Legal Updates

NLRB Weighs in on Employers’ Right to Monitor Workplace Communications

E. Jason TremblayE. Jason Tremblay

It has traditionally been understood and recognized that employees do not have an expectation of privacy when using their employer’s computer system and that employers can monitor and control their employees’ emails. However, in light of a recent decision by the National Labor Relations Board (“NLRB”) in Purple Communications, Inc., 361 NLRB 126 (2014), employers may need to rethink this commonly held belief.

In Purple Communications, the NLRB overruled long-established precedent that employees have no statutory right to use their employer’s email system for Section 7 purposes and held instead that employee use of email for statutorily protected communications on nonworking time must be presumptively permitted by employers that give employees access to their email systems.

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by Peter H. Baek, CPA, CA, LLB, Partner, Fogler, Rubinoff LLP *

This article was originally published in the CCH Tax Topics Newsletter, Issue No. 2243.


“What if you lose your EFILE privileges?” I asked this question to an accountant in public practice. I believe I heard the words “devastating” or “significantly detrimental”. In this day and age, electronic filing (“EFILE”) and other internet privileges have become a vital asset to many accounting firms. The loss of such privileges could be very disruptive and detrimental to an accounting practice. Accordingly, when a court decision about revoking EFILE privileges comes up, I imagine many accountants will be keenly interested in finding out how such privileges were lost, hoping that there was some compelling evidence of fraud or other sufficiently egregious conduct to allay any fear that they could end up in similar circumstances. More…

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Limitations Period For Bringing Discrimination and Retaliation Claims May Be Contractually Shortened

E. Jason TremblayE. Jason Tremblay

A recent case from the Northern District of Illinois, Lugihibl v. Fifth Third Bank (Case No. 13 CV 7193, March 16, 2015, Kennelly, M.), held that Title VII and ADEA limitations periods can be contractually shortened under certain circumstances, despite the general 300-day limitations to bring such claims in Illinois.

In Lugihibl, a bank employee brought sex and age discrimination and retaliation claims against his employer after he was discharged. While the discharged employee filed his EEOC charge within the 300-day period allowed in Illinois, he filed it after the six-month (or 180-day) period that he contractually agreed to in his incentive compensation agreement for bringing such claims. Specifically, the incentive compensation agreement stated that the employee would not commence an employment-related action “[m]ore than six months after the termination of Employee’s employment, if the action or suit is related to the termination of Employee’s employment,” or “[m]ore than six months after the event or occurrence on which Employee’s claim is based, if the action or suit is based on an event or occurrence other than the termination of Employee’s employment.” The discharged employee also contractually agreed to waive any statute of limitations periods that were contrary to this position.

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NLRB Extends “Specialty Healthcare” to Acute Care Hospitals: Carves Unit into Multiple Smaller Pieces

My colleague Barry A. Guryan published a Health Employment And Labor (HEAL) blog post that will be of interest to many of our readers: “NLRB Extends “Specialty Healthcare” to Acute Care Hospitals: Carves Unit into Multiple Smaller Pieces.”

Following is an excerpt:

Ever since 1974, when the NLRB(“Board”) first took jurisdiction over health care institutions, the Board has paid particular attention to the impact of union organizing on the delivery of healthcare in this industry in general  and of acute care hospitals in particular.  When the Act was first amended in 1974, it stated its objective at that time was to avoid a “proliferation of bargaining units” as one method to limit the inevitable disruption created by numerous elections and negotiations while at the same time balancing employee’s opportunity to exercise its Section 7 rights to organize and collectively bargain.

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Blind Invention

Prior user under s 7 Patents Act 1990 (C’th) will not invalidate a patent if the act did not actually make publicly available all the relevant information necessary to disclose all the essential integers of the impugned claims, according to the Federal Court in a decision handed down 13 March 2015: Damorgold Pty Ltd v JAI Products Pty Ltd [2015] FCAFC 31.

The Full Federal Court has made it clear that prior user attacks cannot rely merely on whatcould have happened, only on what did happen.

The case involved a patent for a spring assisted blind mechanism – a type of roller blind. At trial a number of the claims were struck down for lack of novelty based on prior user, the evidence in relation to which was that (paras [18], [35]): More…

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Thought on Developing Convention on Enforceability of Settlement Agreements Reached Through Conciliation 2015/3/20 21:39:02

The UN Commission on International Trade Law (“UNCITRAL”) held its 47th session in New York on 7-18 July 2014 and the Author had the privilege of attending the conference at invitation of Mr. Yu Jianlong, President of the Asia Pacific Regional Arbitration Group (“APRAG”). During the conference, the U.S. Government submitted a proposal suggesting Working Group II (Arbitration and Conciliation) of UNCITRAL (“Working Group II”) to develop a multilateral convention with respect of the enforceability of international commercial settlement agreements reached through conciliation (“Enforceability Convention”) for the purpose of encouraging the use of conciliation in resolving international commercial disputes.

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ICC and CIETAC Arbitration Practice Comparison — Case Study Note 1 2015/3/20 21:37:13

One of the most important negotiated points by parties in contract negotiations is the dispute resolution clause. If parties agree on arbitration, they often negotiate which arbitration institution or arbitration rules will apply in resolving potential disputes.

Over the past ten years, there has been an increase in various activities by arbitration institutions around the world to compete for influence in international dispute resolution. Undoubtedly, each arbitration institution has its own characteristics and parties will always have their own preferences. However, some have posited that there is a general trend of convergence among different arbitration institutions in terms of practices and rules. If true, such a convergence would hopefully make the selection of arbitration institutions and arbitration rules less of a critical and contested issue for parties in contracts negotiations. 

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Premera Breach: Is HIPAA Compliance Enough?

Many health care businesses assume that HIPAA compliance guarantees protection from data breaches. Unfortunately, this is not a correct assumption. The health insurance company Premera Blue Cross recently announced that it was the target of a sophisticated cyber attack.  It is estimated that the personal information of eleven million individuals may have been accessed by […]

The post Premera Breach: Is HIPAA Compliance Enough? appeared first on OMW Health Law.

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In a recent Law360 article, Beirne, Maynard & Parsons partnerScott D. Marrs and founding partner Martin D. Beirne discuss the rise of cyber attacks and how corporate America should assess and strengthen their cyber security safeguards to not only avoid reputational damage but also theft of their intellectual property. To read the article, please access the following pdf.

PDF FileHow GCs and Boards Can Brace For The Cybersecurity Storm

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Business Law Alert: New capital rules have consequences

As a result of the Dodd-Frank Wall Street Reform Consumer Protection Act (the Dodd-Frank Act), new capital rules were implemented for all banks and thrifts effective by Jan. 1, 2015.

Under the new capital rules, credit facilities that finance the acquisition, development, or construction (ADC) of real property are classified as high volatility commercial real estate (HVCRE). Classification as HVCRE occurs for the period of the project; upon completion of a project and either repayment of the loan or movement to permanent financing, such loan is no longer classified as HVCRE.

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