Adjunct Law Prof Blog

Refusal of Suitable Offer of Employment Leads To Unemployment Disqualification

Matter of Neuman v. Commissioner of Labor, ____A.D. 3d___(3d Dep't. April 18, 2013), illustrates an important point. As the court explained:

 "A claimant who refuses to accept a job for which he or she is reasonably suited by training and experience will be disqualified from receiving unemployment insurance benefits" (Matter of Schirra [Commissioner of Labor], 45 AD3d 1067, 1068 [2007] [internal quotation marks and citation omitted]; see Matter of Southern-Penn [Commissioner of Labor], 83 AD3d 1318, 1319 [2011]). Here, the record confirms that claimant was qualified for the job offered to him and the position paid the prevailing wage (see Matter of Schirra [Commissioner of [*2]Labor], 45 AD3d at 1068). As for claimant's rejection of the job offer due to its location, "dissatisfaction with the length of one's commute does not constitute good cause for rejecting an otherwise suitable offer of employment" (Matter of Pelle [Commissioner of Labor], 12 AD3d 750, 751 [2004]; see Matter of Cunningham [Commissioner of Labor], 19 AD3d 980, 980 [2005]). Notably, claimant admitted receiving the unemployment insurance handbook explaining his obligations regarding reasonable commuting distances under these circumstances.

Mitchell H. Rubinstein

Legal Search Engine

I recently came across freeality.com which is an interesting legal search engine. Check it out.

Mitchell H. Rubinstein

Judge removed from his position for cause notwithstanding his earlier resignation from the position

A former Judge [Judge] appealed a determination of the State Commission on Judicial Conduct in which the Commission had sustained a single charge of judicial misconduct against him and determined that he should be removed from office (see NYS Constitution, Article VI, §22; Judiciary Law §44[1]).

The Judge had earlier resigned from his position after admitting to certain conduct that he characterized as “indefensible” that occurred 40 years earlier.

Notwithstanding the Judge’s resignation, the Commission continued the proceeding and ultimately sustained the charge*and ordered Judge’s removal, finding that his admission, standing alone provided a sufficient basis for the determination.**

Citing Matter of Going, 97 NY2d 121 and Matter of Aldrich, 58 NY2d 279, the Court of Appeals affirmed the Commission’s action, explaining that it measures “the necessity for removal ‘with due regard to the fact that judges must be held to a higher standard of conduct than the public at large’ as even ‘relatively slight improprieties subject the judiciary as a whole to public criticism and rebuke, it is essential that we consider’ the effect of the Judge's conduct on and off the Bench upon public confidence in his [or her] character and judicial temperament."

The Court said that it agreed with the Commission that Hedges' admissions, by themselves, were sufficient to warrant the finding of judicial misconduct. The admitted conduct undermined the integrity and impartiality of the judiciary and therefore, said the court, rendered Hedges unfit for judicial office.

Noting that “[I]t is troubling that the petition is based solely on conduct that occurred 40 years ago —- 13 years before [Hedges] was elevated to the bench,” the Court of Appeals said that the misconduct alleged is grave by any standard.

Accordingly, said the court, the determined sanction of removal should be accepted and Judge removed from the office of Judge.

* Two Commission members dissented in part on the ground that Judge had removed himself from his judgeship by resigning and that his post-resignation removal proceedings "served no purpose" in this case.

** Similarly, 4 NYCRR 5.3(b) of the State Civil Service Commission’s Rules, which applies to employees of the State as the employer, provides, in pertinent part, “…when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation.” Many local civil service commissions have adopted a similar provision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02773.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

SDNY Circuit Issues Major Decision On Unpaid Interns

Glatt v. Fox Searchlight Pictures, ____F.Supp.2d____(S.D.N.Y. June 11, 2013), is a major FLSA decision concerning the status of unpaid interns. At issue were interns who worked on the movie 'Blank Swan." In a lengthly and well reasoned decision, the court holds that the interns were employees. Of note is that the court approved of the Department of Labor's multiple factor test to examine whether interns are employees. There is also an extensive discussion of joint employment and the statute of limitations. A claim was also sucessfully brought under New York Law.

