Adjunct Law Prof Blog

A 3 Year College Degree

An interesting article in the May 30, 2012 Washington Post entitled New momentum for the three-year degree? outlines the fact that at least two colleges are now offerring 3 year college degrees. The article describes the advantages of a 3 year degree as follows:

The three-year degree holds great promise as a solution to several problems vexing higher education.

One is affordability. At Wesleyan, the annual sticker price is $58,232, although the average student receiving grant aid pays only $21,854. A three-year degree eliminates most or all of that fourth-year tuition and potentially puts the student in the job market a year early.

Another is attainment. President Obama wants the nation to regain the world lead in college attainment (the share of adults with degrees) by 2020. A three-year degree accelerates the pace of completion and opens more seats in the higher-education pipeline. Plus, it’s well-documented that students who remain in college longer stand a progressively worse chance of ever graduating

Presumably, the students still have to take the same amount of classes. This is actually nothing new. I knew students who graduated early by taking classes over the summer and during intersession. 

Frankly, I doubt that this is a good thing. While I have no doubt that many students can finish their degrees earlier, I also have no doubt that rushing things will result in them learning less-much less. There is also a maturity factor that young college students often do not appreciate. 

Mitchell H. Rubinstein

7th Holds Laid Off Teachers Due Not Have Due Process Recall Rights

Chicago Teachers Union v. Board of Educ. of the City of Chicago, ____F.3d____ (7th Cir. Apr. 19, 2012), is an interesting case. The Seventh Circuit reversed a district court’s ruling granting the Chicago Teachers Union (CTU) a preliminary and permanent injunction ordering the Chicago Board of Education to rescind its economic layoff of tenured teachers and to promulgate layoff and recall rules for tenured teachers. The panel’s decision to reverse and remand with instructions for the district court to vacate the injunction was based on the responses to questions the panel certified to the Illinois Supreme Court, which determined that Illinois law did not give laid-off teachers substantive rights with respect to rehiring and rights to certain procedures during the rehiring process.

 

 

Linda's Home Team Run-June 10, 2012 Providence, New Jersey

 Linda (in Pink) Mollie (in Black) March 2012

As many of you know, on June 29, 2012, my 13 year old daughter, Linda, received a Kidney transplant from a child donor who died in a tragic accident. We are forever greatful to that wonderful family.

My older daughter, Mollie made a YouTube Video about Linda and her Kidney transplant to support the New Jersey Sharing Network. Mollie also made a Facebook Page. The New Jersey Sharing Network facilitates organ donation and transplant and is the organization responsible for helping Linda obtain her new Kidney. 

On June 10, 2012, The New Jersey Sharing Network is sponsoring a 3 mile run/walk to help raise money for this critically important cause. The event will take place in Providence New Jersey and starts at 9 am. Information about the run/walk can be found here. 

I hope that you will consider joining us on June 10th. If you cannot make it, contributions are welcome. 100% of the donations go to the N.J. Sharing Network. 

If you want to sign up to run/walk, click here. You should click on "join an existing team" and click on Linda's Home Team. If you cannot make it and would just like to contribute, you can make a donation on my fundraising page. 

This is the least that we can do. And please consider indicating on your drivers license that you are willing to be an organ donor. 

Thank you,

Mitch Rubinstein

Determining if a grievance resulting from an alleged violation of a collective bargaining agreement is subject to arbitration

 

In the Matter of the Arbitration between the Village of Horseheads and the Horseheads Police Benevolent Assn., Inc., 2012 NY Slip Op 02543, Appellate Division, Third Department

The Appellate Division, affirming a lower court’s ruling, said that the role of the court in reviewing an application to stay arbitration is limited. In determining if a particular grievance is subject to arbitration, the court must first determine if the parties may lawfully arbitrate the underlying dispute and, if so, whether they did in fact agree to so arbitrate the issue.

In this instance the Village of Horseheads did not contend that there was a statutory, constitutional or public policy prohibition against arbitrating this particular grievance. Accordingly, the sole issue for the court to determine was whether or not the parties, in accordance with the terms of the collective bargaining agreement, agreed to arbitrate the grievance presented by the Police Benevolent Association. 

