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Editor: Mitchell H. Rubinstein
New York Law School

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Saturday, May 31, 2008

Least-Restrictive School Environment for Disabled Children

Least-Restrictive School Environs for Disabled Children is an interesting May 15, 2008 New York Law Journal article (registration required) which discusses Jennifer D. ex rel. Travis D. v. New York City Department of Education, ___F.Supp.2d ___ , 2008 WL 857554 (S.D.N.Y. 2008). In that case, the court held that the parents were entitled to tutition reimbursement for a private school placement because the private school provided an education in the Least Restrictive Environment. This article also covers some basic special education law principles and provides:

The Individuals With Disabilities in Education Act (IDEA) (20 U.S.C. §§1400 et seq.) expresses a strong preference for children with disabilities to be educated, "to the maximum extent appropriate," together with their nondisabled peers (20 U.S.C. §1412 a.5.A.).

Accordingly, special education and related services must be provided in the least-restrictive setting consistent with a child's needs (20 U.S.C. §1412a.5.). Indeed, only "when the nature or severity" of a child's disability is such "that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily" should a child be segregated (20 U.S.C. §1412 a.5.A.).

The specific educational needs of a disabled child and the specific services that are required to satisfy such needs should be set out in a written individualized education program (IEP). (See U.S.C. §1414a.5.; (Walczak v. Florida Union Free Dist., 142 F.3d 119, 122 2nd Cir. 1998.).

The case chosen for discussion, Jennifer D. ex rel. Travis D. v. New York City Department of Education,1 explores the requirement that the IEP, the device through which educational services for a disabled child are administered, must provide for education in the least-restrictive environment.

Mitchell H. Rubinstein

May 31, 2008 in Special Education Law | Permalink | Comments (0) | TrackBack (0)

The Risk of Using Independent Contractors

The Risk of Using Independent Contractors is an interesting May 15, 2008 New York Law Journal article which discusses the risks in classifying individuals as independent contractors verses employees. As this article point out, misclassification can raise employment law as well as tax law issues. Recently, both New York and New Jersey have taken steps to address worker misclassification. Senator Obama has also introduced legislation on the federal level to address this problem As the article states:

[M]any states, including New York, embarked on their own independent worker misclassification initiatives in 2007. Former Governor Eliot Spitzer signed an Executive Order in September 2007 establishing the Joint Enforcement Task Force on Employee Misclassification. Members of the task force include the heads of the New York state departments of Labor, Taxation and Workers' Compensation as well as the New York Attorney General. The departments have been charged with sharing information among themselves about employers suspected of improperly classifying employees as independent contractors, increasing awareness of the harms inflicted by illegal worker misclassifications, creating hotlines for the public (which can be used by competitors) and referring cases to prosecuting authorities as appropriate.

The task force issued its first report on Feb. 1, 2008, and called for far-reaching proposals including legislation that would extend individual liability for worker misclassifications to corporate officers, shareholders, members of LLCs and LLPs, and corporate successors and affiliated entities.

Legislative Initiatives

In 2007, the New Jersey State Legislature passed, and Governor Jon S. Corzine signed into law, the Construction Industry Independent Contractor Act. This law is the most aggressive law in the country governing hiring practices involving the use of independent contractors. It is based on a belief by New Jersey legislators that employers in the construction industry commonly engage in unchecked misclassifications of employees as independent contractors.

Two bills have been introduced in New York that are similar to the independent contractor legislation in New Jersey: New York Assembly Bill A06643 and its companion New York Senate bill S04925.

At the federal level, Senator Barack Obama (D-Ill.) has introduced S.2044, the Independent Contractor Proper Classification Act. If enacted, this legislation would limit the availability of the "safe harbor" provisions in the Revenue Act of 1978,1 permit workers to petition the IRS for a determination of their status as an independent contractor or employee, and mandate that employers post notices to employees and independent contractors informing them of their right to challenge their classification as an independent contractor. The legislation is being considered by the Senate Finance Committee.

Mitchell H. Rubinstein

May 31, 2008 in Employment Law, Tax Law Cases | Permalink | Comments (1) | TrackBack (0)

Friday, May 30, 2008

District of Columbia Looking For Special Education Hearing Officers

The District of Columbia is looking to hire both full time and part time Hearing Officers. There is an involved application that must be filled out by June 23, 2008. You can download the application and examine the requirements for appointment here.

Best of luck.

