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ICYMI: Our Social Media Posts This Week – Sept. 23 - 29, 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 9/23/18 we saw that Uber to pay 56 workers $1.9 million for harassment, discrimination claims. Gotta drive a lot of miles to make that up! They will get about $33,900 each to settle their claims of gender discrimination, harassment and hostile work environment. Also, another $5.1 million will be divided among more than 480 workers, including the 56 who are receiving the other payouts. So what was the basis of the suit that led to the settlement? The suit was filed in October 2017 by three Latina engineers, alleging that they were paid less than their white or Asian male colleagues. What they based their claims on is detailed in the post. The 56 came forward as representatives of a broader class as described in the post. On a related note, Uber's head of HR Liane Hornsey resigned after an internal investigation into how she handled racial discrimination claims within the company.

TAKEAWAY: Make sure to pay comparable employees the same – don't differentiate on protected characteristics that have nothing to do with job performance. It will be more expensive to do it the wrong way.

The post on Monday 9/24/18 told us that suing foreign entities in PA just got easier! One of the first issues that comes up when considering suit is where to bring the suit. The answer depends on many factors and was the subject of a recent PA Superior Court decision (in the context of whether registration to do business in a particular state can constitute valid consent to general personal jurisdiction in that state). Other court around the country have faced this question too, but the Court here ruled contrary to most of those decisions. The Court started with the applicable statute (see the post), then examined US Supreme Court and PA case history (again, see the post), and then moved to this case (a dispute between two LLCs, one from Pennsylvania and one from Connecticut, concerning the Connecticut LLC’s alleged failure to pay for services rendered by the Pennsylvania LLC in connection with a furniture sale in Calgary, Canada). The importance was that none of the events giving rise to the case occurred in Pennsylvania, and the Connecticut LLC’s sole connection to Pennsylvania was seemingly its registration to do business in February 2017, after all but a few of the alleged breaches of contract had already occurred. The post then looks at the case history and the Superior Court's analysis leading to its decision.

TAKEAWAY: It is now easier to bring suit in PA against a corporation entity with few to no connections to PA other than its registration as a PA corporation. (Whether this is good or bad depends on which side of the suit you are on!)

In the post on Tuesday 9/25/18 we saw news from the pet world: woman says Association doesn't allow service dogs. The confusion is probably over the difference between service dogs and emotional support dogs. Both are defined in the post. And it's important because even if your Association prohibits pets, it must (under most circumstances) allow service animals.

TAKEAWAY: Make sure your Association is toeing the line relative to service animals – consult an community lawyer to make sure.

The post on Wednesday 9/26/18 was a warning: EEOC is active and suing - be careful! The EEOC recently filed seven lawsuits against various employers across the country, charging them with harassment, and it also announced a major resolution of a harassment lawsuit. The workers were at country clubs and cleaners, sports bars and airlines, in health care and grocery stores. What were they about? Five alleged sexual harassment, two racial harassment, and one also alleged harassment based on national origin. Five of the 7 also included claims of retaliation for reporting the harassment. The first suit was filed against Fairbanks Ranch Country Club for sexual harassment and retaliation against a class of female employees. The allegations that underlie the suit are in the post. The second suit was filed against Ojos Locos Sports Cantina for sexual harassment by managers and co-workers and for retaliation. Again, the underlying allegations are in the post. The other 5 suits are also detailed in the post. The settlement was with a third-party call center and technology services company for $3.5 million – what the suit was about and the settlement terms are in the post.

TAKEAWAY: Play it straight and legal – the EEOC, and its Chair, is actively seeking out situations to remedy and is not afraid of filing suit.

In the post on Thursday 9/27/18 we read that Wendy's can't yet avoid liability for sexual harassment. And the joint employer issue continues ... The judge said the corporate group potentially could be jointly responsible with the franchisee for a manager’s groping of a minor worker. This case is pending in the Middle District of Pennsylvania and centers on whether the corporate entity exercised sufficient control over the franchise in Pennsylvania and its workers that they could be held liable as a joint employer. The most relevant facts are in the post – and turned the tide on the issue. The employer tried to get out on procedural grounds, but the judge analyzed that too (see the post) and denied the motion.

TAKEAWAY: The issue is not finally decided, so until them be careful of being pulled into a situation as a (possible) joint employer. Consult an employment lawyer if you're not sure how to proceed.

The post on Friday 9/28/18 told us that a federal court ruled "tender back" doctrine inapplicable to Title VII and EPA claims. We noted this is not yet PA law, but will it be soon? Under the common law doctrine, when a party seeks to avoid a contract on the grounds that it was obtained by fraud, duress, or the like, s/he must first "tender back" any benefits received under the contract. The ruling turns that on its head, such that if the claims are successful, the contractual amount paid by the employer will be deducted from any damages ultimately recovered. The facts of the case, along with the court's analysis (both alternatives), are in the post.

TAKEAWAY: PA law still requires that any amount received as part of a settlement agreement or other release be repaid prior to suit being brought, but perhaps the tide is changing?

Finally, in the post yesterday 9/29/18, we saw that all should report to bible study class now — or get fired! The question is if an employee is entitled to an accommodation based upon her religious beliefs, is she entitled to an accommodation based upon her lack of religious beliefs? In this cases, the employee, who did not share the religious belief of her employer, was still required to attend a daily Bible study class or be fired. The post looked at how and why this is a twist on the typical issue of religious accommodation. The particular facts of this case are in the post and stem from a recent suit filed in Oregon.

TAKEAWAY: Maybe this is the next Master Bakers cake shop case, maybe not. But until then, employers are advised to accommodate an employee's (lack of) religious beliefs unless hardship can be proven.

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