There are relatively few reported decisions concerning the status of unpaid interns. While this was an FLSA case, it will be interesting to see if the same analysis is applied under other employment statutes such as Title VII or even the NLRA, which apply different tests for employee status. 

Law review commentary is always welcome on this developing issue.

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

New Workplace Law Blog In Town

Check out Outsourcing Justice a new Workplace Law Blog by a law professor. 

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

 

 

"An Existential Threat"

Rutgers-Camden School of Law enrolled 282 first-year students in 2011.  In 2012, the school only enrolled 116.  A recession in the legal employment market and a failed merger receives the blame.  The Philadelphia Business Journal's Jeff Blumenthal has the full story.

Craig Estlinbaum

Supremes Reaffirm Deference Due to Arbitrators

The Supreme Court ruled today that an arbitrator did not exceed his authority under the FAA when he found an arbitration agreement allowed class arbitration.  While not a labor case, it follows the Trilogy and a long line of cases deferring to arbitration. Oxford Health v. Sutter, ____U.S.____(June 10, 2013). 

Agency required to comply with its own procedures in processing a disciplinary action

Hassan v New York City Dept. of Correction, 2013 NY Slip Op 02686, Appellate Division, First Department

In this appeal of a CPLR Article 78 decision by Supreme Court that sustained the New York City Department of Correction’s [DOC] finding that the individual [Appellant] was guilty of certain charges, the Appellant conceded that the Hearing Officer’s determination was supported by substantial evidence.

Rather, Appellant contended, the record before the Supreme Court was defective because it was incomplete in that it lacked a record of the disciplinary hearing, DOC’s answer, and a written statement by a Correction Officer that the Hearing Officer was required to show Appellant as required by “DOC Directive 6500R-B(III)(C)(25) and (26).”

The Appellate Division agreed, explaining that “it cannot be determined on this record whether the Hearing Officer's failure to show [Appellant] the written statement by [the Correction Officer] prejudiced Appellant's defense.

Accordingly, said the court, it was remanding the matter to Supreme Court and directed DOC “to submit an answer pursuant to CPLR 7804(d) and any appropriate submissions pursuant to CPLR 7804(e), including a record of the hearing and a written witness statement [by the Correction Officer].”

The ruling further provides that after DOC made such submissions to Supreme Court, Supreme Court is to determine if the failure to provide Appellant with these writings “was harmless error.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02686.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

New In Print: Law Review Reviews

The May 2013, Iowa Law Review includes xclusivity Without Patents: The New Frontier of FDA Regulation for Genetic Materials by Gregory Dolan, M.D., Marriage, Biology, and Federal Benefits
by Courtney G. Joslin, Fee Effects by Kathryn Judge, and Insuring Against a Derivative Disaster: The Case for Decentralized Risk Management, by Jeffrey Manns.

The May 2013, University of Pennsylvania Law Review includes articles from the October 2012, symposium, "The Evolving Internet," with articles by Stuart Minor Benjamin (Duke), Tim Wu (Columbia), Dan L. Burk (UC-Irvine), Justin "Gus" Hurwitz (Penn), Paul M. Schwartz (UC-Berkeley), Howard A. Shelanski (FTC, Georgetown), and Christopher S. Yoo (Penn).

There have been other symposium editions released in recent weeks:

• Indiana Law Review, "Symposium: Reflecting on Forty Years of Merit Selection in Indiana."
• Arkansas Law Review, "Symposium:  Mortgage Foreclosure Crisis." (this issue, Vol. 66, No. 1, is not yet online).
• Notre Dame Journal of Law, Ethics & Public Policy, "Symposium: Green Technology: Legal, Ethical and Moral Considerations." (this issue, Vol. 27, No. 1, is not yet online).
• Akron Law Review, "Symposium: Inside America's Criminal Justice System: The Supreme Court on the Rights of the Accused and the Incarcerated."