Mitchell H. Rubinstein

Hat Tip: Special Education Law Blog

May 30, 2008 in Special Education Law | Permalink | Comments (0) | TrackBack (0)

Mandatory Sick Leave For Private Sector Employees Passed Connecticut State Senate

On May 1, 2008, the Connecticut state senate passed a bill (S.B. 217) mandating that Connecticut employers with 50 or more employees provide paid sick leave to their employees. The bill, which also applies to municipalities, passed by a vote of 20-16. The bill would allow employees to accrue paid sick time at the rate of one hour for every 40 hours worked, up to 52 hours. If the employer pays other benefits, such as vacation pay, it may substitute that benefit for all or part of the 52 hours of required sick leave.

If enacted, this would be a significant piece of state labor standards legislation.

Mitchell H. Rubinstein

May 30, 2008 in Employee Benefits Law | Permalink | Comments (0) | TrackBack (0)

Breaking News!!! 2d Issues Major Student First Amendment Decision Involving Blogs

2dcirseal Doninger v. Niehoff, ___F.3d___ (2d Cir. May 29, 2008), is a major student First Amendment free speech case. The facts are simple and straight forward. A disagreement arose concerning the "battle of the bands" concert. A high school student posted what was described as a "vulgar and misleading" message from her home on a publicly accessible web blog where among other things, she referred to the central administration as "douchebages." In turn, the school disqualified her from running for Senior Class Secretary and from speaking at graduation. Why? The administration concluded that the student's conduct "failed to display the civility and good citizenship expected of class officers."

Plaintiffs sought a preliminary injunction to allow the student to speak at graduation which presumably will occur in a few weeks. The District Court rejected plaintiffs First Amendment challenge and the Second Circuit affirmed. Significantly, the court noted that the this type of case was a bit different because the speech in question did NOT occur on school grounds or at a school event, but occurred on a blog, reasoning:

The Supreme Court has yet to speak on the scope of a school's authority to regulate expression that, like Avery's, does not occur on school grounds or at a school sponsored event. We have determined however, that a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct "would foreseeably create a risk of substantial disruption within the school environment," at least when it was similarly foreseeable that off campus expression might reach campus. . . But as Judge Newman accurately observed some years ago, "territoriality is not necessarily a useful concept in determining the limit of [school administrators'] authority." True enough in 1979, this observation is even more apt today, when students both on and off campus routinely participate in school affairs, as well as other expressive activity unrelated to the school community, via blog postings, instant messaging, and other forms of electronic communication.

The court held that it was reasonably foreseeable that the posting would reach campus and that the posting created a substantial risk of disruption because of the language utilized, that the student encouraged others to conduct the administration, and because her message was misleading which caused rumors to be circulated. Students were "all riled up" and threatened a "sit in".

Come on! While I believe the court applied the correct body of First Amendment jurisprudence, its reasoning is extreme and out of touch with reality. As the court also noted, this was a good student. She had a disagreement with the school and used the word "douchebages." She attempted to obtain support from her fellow classmates. The speech was off campus and the speaker was a senior high school student. This is exactly what the First Amendment protects. If this type of speech is not protected, then what type of speech will be protected? Is a student limited to merely saying "I disagree" or "please Mr. principal, change your mind."

Is the problem with the speech here that the word "douchebages" was used? If so, then the court is completely out of touch how students and others (lawyers too) talk to one another. Was there a real threat of disruption? I think not. The court appearantly "feared" disruption because the student sought support from others. However, that is exactly what the First Amendment protects. Does speech become disruptive because "rumors" circulate and others-repeat others-threaten a sit in?? It might be a bit differerent if the plaintiff was advocating a sit in or some type of violence. But that was not this case.

There is a second very unique part of this decision. The court noted that a relatively minor penalty was imposed (plaintiff could run for class office or speak at graduation) and hinted that a more severe penalty may have raised other constitutional concerns. What concerns would they be? Equal Protection? Due Process? The court here is deciding whether speech is protected under the First Amendment. I fail to see, how the level of penalty is a relevant consideration for First Amendment purposes.

As this case demonstrates, students have very limited First Amendment protections. Perhaps, this case will start a trend where students may look to the Equal Protection Clause and the Due Process Clause and challenge the level of discipline imposes. This issue is certainly ripe for law review commentary.

