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Law Office of Yuriy Moshes Blog

Law Office of Yuriy Moshes P.C. blog is a law firm blog for up to date content. Check back here often for news, legal developments and tips. We look forward to hearing from you and thanks for reading our blog. We welcome suggestions on topics you would like featured in the blog. Whether you are another lawyer, a current or past client, we look forward to a nice dialogue about today’s legal trends. We aim to update our blog on a weekly basis, and check out our Facebook page for legal tips of the day.

We specialize in the subjects of real estate, foreclosure defense, personal injury, labor and employment matters and civil litigation. Please see our posts related to these topics.

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Southern District of New York Refuses to Enforce Restrictive Covenants Against Former Employees

The Southern District of New York recently denied Document Technologies, Inc.’s (“DTI”) motion for a preliminary injunction to enforce restrictive covenants against four former employees as well as against a competitor, LDiscovery, who hired the four former employees. See In re Document Techs. Litig., No. 17-cv-2405, 2017 U.S. Dist. LEXIS 104811 (S.D.N.Y. July 5, 2017). In this case, DTI alleged that the former employees (“Individual Defendants”) conspired with LDiscovery to misappropriate thei...

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New York Court Finds There is No Expectation of Privacy in Employer-Owned Email Account

In Peerenboom v. Marvel Entertainment, LLC, 2017 NY Slip Op 01981 (1st Dep’t March 16, 2017), the New York Appellate Division, First Department, held that an employee did not have a reasonable expectation of privacy in his employer-owned email account and, therefore, any emails exchanged with his personal attorney through this email system were not protected by attorney-client privilege. For the same reason, the First Department found that any emails exchanged with his wife through the same emai...

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Second Circuit Holds that Pre-Litigation Offer of Reinstatement Should Not Have Been Admitted into Evidence in Pregnancy Discrimination Lawsuit

In Sheng v. M&TBank Corp., 2017 U.S. App. LEXIS 1912 (2d Cir. Feb. 2, 2017), the Second Circuit Court of Appeals held that the District Court erred in permitting the admission of an employer’s offer of reinstatement because the offer was, as a matter of law, not unconditional.  In this case, the plaintiff was working remotely in Los Angeles as Team Lead for the defendant’s New York office through the defendant’s Alternative Work Arrangement policy.  While working remotely, the pla...

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Unlawful Retaliation Against Employees Who Raise Health and Safety Issues or Report Work-Related Injuries

Under the Occupational Safety and Health Act of 1970 (“OSH Act”), employers are responsible for providing safe and healthy workplaces for their employees. Section 11(c) of the OSH Act, which is enforced by the Occupational Safety and Health Administration (“OSHA”), prohibits retaliation against employees for exercising a wide range of rights afforded to them by the OSH Act, including but not limited to: * communicating orally or in writing with management personnel about occupational safety or h...

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In New York, the Availability of Client Information on the Internet Will Defeat Employer’s Trade Secret Claim Against Former Employee

In the absence of a contractual agreement, an employee is free to solicit customers from his former employer unless trade secrets are involved or fraudulent methods are employed. In determining whether a trade secret exists, New York courts consider the following factors: “(1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the business to guard the sec...

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FLSA Collective Action and New York Labor Law Class Action Hybrid Lawsuits

As Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”) claims usually revolve around the same set of operative facts, plaintiffs frequently pursue, in the same lawsuit, the FLSA claims as a collective action and the NYLL claims as a class action under Rule 23 of the Federal Rules of Civil Procedure (“Rule 23”). The primary difference between a Rule 23 class action and an FLSA collective action is the manner in which a class is formed. In order to participate in an FLSA collective a...

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Title VII’s Continuing Violation Doctrine

In New York, before someone can file a Title VII discrimination/sexual harassment lawsuit in federal court, he or she must first file a charge (complaint) with the Equal Employment Opportunity Commission (EEOC) within 300 days of the alleged discriminatory act(s).  When analyzing a Title VII hostile work environment discrimination claim, courts will then usually only consider events that occurred within those 300 days.  However, courts can consider incidents that occurred outside the s...

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Requirements for a Valid Waiver Under the Age Discrimination in Employment Act (“ADEA”)

Many people wonder why severance agreements often advise the employee “to consult with an attorney before signing this agreement.” Employers don’t include this language out of the kindness of their heart or out of concern for the employee, but rather because it’s mandated by the Age Discrimination in Employment Act (“ADEA”) – meaning that this language is only required in agreements where the employee is waiving any rights she or he might have relating to discrimination on the basis of age. In f...

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New York Labor Law Specifically Limits Preclusive Effect of Unemployment Decisions in Subsequent Lawsuits Against Same Employer

People frequently ask me whether they can sue their former employer for discrimination even though the unemployment insurance board found that they were terminated “for cause” and thus denied them unemployment benefits. Fortunately, the answer in New York is “yes.” Pursuant to New York Labor Law § 623(2), determinations made by a Department of Labor Administrative Law Judge or even by the New York Unemployment Insurance Appeal Board have no preclusive effect in subsequent judicial actions agains...

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Unlawful Retaliation for New York City Employers

Although most employers understand and are cognizant of the numerous New York City, New York State, and Federal anti-discrimination laws, many supervisors often forget that those same statutes also prohibit retaliation for raising one’s rights pursuant to those laws.  Any criticism, discipline or other adverse employment action taken against an employee who recently complained of discrimination may be construed as unlawful retaliation. All companies should develop an official policy that d...