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ICYMI: Our Social Media Posts This Week – Feb. 4 - 10, 2018

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 2/4/18 we saw that a former IT worker sued Penn State for discrimination and retaliation. Antoinette alleges that after repeated complaints, including to the University President, about discrimination, the retaliation escalated and the school did nothing. Details are in the post. She retired 9 years before the time she had planned to. Her claim also includes FMLA violation (as noted in the post). Penn State has not issued any response or comment yet.

TAKEAWAY: May sure pay and treatment of employees is the same regardless of gender and medical condition – and investigate any complaints. Failure in any of those areas may lead to suit and an expensive public flogging (regardless of the outcome).

The post on Monday 2/5/18 was about condo & homeowner association boards trying to address pot smoking before it is legalized. What is your Association doing? We know that PA has legalized medical marijuana, and the legal use of recreational marijuana may not be too far behind. But it is still illegal under federal law. Has your Association dealt with the issue at all? Perhaps by allowing it for card-carriers within their own walls? What about cigarette smokers? Differentiating between common areas and private areas? The post gives some ideas about the types of things associations might want to consider.

TAKEAWAY: Make sure to enact legal rules and regulations and then enforce the legally – contact a lawyer well-versed in this type of law to help you.

In the post on Tuesday 2/6/18 noted the lawsuit against Kellogg over religion and weekend work is back on the table. What's this about? Working on Saturdays. Richard and Guadalupe are Seventh-Day Adventists who did not work every other Saturday (as required) due to their religion. They were eventually fired. The lower court granted Kellogg's motion for summary judgment – the reasoning is in the post. That decision was appealed and a federal appeals court just reversed (for the reason noted in the post). Irony: the co-founder of Kellogg was a Seventh-Day Adventist at the time the company was founded.

TAKEAWAY: Remember that an employer has a duty to reasonably accommodate religious beliefs, whether it wants to or not.

The post on Wednesday 2/7/18 told us a former Fox TV executive sues for gender discrimination and sexual harassment. The tidal wave continues. Denise claims she was fired after complaining about sexist comments in the workplace, including an executive coach retained by FOX telling her to "lift her skirt". Ugh. The suit was filed in CA state court. More details/background are in the post. FOX has not issued any comment yet.

TAKEAWAY: Not every claim of harassment or discrimination is valid, but employers still have a duty to investigate and, if founded, take action to stop the illegal behaviors and try to remedy the situation.

In the post on Thursday 2/8/18 we saw that an ex-campus cop's discrimination suit over razor bumps proceeds against UPenn. Joseph alleges that he was discriminated against for avoiding shaving due to a skin condition common among black men. The actions he says were taken against him are in the post, including paid leave. The trial court judge let some of Joseph's claims go forward (including retaliation and disparate treatment) but dismissed others (including disparate impact). The post contains some of the Judge's reasoning.

TAKEAWAY: After enacting a facially-neutral policy, ensure that its enforcement does not adversely treat one class over another or that its impact is not heavier against one class than another.  

The post on Friday 2/9/18 reminded us that uncivil is not the same as unlawful. Let's look at an example. Arriama complained in a suit about how co-workers referred to her dress and her supervisor's behavior (noted in the post). The court reaffirmed that Title VII is not a civility code and that actual facts are required to prove hostile work environment. The post analyzes it here for the result.

TAKEAWAY: Employees don't have to like their co-workers or managers (or vice-versa). But they do all have to work together to get the job done. Performance, not amity, should be the basis of legal filings.

Finally, in the post yesterday 2/10/18 we read that an employee's lack of records won't get a pay lawsuit tossed (and advised to make sure your records are accurate). In a suit for overtime pay, the burden is on the employer to show the employee was NOT entitled to pay for overtime work. In this case, Faustino was paid the same rate for all hours worked. He sued, claiming he'd not been paid overtime for hours worked over 40 in a week. The employer moved to dismiss the suit. The post tells the court's reasoning and ruling.

TAKEAWAY: employees often keep track of their hours worked; regardless, the employer should carefully track the hours to ensure proper pay. Consult an employment law attorney if an issue arises.

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