Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, April 30, 2008

2d Issues Important FLSA Decision Defining Work

2dcirseal Singh v. City of New York, ___F.3d ___(2d Cir. April 29, 2008), is an important FLSA decision because the court deals with modern day commute to and from work for many city goers like me. The issue in this case was whether travel time counted for FLSA Overtime purposes. Normally, the answer would be an easy one-No. However, what made this case a bit unusual was that the employees were required to take home with them 15-20 pounds of work material so they would have it for the next day. That slowed them up and made their commute a bit more difficult as any NYC subway rider could attest to.

In a nutshell, the court ruled against the plaintiffs because it found that such work was de minimis. As the court stated:

As noted earlier, because such time occurs outside the normal working hours, it is noncompensable under the Portal-to-Portal Act unless carrying inspection materials is an integral and indispensable part of the plaintiffs’ inspecting duties. Because we conclude below that the
additional commuting time in this case is de minimis as a matter of law, we do not resolve this
issue and instead assume without deciding that carrying inspection documents is an integral and
indispensable part of the plaintiffs’ inspecting duties.
The de minimis doctrine permits employers to disregard, for purposes of the FLSA,
otherwise compensable work “[w]hen the matter in issue concerns only a few seconds or minutes
of work beyond the scheduled working hours.” Anderson v. Mt. Clemens Pottery Co., 328 U.S.
680, 692 (1946). “It is only when an employee is required to give up a substantial measure of his
time and effort that compensable working time is involved.” Id. This Court considers three
factors in determining whether otherwise compensable time should be considered de minimis: (1)the practical administrative difficulty of recording additional time; (2) the size of the claim in the aggregate; and (3) whether the claimants performed the work on a regular basis. See N.Y. City Transit Auth., 45 F.3d at 652.
Based on these factors, we conclude that any additional commuting time in this case is de
minimis as a matter of law.

Mitchell H. Rubinstein   

April 30, 2008 in Employment Law | Permalink | Comments (0) | TrackBack (0)

Blogs As Law School Pedalogical Teaching Tools

The Chronicle of Higher Education has an interesting April 29, 2008 entitled A Class Blog Studies Fair Use which is about a blog run by Case Western Law School Professor Peter Friedman. The Blog is entitled What is Fair Use and as far as I could tell, students post information in response to topics that may be discussed in class. As the article states:

The blog, created by associate professor Peter B. Friedman, supplements a legal analysis and writing class. Each semester the students are given a legal problem that’s used in their writing assignments. Mr. Friedman said this is the first time he’s used a blog to extend class discussion, and the second time he’s chosen a fair-use issue for the course theme (the previous fair-use problem covered Google’s library digitization project).

“Of all the things I’ve tried, the blog has been the most successful in promoting discussion,” Mr. Friedman told the Chronicle. “It’s certainly especially suited to fair-use discussions, since we can post videos.”

What a wonderful use of technology. The trick is finding a way to incorporate blogs into class.

Mitchell H. Rubinstein

April 30, 2008 in Blogs, Faculty | Permalink | Comments (0) | TrackBack (0)

DNA Tests Lead To Release Of Man Imprisoned For 27 Years For Murder

Texas man freed by DNA testing after 27 years in prison is an important April 29, 2008 A.P. News story. It discusses the release a man who spent 27 years in prison for a murder he did not commit. The prisoner was represented by the Innocence Project and he is the 31st man in Texas to have his conviction set aside based upon DNA testing. 

April 30, 2008 in Legal News | Permalink | Comments (0) | TrackBack (0)

Allergic Mother Loses Attempt to Prohibit Kids' Contact With Cat

Allergic Mother Loses Attempt to Prohibit Kids' Contact With Cat (registration required)is an interesting April 29, 2008 New York Law Journal article about a divorced mother who wanted to prevent her children from having contact with her X husband's Cat because she was severely allergic. As the article states:

  A woman who claimed that she is allergic to her ex-husband's cat cannot prevent their two children from visiting their father's home, a Long Island judge has ruled.