Craig Estlinbaum

Legal Writing Workshop in Philadelphia in June 2014

This free one-day workshop will explore how legal writing faculty can collaborate with clinics, non-profits, and pro bono projects to expand experiential learning opportunities for students by bringing social justice practice experience into legal writing teaching. 

Many legal writing faculty expand skills training by creating partnerships with public interest organizations, clinics, pro bono programs, and externships. The workshop will be a forum for discussion of specific collaborations that workshop participants have undertaken or hope to launch. The projects can be full-blown courses, short-term collaborations on discrete projects, incremental collaborations among faculty, or ideas for future partnerships. They can take place within the required legal writing curriculum, in upper-division courses, or in conjunction with pro bono, externship, or clinical programs.

The workshop will provide a platform for sharing ideas and continuing to develop a community around enriching students’ educational experiences through public interest collaborations that offer opportunities for experiential learning.

Additional information can be found by clicking downloading the following document  Download Bringing Outside In WorkshopAnnouncement and Call for Proposa (1)

Mitchell H. Rubinstein

 

Seto on JD Job Prospects, etc.

Theodore P. Seto (Loyola-L.A.) has a blog post at TaxProf Blog on job prospects for near-term J.D. graduates and Dan Filler at The Faculty Lounge added comments of his own.

Craig Estlinbaum

Best and Worst Places to Look For A Law Job

Jordan Weissmann at The Atlantic has posted an article that purports to reveal the best and place regions and states to look for a law job, measured by law graduates per job opening.  According to the study, the best region to look for a law job is the Rocky Mountain states; the worst is New England, followed closely by the Great Lakes region.  The worst state to look for a job is Mississippi, with over 10 graduates per opening.  The best? -- Alaska, the only state with no law school.

Craig Estlinbaum

Fifth Circuit: Expressing Mom Protected from Sex Discrimination

In a published opinion, the a Fifth Circuit Court of Appeals panel last week, in a sex discrimination lawsuit brought by the EEOC, reversed summary judgment for an employer that allegedly discharged an employee for expressing milk while at work.  The lower court earlier found, as a matter of law, that discharging a lactating female employee for expressing milk does not constitute sex discrimination.  The Fifth Circuit held that discriminating against a woman who is lactating or expressing breast milk violates federal sex discrimination laws.

The opinion is EEOC v. Houston Funding II., Ltd., No. 12-20220 (5th Cir., May 30, 2013).  The opinion, by Judge Grady Jolly, was unanamous, with Judge Edith Jones concurring.  The Houston Chronicle's story on the case adds this interesting tid-bit.

"You would think there would be reported case law on this," said Jim Sacher, regional attorney for the Equal Employment Opportunity Commission in Houston, which is handling the case and its appeal on behalf of Venters.

But this is the first definitive decision in the country that firing someone because of lactation is an example of sex discrimination, Sacher said.

Craig Estlinbaum

Please Support Kidney Donation By Supporting Linda's Home Team

Linda February 2013

As many of you know, on June 29, 2011, my  then 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 as well as our entire family is very active in raising money for The New Jersey Sharing Network. The New Jersey Sharing Network facilitates organ donation and transplant and is the organization responsible for helping Linda obtain her new Kidney. 

On June 9, 2013, The New Jersey Sharing Network is sponsoring a 3 mile run and walk to help raise money for this critically important cause. The event will take place in Providence New Jersey and starts t 9 am. Information about the run/walk can be found here.

I hope that you will consider joining us on June 9th. 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 team in the upper right hand corner. If you cannot make it and would just like to contribute, you can make a donation on by clicking on my name and then clicking on contribute in the right hand corner. 

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. Additional information about Linda's Home Team as well as a picture of some of the members from last year can be found on Linda's Home Team Facebook page developed by Mollie, here. 

Thank you,

Mitch Rubinstein

Law School Applications Decline Again

From Catherine Ho, Washington Post:

The number of people applying to U.S. law schools dropped nationwide for the third year in a row, prompting some law schools to slash the size of their entering classes.

