Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, December 10, 2016

Columbia University Grad Students Form Union

No surprises here. After the NLRB ruled that graduate students were employees, Columbia University students voted by a margin of more than 2-1  in favor of unionization. here

Of course, within 2 or 3 years it is very likely that the "Trump Board" will reverse Columbia University and return to the holding in Brown University (that students are not employees). 

Welcome to politics as usual at the Labor Board. My students are all very familar with political influence in  NLRB cases. This is just another illustration of why elections matter.

Mitchell H. Rubinstein

December 10, 2016 in News, NLRB, Unions | Permalink | Comments (0)

Friday, December 9, 2016

Lander on Adjunct Law Professors

David Lander (Saint Louis) is a guest blogger at Prawf Blawg this month.  So far, Lander has two posts that may interest adjunct professors of law or persons interested in law school related commentary.  They are:

Regarding the first post, I agree with commenters who find it unlikely that adjuncts with full-time jobs would participate on curriculum committees or other law school committee work.  As for the suggestion adjuncts participate in faculty presentations, an invitation might be appreciated, but participation would likely be catch-as-catch-can.

Regarding the second post, I expect the only reason law schools have not already frozen tenured hires is that the ABA standards require law schools to maintain the full-time faculty they do is that a school that falls the ABA requirement risks a review.  This alone is sufficient reason for law schools to reject the path undergraduate institutions have charted.

The two posts also raise the question whether blog post titles should be capitalized or not, because to be honest, I don't know (or know that it even matters).

I'm looking forward to hearing more from Professor Lander this month.

Craig Estlinbaum


December 9, 2016 in Adjunct Information in General, Blogs, Faculty, Law Professors, Law Schools | Permalink | Comments (0)

Monday, December 5, 2016

2d Circuit Holds That Employees Have Right To Union Representative Before Consenting To Drug Test

Although unreported, Manhatten Beer v. NLRB, ____F.3d____(2d Cir. Nov. 16, 2016), may turn out to be a significant decision concerning Weingarten rights. With very little analysis, the court stated:

Here, the Board reasonably construed the NLRA, in light of relevant judicial and administrative precedent, in determining that Diaz had the right to the physical presence of a union representative before consenting to take a drug test in the context of an investigation that he reasonably believed would result in discipline. See NLRB v. J. Weingarten, Inc., 420 U.S. 251, 260, 262 (1975). Therefore, we uphold the Board’s conclusion that Manhattan Beer violated Section 8(a)(1) of the NLRA. In addition, we uphold the Board’s award of the make-whole remedy of reinstatement and backpay. Such relief is available when there is “a sufficient nexus between the unfair labor practice committed (denial of representation at an investigatory interview) and the reason for the discharge.” Taracorp Indus., 273 N.L.R.B. 221, 223 (1984); see also 29 U.S.C. § 160(c). Here, the Board reasonably determined that Manhattan Beer’s discharge of Diaz resulted from Diaz’s assertion of his Weingarten rights. See Ralphs Grocery Co., 361 NLRB No. 9 (2014); Int’l Ladies’ Garment Workers’ Union v. Quality Mfg. Co., 420 U.S. 276, 280 (1975). In particular, Manhattan Beer’s documentation supporting Diaz’s termination stated that Diaz was terminated because he “[r]efused to go for drug testing under the reasonable suspicion of substance abuse.” J.A. 264. Consequently, we uphold the Board’s conclusion that Diaz was entitled to reinstatement and backpay.

Mitchell H. Rubinstein


December 5, 2016 in Labor Law, NLRB | Permalink | Comments (0)

Tuesday, November 22, 2016

Excessive Absenteeism Disqualifies Individual For Unemployment

Matter of Mead v. Commissioner of Labor, ___A.D.3d___(3d Dep't. Nov. 21, 2016) is an interesting case. The case holds that an individual who is excessively absent can be disqualified for unemployment, reasoning:

        Excessive absenteeism, which continues despite repeated warnings, has been held to constitute misconduct disqualifying a         claimant from receiving unemployment insurance benefits (see Matter of Berkeley [Commissioner of Labor], 94 AD3d 1328,         1328-1329 [2012]; Matter of Seabrook [Commissioner of Labor], 45 AD3d 1165, 1165-1166 [2007]). Here, it is undisputed         that claimant was continually absent from work even after she was warned that further absences would result in disciplinary         action, including discharge. Although claimant [*2]maintains that she did not realize that the last warning was her final one,         this does not excuse her behavior under the circumstances presented.