Following a hearing earlier this month in Mandel v. Mandel, 203448/06, Acting Supreme Court Justice Hope S. Zimmerman (See Profile) of Nassau County ruled that there was no "legal or factual basis to exclude the children" from their father's apartment.

How did the Judge rule, you might ask?  He instructed that Ms. Mandel should "make a change of clothes available in the garage for the children." In turn, the children will take "the reasonable precaution" of changing their clothes before re-entering their home after visits with their father.

Mitchell H. Rubinstein

April 30, 2008 in Oddly Enough, Legal | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 29, 2008

Judge Estlinbaum Joins Adjunct Law Professor Blog As Contributing Editor

I am delighted to announce that Judge Craig Estlinbaum of the 130th Judicial Court of Texas has joined Adjunct Law Prof Blog as a Contributing Editor. Judge Estlinbaum is also an Adjunct Professor of Law at South Texas College of Law where he teaches damages. The Hon. Estlinbaum is a graduate of South Texas College of Law where he also served as Editor-in-Chief of the law review. 

Please join me in welcoming Judge Estlinbaum to the blogosphere.

Mitchell H. Rubinstein

April 29, 2008 in Blogs, Faculty | Permalink | Comments (0) | TrackBack (0)

11th Reluctantly Enforces 5 Year Old NLRB Bargaining Order

11thcir NLRB v. Goya Foods of Florida, __F.3d___(11th Cir. April 24, 2008), is a lengthly case dealing with enforcement of NLRB bargaining orders. Ultimately, the court enforced the bargain because 1. ample evidence supported the Board's findings; 2. the Board considered the appropriate factors; and 3. although the 5 year delay was of considerable concern, the particularly egregious nature of the unfair labor practices convinced the court not to impose upon the Board a duty to re-open the record.

This opinion is 43 pages long and full of muliple cites and the court discusses multiple propositons of law. Researchers may therefore, find this case helpful.

Mitchell H. Rubinstein   

April 29, 2008 in NLRB | Permalink | Comments (0) | TrackBack (0)

Conference On Addressing Student Behavior in New York City Schools: Discipline, Safety, and Student Rights

On May 15, 2008 between 6:00 p.m. and 8:00 p.m., the Association of the Bar of the City of New York will be holding a conference entitled Addressing Student Behavior in New York City Schools: Discipline, Safety, and Student Rights

The speakers will be:

Director, Adolescent Intervention and Diversion Team, Criminal Defense Practice of The Legal Aid Society

Independent Behavior Consultant

Staff Attorney, Racial Justice Program, ACLU National Legal Department

Executive Director, New York Civil Liberties Union

Principal, Opportunity Charter School

Additional information can be found on the above link. The event is free and open to the public.

Mitchell H. Rubinstein 

April 29, 2008 in Conferences, CLE | Permalink | Comments (0) | TrackBack (0)

Judges Strike In New York??

As most New York lawyers know, state Judges have not gotten a pay raise in quite some time. The situation has gotten so bad that New York Court of Appeals Chief Judge Judith Kaye has brought suit. A number of judges have recused themselves from cases where legislators are appearing before them as attorneys. This lead Chief Judge Kaye to write to newly minted Governor Patterson that there is no judicial slow down. Additional details including a link to Judge Kaye's correpsondence can be found here.

Mitchell H. Rubinstein

April 29, 2008 in Judges | Permalink | Comments (0) | TrackBack (0)

Law Professor Sues Students!!

What is this world coming to? The April 27, 2008 Arkansas Online has a lengthly article entitled Experts watch as professor sues students. It is about  Richard Peltz, a professor at the University of Arkansas at Little Rock’s William H. Bowen School of Law since 1998, purported lawsuit against students and others over false allegations of racism. Professor Peltz is an expert in First Amendment law and the lawsuit appears to sound in defamation.

