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Editor: Mitchell H. Rubinstein
New York Law School

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Wednesday, October 31, 2007

2 Year Old NLRB Order Enforced By Third Circuit

3dcir In NLRB v. IBEW, Local 98, ___F. 3d ___(3d Cir. Oct. 12, 2007), the Third Circuit enforced a NLRB order that the Board waited two years to seek enforcement on. The court rejected the unions claim (the ULP's were committed by the union) that enforcement should be barred under the equitable doctrine of laches. This is because prejudice was not established.

The NLRB is often criticized for delay. However, not much is mentioned about the delay in seeking enforcement. In my experience this is where the real NLRB delay is.

Mitchell H. Rubinstein

   

October 31, 2007 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Choosing A Law School

The Oct. 30, 2007 Wall Street Law Journal Blog has another excellent article by AMIR EFRATI entitled "How to Cut Debt, Boost Job Prospects From Law School" His basic points are if your not in a top law school it will be difficult to land a high paying job and one should consider going to a state law school instead. He also mentions that students from lower ranked schools should consider transferring to higher ranked schools and that students should check out the placement office before they actually decide on a particular school.

All of this is good advice, but Amir left out something very important. Students need to visit the schools and kick the tires. Sit in a class if possible. Go to lunch and to the library. Speak with students on your own. You will find that most are happy to talk with you. You may even consider dropping in on a professor who teaches in a field of law that interests you.

Placement stats are important, but they are not everything. There are human factors such as cost, location and the ability to work part time.

The reality is that in most, if not all, fully ABA accredited law schools a student can get a legal education. Placement stats, location and reputation is what distinguishes the schools. I would put my students from St. John's and New York Law School up against a student at Harvard any day of the week. That student from Harvard may have better job opportunities, but that does not make him a better lawyer.

Mitchell H. Rubinstein

October 31, 2007 in Law Schools | Permalink | Comments (2) | TrackBack (0)

Legal Education At The Cross-Roads

The Oct. 31, 2007 New York Times ran a story entitled "Training Law Students For Real Life Careers" which is about a movement taking place in many law schools to reexamine what they teach and how they teach it. The article questions whether we are preparing todays generations of law students for tomorrow's problems.

I am totally against clinical education which is one of the reforms mentioned. Law School is very short. It remains my view that it is more important for students to learn how to find the law, interpret it and actually understand it than to apply it.

If you ask me the real problem is that law schools these days are more interested in hiring newly minted P.h.d's than a lawyer with several years of solid experience. They are more interested in seeing law reviews written about legal theory as opposed to a conflict in the circuits. It is more important to be cited  by the Harvard Law Review than by the Supreme Court.

Law Schools are loosing their mission to train lawyers. Is any body listening???

Mitchell H. Rubinstein   

October 31, 2007 in Law Schools | Permalink | Comments (1) | TrackBack (0)

Complaints Against 'Select Attorneys' Whitewashed, N.Y. Lawsuit Alleges In A Case Involving Attorney Formerly Employed By First Disciplinary Department

"Complaints Against 'Select Attorneys' Whitewashed, N.Y. Lawsuit Alleges" is an interesting Oct. 30, 2007 New York Law Journal article about a lawsuit brought by a former staffer at New York's First Disciplinary Department charging that she was fired for complaining that her superiors engaged in a pattern and practice of whitwashing and routinely dismissing complaints against certain select attorneys. These facts are certainly serious if true. As the article states:

A former staff attorney at the 1st Department Disciplinary Committee has filed a federal lawsuit charging she was fired in June in retaliation for complaining that her superiors had engaged in a "pattern and practice of whitewashing and routinely dismissing complaints against certain select attorneys."

The underlying theory of plaintiffs case involves a First Amendement and employment discrimination claims. This is certainly a case to watch.

Mitchell H. Rubinstein

October 31, 2007 in Employment Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 30, 2007

Are Physicans With Hospital Privileges Employees Under Title VII?