The relevant collective bargaining provision, said the court, defined a grievance as "any claimed violation, misinterpretation or inequitable application of existing laws, rules, procedures, regulations, application or enforcement of the terms of this agreement, administrative orders or work orders or rules of [the Village]." 
Whether the Village’s action constituted an actual violation of a rule or regulation "goes to the merits of the grievance [itself], not to its arbitrability," said the court. Accordingly, this was an issue for the arbitrator to resolve. 

In contrast, the Appellate Division emphasized that “For purposes of [its] limited inquiry, it [was] sufficient that [the Association had] asserted a ‘claimed violation’ of certain rules and regulations and that a ‘claimed violation’ is, in turn, subject to the grievance procedure set forth in the CBA “

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02543.htm

 

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

U.S. Supreme Court renders unanimous decision: private individuals working on temporary basis for government are entitled to qualified immunity from § 1983 suits

Filarsky v. Delia, No. 10-1018 (U.S. Apr. 17, 2012)

Employee May Be Denied Unemployment For Off Duty Misconduct

Matter of Vetro v. Commissioner of Labor, ____A.D.3d____(3d Dep't. April 19, 2012), illustrates an important point. An individual found to have engaged in off-duty misconduct can be denied unemployment for that misconduct. As the court expalined:

Claimant, a high school principal, resigned his position in lieu of termination following his arrest on multiple counts of aggravated harassment in connection with harassing phone calls allegedly made to various women, including a teacher at a different school. He ultimately pleaded guilty to two of the counts, which were later reduced to harassment in the second degree. Substantial evidence supports the decision of the Unemployment Insurance Appeal Board finding that claimant was discharged from his employment due to misconduct. While claimant points out that these convictions stemmed from activity unrelated to his employment, "[m]isconduct committed during nonworking hours, which raises serious questions as to a worker['s] integrity, bears a relationship to his [or her] work within the meaning of . . . the Labor Law" (Matter of Cummings [Commissioner of Labor], 69 AD3d 1088, 1089 [2010] [internal quotation marks and citations omitted]; see Matter of Rose [New York City Dept. of Social Servs.—Hudacs], 190 [*2]AD2d 926, 926 [1993];Matter of McCallum [New York City Dept. of Transp. Bur. of Highways-Roberts], 126 AD2d 833, 833-834 [1987], lv denied 69 NY2d 613 [1987]).

Mitchell H. Rubinstein

Breaking News NLRB Member Terrance Flynn Resigns

This is the text of the NLRB Press Release:

Contact:
Office of Public Affairs
202-273-1991
publicinfo@nlrb.gov
www.nlrb.gov

Yesterday evening, May 26, Board Member Terence F. Flynn submitted his resignation to the President and to NLRB Chairman Mark Gaston Pearce.

His resignation is effective July 24, 2012.  He has immediately recused himself from all agency business and has asked that the President withdraw his nomination for Board Member of the NLRB. 

Mr. Flynn was sworn in as a Board Member on January 9, 2012. He joined the Board in 2003 as Chief Counsel to Member Peter Schaumber, and had previously been in private practice. The letter of resignation, dated May 25, was delivered via FAX and email on May 26.

Earlier today, Chairman Pearce informed NLRB employees of the resignation and, on behalf of the entire Board, thanked them for their "hard work and commitment to excellence through even the most difficult circumstances." He intends to issue a statement after communicating with the staff on Tuesday.

Of course, we all know why he resigned. An Inspector General Report recently alleged that he gave non-public information to a former Board member who is now in private practice. What I find most interesting is whether the President will appoint a pro labor or pro management member. Flynn was a pro management appointment. Traditionally the President appoints 3 members from his party and 2 from the opposition. That tradition is not required by law and, in my view, is ridicious. Maybe a larger debate will come of this and that is the constant flip flopping of the NLRB when the administration changes. Something needs to be done about this. The problem, and its a big problem, is when do you change the process? On the flip or the flop?? 