Though I suppose professors have the right to sue just like every one else in America, suing your students, well that's over the line-way over the line in my book.

Mitchell H. Rubinstein

Hat Tip: Prawfs Blawg

April 29, 2008 in Law Professors | Permalink | Comments (0) | TrackBack (0)

Monday, April 28, 2008

1st Holds Court Review Of Labor Arbitration Is Among Narrowest Known In The Law

1stcircuit Ramos-Santiago v. UPS, ___F.3d___(1st Cir. April 24, 2008) provides an excellent primer about just how difficult it is to vacate a labor arbitration decision. In fact, the court stated that a court's review of an arbitrator's decision is "among the narrowest known in the law." The court went on to apply the "manifest disreguard for the law" standard to determine if the award should be vacated. Not surprisingly, the court upheld the award.

This was an appeal of a termination where the arbitrator found that the employer had just cause to discharge. The employee claimed that the arbitrator relied on the wrong section of the CBA which justified the award being vacated.

The court also provides a nice summary of the "manifest disreguard of the law" standard utilized by many circuits.

Mitchell H. Rubinstein         

April 28, 2008 in Arbitration Law | Permalink | Comments (0) | TrackBack (0)

Law School Graduation Speakers

Dean Paul Caron, Editor in Chief of the Law Professor Blog Network and Editor of the TaxProf Blog has complied a list of law school graduation speakers.  The list is impressive and includes several Supreme Court Justices and Members of Congress. The most unusual speakers who seem out of place are:

Columbia:  Cynthia McFadden (Co-anchor, ABC News)

Hofstra:  Adam Liptak (Reporter, New York Times)

Loyola-New Orleans:  Scott Turow (legal novelist)

Northwestern:  Jerry Springer (TV show host; former Mayor, Cincinnati

Virginia:  Timothy Finchem (Commissioner, PGA Tour)

U. of Washington:  Sherman Alexie (author)

Mitchell H. Rubinstein

April 28, 2008 in Law Schools, News | Permalink | Comments (0) | TrackBack (0)

BlackBerry's and Overtime

BlackBerry Clicks Can Up Company Costs is an important April 28, 2008 National Law Journal article. It is about possible wage and hour over-time claims for the use of Blackberry devices. As the article states:

If you're handing out BlackBerrys like candy in the workplace, you better have a policy in place to ward off potential overtime lawsuits.

That's the advice many lawyers are shelling out to employers as the popularity of hand-held devices is booming in the workplace, allowing wired-up employees to work anywhere, anytime.

Management-side attorneys fear a new wave of wage-and-hour litigation is just around the corner, where employees will claim overtime for all the hours they've spent clicking away on their BlackBerrys or other digital communication devices.

While I am sure that someone is eventually going to make such a claim, I have several thoughts about this. First, many employees who use BlackBerry's are going to be exempt from the FLSA as professionals, administrative employees or executives. Second, case law under the FLSA recognizes a de minimus, exception so I do not think this is going to be much of a problem.

In terms of an employment policy, I am not sure how that is going to "protect" employers from such lawsuits-not that employer ever need or deserve to be protected. If in fact, the employee has to do work, the fact that a policy may say only use your Blackberry during 9-5 seems immaterial to me.

Mitchell H. Rubinstein    

April 28, 2008 in Employment Law | Permalink | Comments (0) | TrackBack (0)

The Continuing Problem of Pregnancy Discrimination

Hofstra Law School Professor Joanna Grossman and Find Law Reporter wrote an interesting April 15, 2008 story entitled A Marked Increase in Pregnancy Discrimination Claims and Other Key Developments Illustrate the Continuing Struggle of Pregnant Workers - Including Pregnant Attorneys:
Part Two in a Two-Part Series of Columns

In this article Professor Grossman outlines some of the challenges facing pregnant women at work. As the article states:

Consider the Seventh Circuit's ruling in Troupe v. May Department Stores. There, a pregnant sales clerk was fired just one day before she was scheduled to take maternity leave, after a series of warnings about excessive tardiness. Was she fired because she was often late to work, or as punishment for being pregnant and planning a maternity leave? The court ruled that she had failed to prove that the employer made the decision because of her pregnancy, as opposed to because of her frequent lateness.