2dcircseal Salmon v. Our Lady of Victory, ___F.3d ____(2d Cir. Oct. 29, 2007), is a lengthly 2d Circuit decision discussing whether a physician in private practice can be considered an employee of the hospital where she has staff privileges. The plaintiff, a Gastronenterologist, who performed medical procedures at the hospital sought to bring a Title VII sexual harassment case against the hospital. Ultimately, the court held that there was an issue of fact concerning the degree of control the hospital had over the physician and therefore remanded the case for trial.

The court applied the common law right to control test to determine employee status and looked to cases involving medical residents which held that residents were employees under Title VII. The court described the relevant inquiry as follows:

Title VII defines an employee as "an individual employed by an
employer." 42 U.S.C. § 2000e(f). In Nationwide Mut. Ins. Co. v.
Darden, 503 U.S. 318, 323 (1992), the Supreme Court ruled that the
definitions of "employee," "employer," and "employment" are to be
determined using the common law of agency, rather than individual state
law, whenever statutes failed to specifically define "employee." While
Darden dealt only with ERISA, the courts have adopted its reasoning to
apply the common-law agency test in Title VII and other employment
discrimination statutes. See O'Connor v. Davis, 126 F.3d 112, 115 (2d
Cir. 1997) (Title VII); see also Scott v. Massachusetts Mut. Life Ins.
Co., 86 N.Y.2d 429, 433-34 (1995) (NYHRL) (looking to the control test,
among other factors, to determine the nature of the relationship).

  Whether a hired person is an employee under the common law of agency
depends on the thirteen factors articulated by the Supreme Court in
Community for Creative Non-Violence v.
Page 16
Reid, 490 U.S. 730 (1989), a case dealing with the ownership of a
copyright arising from artwork done "for hire." Once a plaintiff is
found to be an independent contractor and not an employee — whether on
summary judgment or after a jury trial — the discrimination inquiry is
over. The "Reid factors," as they are called, are as follows:

  [1] the hiring party's right to control the manner and
  means by which the product is accomplished; [2] the
  skill required; [3] the source of the
  instrumentalities and tools; [4] the location of the
  work; [5] the duration of the relationship between the
  parties; [6] whether the hiring party has the right to
  assign additional projects to the hired party; [7] the
  extent of the hired party's discretion over when and
  how long to work; [8] the method of payment; [9] the
  hired party's role in hiring and paying assistants;
  [10] whether the work is part of the regular business
  of the hiring party;[11] whether the hiring party is
  in business; [12] the provision of employee benefits;
  [13] and the tax treatment of the hired party.

490 U.S. at 751-52 (footnotes omitted).

This is an important case to watch. It is full of cites which may be of assistance to researchers.

Mitchell H. Rubinstein

October 30, 2007 in Employment Law | Permalink | Comments (0) | TrackBack (0)

National Union Employees Cannot Be Combined With Local's In Order To Meet Title VII's 15 Employee Requirement

In Dean v. American Federation of Government Employees, Local 476, (D.D.C. 2007) (registration required), the court dismissed a Title VII case against a local union because it did not have 15 employees as required by Title VII. The plaintiff, looking to NLRB law, unsuccessfully argued that the national and local union should be considered a single employer for Title VII purposes.

The court held under the Supreme Court's Radio Technicians test, a local and national union could not be treated as a "single employer."  This was because the local was governed by its own constitution and its operations were overseen by its president, who did not report to anyone at the national union. The local operated  entirely independent of the national. None of the local's officers were employees or officers of the national union. The national union did not control the local's labor relations. Finally, neither the administratively convenient pass-through system whereby the national collected dues for the local  established common ownership or financial control.

This was federal union. Even if a local is not subject to Title VII, they may be governed under a state law anti-discrimination statute such as New York Executive Law Sec. 296 and they are also subject to the duty of fair representation. Discrimination can make out a duty of fair representation case.

Mitchell H. Rubinstein 

October 30, 2007 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

Information About Discipline of Judges In New York

The NYS Commission on Judicial Conduct maintains an excellent web site for those interested in the discipline of judges in New York. I browsed the cite the other day was surprised by the number of judges that have been disciplined. Most of the disciplned Judges appear to have been censured.