Mitchell H. Rubinstein

The denial of a FOIL request by an entity subject to the Freedom of Information Law may not be based on the purpose for which the document or record was produced or the function to which it relates

 

Hayes v Chestertown Volunteer Fire Co., Inc., 2012 NY Slip Op 02367, Appellate Division, Third Department

The Chestertown Volunteer Fire Company, Inc. [CVFC] partially denying Christine A. Hayes’s Freedom of Information Law requests, contending that it was a private corporation not subject to the requirements of FOIL.

Ultimately Hayes initiated a CPLR Article 78 proceeding seeking to compel CVFC to comply with numerous FOIL requests and the Open Meetings Law, as well as an award of counsel fees and litigation costs.

Supreme Court held that the Open Meetings Law was not applicable to the meetings held by CVFC and ordered CVFC to submit the documents requested by Hayes to the court for an in camera review so that it could redact any records containing "non-firematic" information. Hayes appealed.

The Appellate Division, agreeing with Hayes, said that “to the extent Supreme Court's FOIL determination differentiated between records concerning public, or ‘firematic,’ and private functions of CVFC, this was error.”  Although Supreme Court found, and CVFC conceded, that CVFC is an "agency" subject to the requirements of FOIL, it was incorrect in determining that “because CVFC engages in both governmental and private activities, the records of its nongovernmental functions are not subject to FOIL's disclosure requirements.”

Commenting that nothing in the statute itself and nothing in the legislative history suggesting that the Legislature intended such content-based limitation in defining the term "record," the Appellate Division said that the Court of Appeals has consistently held that "FOIL's scope is not to be limited based on 'the purpose for which the document was produced or the function to which it relates,'" citing Westchester Rockland Newspapers v Kimball, 50 NY2d at 581.

Having determined that CVFC is an "agency" subject to FOIL, the Appellate Division said that Supreme Court was required to order disclosure of the requested records — without regard to whether they related to governmental or nongovernmental functions — unless one of the exceptions set forth in Public Officers Law §87 (2) was applicable.” Noting that CVFC had not claimed the benefit of any FOIL exemption,* "it must make the requested records available” to Hayes.

The Appellate Division, however, said that it was not persuaded that Supreme Court erred in denying Hayes' request for counsel fees and litigation costs. Explaining that "Reasonable counsel fees 'may' be awarded by the court in a FOIL proceeding where the litigant has 'substantially prevailed,' where the court finds that the record involved was 'of clearly significant interest to the general public' and where 'the agency lacked a reasonable basis in law for withholding the record,'" the court said that even where all of the statutory requirements have been met, "the decision whether to award counsel fees rests in the discretion of the court and will not be overturned in the absence of an abuse of such discretion." 

Although Hayes had “substantially prevailed,” characterizing the documents sought as “not of significant interest to the general public, the Appellate Division decided that Supreme Court had not abused its discretion in denying Hayes' request for attorney fees and costs.

As to Hayes’ complaint concerning CVFC's alleged violation of the Open Meetings Law, the Appellate Division held that although “CVFC is an ‘agency’ under FOIL, it is not a ‘public body’ subject to the Open Meetings Law” and thus its monthly meetings need not be open to the public.

The Open Meetings Law, said the court, requires that "[e]very meeting of a public body … be open to the general public," citing Public Officers Law §103[a], and defines "public body" as "any entity, for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof."

While there was no dispute that the Fire District, as a political subdivision of the State and thus a "public body," is subject to the Open Meetings Law, the Appellate Division noted that, in contrast, CVFC is a private, not-for-profit corporation organized as a charitable organization under the Not-For-Profit Corporation Law and governed by its constitution and bylaws.** 

As the record established that, unlike the meetings of the Board of Fire Commissioners of the Fire District where the official government business of the Fire District is conducted, the meetings of CVFC relate to its internal affairs and the social, recreational and benevolent activities that it undertakes in furtherance of its charitable purpose. Further, said the court, CVFC receives no public funds for such events and activities, which are instead supported through fundraising and donations from private sources. Accordingly, the Appellate Division concluded that CVFC is not a "public body" under the Open Meetings Law.