Troupe illustrates some of the limits of the PDA. First, even if a pregnant woman performs up to the employer's standard, she still bears the burden of proving that any adverse decision was made because of her pregnancy. And this can prove difficult. In a typical (non-pregnancy) employment discrimination case, the plaintiff may be able to find a counterpart of a different race or gender who performed similarly, yet was treated differently. Yet the likelihood that a plaintiff will find the "hypothetical Mr. Troupe" suggested by the Seventh Circuit - a man who was not fired for being chronically late due to a medical condition for which he will soon commence an extended leave - is low. So is the chance that the employee with happen to find direct evidence of the employer's animosity towards pregnant workers.

Second, to the extent that the plaintiff's pregnancy actually made her unable to perform up to the employer's standards, the PDA provides no absolute protection against adverse action. If morning sickness in fact made her late, then the employer could legally have fired her for tardiness (even though it was tardiness caused by pregnancy), as long as there is no reason to believe it would have treated a comparably tardy male employee differently.

Mitchell H. Rubinstein

April 28, 2008 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

Sunday, April 27, 2008

Prof. Secunda Posts On SSRN A Response To My Article About Sprint/United v. Mendelsohn, The Celebrated "Me Too" Decision

On April 26, 2008, Professor Paul M. Secunda posted a marvelous essay in response to my Essay About the Sprint case entitled The Many Mendelsohn "Me Too" Missteops: An Alliterative Response To Professor Rubinstein, 102 Nw. U. L. Rev. Colloquy ___(forthcoming 2008) where he responds to my Essay Sprint/United Management Co. V. Mendelsohn: The Supreme Court Appears To Have Punted On The Admssibility Of "Me Too" Evidence Of Discrimination. But Did It?, 102 Nw. U. L. Rev. Colloquy 264 (2008), by offering his views about the case and about some of the "missteps" that may have been made. As the Abstract provides:

Although one might have the misimpression that the missteps referred to in the title of this paper indicate a criticism of the U.S. Supreme Court's ADEA decision of Mendelsohn v. Sprint/United Management Co., it does not. I believe the unanimous Court opinion is correct: 'Me too' evidence should be admissible in certain instances based on evidentiary principles and based on the overriding importance of context in such cases, as further discussed in Professor Mitchell Rubinstein's Colloquy Essay, 'Mendelsohn v. Sprint/United Management; The Supreme Court Appears to Punt Whether 'Me Too' Evidence of Discrimination is Admissible or Does It?'

Rather, the missteps I have in mind are three and include: (1) my own misstep for writing in a previous Workplace Prof Blog post, before the decision, that a per se rule against this type of evidence would be adopted by the usual conservative Supreme Court Justice suspects; (2) the misstep made by the Supreme Court for granting certiorari in the first place in this rather mundane (legally speaking) employment discrimination case; and (3) the misstep of Professor Rubinstein in suggesting that the decision in Mendelsohn will provide 'important medicine' for employment discrimination plaintiffs and in concluding that this 'me too' evidentiary issue may again raise its narcissistic head before the Court.

Professor David Gregory has also written a wonderful Essay in Response to my Essay entitled Sprint/United Management Company v. Mendelsohn: The "Me Too" Relative of the "He Said, She Said" Extended Family, 102 Nw. U. L. Rev. Colloquy __(forthcoming 2008) that will also be published as part of this Colloquy. Additionally, I will be publishing a Reply to Professors Secunda and Gregory which I hope to have posted on SSRN in a few days.

Scholars and attorneys interested in employment discrimination may find our Colloquy important to review.