Mitchell H. Rubinstein

October 30, 2007 in Legal Research | Permalink | Comments (0) | TrackBack (0)

Jackson Lewis Student Writing Competition

Professor Martin Malin (Chicago-Kent State Law School) writes to inform us of the annual Jackson Lewis writing competition. Marty explains:

I am pleased to advise you that Chicago-Kent College of Law will again be administering the Louis Jackson Memorial National Student Writing Competition in Employment and Labor Law.  The competition is sponsored and funded by Jackson Lewis, in memory of Mr. Jackson, a founding partner of the firm.  As in the past, students may submit essays of up to 35 pages in length.  Essays will be blind judged by a panel of five law professors.  Neither Jackson Lewis nor Chicago-Kent have any say in the selection of winning essays.

To be eligible, students must be currently taking or must have completed coursework in labor or employment law at an ABA accredited law school during the fall 2007 semester.  Entries must be received by Tuesday, January 22, 2008.  Authors must identify themselves only on a removable cover page.  They must submit three copies of their papers and a removable cover page which contains the title of the paper, the author’s name and contact information, a statement of the student’s labor and employment law coursework and a brief description of the genesis of the student’s interest in the field.  Additional information is available here. http://www.kentlaw.edu/academics/plel/Flyer%202007.pdf

The first place award is $3,000.  There are two second place awards of $1,000 each.

Mitchell H. Rubinstein

October 30, 2007 in Law Students | Permalink | Comments (0) | TrackBack (0)

Monday, October 29, 2007

Auxiliary Research Professor Held Not To Be An Employee Under Title VII

10caseal  Xie v. University of Utah, ___F. 3d ___(10th Cir. 2007), is an important Title VII case holding that a auxiliary research professor was not an employee of the University of Utah, a public university. The university exercised little, if any control over the professors daily activities, but simply required that she submit her grant proposals to a certain committee and she comply with its research rules. The professor received no salary or benefits, did not teach or advise and received no regular research supervision. The university supplied her with minimal supplies in the form of a shared office, shared telephone, business cards and the use of a copier.

I am aware of one similar decision, Tadros v. Coleman, 717 F. Supp. 996 (S.D.N.Y. 1989), affirmed, 898 F. 2d 10 (2d Cir. 1990) and this case appears consistent with that decision. There, a lecturer at Cornell Medical School who basically was only given an office and access to the school library was held not to be an employee under Title VII.

As my students know, determining employee status is one of the most difficult aspects of employment law. The courts are all over the map and apply different tests under different statutes. The most common tests are the right to control test, the economic realities test, a hybrid test combining these two tests and the primary purpose test. Here, the court applied the common law right to control test.

October 29, 2007 in Employment Law | Permalink | Comments (0) | TrackBack (0)

Confusion Over Return To Work Date Not Protected As Family Leave

9thcircuit_2  I bring Ryman v. Sears, ___F.3d ___(9th Cir. Oct. 12, 2007), to your attention for several reasons. First, it reminds us that many states having Family Leave Laws. In this case, an employee who was returning from Family leave was given the wrong back to work date by a fellow employee. He was then fired. Applying Oregon's state FMLA statute, the 9th held that the absence was not protected.

The court also reviews basic civil procedure law which indicates with respect to state law issues, in the absence of a state supreme court decision a federal court should apply the law of a state's intermediate court unless it concludes that the state supreme court would not follow that decision.

This was a particularly harsh decision. The result probably would have been different if an agent of the company gave him an incorrect back to work return date. The decision does not state why a FMLA case was not plead. However, it is likely that the same decision would have been reached under the FMLA.

Mitchell H. Rubinstein 

October 29, 2007 in Employment Law | Permalink | Comments (0) | TrackBack (0)

Can Lawyers Give Undisclosed Assistance To Pro Se Litigants?