I believe there is also case law finding no misconduct, for unemployment purposes, when a person is excessively absent through no fault of his own, ie because of medical issues.

Mitchell H. Rubinstein


November 22, 2016 in Employment Law | Permalink | Comments (0)

Education Secretary Calls on States to Abolish Corporal Punishment in Schools

Corporal punishment, believe it or not, is still legal in 22 states. Corporal punishment involves hitting students for the purpose of punishment. This practice was upheld by the Supreme Court in the early 1980s.  Now, Eduation Secretary King is calling on those states where corporal punishment is still practiced, to abolish it. See here 

Law review commentary on this topic would be most welcome. 

Mitchell H. Rubinstein


November 22, 2016 in Education Law | Permalink | Comments (0)

Tuesday, October 25, 2016

Breaking News! Court Enjoins Obama Executive Order Requiring Disclosure of Labor Law Violations

On July 31, 2014, President Obama issued Executive Order 13673 which requires federal contractors to disclose labor law and employment discrimination violations. This Executive Order also precludes certain contractors from entering into predispute arbitration agreements concerning employment discrimination claims. The Office of Federal Procurement and the Department of Labor in turn issued regulations which were enjoined in Associated Builders and Contractors v. Rung, ___F.Supp. 2d___, 1:16-CV-425 (E.D. Tx. Oct. 24, 2016),  Download ABC PI 10-14-16 This disclosure could result in the contractors being debarred from federal contracts. 

In a lengthly decision, the court preliminary enjoined these regulations as compelled speech in violation of the First Amendment and because they conflicted with Congressional statutory mandates which specified how labor law violations needed to be addressed. The court reasoned in part:

                                Finally, even if federal agencies could properly disqualify government contractors based
                                upon final administrative decisions, arbitration awards, and court orders enforcing one of the
                                fourteen labor laws at issue, the Executive Order and FAR Rule should not be allowed to go into
                                effect because they extend their reach far beyond those limited circumstances. The Order and Rule
                                appear to conflict directly with every one of the labor laws they purport to invoke by permitting
                                disqualification based solely upon “administrative merits determinations” that are nothing more
                                than allegations of fault asserted by agency employees and do not constitute final agency findings
                                of any violation at all. As noted above in the Findings of Fact, agency employees who are
                                assigned to administer these labor laws issue thousands of complaints, cause findings, wage
                                notices, and citations each year, many of which are dismissed or significantly reduced after they
                                are contested, often after lengthy proceedings. There is no statutory basis to treat these
                                “administrative merits determinations” as final and binding while they are still being contested or
                                when they are settled without admission of fault. Thus, it appears to be a denial of fundamental
                                statutory and constitutional rights for the Executive Order and FAR Rule to so act.

Labor laws in this country have been widely criticized for being ineffective. This is an important case because it concerns whether it could regulate who it contracts with. This decision will surely be appealed. Law review commentary on this important topic would be most welcome.

