Staffing Management

Fired for Posing for Playboy? Or, How Does an Employer Prove a Negative?

By Jon Hyman

Oct. 7, 2013

Jessica Zelinske, a 33-year-old Minnesota mom, is suing her former employer after it fired her for appearing in Playboy’s 2011 “Hot Housewives” issue. 

According to her lawsuit, she claims that before posing nude, she spoke with her boss at Charter Communications, Timothy McBain, who Zelinske says told her she would not risk her job if she posed nude. Weeks after the magazine’s publication, however, McBain handed her a “Corrective Action Report,” notifying her of her termination for violating the company’s “standards of common decency.” The notice went on to say: “You have violated Charter’s professional conduct policy by making the personal choice to pose nude in a well-known publication.” The company claims that Zelinske never told anyone that she wanted to pose nude in Playboy, let alone ask for permission.

Zelinske’s main claim in her lawsuit is for promissory estoppel — that the company made her a promise about job security, upon which she relied to her detriment by posing for Playboy. To defend this claim, the employer is in a very difficult position — having to prove a negative. The employee claims she had a meeting where her boss blessed her photo shoot, and may even have notes (legitimate or not) to support her claim; the employer claims that no meeting ever took place, and certainly will not have any notes or other evidence to support an event that it claims never happened. How does an employer prove that it never made such a promise to an employee? Sadly for this employer, the answer may be a costly and time consuming jury trial. 

Proving a negative — that conversation never took place, or, you did not work those extra hours that your timesheet says you did — is the most difficult position for an employer, and, often, the most expensive for an employer to defend.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Hyman at (216) 736-7226 or jth@kjk.com. You can also follow Hyman on Twitter @jonhyman.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

What’s New at Workforce.com?

blog workforce

Come see what we’re building in the world of predictive employee scheduling, superior labor insights and next-gen employee apps. We’re on a mission to automate workforce management for hourly employees and bring productivity, optimization and engagement to the frontline.

Book a call
See the software

Related Articles

workforce blog

Staffing Management

Managing employee time-off requests: A guide for business owners

Summary Vacation, sick time, PTO banks, and unpaid leave are only a few forms of employee time off — Mo...

workforce blog

Staffing Management

4 proven steps for tackling employee absenteeism

Summary Identifying the cause of employee absenteeism not only helps uncover deeper-rooted issues — Mor...

absence management, Employee scheduling software, predictive scheduling, shift bid, shift swapping

workforce blog

Staffing Management

Employee or contractor? 6 worker misclassification FAQs

Misclassification of employees as independent contractors led to overtime violations, according to a La...

compliance, Department of Labor, employee engagement, FLSA, HR technology, Worker misclassification