Aba_2 I just came across ABA Formal Opinion No. 07-446 (May 5, 2007), which concludes that it is not a violation of the Model Code for lawyers to give undisclosed assistance to pro se litigants. They also appear to indicate that lawyer ghost writing is not unethical. The ABA does not share the view exposed by many that this practice should not be permitted because pro se litigants get special treatment in litigation.

I could not disagree more with this opinion. Lawyers need to be responsible for every thing they advice or write. If they are not, then how can a client rely on such advice or papers? A friend who the lawyer gives legal advice to becomes a client whether the lawyer is paid or not.

In any event, as this ABA opinion notes, there is wide disagreement over this issue and a lawyer should consult his/her state decisions or ethical opinions on this issue.

Note, I previously blogged about lawyer ghostwriting here.

Mitchell H. Rubinstein

October 29, 2007 in Law Review Ideas, Lawyers | Permalink | Comments (2) | TrackBack (0)

Law Student Faces Disciplinary Action Over Facebook Photo of Pat Robertson

There is an interesting Oct. 12, 2007, Associated Press article entitled "Law Student Faces Disciplinary Action Over Facebook Photo of Pat Robertson" which is about a threat of discipline made against a Regent University Law Student about an unflattering photo of Pat Robertson that appeared on the student's Face Book page. As the article states:

The second-year law student said officials at the private Christian university in Virginia Beach, Va., demanded that he either publicly apologize and withhold public comment about the matter, or submit to the law school dean a legal brief defending the posting. Key chose the latter, arguing that his posting was satire protected under the First Amendment.

"I believe they're wrong from a legal standpoint," the Houston native said in a telephone interview Thursday. "But also, it's important in the Christian faith to be able to criticize our leaders."

According to Key, Dean Jeffrey Brauch rejected his written legal brief and he now faces disciplinary action -- perhaps even expulsion -- under the university's standards of personal conduct.

The second year law student, however, has a serious problem. I believe Regent is a private university. Therefore, the First Amendment probably does not apply for want of state action.

Mitchell H. Rubinstein

October 29, 2007 in Law Students | Permalink | Comments (0) | TrackBack (0)

Sunday, October 28, 2007

5th Holds That Where Summary Plan Description Conflicts With Plan SPD Controls And Reliance Does Not Have To Be Established

5thcir Washington v. Murphy Oil, ___F. 3d___ (5th CIr. 2007), is a short, but important ERISA decision.

As most employees covered by a pension plan know, they are entitled to a Summary Plan Description or SPD. For most, this is the only document they will see. However, there is also a much more comphrensive Plan Document. Query, what should a court do if the documents conflict? Murphy Oil holds that the SPD controls and reliance does not need to be shown-as least where the SPD unequivocally grant the employee with a vested right to benefits. However, the circuits are in conflict with respect to this issue. In a footnote, the court described the various circuit rulings as follows:

We certainly do not write on a clean slate. Indeed, there appears to be a five-way circuit split regarding whether an ERISA claimant needs to establish reliance and/or prejudice based on the conflicting terms of an SPD [summary plan description]. The Third and Sixth Circuits do not require a showing of reliance. See Burstein v. Ret. Account Plan for Employees of Allegheny Health Edu. and Research Found., 334 F.3d 365, 380-82 (3d Cir.2003); Edwards v. State Farm Mut. Auto. Ins. Co., 851 F.2d 134, 137 (6th Cir.1988). The Second Circuit also does not require a showing of reliance, but does require a showing of a likelihood of prejudice, which an employer may then rebut through evidence that the deficient SPD was in effect a harmless error. See Burke v. Kodak Ret. Income Plan, 336 F.3d 103, 111-14 (2d Cir.2003). The Seventh and Eleventh Circuits require a showing of reliance. See Health Cost Controls of Illinois, Inc. v. Washington, 187 F.3d 703, 711 (7th Cir.1999); Branch v. G. Bernd Co., 955 F.2d 1574, 1579 (11th Cir.1992). The First, Fourth, and Tenth Circuits require a showing of reliance or prejudice, though it appears that the terms "reliance" and "prejudice" are sometimes treated synonymously. See Govoni v. Bricklayers, Masons & Plasterers International Union, Local No. 5 Pension Fund, 732 F.2d 250, 252 (1st Cir.1984); Aiken v. Policy Management Sys. Corp., 13 F.3d 138, 141 (4th Cir.1993); Chiles v. Ceridian Corp., 95 F.3d 1505, 1519 (10th Cir.1996). Finally, the Eighth Circuit requires a showing of reliance or prejudice, but only if the SPD is "faulty." See Palmisano v. Allina Health Sys., 190 F.3d 881, 887-88 (8th Cir.1999); Marolt v. Alliant Techsystems, 146 F.3d 617, 621-22 (1998).