Mitchell H. Rubinstein

October 25, 2016 in Discrimination Law, Labor Law, Law Review Ideas, Legislation, Litigation, NLRB | Permalink | Comments (0)

Friday, October 21, 2016

Univ of Dayton Faculty Positions in Academic Success Program

The University of Dayton School of Law is hiring two full-time faculty in our Academic Success Program.  The position announcement is  by clicking  Download Dayton Law Academic Success Positions
Mitchell H. Rubinstein
Hat Tip:
Prof. Susan C. Wawrose
Director, Leadership Honors Program &
Professor of Lawyering Skills
University of Dayton School of Law

October 21, 2016 in Law Schools, Lawyer Employment | Permalink | Comments (0)

Tuesday, October 18, 2016

TV Producers Are Employees

I bring Peacock Productions, 364 NLRB No. 104 (Aug. 26, 2016), to your attention because the NLRB did a nice job of summarizing the applicable supervisory test. The Board held that the employer did not meet its burden of  establishing that certain NBC producers were exempt from the NLRA as supervisors, reasoning:

Section 2(11) defines a supervisor as any individual having the authority, in the interest of the employer, to (among other functions) hire, assign, or responsibly direct employees, so long as the individual exercises independent judgment in doing so. The burden of establishing supervisory status lies with the party asserting it. NLRB v. Kentucky River Community Care, 532 U.S. 706, 711–712 (2001). Conclusory evidence, in the absence of specific examples of the exercise of supervisory authority, does not satisfy that burden. See, e.g., Lynwood Manor, 350 NLRB 489, 490–491 (2007); Golden Crest Healthcare Center, 348 NLRB 727, 731 (2006). The party asserting supervisory status must show that the individuals in question have the authority to engage in at least one of the supervisory functions set forth in Section 2(11), that their exercise of that authority is not simply routine or clerical but requires the use of independent judgment, and that their authority is exercised in the interest of the employer. Oakwood Healthcare, Inc., 348 NLRB 686, 687 (2006).6 Supervisory status is not proven where the record evidence “is in conflict or otherwise inconclusive.” Republican Co., 361 NLRB No. 15, slip op. at 5 (2014) (citing Phelps Community Medical Center, 295 NLRB 486, 490 (1989)).

Mitchell H. Rubinstein

October 18, 2016 in NLRB | Permalink | Comments (0)

Wednesday, October 12, 2016

Supremes Grant Cert In Case That Has Implications For Summary Judgement Motions In Discrim Cases

The Supremes recently granted cert in  Zigler v. Turkmen, which involves pleading discriminatory intent. Though not an employment law case, intent and pleading issues are an important issue in employment discrimination cases-particularly in the summary judgement stage after Twombly and Iqbal. From Scotusblog, via Workplace Prof Blog, the issue in the case includes:

"whether the Court of Appeals erred in finding that Respondents' Fourth Amended Complaint met the pleading requirements of Ashcroft v. Iqbal, and related cases, because that complaint relied on allegations of hypothetical possibilities, conclusional assumptions, and unsupported insinuations of discriminatory intent that, at best, are merely consistent with Petitioner Ziglar's liability, but fall short of stating plausible claims."

Mitchell H. Rubinstein

Hat Tip:   Workplace Prof Blog

October 12, 2016 in Discrimination Law, Employment Discrimination, Employment Law, Supreme Court | Permalink | Comments (1)

Tuesday, October 11, 2016

NLRB Finds That Security Instructors Are Not Managerial Employees

I bring Wolf Creek Nuclear Operating Corp., 364 NLRB No. 111 (Aug. 26, 2016), to your attention because the Board does a nice job in summarizing the criteria for an individual to be excluded from the protection of the Act because he or she is a managerial employee. As the Board explained:

          “Managerial employees are defined as those who formulate and effectuate high-level employer policies or ‘who have discretion in the performance of their jobs independent of their employer's established policy.’” The Republican Co., 361 NLRB No. 15, slip op. at 3 (2014) (quoting General Dynamics Corp., 213 NLRB 851, 857 (1974)); see generally NLRB v. Yeshiva University, 444 U.S. 672, 682 (1980). “Although the Board has no firm criteria for determining managerial status, an employee will not ordinarily be excluded as managerial unless he represents management interests by taking or recommending discretionary actions that effectively control or implement employer policy.” The Republican Co., supra, slip op. at 3–4. The party asserting managerial status bears the burden of proof. See id., slip op. at 4. The fact that employees train or instruct other employees does not, in itself, make them managerial employees. To the contrary, the Board has found that employees who train or instruct other employees are not managerial employees if they do not exercise sufficient independent discretion or judgment in carrying out those duties.

