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Florida employers with federal contracts valued in excess of $100,000 are required to inform

employees of their rights to organize and join unionsunder the National Labor Relations Act (NLRA).Covered employers must post a government-approved notice conspicuously in and around plantsand offices where activities related to the federalcontract are performed. A contractor or subcontrac-tor that customarily posts notices to employees electronically also must post the required noticeelectronically. The official notice may be down-loaded free of charge from the Department of Labor website: http://www.dol.gov/olms/regs/compliance/EmployeeRightsPoster2page_Final.pdf.

Covered employers who do not post the requirednotice may lose individual contracts or be debarredfrom all federal contracts. An employer also may bedebarred if it violates the terms of the notice or oth-erwise interferes with the right of employees tounionize.

Among other things, the required notice tellsemployees that under the NLRA it is illegal for anemployer to:

• Prohibit employees from soliciting for a unionduring non-work time (such as before or afterwork or during break times) or from distributingunion literature during non-work time, in non-work areas (such as parking lots or break rooms);

• Question employees about their union support oractivities in a manner that discourages them fromengaging in that activity;

• Fire, demote, or transfer employees, or reducetheir hours or change their shift, or otherwise takeadverse action against them, or threaten to takeany of these actions, because they join or support a union, or because they engage in concertedactivity for mutual aid and protection, or becausethey choose not to engage in any such activity;

• Threaten to close the workplace if workers choosea union to represent them;

• Promise or grant promotions, pay raises, or otherbenefits to discourage or encourage union support;

• Prohibit employees from wearing union hats, buttons, t-shirts, and pins in the workplace,except under special circumstances; and

• Spy on or videotape peaceful union activities andgatherings or pretend to do so.

For further information, please contact AngelCastillo, Jr., Angel.Castillo@jacksonlewis.com, or the Jackson Lewis attorney with whom you regularly work.

INSIDE THIS ISSUE:

Top Ten Reasons e-Discoveryis a Headache for MostCompanies and Lawyers

Limits to Managers’Authority to Access Employee E-mails

Jackson Lewis News

Jackson Lewis Named“Employment LitigationPowerhouse” by BTIConsulting’s “LitigationOutlook 2011 Report”

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A BULLETIN ON EMPLOYMENT, LABOR, BENEFITS AND IMMIGRATION LAW FOR CLIENTS AND FRIENDS OF JACKSON LEWIS LLP

Winter 2010

All We Do Is WorkSM

Florida FederalContractors Must InformEmployees of Rights to Organize and JoinUnions under NLRA

"The hiring of a lawyer is animportant decision that should not be based solely upon advertisements.

Before you decide, ask us to send you free written informationabout our qualifications and experience." Rule 4-7.3, RulesRegulating the Florida Bar.

ADVERTISEMENT

This year Best Lawyers partnered with U.S.News & World Report to produce the first-ever U.S. News – Best Lawyers “Best LawFirm” rankings. Jackson Lewis was rankedTier 1 nationally, in Employment Law –Management and Labor Law –Management, as well as in 12 of its regionaloffices: Albany; Baltimore; Boston;Greenville; Portsmouth; Omaha; Orlando;Phoenix; Raleigh; Richmond; Stamford; andWhite Plains. Fifteen additional JacksonLewis offices were ranked in Tiers 2-4.

Electronic discovery is arguably the major prob-lem in litigation today. Here are the top ten rea-

sons why this is so:

1. The costs to preserve, find and review electronicevidence, including e-mails, are astronomical andgetting higher every day. Some have reported thatone of the largest companies in the U.S. spends anaverage of $20 million on each case it litigates.While this is not typical, it is no surprise e-discov-ery has mushroomed into a $4.5 billion-a-yearindustry and is now the hot field for entrepreneurs.

2. The risks of losing a case, or being forced to settle a case, because of e-discovery, rather than onthe merits, are unacceptably high for most compa-nies. Mistakes in e-discovery are pervasive and canbe disastrous. In one case, a Florida jury returned a$1.5 billion verdict against a company that repeat-edly failed to produce requested e-mails. (The deci-sion has been reversed on other grounds.)

3. Electronically stored information (ESI) is every-where. Electronic records are easy to destroy or alter,and the bad e-mails and instant messages neverseem to go away. The smoking guns in court roomstoday are found in computers, not filing cabinets. Infact, 98 percent of all business records are in elec-tronic form, 80 percent of which are never convertedto paper or other tangible form. A litigant that doesnot look for ESI will miss key evidence.

4. The amount of electronic information stored bymost corporations today is staggering. For example,more than 78 billion pages of information werestored in Enron’s computers, twice that found in theLibrary of Congress. As of 2010, the world is send-ing more than 100 billion e-mails a day. The vol-ume makes it impossible to retrieve and revieweverything in most large cases. Moreover, it is near-ly impossible for a non-expert to find the proverbialneedles in the haystack.