Mitchell H. Rubinstein 

October 28, 2007 in Employee Benefits Law | Permalink | Comments (0) | TrackBack (0)

Attorney Presidential Candidates

There is an interesting Oct. 28, 2007 New York Times article entitled "Attorneys at Politics: Would You Hire One to Represent You?" which points out that most of the major presidential candidates are lawyers. The article discusses interesting tidbits about what each candidate did as an attorney.

The first jury trial Mrs. Clinton handled on her own, for instance, concerned the rear end of a rat in a can of pork and beans. She represented the cannery, and she argued that there had been no real harm, as the plaintiff did not actually eat the rat. “Besides,” she wrote in her autobiography, describing her client’s position, “the rodent parts which had been sterilized might be considered edible in certain parts of the world.”

The jury seemed to buy her argument, more or less, as it awarded only token damages. But no one was particularly happy about the case or her performance. Her former partner, Webster L. Hubbell, told one of her biographers that she was “amazingly nervous” in speaking to the jury.

Mr. Giuliani, in an unusual move, personally handled the 10-week corruption trial of a Bronx political leader in 1986 while he was United States attorney. His work was methodical and not particularly flashy, but he went overboard in his closing argument. “A certain kind of passion threw him off,” the judge told the jurors, saying they should ignore parts of what Mr. Giuliani had said.

John McCain is the only major candidate without a law degree. 25 of our Presidents have been lawyers.

Mitchell H. Rubinstein

October 28, 2007 in Current Events | Permalink | Comments (0) | TrackBack (0)

Disabilities Fight Grows as Taxes Pay for Tuition

"Disabilities Fight Grows as Taxes Pay for Tuition " is an interesting Oct. 27, 2007 New York Times Article. It is worth a read because it reminds us that special education law is not just about the law. It is about taxes and about children. It also explains how expensive special education is. As the article states: 

The federal Individuals with Disabilities Education Act guarantees a “free appropriate public education” for children with disabilities. Most of the nation’s nearly six million special-education students attend public school, but the law allows parents to seek public financing for private schools if they can show that the public schools cannot adequately serve their children.

As of 2005, more than 88,000 disabled students were educated in private settings at taxpayer expense, an increase of 34 percent over a decade, according to the National School Boards Association. Often school districts acknowledge that they cannot provide an adequate education, and willingly pay for private tuition.

Mitchell H. Rubinstein

October 28, 2007 in Education Law | Permalink | Comments (1) | TrackBack (0)

The Failure To Comply With Subpoena

2nddepartment What happens if a party fails to comply with a Subpoena Dues Tecum under New York law? The answer  State Division of Human Rights v. Berler, ___A.D. 3d ___(2d Dep't.  Oct. 2, 2007), provides is that it depends upon the type of subpoena is involved. A non-judicial subpoena issued by an attorney pursuant to CPLR Sec. 2309(b)(1) carries with it a penalty of $50.00 as well as damages by reason of the failure to comply. Upon motion to compel compliance, if the court orders compliance with a non-judicial subpoena further disobedience is a violation that may be subject to contempt and the commitment of the witness to jail. By contrast, CPLR Sec. 2308(a) lists the penalties for disobedience of a judicial subpoena which includes the penalty of striking a party's pleading.