Mitchell H. Rubinstein

October 11, 2016 in NLRB | Permalink | Comments (0)

Supremes Grant Cert In Major Special Education Case Which Will Define The Applicable Standard

The U.S. Supreme Court granted cert in a case about the level of education benefit a child must receive for a school district to have provided an appropriate level of service under the IDEA.

The case, Endrew F. v. Douglas County School District RE-1 (No. 15-827), raises an important question that has divided federal appeals courts: What level of educational benefit must a child receive under his or her individualized education program, or IEP, to satisfy the demands of the Individuals with Disabilities Education Act? A copy of the United States amicus brief is available here.

Parents of course want their child to have the most appropriate level of benefits. But, for years the standard has been that the services must provide some educational benefit. The Supremes will now define what that means.


Mitchell H. Rubinstein


October 11, 2016 in Education Law, Special Education Law | Permalink | Comments (0)

Supremes About To Decide Major IDEA Case Involving Use of Service Dogs In School

The issue in  (Fry v. Napoleon Community Schools) is whether a disabled child’s family must first try to work out with school officials a dispute over the assistance their child needs, before the parents may sue for money damages under federal anti-discrimination law.  The dispute in the case involves a claim by a disabled girl’s family that the school would not allow her to bring a service dog to help her during her classes. 

Law review commentary on the interplay between the IDEA and the ADA as well as exhaustion of administrative remedies would be most welcome.

Mitchell H. Rubinstein

October 11, 2016 in Education Law, Law Review Ideas, Special Education Law | Permalink | Comments (0)

Thursday, August 4, 2016

Fired for Being "Too Cute" Does Not State Cause of Action

Sometimes you just cannot make these cases up. After a female  massage therapist was fired by the male owner for being "too cute, " she sued for sex discrimination. Justice Sholom Hagler, a New York lower court judge who I have appeared before, dismissed her case and concluded that under NYS and NYC law, a cause of action was not stated because appearance based discrimination is not gender based and the sex discrimination statutes only protect gender based discrimination.

Not so fast. While the Judge did cite to the majority of authority which supports this fine line distinction, there is also some contrary authority which the Judge did not cite. Most importantly, it seems to me that there is a type of reverse Price Waterhouse sexual sterotype argument.

In Price Waterhouse, it was unlawful to not promote a woman to partnership because she did not act like a woman.  She was simply too macho. Shouldn't the opposite be true? A woman should not be able to be fired for being too pretty. Seems to me this is classic sex sterotyping. It should be unlawful under Title VII and it certainly should be unlawful under NYC law which is required to be broadly interpreted.

Unfortunately, the Judge did not address this issue and I hope this case is appealed. There have been several law review articles written on this topic and additional scholarly writing would be most welcome.

Note, the court also held that a cause of action for defamation was stated. I am not sure of that holding either, but I have not focused on it.

This case got a lot of press when it came out in May, but I just saw it now.  And yes guys, if  you do an internet search, you can find a picture of the plaintiff.

Edwards v. Nicolai, NYLJ May 23, 2016, Index No. 160830/2013 (N.Y. Co. 2016).

Mitchell Rubinstein




August 4, 2016 in Discrimination Law, Interesting Cases, Law Review Ideas | Permalink | Comments (4)

Saturday, June 18, 2016

So You Want To Be A Lawyer

An Expensive Law Degree, No Where To Use It is a must read June 17, 2016 NY Times article. In it, the author describes the difficulty that many law students from non-ivy league schools face. Some graduate with 200k in debt and no job. Worse yet, because of declining enrollment, some schools have lowered their admission standards which has translated to lower bar exam passage rates. As the article states:

As of this April, fewer than 70 percent of Valparaiso law school graduates from the previous spring were employed and fewer than half were in jobs that required a law license. Only three out of 131 graduates worked in large firms, which tend to pay more generous salaries.