As of May 17, about 55,760 people had applied to American Bar Association-accredited law schools for the 2013-14 school year — down 13.4 percent from 2012, according to data compiled by the Law School Admission Council.

The story goes on to describe cuts in applications or enrollment at Georgetown, George Washington and other schools.

Craig Estlinbaum

New York City Statute Establishes Unemployed As A Protected Group

Later this month, a NYC Local Law goes into effective which establishes unemploymed as a protected group. An excellent, summary of this new law is Geoffrey Mort, Implications of Statute Establishing Unemployed As A Protected Group, NYLJ (May 20, 2013). As the article explains:

When the New York City Council in March voted to override Mayor Michael Bloomberg's veto and enacted a law prohibiting employment discrimination against unemployed persons, it created the first new protected group in New York since the state Sexual Orientation Non-Discrimination Act was passed some years ago. The new act, with several exceptions discussed below, makes it unlawful for employers with four or more employees to discriminate with respect to hiring, compensation or the terms and conditions of employment against any unemployed person seeking a job or to advertise for a position and require current employment as a qualification. The purpose of the New York City Local Law Prohibiting Discrimination Based on an Individual's Unemployment is straightforward: in advocating for its passage, City Council Speaker Christine C. Quinn stated that "[w]e want to do everything we can to help people work" and said that a psychological stigma attached to being unemployed is "completely unfair."

 

Mitchell H. Rubinstein

New Law School In the Works for Tacoma

According to this Tacoma-Seattle report by Kathleen Cooper, a "12-person steering committee working on [a] plan" to bring a new law school to Tacoma, Washington, some 20 years after the University of Puget Sound sold its law school to Seattle University.  The committee is in its earliest "due diligence" stages according to the report and their are some substantial hurdles to admitting the first student, as the report explains.

Craig Estlinbaum

Read more here: http://www.thenewstribune.com/2013/05/25/2612035/group-hopes-to-bring-law-school.html#storylink=cpy"

Harvard Law Graduate at 22

Cortlan Wickliff, a native Texan and Rice University alum, has graduated from Harvard Law School at the ripe old age of 22.  Akilah Johnson at the Boston Globe has the full story.

Craig Estlinbaum

North Dakota: Settlor's Mistake of Law Requires Trust Reformation

The North Dakota Supreme Court yesterday issued a decision applying mistake of law doctrine to reform a trust.  The case is In Re: Matthew Larson Trust Agreement, 2013 WL 2302304, No. 20120319 (N.D., May 28, 2013).

The case centers around trusts created by Matthew Larson's maternal grandparents, the Clairmonts.  After the trusts were created, Matthew's parents divorced and his father remarried.  That marraige produced other children who became Matthew's half-siblings.

Matthew died intestate, without spouse or descendants, in 2011.  At issue in the case is the provision for distribution of the trust in the even of Matthew Larson's death.  The provision in the first trust read (with emphasis added):

If the Beneficiary shall die before receiving complete distribution of the trust, the Trustee shall distribute the balance of the trust as the Beneficiary designates under his or her Last Will and Testament or under any other instrument exercising this general power of appointment. In the event that the Beneficiary does not exercise this general power of appointment, the Trustee shall distribute the balance of the trust to the Beneficiary's surviving issue by right of representation . . . and if Beneficiary leaves no surviving issue, then equally to Beneficiary's brothers and sisters and the issue of a deceased brother or sister by right of representation.

The distribution terms in the second trust includes similar conditional language, providing for possible distribution to Matthew's "brothers and sisters of Matthew then living."  Because Matthew died with no will and no spouse, without issue and without otherwise appointing surviving beneficiaries, the provision in the trusts distributing trust corpus to his "brothers and sisters" became operative.