* The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

** See N-PCL §§201 and 1402[e][1].

The decision is posted on the Internet at:

 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02367.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

Maryland Joins Illinois in Recognizing a Labor Relations Privilege

Readers to this blog know that I am interested in the legal question of whether or not a labor relationsprivilege is developing. I have written two law review articles on this topic, the most recent of which is  “Is a Full Labor Relations Evidentiary Privilege Developing?“

Maryland now joins Illinois as the only two states that have enacted, by legislation, a labor relations privilege. Senate Bill No. 97, effective Oct. 1, 2012, was recently signed into law by the Governor, here. The statute provides, with certain exceptions:

A labor organization or an agent of a labor organization may not be compelled to disclose any communication or information the labor organization or agent received or acquired in confidence from an employee while the labor organization or agent was acting in a representative capacity concerning an employee grievance

This is a major development and it is my hope that other states follow Maryland and Illinois' lead. Even without explicit legislation, as I argued in my law review article, there is need for courts to recognize a labor relations privilege. Public policy should encourage and support open and frank communications between bargaining unit employees and their unions. This would be healthy for both management and labor. With honest and frank communication, perhaps less industrial strife will occur. Open and honest communications may result in fewer grievances being filed and the filing of grievances with merit. 

 

Hat Tip: Jean Marc Favreau, Esq.

               Peer, Gan Geisler, Washington D.C. 

 

 

 

A party seeking to set aside a stipulation in a judicial or quasi-judicial proceeding must demonstrate “good cause” such as fraud, overreaching, duress, or mistake

 

Sheng v State of N.Y. Div. of Human Rights, 2012 NY Slip Op 02310, Appellate Division, Second Department

The New York State Division of Human Rights dismissed Juan Y. Sheng’s  administrative complaint alleging unlawful discrimination after deterimining that there was “no probable cause.” Subsequenlty Sheng asked  Supreme Court to vacate a stipulation discontinuing the proceeding before the Division with prejudice. Supreme Court denied Sheng’s petition.

The Appellate Division dismissed Sheng’s appeal, explaining that stipulations disposing of proceedings and actions "are favored by the courts and are not to be lightly set aside, especially where, as here, the party seeking to vacate the stipulation was represented by counsel." Further, said the court, A party seeking to set aside such a stipulation will be granted relief only upon a showing of good cause sufficient to invalidate a contract, such as fraud, overreaching, duress, or mistake,” citing McCoy v Feinman, 99 NY2d 295.

Concluding that Supreme Court properly determined that Sheng failed to demonstrate good cause to set aside the stipulation discontinuing the proceeding with prejudice, the Appellate Division commented that “The failure of [Sheng’s]  attorney to ascertain or understand the legal effect of a discontinuance with prejudice was not a basis upon which to vacate the sitpulation.”

Further, the court said that Sheng submitted no evidence in support of her claim of fraudulent inducement based on opposing counsel's failure to inform her counsel of the legal ramifications of a discontinuance with prejudice. In the words of the Appellate Division, “opposing counsel owed no duty to disclose her understanding of those legal ramifications” to Sheng or Sheng’s attorney.

The decision is posted on the Internet at:

 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02310.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

Health insurance benefit enjoyed by retired individuals not subject to collective bargaining between the employer and the employee organization absent the consent of all the parties

 

DiBattista v County of Westchester, 35 Misc3d 1205

The action involved some 1,600 individuals who retired from Westchester County as their employer between 1993 and 2004.

Between 1993 and 2001, two collective bargaining agreements were executed between CSEA and Westchester County. These agreements, among other things, provided for certain medical health insurance benefits. Those provisions remained in effect until May 2004 when a new agreement was made.

The 2004 agreement changed the health benefits available to active employees and Westchester County decided that such changes should also be imposed on its then retired employees. The County indicated that it had been its policy to treat retirees the same as active employees whenever a new collective bargaining agreement negotiated.