“People are not being helped by going to these schools,” Kyle McEntee, executive director of the advocacy group Law School Transparency, said of Valparaiso and other low-tier law schools. “The debt is really high, bar passage rates are horrendous, employment is horrendous.”

Even as employment prospects have dimmed, however, law school student debt has ballooned, rising from about $95,000 among borrowers at the average school in 2010 to about $112,000 in 2014, according to Mr. McEntee’s group.

Such is the atavistic rage among those who went to law school seeking the upper-middle-class status and security often enjoyed by earlier generations, only to find themselves on a financial treadmill and convinced their schools misled them, that there is now a whole genre of online writing devoted specifically to channeling it: “scamblogging.”

Now of course, these grim statistics do not apply to everyone. Plenty of law students wind up in good jobs. If you want to be a lawyer, you still have to go to law school. My only point is for those who chose to go to law school, go with your eyes wide open.

Mitchell H. Rubinstein


June 18, 2016 in Law Schools, Law Schools, News, Law Students, Lawyer Employment, Lawyers | Permalink | Comments (2)

Tuesday, June 7, 2016

Major 2d Circuit Decision Discussing Whether Hispanic Ancestry Is A Race Under Title VII and 1981

Village of Freeport v. Barrella, ____F.3d____(2d Cir. 2016), is a major case discussing whether Hispanic ancestry is a race under Title VII or 1981. As the court explained:

Based on longstanding Supreme Court and Second Circuit precedent, we reiterate that “race” includes ethnicity for purposes of § 1981, so that discrimination based on Hispanic ancestry or lack thereof constitutes racial discrimination under that statute. We also hold that “race” should be defined the same way for purposes of Title VII. Accordingly, we reject defendants’ argument that an employer who promotes a white Hispanic candidate over a white non‐Hispanic candidate cannot have engaged in racial discrimination, and we AFFIRM the judgment of the District Court insofar as it denied defendants’ motions for judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure

Law review commentary on this important topic would be most welcomed.

Mitchell H. Rubinstein

June 7, 2016 in Discrimination Law, Employment Discrimination, Law Review Ideas | Permalink | Comments (0)

Tuesday, May 31, 2016

Interesting Infographic Comparing Marijuana Laws


May 31, 2016 in Misc., Legal | Permalink | Comments (2)

Wednesday, May 25, 2016

Weber of Disability Discrimination

DePaul University Law Professor Mark C. Weber  has recently published important scholarship which I would like to bring to my readers' attention. 

  1. Mark Weber, Numerical Goals For Employment of People With Disabilities By Federal Agencies and Contractors, 9 J. H. L. & Pol'y. 35 (2015)
  2. Mark Weber, Intent In Disability Discrimination Law: Social Science Insights and Comparisons To Race and Sex Discrimination, 2016  Illinois L. Rev.  151 (2016)
  3. Mark Weber, Accidentally On Purpose: Intent In Disability Discrimination Law, 16 B.C. College L. Rev. 1417 (2015).  

The Abstract for the Boston College Law Review article is as follows:

American disability discrimination laws contain few intent requirements. Yet courts frequently demand showings of intent in disability discrimination lawsuits. Intent requirements arose almost by accident: through a false statutory analogy; by repetition of obsolete judicial language; and by doctrine developed to avoid a nonexistent conflict with another law. Demanding that section 504 and Americans with Disabilities Act (“ADA”) claimants show intent imposes a burden not found in those statutes or their interpretive regulations. This Article provides reasons not to impose intent requirements for liability or monetary relief in section 504 and ADA cases concerning reasonable accommodations. It demonstrates that no intent requirement applies to ADA employment cases, then explains that the same conclusion should apply to cases under the ADA’s state and local government provisions and section 504. It rebuts an analogy to caselaw under Title VI and Title IX of the Civil Rights Act that some courts use to impose intent requirements. It then discusses the reasoning of cases relying on the inappropriate analogy, cases resting on obsolete precedent, and cases refusing to apply remedies to avoid conflicting with federal law. This Article relies on a contextual reading of Supreme Court decisions, the history of the ADA, and policy considerations.

