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  • Monthly Archives: August 2011

    NLRB Holds that the Supreme Court’s Decision in Hoffman Prevents Backpay for Undocumented Immigrant Workers

    Mezonos Maven Bakery, Inc. and Puerto Rican Legal Defense and Education Fund. Case No. 29–CA– 25476 (August 9, 2011)  On August 9, 2011 the National Labor Relations Board unanimously held that under the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the NLRB lacks remedial authority to award backpay […]

    Court Rules Privilege Waived due to Party’s Laissez-Faire Approach to Discovery

    Thorncreek Apartments III, LLC v. Vill. of Park Forest, Nos. 8 C 1225, 08-C-0869, 08-C-4303, 2011 WL 3489828 (N.D. Ill. Aug. 9, 2011) In a recent Northern District of Illinois decision, District Judge Feinerman held that a defendant’s privilege was waived with respect to inadvertently produced documents after the defendant took a laissez-faire approach to […]

    What is a Litigation Hold?

    A litigation hold requires a party to preserve all data – physical or digital – that may be related to a legal action.  The purpose of a litigation hold is to stop routine or any other destruction of potentially relevant ESI, and to make sure that the ESI remains safe until the hold is released. […]

    A Terminated Employee’s Failure To Seek Additional Education Is Not Required To Mitigate Damages Regardless Of What Your Expert May Say

    Equal Employment Opportunity Commission vs. Dresser Rand Company, Case No. 04-CV-6300, W.D.N.Y  (August 10, 2011) Is an employee terminated for a discriminatory reason required to seek retraining or additional education in order to mitigate his damages?  The District Court of the Western District of New York in Equal Employment Opportunity Commission vs. Dresser Rand Company, Case […]

    NLRB Reminds Employers That Social Media Comments Are Protected By the NLRA

    Bay Sys Technologies, LLC (05-CA-36314; 357 NLRB No. 28) (August 2, 2011) On February 28, 2011, the Acting General Counsel of the NLRB issued a complaint against Bay Sys Technologies, LLC, alleging violation of Section 8(a)(1) of the National Labor Relations Act. The employee posted comments on several employees’ Facebook pages so the employees could […]

    S.D.N.Y. Refuses to Enforce European “Mail Interception Order” due to U.S. Privacy Concerns

     In Re Dr. Jürgen Toft, 2011 Bankr. LEXIS 2733 (Bankr. S.D. N.Y. July 22, 2011) On July 22, 2011, the Bankruptcy Court for the Southern District of New York refused to enforce an order from a court in Germany for e-mail accounts stored on the servers of two internet service providers (“ISPs”) located in the […]

    Circuit Certifies Question in Employment Case

    Joseph v. HDMJ Restaurant Inc., 10-1366-cv (2nd Cir. August 2011)  In a case demonstrating either relentless perseverance or merely a sisyphean expedition through the state and federal judicial systems, the Second Circuit has asked New York Court of Appeals to examine a question of state law concerning res judicata in an employment discrimination case.  In […]

    Not All Actions Taken by Seller of “Good Will” Constitute Improper Solicitation

    Bessemer Trust Co., N.A. v. Branin, 16 N.Y.3d 549, 949 N.E.2d 462 (April 28, 2011) In New York there is an “implied covenant” or “duty to refrain from soliciting former customers” when a transaction involves the sale “good will” of an established business. However, on April 28, 2011, the Second Circuit ruled that this duty […]

    NLRB, Knauz BMW, and…Hot Dogs?

    NLRB v. Knauz BMW, 13-CA-045452 (July 21, 2011) As summer makes its slow march towards fall, it seemed prudent to remind employers that hot dogs are not just for company picnics anymore.  They can be the basis for a unlawful termination suit by the NLRB. On May 20, 2011, the NLRB issued a complaint against […]

    New York Court Says Plaintiff Failed to Show Cause to Sanction Defendant When E-Mails Were Deleted in the Ordinary Course of Business

    Cuttino v. West Side Advisors, 2011 NY Slip Op 32009 (N.Y. Sup. Ct., 2011) In a short order granting, in-part, plaintiff’s request for summary judgment, New York Supreme Court Justice Joan Madden also denied that part of Plaintiff’s motion for sanctions for spoliation of e-mails, which were deleted during the defendant’s ordinary course of business. […]