The retired employees sued, contending the County could not modify their health insurance benefits to reflect the benefits it and CSEA had negotiated on behalf of active employees in the collective bargaining unit when such modification resulted in an increase in their medical and health insurance costs.

Justice Lefkowitz agreed, ruling:

1. “Absent consent of all parties, a union does not represent retirees when it negotiates with an employer in collective bargaining;

2. “Vested retirement rights may not be altered without the pensioner's consent;

3. “Where, as here, there is no durational limit in the immediate prior collective bargaining agreements as to retiree health insurance benefits 'it is unlikely that such benefits, which are typically understood as a form of delayed compensation for past services, would be left to the contingencies of future negotiations';

4. “Retiree benefits 'carry with them an inference that they continue so long as the prerequisite status is maintained'; and

5. “This inference trumps any general duration clause as to the life or termination of the agreement.”

Deciding in favor of the retirees, Justice Lefkowitz held that the retirees’ health insurance benefits set out in the prior collective bargaining agreements survived the 2004 negotiated agreement and could not be modified without their consent, citing Hudock v. Village of Endicott, 28 AD3rd 923 and other decisions.

N.B. The County appealed Justice Lefkowitz's decision but subsequently decided to withdraw its appeals. The Appellate Division granted the County’s application to withdraw the appeals [DiBattista v County of Westchester, Slip Opinion No: 2010 NY Slip Op 60446(U), Appellate Division, Second Department, Motion Decision].

The decision is posted on the Internet at:

 

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_52731.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

Failure to possess a valid license or certificate required by law to perform the duties of the position held a valid basis for terminating the incumbent from the position

 

Lutz v Krokoff, 2012 NY Slip Op 22083, Supreme Court, Albany County, Justice Michael C. Lynch

An Albany, New York police officer’s driver’s license was revoked as the result of an off-duty incident.

The Chief of Police wrote the officer indicating that possession of a valid driver’s license “is a minimum qualification for [a] Police Officer in the City of Albany” and offered him “the opportunity to present ...written documentation regarding the status of [his] license.…” The officer told the Chief that his driver's license was "currently suspended pending prosecution and revoked ... but that he had filed a “Notice of Appeal.”

Chief Krokoff terminated the police officer from his position "effective immediately" explaining:

“In that you no longer hold a valid State driver's license allowing you to lawfully operate a motor vehicle in this State, you no longer meet a critically important minimum qualification of a Police Officer in the City of Albany.”

The officer sued, contending that the Chief’s determination to terminate his employment based on his failure to possess a valid driver's license was affected by an error of law and was arbitrary and capricious. The officer also argues that the determination was without a rational basis and arbitrary and capricious because "no other police officer who has had his or her license temporarily suspended or revoked has been terminated ...for the failure to possess a valid New York State driver's license".

Addressing the issue of “due process,” the court said that “A pre-termination hearing pursuant to Civil Service Law §75 or, in certain cases, a collective bargaining agreement, is not necessarily required where a public employee becomes ineligible or unqualified for continued employment,” citing New York State Office of Children and Family Services v. Lanterman, 14 NY3d 275 and Felix v. NY City Dep't of Citywide Admin. Servs., 3 NY3d 498.

Justice Lynch, referring to Felix, commented that in that case the Court of Appeals distinguished between conduct that renders an employee ineligible to continue employment (i.e.the failure to maintain a residence in the City as required by the City Code) with conduct constituting misconduct.

Only action in the nature of discipline is subject to pre-termination review pursuant to the Civil Service Law or a similar law, or a disciplinary procedure set out in a collective bargaining agreement. 

In contrast, where an individual is required by law to posses a valid license or “professional certification” in order to lawfully perform the duties of the position was the individual’s failure to produce evidence of his or her possession of the required license or certification meant that he or she was not qualified to hold the position rather than “incompetent,” in a pejorative sense, to perform the duties of the position.*

In this instance, said the court, the issue was whether Chief Krokoff's determination to summarily terminate the police officer based on his failure to posses a valid New York State driver's license was made in violation of lawful procedure, affected by an error of law or was arbitrary and capricious or an abuse of discretion.