I hope to read these articles shortly.

Mitchell H. Rubinstein


May 25, 2016 in Discrimination Law, Law Review Articles | Permalink | Comments (1)

Thursday, May 5, 2016

State Judge Strikes Wisconsin's Right to Work Law

Machinists v. Wisconsin, Case No. 2015CV000628 (Dane Co. April 8, 2016) Download Wisc Order is an important case.  A state trial judge struck down 2015 Wisconsin Act 1 which was known as the right to work law. This statute prohibits labor organizations from assessing dues on non-union members and negotiating union security clauses in collective bargaining agreements. This case is important because it is the only decision which has struck down a right to work statute. Slip op. at 13. 

Applying the Wisconsin Constitution, the court held that this statute resulted in a taking of property without just compensation. The court engaged in an extensive analysis of property rights and concluded that the union had a property interest in the services they perform  for both members and non-members because labor is a commodity that can be bought and sold. 

No doubt this decision will be appealed. Law review commentary would be welcomed. I am stunned that this decision is not reported.

Mitchell H. Rubinstein 

May 5, 2016 in Law Review Ideas, Recent Developments, Unions | Permalink | Comments (0)

Monday, May 2, 2016

Call For Papers-Journal Experiential Learning

Dean Patricia E. Salkin (Touro) writes to inform us of an important publishing opportunity. The Journal describes the papers they are looking for as follows:

The Journal of Experiential Learning is interested in articles focused on co-teaching or co-creating educational programs with the academy, the bar and the bench; the use of judges and practitioners to teach skills development or integrative courses; the support programs offered to adjuncts, either those who teach discrete classes or those involved in feld or hybrid clinics or externships. We welcome all articles related to the general topic of opening the academy, of transforming “outsiders” into “insiders” with respect to their roles in educating our future lawyers, and other related topics. If you are interested in submitting an essay of 5,000-10,000 words, lightly footnoted as is typical for online journals, please contact Coordinating Editor Myra Berman at

Additional information can be found by clicking  Download Experiential-Learning-Call-for-Papers-Flyer-Vol2-No2 copy

Mitchell Rubinstein

May 2, 2016 | Permalink | Comments (0)

Wednesday, April 20, 2016

Douglas & Douglas On The Duke Power Fable

Robert Douglas (Labor Arbitrator) and his son Jeffrey Douglas (Melzer, Lipp and Goldstein) just published an important article in the Hofstra Labor and Employment Law Journal which explores the erroneous analysis utilized by Chief Justice Burger in the Griggs v. Power decision. The Griggs Fable Ignored: The Far-Reaching Impact of a False Premise  Download Douglas-Final This article is well worth a read.

According to the authors, Chief Justice Burger misinterpreted the fable analogy he utilized in the decision. As the authors state:

In the landmark decision of Griggs v. Duke Power Co., the United States Supreme Court expanded the scope of employment discrimination law under Title VII of the Civil Rights Act of 1964 (Civil Rights Act) by adopting, authorizing, and endorsing disparate impact1 as an independent cause of action in addition to the preexisting disparate treatment theory of discrimination.2 In the critical paragraph in the opinion of the Court, Chief Justice Burger used the fable of The Fox and the Stork as an analogy to explain the Court’s expanded definition of employment discrimination.3 For over forty years, many legal scholars

have analyzed and criticized the Court’s then activist role in creating disparate impact, however, not a single scholar has recognized the importance of examining the Court’s manipulative and incorrect interpretation of the pivotal fable.4 The Chief Justice’s cunning use of the fable enabled the Court to create the legal fiction of disparate impact under the Civil Rights Act.5 In the context of the undetected false premise of Griggs, Congress codified the disparate impact theory in the Civil Rights Act of 1991—twenty years after the Griggs decision.

Mitchell H. Rubinstein

April 20, 2016 in Law Review Articles | Permalink | Comments (0)