August 20, 2018
In his iconic book, The Story of Doctor Dolittle, children’s author Hugh Lofting introduces the world to a mythic animal -- the pushmi-pullyu -- that has two heads on the opposing ends of its body, begging the questions: 1) how does it make up its mind?; and 2) didn’t I once argue an appeal before a panel of them? As it were, in 2018 the inherent mind-bend of the pushmi-pullyu has seemingly entered into what has heretofore been the steady trajectory of the powerful faithless servant doctrine.
In prior blog articles, we have pointed out the incredible power of the faithless doctrine as a tool for clawing back compensation from disloyal employees while creating an in terrorem deterrent to would–be wrongdoers. We suggested, based on case law at the time, the doctrine could result not just in a full forfeiture of compensation but also an award of investigative costs. The doctrine could also be used, in our view, as a means of striking back at serial sexual harassers. In 2018, the courts have solidified the doctrine in one way but may have retracted it in another.