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

Proving a negative is the most difficult position for an employer, and, often, the most expensive for an employer to defend.

October 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.