Mitchell H. Rubinstein

April 27, 2008 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

7th Rules In Favor Of Student Who Wanted To Wear A "Be Happy, Not Gay" T-Shirt

7th_circuit There seems to be more and more free speech claims brought by students against school districts. Nuxoll v. Indian Prairie School Dist., __F.3d___(7th Cir. April 23, 2008) is one such case. The 7th Circuit held that a high school student was likely to succeed on the merits of his free speech claim. He asserted that the school district violated the First Amendment by preventing him from wearing a T-shirt bearing the slogan "Be happy, Not Gay" in response to a day of silence intended to draw attention to the harassment of homosexuals. As The court reasoned:

Nevertheless, “Be Happy, Not Gay” is only tepidly
negative; “derogatory” or “demeaning” seems too strong a
characterization. As one would expect in a school the size of
Neuqua Valley High School, there have been incidents of
harassment of homosexual students. But it is highly speculative
that allowing the plaintiff to wear a T-shirt that says “Be
Happy, Not Gay” would have even a slight tendency to
provoke such incidents, or for that matter to poison the
educational atmosphere. Speculation that it might is, under the
ruling precedents, and on the scanty record compiled thus far in
the litigation, too thin a reed on which to hang a prohibition of
the exercise of a student’s free speech. We are therefore
constrained to reverse the district court’s order with directions
to enter forthwith (the “Day of Truth” is scheduled for April 28)
a preliminary injunction limited however to the application of
the school’s rule to a T-shirt that recites “Be Happy, Not Gay.”
The school has failed to justify the ban of that legend, though
the fuller record that will be compiled in the further
proceedings in the case may cast the issue in a different light.

The court decision, written by Judge Posner, provides an excellent primer on student free speech rights. The court basically follows Tinker in finding that there would be no irreparable harm allowing the student to wear this t-shirt.

Mitchell H. Rubinstein

April 27, 2008 in Education Law | Permalink | Comments (0) | TrackBack (0)

Senate Passes Genetic NonDiscrimination Act

The April 25, 2008 U.S. News has an excellent article entitled New 'GINA' Law Would Stop Genetic Discrimination which summarizes the Genetic NonDiscrimination Act which was just passed by the U.S. Senate. Remarkably, this Bill has been around for 13 years and still has not been enacted into law. If enacted, this law would provide that anyone who gets genetic screening tests will be protected from having that information shared with health insurers or employers. As the article states:

In the works for 13 years, GINA got stalled along the way by a few obstinate lawmakers, as my colleague Dr. Bernadine Healy, U.S. News health editor, pointed out in this column. So consumer health advocates are greeting yesterday's news with a huge sigh of relief. "It's an extraordinary step forward and essential if we ever want to see the potential of genetic research," says Debra Ness, president of the National Partnership for Women & Families, a nonprofit advocacy group that has been lobbying for GINA's passage. "There are people afraid to enter research studies or get genetic testing, and we hope this legislation will alleviate those fears."

The law will: (a) prohibit the use of genetic information to deny employment or insurance coverage; (b) ensure that genetic test results are kept private; and (c) prevent an insurer from basing eligibility or premiums on genetic information. Specifically, it will prevent genetic discrimination cases . . .

Mitchell H. Rubinstein

April 27, 2008 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

ERISA Plan Not Subject To Labor Arbitration

3rdcircuit Steelworkers v. Rohm, ___F.3d___(3rd Cir. April 14, 2008) is an important decision. The court holds that a dispute over an ERISA disablity plan is generally not subject to labor arbitration. As the court stated:

While we recognize the strong
policy considerations favoring arbitration of labor disputes,
there is no right to arbitration of ERISA benefits under a CBA
unless the ERISA benefits sought are either: (i) derived directly
from an ERISA plan established and maintained by or
incorporated into a CBA whose grievance procedure contains an
arbitration clause, or (ii) created by a separate ERISA plan and
that plan and/or the CBA provide that adverse benefit
determinations by a plan administrator are subject to the CBA’s
grievance procedure that includes arbitration. Because we hold
that the benefits sought in this case are neither created by or
incorporated into the CBA nor made subject to the CBA’s
grievance procedure, we reverse the District Court’s order
granting summary judgment to the union and those workers
seeking disability benefits and denying summary judgment to
the employer.