The question presented here did not implicate issues concerning the police officer’s performing the duties of his job satisfactorily or allegations of misconduct or competency. Rather, the police officer's ability “to operate a vehicle legally (i.e. with a valid license) is “a defined standard that is not related to job performance.” Justice Lynch concluded that once an officer loses his or her driver’s license, he or she is no longer able to perform the duties of his or her job lawfully. Whether that officer has engaged in misconduct or failed to competently perform such duties was not at issue.

In Justice Lynch’s view, the maintenance of a valid driver's license was a qualification for employment as a police officer in the City of Albany. As such, the Chief's decision to terminate the police officer without a hearing because he was unable to produce evidence of having a valid driver’s license was not arbitrary, capricious, contrary to law or a violation of due process.

As to the police officer’s claim of “disparate treatment” because "no other police officer who has had his or her license temporarily suspended or revoked has been terminated ... for the failure to possess a valid New York State driver's license," the court noted that Chief Krokoff had indicated that “since he became Chief of Police … no other police officer has been similarly situated to [the police officer] insofar as not having a valid driver's license" and the officer “has not demonstrated otherwise.”

Justice Lynch denied the police officer’s petition and dismissed his complaint.

* In Martin ex rel Lekkas, 86 AD2d 712, the appointing authority had terminated Lekkas from his position because he did not hold a valid New York State license to practice medicine. However, Lekkas served in an administrative capacity and did not practice medicine. The court held that only where the duties of the position required the incumbent to be licensed may the lack of such a license be grounds for termination.

The decision is posted on the Internet at:

 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_22083.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

7th Holds School District Can Ban Former Student From Its Property

Hannemann v. Southern Door Cnty. Sch. Dist., ___F.3d___(7th Cir. Mar. 15, 2012), is an interesting case involving a student expelled for bring weapons to school. The Seventh Circuit held that a school district did not violate a former student’s procedural due process by indefinitely banning him from school property. The panel concluded that the former student, as member of the public, did not have a protected liberty interest in accessing school grounds and, therefore, the school district had no duty to provide him with due process related to imposing the ban.

Mitchell H. Rubinstein

 

6th Issues Interesting 1983 Case On Qualified Immunity

Baar v. Jefferson Cnty. Bd. of Educ., _____F.3d____ (6th Cir. Mar. 7, 2012), is an interesting case. The Sixth Circuit held that school officials who prohibited a teacher from attending meetings of a local club were entitled to qualified immunity from his suit alleging that their actions violated his First Amendment rights. The panel concluded that even though the prohibition imposed on the teacher violated his First Amendment rights, those rights were not clearly established at the time school officials decided to impose the ban.

Mitchell H. Rubinstein

Voluntary Separation To Avoid Discipline Disqualifies Employee From Unemployment

Matter of Kean v. Commissioner of Labor, ___A.D.3d___(3d Dep't. March 15, 2012), is an interesting case as it discusses voluntary separations in relation to entitlement to unemployment. As the court explains:

 "Voluntarily separating from one's employment to accept a severance or early retirement package when continuing work remains available has been held not to constitute good cause for leaving employment" (Matter of Lucht [Commissioner of Labor], 49 AD3d 1048, 1049 [2008]; see Matter of Cammisa [Commissioner of Labor], 38 AD3d 1146 [2007]). Here, claimant testified that she was capable of working, had not been threatened by her employer and had not been advised by a physician to leave her job. Even if claimant quit because she assumed that she might be terminated in the future, leaving a job in anticipation of discharge is not [*2]considered to be a departure for good cause under these circumstances (see Matter of Carcaterra [Association for Computing Machinery, Inc.—Commissioner of Labor], 90 AD3d 1389, 1390 [2011]). Inasmuch as there is substantial evidence supporting the Board's ruling, it will not be disturbed (see Matter of Cammisa [Commissioner of Labor], 38 AD3d at 1146).

