.  Check back on Friday morning for some valuable tips on labor relations brought to us courtesy of the screen writers guild!

LITIGATION VALUE: $200,000 (including Dunder Mifflin’s attorneys fees and deposition costs)

Well, it finally happened. An employee has sued Dunder Mifflin for wrongful termination. I’m not usually one to say “I told you so” but, somehow, I just can’t stop myself this morning.

While it is probably not illegal to fire someone for getting a boob job, it is certainly illegal to fire someone based on gender stereotypes or characteristics. Unfortunately for Dunder Mifflin, it seems like this may be where Jan is headed. And that just can’t be welcome news for David Wallace and the gang.

Even with Michael’s testimony, I’d say that Dunder Mifflin’s case has some problems. Not only did the Company violate its own policy with regard to “love contracts” but, even worse, it has inconsistently applied the “love contract rule.” In my line of business, we call that evidence of pretext, which can really drive a settlement value up. Plus, despite what Jan may think now, Michael’s testimony might not be that bad for her case. Sure he went “off message,” but he is also a regional manager who just referred to his former supervisor’s breasts as “the twins.” Under oath. That just doesn’t look good. At all.

At the end of the day, Jan won’t get four million, but she will probably still get a chunk of change. And Dunder Mifflin may want to make that offer sooner rather than later.