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ICYMI: Our Social Media Posts This Week – Aug. 27 - Sept 2, 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 8/27/17 we saw a former hospital employee files discrimination charges (alleging that the employer did not act properly in response to her allegation of a racial spear and did not give her the same opportunity to advance as others. More details are in the post. The matter is pending with the EEOC and the employer (of course) disputes the allegations.

TAKEAWAY: Make sure that action you take cannot be construed as adverse and that if it can, there is a valid legal basis for the action.

The post on Monday 8/28/17 told us that the NRC's rules trump the ADA in employee's suit. The Third Circuit, the federal appeals court whose decisions are binding on us here in PA, found no ADA violation when a security officer at a nuclear power plant was fired – the basis for the discharge is in the post.  

TAKEAWAY: It's worth remembering that when laws conflict, one has to give, and it's important to know which one that will be.

In the post on Tuesday 8/29/17 we asked: if you file for bankruptcy, will you lose everything? (The answer is in the post). The support for the answer is both federal and state law.  

TAKEAWAY: To discuss the effect of a personal bankruptcy filing, or if you have had a customer who owes you money file for bankruptcy, contact us for assistance.

The post on Wednesday 8/30/17 was about labor law lessons from our favorite films – Dirty Dancing (apropos on its 30th anniversary). You remember the premise, right? The relationship between Baby Housman, a guest, and Johnny Castle, a staff dance instructor, in the summer of 1963 at a resort in the Catskills. More background details are in the post. So with a film that is now 30 years old, what can we talk about? Whether the resort management violated the NLRA by keeping Johnny from engaging in protected concerted activity by threatening to withdraw a benefit (the summer bonus) in exchange for his silence? (See his possible argument and management's possible response in the post). Whether the resort could show that it would have terminated Johnny regardless of him engaging in protected concerted activity (for the basis of this argument, see the post). And whether the answers will change with the new Trump-era NLRB …  

TAKEAWAY: Even the most unassuming of circumstances can create possible NLRA violations – be careful in your workplace.

In the post on Thursday 8/31/17 we saw that a bookkeeper "retired" by her employer after reaching 66 wins age discrimination case. And that the result would probably be the same in the US. The family business had to pay the employee even though it was an at-will situation. She alleged that she was expected to retire by age 65 and then it was changed to 66, but that she did not want to retire. There was more back-and-forth (see the post); the company argued that if terminated on the basis of its contractual understanding she would retire at age 65, not age itself. See more of the company's argument in the post. The ruling in favor of the woman found no justification for the discrimination.

TAKEAWAY: Don't rely on what you think is a verbal contract; get it in writing. And don’t take illegal adverse action against any employee, but especially not someone in a protected class.

The post on Friday 9/1/17 noted I got the power – EEOC investigatory power trumps dismissal of discrimination case in federal court. You read that right. The question was whether the EEOC could keep investigating a claim after issuance of a right to sue letter. Or after suit was filed and summary judgment awarded in favor of the employer? The Seventh Circuit (a federal appeals court) said yes. The background was the filing of a charge of race discrimination in 2011. The company refused to provide info to the EEOC. A settlement was eventually reached but the EEOC issued a right to sue letter and the employees filed suit. The EEOC again subpoenaed information during pendency of the suit and the company again refused. EEOC issued a subpoena. Summary judgment was granted for the employer and the suit dismissed with prejudice. But that didn't end things. The EEOC brought an enforcement action for refusal to comply with the subpoena.  The arguments are in the post. In the end, noting the circuit split, the court said that neither dismissal nor issuance of the right to sue letter barred further investigation of a properly-filed charge. More support for the court's ruling is in the post.

TAKEAWAY: Don't think just because you win a case the EEOC is off your back – a court may still require you to respond to a subpoena it issued.

Finally, in the post yesterday 9/2/17 we learned that a white judge wins $90000 discrimination settlement. Because there was no reason. The judge accused the Chief Judge of discharging her to be able to appoint more African-American judges. The Chief had no reason for not reappointing. More strange background facts – including the gender and race of the Chief - are in the post. And instead of retention, 2 African-Americans with less experience were appointed to judicial positions. The settlement was felt to be fair based on the facts.

TAKEAWAY: Cases can settle for many reasons that have nothing to do with the actual facts – although one reason can be the party's assessment of the chance of success of its argument. (Of course, not taking any action that could be perceived as illegal would ensure no suit is filed to begin with …)

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