Getting sacked on national television may draw millions of television viewers — but it’s got liability written all over it.
So warn lawyers about the coming Fox reality TV show “Someone’s Gotta Go,” which has several employment attorneys attempting to fathom why any employer would take the risk of letting their own employees decide on national TV who gets pink-slipped.
That’s the premise behind the show, in which actual, struggling companies with about 15 to 20 employees will let their staffs decide who gets laid off. The employee-judges will use confidential information — salaries, job evaluations — to make that final call on the show.
Sounds like a bad — a very bad — idea, said Joel Rice, a management-side attorney with Chicago’s Fisher & Phillips who advises employers on workplace issues.
“I don’t know why any employer would want to proceed in this fashion. Who wants to publicize that they’re laying people off, and doing it in a manner that’s humiliating to employees, on national TV?” Rice said.
Public relations fears aside, employers are exposing themselves to liability, such as discrimination and retaliation lawsuits, Rice said. For example, what happens if the employees vote off an employee who is black, a woman or elderly, and the person claims discrimination? Just because they’re on TV doesn’t mean they waive their rights to sue for discrimination, he said.
“If someone ends up getting the ax, and you’re a member of a protected group, you’d have to deal with the fallout from that,” Rice said. “And since no one knows in advance who is going to get the ax, there’s not much you can do in advance to waive these things. Employment rights can’t be waived in advance.”
And just because the discrimination occurs on a TV show — where willing participants agreed to certain deals — doesn’t make it right, either, Rice said.
“I haven’t researched TV law, but I don’t know how televising those events insulates them from the normal rules of employment law,” he said.
And think how it would it look to a jury if an employer had to defend an alleged discriminatory firing that occurred on television, said employment attorney Tara Aschenbrand, of the Columbus, Ohio, office of Squire Sanders & Dempsey.
“Can you imagine going before a jury and putting that out there,” Aschenbrand said. “Do you want to go in front of a jury and say, ‘This is how a termination was made.’”
Fox officials declined comment on any liability issues, but said that the show is in production. Its air date was yet to be decided.
Aschenbrand said that when she first heard about the show, the lawyer in her caused red flags to shoot up instantly.
“When you put this out there like that, you could end up with discrimination, retaliation and defamation lawsuits,” she said.
The employment attorneys have a point, said E. Leonard Rubin, an entertainment lawyer at Chicago’s Querrey & Harrow.
Rubin noted that the employers who have agreed to participate in the show will have some legal protection. The employees likely will sign waivers, agreeing to give up their privacy rights involving things like salary, performance reviews and disciplinary action. But being unlawfully discriminated against — that’ s not likely to be covered by any waiver, he said.
“My assumption is that the release would not save the employer from a lawsuit, if in fact an employee was let go because of discrimination,” Rubin said. “Discrimination in employment is against the law.”
Rubin opposes the show’s very concept.
“I personally think it’s an awful idea because of the unhappy results, because there are no winners,” he said. “This isn’t a contest to find out who’s the most popular employee. This is the contest to find out who’s the most unpopular employee. It’s not like other reality shows where you expect to wind up with a winner.”