The question before the court is whether or not the phrase "Beneficiary's brothers and sisters" includes Greg Larson's children by the second marraige - Matthew's half-siblings.  The Clairmonts argued the trusts should be interpreted to include only Matthew Larson's brothers and sisters who are lineal descendants of the Clairmonts and not the children of Greg Larson by a marraige to someone other than their daughter.  The Clairmonts lost their claim for reformation at trial.

The North Dakota Supreme Court reversed. The Court first noted that North Dakota law allows trusts to be reformed to conform to the settlor's intentions, "if it is proved by clear and convincing evidence that both the settlor's intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement."  North Dakota adopted this statute from section 415 of the Uniform Trust Code, which itself mirrors Restatement (Third) of Prop.: Donative Transfers § 12.1 (Tentative Draft No. 1, 1995).  Trust law authorizes reformation in part to prevent unjust enrichment to unintended beneficiaries.

The Court further observed that mistake of law supporting trust reformation differs from mistake of law supporting contract reformation.  The court noted that, "[r]eformation of a contract generally requires a mutual mistake between the parties.'  Contract reformation normally requires mutuality to prevent courts from imposing a reformed contract upon the non-mistaken party that the non-mistaken party did not bargin for. On the other hand, the courts require no such mutuality to reform a trust because the settlor typically does not receive consideration in exchange for creating the trust. Only the settlor's intent is involved in creating the trust.  The Court's comments on the mutuality requirement in the two contexts is particularly instructive.

The Clairmonts testified they were mistakened as to the meaning of "brothers and sisters" and believed the terms meant full-blooded siblings.  Both Clairmonts and the attorney that drafted the second trust testified they believed the term "brothers and sisters" meant siblings that were lineal descendants of the Clairmonts.  They also testified that the Clairmonts did not intend to benefit Greg Larson's children by his second wife in establishing the trust.  The Court determined no evidence existed to dispute this testimony.  The Court concluded that applying the trial court's conclusions correctly to the law requires reformation providing, "that only Matthew Larson's brothers and sisters who are descendants of the Clairmonts may benefit from the trusts."

Craig Estlinbaum

Bibas: Justice Kennedy's Sixth Amendment Pragmatism

Stephanos Bibas (Penn) has posted "Justice Kennedy's Sixth Amendment Pragmatism," an essay written in conjunction with an appearance at a McGeorge Law Review symposium on Justice Kennedy's jurisprudence, on SSRN.  Here is the abstract:

This essay, written as part of a symposium on the evolution of Justice Kennedy’s jurisprudence, surveys three areas of criminal procedure under the Sixth Amendment: sentence enhancements, the admissibility of hearsay, and the regulation of defense counsel’s responsibilities. In each area, Justice Kennedy has been a notable voice of pragmatism, focusing not on bygone analogies to the eighteenth century but on a hard-headed appreciation of the twenty-first. He has shown sensitivity to modern criminal practice, prevailing professional norms, and practical constraints, as befits a Justice who came to the bench with many years of private-practice experience. His touchstone is not a bright-line rule derived from history, but a flexible approach that is workable today. Notwithstanding the press’s assumptions about him as a swing Justice, his approach is remarkably consistent and principled.

The essay explores four important themes in his Sixth Amendment jurisprudence. First is the use of history. Justice Kennedy is a moderate originalist, looking to history where it works but adapting it to modern realities, especially to new circumstances and new problems. Second is his common-law incrementalism and flexibility, in contrast to some other Justices’ rigid formalism. Third is Justice Kennedy’s structural approach to the Constitution as fostering dialogue among branches and levels of government. He emphasizes federalism and checks and balances, not a strict separation of powers. Fourth is his use of practicality and common sense to leaven theoretical abstractions. He looks closely at the purposes of laws, their effects, the lessons of expertise, and the existence of alternative solutions. In interpreting the Sixth Amendment, then, Justice Kennedy is fundamentally a practical lawyer, applying the humble wisdom born of experience rather than the rigid extremes that flow from a quest for theoretical purity.

This essay will appear in the McGeorge Law Review's symposium edition in Volume 44.

Craig Estlinbaum