5. Computer systems and information storage systems have become extremely complex. It is difficult to understand it all and mistakes are almost inevitable, and explanation to judges andmagistrates near impossible.

6. Most companies do not have ESI managementpolicies that function well or monitored or enforced.With thumb drives and online accounts so com-monplace, most companies

have no idea where their business records and com-munications really are, even if they know wherethey are supposed to be.

7. Many judges and magistrates will no longer tolerate e-discovery mistakes. As one judge said,the “pure heart, empty head” defense will no longerwork in his courtroom. Judges today are imposinghigh standards and duties upon the parties in litiga-tion and their legal counsel.

8. The 2006 Amendments to the Federal Rules of Civil Procedure accelerated all deadlines, prohibiting the avoidance of e-discovery issues untilthe end of a case. In order to ensure compliance,companies must be well-prepared in advance ofbeing sued.

9. Most lawyers and law firms are unprepared for e-discovery. Handling e-discovery issues correctlyrequires knowing the basics of information manage-ment and computer technology, not common knowl-edge among attorneys. Often, the most computer-savvy attorneys in a law firm are the youngest, withlittle or no litigation experience.

10. Most corporations and in-house legal counsel areunprepared for e-discovery. Preparation requiresthat a company’s information technology (IT)department and inside legal counsel work togetherwell in advance of a lawsuit.

How to overcome the problem of e-discovery? A company should create its own internal e-discov-ery readiness response team. The team should becomposed of in-house attorneys, IT personnel andmanagement. Even with an internal e-discoveryreadiness team, vendors and outside counsel are stillinvolved, but the corporate client would be incharge. The internal e-discovery team can helpreduce costs, manage risks, and control quality.

The response team’s functions include implementinglitigation holds, collecting data within the timelineof the rules, retaining e-discovery vendors, supervis-ing local counsel, and improving electronic recordssystems. A few companies have done this with goodresults.

Experience shows most companies want and needoutside help to set up their team. Our e-discoveryprogram is designed to empower the company byhelping the company to start and run its own team.We serve as team coach and trainer. The client is theowner and has its own captain. Just like a coachsometimes has to step up and argue with the referees, we also appear in court when necessary toadvocate the team’s position and assist local counselon these issues. In that sense, we also serve as anational e-counsel.

For further information, please contact Ralph Loseyat Ralph.Losey@jacksonlewis.com.

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EDITOR-IN-CHIEF:

Lillian Chaves Moon, Esq.407-246-8452MoonL@jacksonlewis.com

Lillian Chaves Moon is an associate inthe Orlando, Florida office of JacksonLewis LLP. Ms. Moon earned aBachelor of Arts degree in 1995 andher Juris Doctor degree in 2000 fromBrigham Young University in Provo,Utah. The majority of her practice isdevoted to employment litigation,defending employers in federal andstate courts, as well as before theEEOC and other administrative agen-cies. She also provides clients withday-to-day advice and counselingregarding employer policies and vari-ous workplace law issues as theyarise. In addition, prior to practicingin Florida, Ms. Moon served as anappellate attorney for the UnitedStates Department of Labor inWashington, D.C., representing theSecretary of Labor in federal appel-late courts in cases brought pursuantto the Occupational Safety andHealth Act. Ms. Moon is a memberof the Florida Bar, and the U.S.Supreme Court Bar.

This update is provided for informa-tional purposes only. It is not intendedas legal advice nor does it create anattorney/client relationship betweenJackson Lewis LLP and any readers orrecipients. Readers should consultcounsel of their own choosing to dis-cuss how these matters relate to theirindividual circumstances. Reproductionin whole or in part is prohibited with-out the express written consent ofJackson Lewis LLP.

This update may be considered attor-ney advertising in some states.Furthermore, prior results do notguarantee a similar outcome.

Jackson Lewis LLP represents man-agement exclusively in workplace lawand related litigation. Our attorneysare available to assist employers intheir compliance efforts and to repre-sent employers in matters beforestate and federal courts and adminis-trative agencies. For more informa-tion, please contact the attorney(s)listed or the Jackson Lewis attorneywith whom you regularly work.

© 2010, Jackson Lewis LLP

Top Ten Reasons e-Discovery is aHeadache for MostCompanies and Lawyers

Managers should remember to exercise cautionwhen they wish to access employee e-mails.

Based partially upon an interpretation of Floridalaw, a Virginia district court has ruled that a limitedliability company’s partner does not always have theauthority to access his partner’s e-mails simply byvirtue of his status in the company. Global PolicyPartners, LLC, et al. v. Yessin, 2009 U.S. Dist. LEXIS 112472 (Nov. 24, 2009).