This was a lengthy decision that we are likely to hear more about in the future.

Mitchell H. Rubinstein

April 27, 2008 in Arbitration Law, Employee Benefits Law, Employment Law, Law Review Ideas | Permalink | Comments (0) | TrackBack (0)

8th Issues Primer on Disability Discrimination

8thcir Buboltz v. Residential Advantages, ___F.3d___ (8th Cir. April 18, 2008) is brought to your attention because it is relatively short and provides a nice primer of ADA and Rehab Act standards. The also discusses contructive discharge and what an adverse action is under Title VII. As the court states:

An adverse employment action is a tangible change in working conditions that
produces a material employment disadvantage. Thomas v. Corwin, 483 F.3d 516, 528
(8th Cir. 2007). Termination, cuts in pay or benefits, and changes that affect an
employee's future career prospects are significant enough to meet this standard, as are
circumstances amounting to a constructive discharge. Higgins v. Gonzales, 481 F.3d
578, 584 (8th Cir. 2007). Changes in intangible employment conditions may also
constitute an adverse employment action. See Meyers v. Neb. Health & Human
Servs., 324 F.3d 655, 660 (8th Cir. 2003). Nevertheless, "not everything that makes
an employee unhappy is an actionable adverse action." Montandon v. Farmland
Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997) (internal quotations omitted)
(discussing an unlawful retaliation claim in the context of Title VII). For example, a
job reassignment involving no corresponding reduction in salary, benefits, or prestige
is insufficient to establish an adverse employment action. Id. Additionally, minor
changes in duties or working conditions, even unpalatable or unwelcome ones, which
cause no materially significant disadvantage do not satisfy this prong. Higgins, 481
F.3d at 584; see also Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th
Cir. 1994) (holding job changes that amount to nothing more disruptive than a mere
inconvenience or an alteration of job responsibilities are not adverse actions).
Buboltz' first contention, that RAI's decision to remove two of her essential
functions constituted an adverse action, fails. RAI's decision to remove Buboltz' duty
of administering medicine did not have a material disadvantage to Buboltz . . .

Mitchell H. Rubinstein

April 27, 2008 in Discrimination Law | Permalink | Comments (0) | TrackBack (0) is a web site that connects litigants to attorneys. The way it apparently works is a plaintiff registers his or her complaint. He or she is asked to fill out some basic questions and then waits for attorneys to contact the plaintiff. The plaintiff can then pick an attorney. Presumably, the attorneys pay some type of advertising fee for the service.

While I recognize that some will view this as ambulance chasing, I have to strongly disagree. In fact, I think this is a brilliant idea. I view this no differently than a plaintiff calling a bar association for a referral. The internet is changing everything. It is not surprising that it also is changing legal services.

Mitchell H. Rubinstein

April 27, 2008 in Lawyers | Permalink | Comments (0) | TrackBack (0)

Friday, April 25, 2008

NLRB Member Wilma B. Liebman To Speak at Graduate Center In New York On May 7, 2008

Nlrb_2 NLRB Member Wilma Liebman is the featured speaker at the Graduate Center For Worker Education, 25 Broadway, 7th floor (lower Manhattan near Bowling Green Subway) on May 7, 2008 between 5:30pm and 8:00 pm. Other speakers include Rutgers Professor James Pope, Western New England Professor Freeman, Brooklyn College Professor Jayaraman, Attorney Dan Clifton and Professsor Ness.

This event is sponsored by WorkingUSA The Journal of Labor and Society. 2 CLE Credits are available and the cost is $80.00 which includes a reception. A formal announcement of this conference is available here.Download USLaborRelations.pdf

Mitchell H. Rubinstein

April 25, 2008 in Conferences, CLE | Permalink | Comments (0) | TrackBack (0)