Thus, the 2d Dep't. held that the lower court erred by precluding the introduction of evidence for the disobedience of a non-judicial subpoena dues tecum since that was not one of the remedies listed in the statute.

Mitchell H. Rubinstein

October 28, 2007 in Civil Law | Permalink | Comments (0) | TrackBack (0)

Saturday, October 27, 2007

Most Unusual Law Student?

The Oct. 28, 2007, New York Times ran a story about Elizabeth Wurtzel, a best selling author and a student at Yale Law School. She is also a former drug addict. Lets here it for Yale's admission policies which look beyond grades and SAT scores!

Mitchell H. Rubinstein

October 27, 2007 in Law Students | Permalink | Comments (0) | TrackBack (0)

Suing to Abolish Unpublished Appellate Court Rulings

"Suing to Abolish Unpublished Appellate Court Rulings" is a very interesting Oct. 22, 2007 law.com article written by Howard Bashman who runs the blog How Appealing. A party in a California case is challenging on due process grounds a California rule which does not permit unpublished decisions to be cited. From the article:

According to press coverage of the federal suit and a blog post by one of Hild's attorneys, the federal lawsuit is advancing at least two separate challenges. The first prong of Hild's attack posits that non-precedential, unpublished intermediate appellate court rulings are far less likely to receive further review in the remainder of the appellate process. The second prong appears to posit that Hild's effort to obtain affirmance of his personal injury award suffered due to his inability to cite to other existing unpublished decisions that presumably would have supported his argument in a way that existing published opinions failed to do.

I have personally disliked the idea of courts picking and choosing which decision to publish. I firmly believe that unpublished opinions are not given the same weight by courts and they give large firms an advantage over the "smaller guy" who may not practice in this area. Therefore, I believe all decisions should be published.

As for a due process violation, that might be too much of a stretch. However, this is an interesting case to watch.

Mitchell H. Rubinstein

October 27, 2007 in Misc., Legal | Permalink | Comments (0) | TrackBack (0)

Should Courts Issue Unpublished Opinions?

Should Courts Issue Unpublished Opinions? is an interesting story over at Concurring Opinions. The article reviews the pros and cons of publishing opinions and provides some interesting statistics as to the large numbers of unpublished opinions. As the article states:

A common practice for many courts is to issue unpublished opinions that may not be cited as precedent. These opinions are often short and consist of a few paragraphs. They are generally supposed to be limited to cases that can be resolved by clearly-established legal rules. According to one news article: "California courts of appeal issued 11,852 opinions during the 2004-2005 fiscal year. Of these, only 1,047 were published. About one-third of federal appellate-court decisions reviewed in 2002 came in unpublished opinions." These statistics are staggering. Are there really so many cases that do not warrant having precedential value?

Mitchell H. Rubinstein

October 27, 2007 in Misc., Legal | Permalink | Comments (0) | TrackBack (0)

Friday, October 26, 2007

Target.com Case May Expand Disability Laws on the Web

What is the obligation of a retailer to make its web page available to the visually handicapp? A case making its way through the court system involving Target Corporation addresses that exact issue. An article in Computer World about that litigation is available here. As the article states:

A federal judge last week ruled that Target.com, the home page of retailer Target Corp. , must be accessible to blind persons under California laws. The ruling could extend state and federal disabilities statutes to the Internet, experts said.

At the same time, Judge Marilyn Patel, of the U.S. District Court in San Francisco, certified a lawsuit filed against Target by the National Federation of the Blind (NFB) as a class action on behalf of U.S. blind Target.com users.

In her memorandum and order, Patel also denied the Minneapolis-based retailer's request for summary judgment in the lawsuit.

The national and California NFB organizations, along with blind college student Bruce "BJ" Sexton, filed a lawsuit last year alleging that Target had failed to make its Web site accessible to the blind and then ignored the issue when confronted with complaints.

The lawsuit contends that Target.com violates the Americans with Disabilities Act (ADA) and two California statutes.
Mitchell H. Rubinstein

October 26, 2007 in Discrimination Law | Permalink | Comments (2) | TrackBack (0)