Katherine and Brent Yessin, husband and wife andbusiness partners, were feuding as part of a messydivorce and business dissolution. Mrs. Yessin allegedher husband had illegally accessed her personal e-mails, including those containing attorney-clientcommunications in her divorce case, stored on thecompany’s server. In a motion to dismiss his wife’scomplaint, Mr. Yessin argued that under Floridalaw, as a manager/partner in his business, he had the authority to access all e-mails stored on the business’s computer server, regardless of his reasonfor doing so. The court disagreed.

The court found that even assuming Florida lawauthorized managers to access e-mail informationstored on a company’s computer system, authoriza-

tion is limited to carrying out the company’s business. Because the scope of Mr. Yessin’s authorityto access his wife’s e-mails depended upon a detailedfactual inquiry into his purposes for doing so, Mr.Yessin’s motion to dismiss the complaint was deniedand Mrs. Yessin was allowed to proceed in heraction.

Caution for employersThis decision has implications for employers in howand why managers may access employee e-mails.While an employer generally has the right to reviewstored e-mails on the employer’s system, regardlessof whether the e-mails are an employee’s personal orbusiness communications, the employer or its agentmust have a legitimate business purpose, not anefarious reason, for such review. Some courts, how-ever, have limited an employer’s ability to review anemployee’s e-mails in other situations, such as whenthe e-mail is subject to the attorney-client privilege.

Employers’ policies and procedures for accessingemployee e-mails should be periodically reviewedand revised, where necessary, to ensure that the indi-viduals who access lawfully stored e-mails not onlyhave the appropriate status within the company, butalso are doing so for legitimate business purposes.

For further information regarding privacy concernsin your workplace, please contact Joseph Lazzarotti,LazzarottiJ@jacksonlewis.com, Lillian Moon,MoonL@jacksonlewis.com, or the Jackson Lewisattorney with whom you regularly work.

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Limits to Managers’Authority to AccessEmployee E-mails

We are pleased to announce that Adrienne Conradhas joined the firm’s Jacksonville office as a Partner.Ms. Conrad defends companies in litigation regard-ing discrimination and harassment, as well as litiga-tion under Employee Retirement Income SecurityAct (ERISA) and the Fair Labor Standards Act(FLSA). In addition, she represents companies incomplex non-competition litigation and class actionsuits. Her practice also includes breach of contract,promissory estoppel, quantum meruit, breach offiduciary duty, negligent misrepresentation, conversion, and tortious interference claims.Additionally, she regularly litigates cases under theFair Debt Collection Practices Act.

Ms. Conrad, for the past two years, has been recog-nized as a Rising Star by Florida Super Lawyers.Ms. Conrad obtained her law degree from CornellUniversity Law School and a bachelor’s degree fromUniversity of California, Los Angeles (UCLA), whereshe graduated magna cum laude.

Ms. Conrad may be reached atAdrienne.Conrad@jacksonlewis.com.

Jacksonville Office Continues Expansion

Jackson Lewis News

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Jackson Lewis LLP 666 Third Avenue New York, NY 10017 Attn: Client Services

Please include the title of this publication.

“Deeply honored and humbled” are ChairmanPatrick Vaccaro’s words after Jackson Lewis wasnamed “Employment Litigation Powerhouse” byBTI Consulting Group in its 2011 LitigationOutlook Report. Jackson Lewis is the only law firm given this distinction. The report is based onover 300 one-on-one interviews with Fortune 1000in-house litigation counsel and practice leadersresponsible for outside legal services. BTI is a leading provider of strategic research to law firmsand general counsel.

Vincent Cino, National Director of Litigation said, “This is a wonderful validation for all of thehardworking Jackson Lewis litigators who, on adaily basis, are responsive, creative and passionateabout our practice. We are thrilled to receive thisrecognition.”

Among the reasons Jackson Lewis earned the topspot is the firm’s pioneering, value-orientedapproach to meeting corporate clients’ needs forbudget certainty through alternative fee arrange-ments. The firm also “practices what it preaches”by making professional staff diversity an integralpart of its business model: 20% of Jackson Lewisoffices are managed by women partners, and 25% ofits litigation managers and practice area coordinatorsare women. Jackson Lewis was retained to handle1,911 new litigation matters in 2009 and currentlyhas over 5,000 open litigations (of which 300 areclass actions).

For more information on the report, visit www.bticonsulting.com.

Jackson Lewis Named“Employment LitigationPowerhouse” by BTIConsulting’s “LitigationOutlook 2011 Report”

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JACKSON LEWIS OFFICES:

Jackson Lewis LLP represents management exclusively in employment, labor, benefits and immigration law and related litigation.

The firm has 46 offices and more than 650 attorneys.

Jackson Lewis represents employers before state and federal courts and administrative agencies on a wide range of issues, including discrimination,wrongful discharge, wage/hour, affirmative action,immigration, and pension and benefits matters.Jackson Lewis negotiates collective bargaining agreements, participates in arbitration proceedingsand represents union-free and unionized employersbefore NLRB and other federal and state agencies.The firm counsels employers in matters involvingworkplace health and safety, family and medicalleaves and disabilities.