Education Law Jobs

School Law Jobs
Job Title	Employer	Job Location
Special Education Attorneys	Harbottle Law Group	Orange County, California
Labor and Employment Consultant	Oregon School Boards Association	Salem, Oregon
Director, Council of Urban Boards of Education	National School Boards Association	Alexandria, Virginia

 

Discharge for False Employment Application Is Disqualifying Misconduct For Unemployment Purposes

Matter of Brimage (Commissioner of Labor) ___A.D. 3d___(3d Dep't. March 15, 2012). 

Incompetency Is Not Misconduct For Unemployment Purposes

Matter of Marc v. Commissioner of Labor, ___A.D.3d___(3d Dep't. March 8, 2012), is an important case. The court holds that an employee discharged for incompetency is not discharged for misconduct for unemployment purposes. Misconduct appears to require some type of intentional action. As the court explained:

Claimant was employed as a habilitation specialist or head teacher for the employer from April 2009 until his termination on February 2, 2010. According to the employer, claimant was terminated for failure to complete overdue paperwork, despite prior warnings. Following a hearing, an Administrative Law Judge upheld the initial determination finding that claimant was disqualified from receiving unemployment insurance benefits because he had lost his employment through misconduct. However, the Unemployment Insurance Appeal Board reversed that decision and, instead, concluded that claimant's job performance, while unsatisfactory, did not rise to the level of misconduct. The employer appeals, and we now affirm.

"Whether a claimant lost his or her employment through disqualifying misconduct presents a factual issue for the Board, and its resolution thereof will not be disturbed if supported by substantial evidence" (Matter of Jimenez [Knickerbocker Club, Inc.—Commissioner of Labor], [*2]81 AD3d 1018, 1019 [2011] [citations omitted]; see Matter of Solomon [Bremner Food Group—Commissioner of Labor]), 78 AD3d 1415, 1415 [2010]). Here, the Board found that claimant was only afforded a minimal period of time during the week to complete his paperwork, and he did not fall significantly behind until he had to take on the additional paperwork responsibilities of a fellow employee who was on vacation. Further, while claimant concededly was not able to catch up with all of his overdue paperwork by the date requested by the employer, the Board noted that he still managed to complete a significant amount of the backlog prior to his termination. Thus, while the proof of claimant's inefficiency may have justified his discharge, there is, nonetheless, substantial evidence supporting the Board's finding that claimant's poor work performance did not rise to the level of misconduct (see Matter of Pfohl [Hunter's Hope Found., Inc.—Commissioner of Labor], 9 AD3d 729, 730 [2004];Matter of Strauss [Bronx House-Emanuel Camps—Sweeney], 229 AD2d 652, 652 [1996]).

Mitchell H. Rubinstein

4th Circuit Holds ADHD Is Not A Disability

Halpern v. Wake Forest University Health Sciences, ____F.3d____(4th Cir. Feb. 28, 2012), is an extremely important case. The court upholds the discharge of a medical student from medical school and rejected his ADHD defense under the Rehab and ADA. Why, providing deference to the medical school, the court held that he was not qualified under the statute because "professionalism" was an essential part of the program. 

The court cited to several employment cases which held that an employee misconduct is not protected even if the disability caused the misconduct.

Law review commentary on this important case would be most welcome. Here that students!

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

Breaking News D.C. District Court Strikes Down NLRB Election Rules

The decision is Chamber of Commerce v.  NLRB, ____F. Supp. 2d____ (D.D.C. May 14, 2012) and can be downloaded here,  Download DDC decision

According to the judge, "Member Hayes ... did not vote on the adoption of the final rule when it was circulated through the JCMS system on December 16, 2011."  The judge explained:

"T]he December 16th decision to adopt the final rule, not the earlier votes, was the relevant agency action. A quorum, accordingly, must have participated in that decision. And although Hayes need not have voted in order to be counted toward the quorum, he may not be counted merely because he was a member of the Board at the time the rule was adopted. More was required. Because the final rule was promulgated without the requisite quorum, the Court must set it aside on that ground and does not reach Plaintiffs' remaining arguments."

Looks like this is another issue headed to the Supremes.

Mitchell H. Rubinstein