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ICYMI: Our Social Media Posts This Week – Mar. 26 - Apr. 1, 2017

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

In the post on Sunday 3/26/17 we issued an alert: court rules age discrimination claims are valid when both candidates are over 40. While this case did not come out of PA, it is still instructive and one to keep in mind. Ordinarily an age discrimination claim requires a claim by someone over age 40 with comparators under age 40 (and the more separation in ages, the better). In this case, the plaintiff, age 58, alleged she was passed over for promotion in favor of a younger (age 50) employee. The employer argued that the employee selected for promotion was better qualified (and, regardless, no suit could lie with them being so close in age and both over age 40). The decision turned on whether the person selected was 'substantially younger" than the plaintiff. The court's analysis is in the post.

TAKEAWAY: Don't wait for a court in PA to hold this way – just don't make any employment decision based on age.

The post on Monday 3/27/17 noted Arby's hit with class action data breach suits – and make sure your cybersecurity has "more meat". Recently, between October 2016 – January 2017, Arby's point-of-sale system was hacked; it contained debit and credit card information for 355,000 customers. Many class-action suits have been filed, one by customers alleging Arby's cybersecurity was lax. Stay tuned to see how these play out.

TAKEAWAY: Data breaches are always a danger when so much is in the cloud – make sure your clouds don't rain your client's sensitive data to hackers.

In the post on Tuesday 3/28/17 we noted that no longer saying good morning or giving a warm welcome could be evidence of retaliation. A groundskeeper at an apartment building sue the employer, alleging disability discrimination and retaliation for filing a complaint with a state agency. The employer asked the court to grant summary judgment, alleging there was no adverse action. On the facts (see the post) the judge granted summary judgment relative to discrimination. However, as to retaliation, things were different; the allegations included that "the general manager of the apartment building 'stopped saying good morning to him'" and others in the post and were enough to get past summary judgment and to the jury.

TAKEAWAY: Remember that the employee does not have to be successful on the underlying discrimination claim to succeed on the retaliation claim – "adverse action" could be very broadly interpreted.

The post on Wednesday 3/29/17 talked about responding to a discrimination charge (and suggested you contact an employment law attorney). If the charge is from the EEOC, then the first "touch" usually will be an email with a link to allow response. But that link may not include the actual charge(s) at first – see the post for how to proceed. Even while waiting to speak to an employment law attorney (which this author recommends), the employer should gather the information and documents (and contact information for people) necessary to respond and offer a defense. Some examples are in the post. The attorney can help draft the response to ensure that it does not dig the employer in any deeper but provides a ladder out.

TAKEAWAY: Don't panic if you receive a charge of discrimination, just gather the necessary information/people and proceed in a way that protects your interests but also shows why the action(s) complained of was/were legal.

The post on Thursday 3/30/17 told us the Judge rules for service in TCPA case regarding calls to number provided for subsequent loan. Yes, the Telephone Consumer Protection Act may apply to you – so make sure you find out if it does. Here, in a case in PA federal court, Crystal applied for federal student loans and authorized various parties to contact her; she provided a phone number. Later, when asking for a repayment deferment, she again authorized contact but gave a different phone number. In 2014, she got more loans and listed a third phone number to the "authorized" list. Navient, the student loan servicer, contacted her using the last number; Crystal requested and was granted an additional deferment. After that, Navient began collection on the first loans (81 calls to the last number in slightly over 3 months). Crystal sued under the TCPA, alleging she did not authorize Navient to contact her on the last number for the first loans. Ruling on summary judgment, the Judge found that the facts (see the post) ran in Navient's favor.

TAKEAWAY: Collections are tricky. Make sure you know your rights under the TCPA when collecting from a consumer.

The post on Friday 3/31/17 said that racist remarks doom summary judgment, send case to trial (or settlement). Here, an African-American employee filed race discrimination and HWE claims. The employer moved for summary judgment (a ruling in its favor). Because of the large number of "offensive' intimidating remarks" – including the "N word" in jokes and stories and others in the post – and allegations of denial of pay raises and promotion by those who made the remarks and retaliation after filing the administrative charge, summary judgment was NOT granted.

TAKEAWAY: The employer can deny allegations all it wants, but they may still be enough to get a case to trial – so make sure you have valid legal support before you or your managerial-level employees take adverse action.

Finally, the post yesterday 4/1/17 asked: Your employee is leaving – how do you safeguard your IP? and was not an April Fool's joke. Data security is the #1 thing on just about every business's plate these days. Data may be protected by common law, statutory law, or contracts law, but even if you win a suit, you may still lost the data and its value to you in the time the suit takes to become final (remember that old saying about the horse being out of the barn?). So don't want for the barn doors to open, plan ahead. Make sure you have proper data security policies, including for BYOD. Think about how to properly train (future) employees and including in any contract or policy the employee's authorization for you to wipe the device upon employment termination and other tips in the post.

TAKEAWAY: Don't be an ostrich on this – data security can make or break your business so do it right the first time!

References (9)

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