Friday, December 10, 2010

Waterboarding, Fake Mustaches, and Other Workplace Motivational Exercises - COTW #19

This week's employment law Case of the Week is Hudgens v. Prosper, Inc. from the Utah Supreme Court. The case involves a supervisor named Josh Christopherson who was accused of engaging in, what the Court calls, "numerous questionable management practices."

Like what, you ask? Well, as the Court describes:
[W]hen an employee did not meet performance goals, Mr. Christopherson would draw a mustache on the employee using permanent marker or he would remove the employee’s chair. Additionally, he would patrol the employees’ work area with a wooden paddle, which he would use to strike desks and tabletops.
I can't help but think that this guy would thrive in a workplace environment run by Tiger Mike (a hall of famer in the world of "questionable management").

These bizarre practices took a turn for the downright scary though, when Mr. Christopherson asked for a volunteer to test his "new motivational exercise." Note to employees: when a guy who carries a paddle for fun asks for volunteers for a mystery exercise... DO NOT VOLUNTEER! Unfortunately for the Plaintiff, Mr. Hudgens, he didn't have this foresight:
Mr. Christopherson then led his team members to the top of a hill near Prosper’s office. Once on the hill, Mr. Christopherson ordered Mr. Hudgens to lie down, facing up, with his head pointed downhill. Mr. Christopherson ordered other team members to hold Mr. Hudgens down by his arms and legs. Mr. Christopherson then slowly poured water from a gallon jug over Mr. Hudgens’s mouth and nose so that he could not breathe. Mr. Hudgens struggled and tried to escape but, at Mr. Christopherson’s direction, the other team members held him down.
As the Court correctly labels this later in the opinion: waterboarding.

Amazingly, this case was on appeal because all of the Plaintiff's claims had been dismissed with prejudice (which means he would be precluded from amending his Complaint to bring the same claims in the future). The Utah Supreme Court didn't really address the merits (of what seem to at least be pretty clear assault, battery, and IIED claims). The Court did, however, remand to the lower court for reconsideration of the Plaintiff's request to amend his complaint.

Hat Tip: Mason Law classmate and fellow employment lawyer Derek Bottcher of Paul Hastings for passing along this Workplace Prof Blog entry on the case.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

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