Mitchell H. Rubinstein

     

May 30, 2008 in Constitutional Law, Education Law, Law Review Ideas | Permalink | Comments (0) | TrackBack (0)

Liability of Notary Public

Notary Publics are important to the legal system as many court documents must be notarized. However, it is very easy to become a notary and there is not much litigation over the scope of their authority. Edwards v. Rockaway Storage, ___Misc. 3d___(Queens Co. April 28, 2008)(registration required), is one such case. Unfortunately, the decision is not particularly well written. However, it does seem to stand for the proposition that a notary has no duty to investigate the reliability of documents that he or she has been presented. As the court stated:

One of the principle functions of a New York notary is to verify the identity of a person signing a document so that when submitted to court, for example, the power of a notary may be relied upon to authenticate the document as being from an out-of-court but under-oath declarant. Notarization itself, however, is only evidence that the document was affirmed and signed before an authorized official. Notarial misconduct can be for wilful, fraudulent or negligent actions of a notary. The Plaintiff must also prove that he or she was injured and that there was reliance to his or her detriment on the alleged negligence of the Notary Public. See, Plemmenou v. Anninos, 12 A.D.3d 657, 785 N.Y.S.2d 120 (2d Dep't 2004). Rastelli v. Gassman, 231 AD2d 507 (2d Dept 1996.)

Here, Mr. Chamblin was given acceptable proof of identification. This Court is not inclined to adopt Rockaway's claim that there is a duty on a Notary to verify the validity of the driver's licenses or to make copies of the licenses.

Mitchell H. Rubinstein

May 30, 2008 in Misc., Legal | Permalink | Comments (2) | TrackBack (0)

The President's Appointment Power

Reagan's Influence Lives On In U.S. Courts is an interesting May 12, 2008 U.S.A. Today article which reminds of the importance of the President's appointment powers. More twenty years after President left office, his appointments are still having an important influence. As the article states:

They became the first judges in more than a half-century to say the Second Amendment protects an individual's right to own guns. They took the lead in ruling against affirmative action and other race-conscious policies. And they upheld bans on an abortion procedure called "partial birth" before it reached the Supreme Court.

They are prominent appeals court judges appointed by President Reagan in the 1980s — the products of an unprecedented, meticulous and often controversial screening process that transformed the politics of judicial nominations.

Named to an influential set of 13 regional courts, they were, as a group, young, brainy and bold. They became the legal vanguard of the Reagan agenda to lessen federal control — and protections — in American life.

Now, nearly 20 years after Reagan left office, many of them are at the height of their power. Their opinions routinely draw national attention. Eight are the chief judges of their circuit courts and in key positions on the U.S. judiciary's policymaking committee. Many are superstars of the conservative movement, appearing as speakers at meetings of the arch-conservative Federalist Society and, in past years, landing on GOP presidents' short lists for Supreme Court appointments.

Mitchell H. Rubinstein

May 30, 2008 in Judges | Permalink | Comments (0) | TrackBack (0)

Now Hiring "Hot Girls"

Texas Channel 5 ran an interesting story entitled "Now Hiring Hot Girls." It is about a woman who was turned down for a job because she was not "hot' enough. The business is described as a "drive through" which I am assuming is some type of fast food joint. There was actually a sign which read "Now Hiring Hot Girls."

The TV station upon learning about this, had another woman apply who was told that she could make 100 dollars a day on tips and  "We have loud music, girls jumping, dancing, getting wet." Maybe this business is some type of top bar? Who knows?

However, it does raise an interesting issue about when can an employer refuse to hire someone because of their appearance?? There are a number of cases on this, but as I recall, the law in this area is still developing.

Mitchell H. Rubinstein

May 30, 2008 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Thursday, May 29, 2008

Miller: Wrongful Incarceration and Attorney-Client Confidentiality

Colin Miller (John Marshall Law School) has posted "Ordeal by Innocence:  Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Privilege" on the Social Science Research Network (SSRN).  The article addresses the challenging questions about legal ethics and the attorney-client privilege raised by the Alton Logan case in Illinois, which was the subject of a 60 Minutes broadcast on March 9, 2008, and the Lee Wayne Hunt case in North Carolina.  Professor Miller's article will appear in a future Northwestern University Law Review Colloquy.

Here is the abstract:

In 1982, Alton Logan was convicted of first degree murder based upon being the trigger man in a robbery gone wrong at a Chicagoland McDonald's. What the jury who convicted Logan did not hear was that another man, Andrew Wilson, confessed to the crime Logan allegedly committed. The problem was that Wilson confessed to his attorneys, public defenders Dale Coventry and Jamie Kunz, who confirmed with the relevant authorities that they were bound by the rules of professional responsibility not to disclose their client's confession. Coventry and Kunz did prepare an affidavit detailing Wilson's guilt and in fact planned to come forward if Logan were given the death penalty. Ironically, two holdouts on the jury seemingly spared Logan's life by voting against capital punishment, but in fact dealt him the same fate that would befall the affidavit, being locked up (Logan in a prison cell; the affidavit in a lock box). Pained by pangs of guilt, the public defenders convinced Wilson to allow them to reveal his guilt after his death, resulting in Logan's eventual release from prison twenty-six years after he entered.

How does such an injustice occur? Until recently, the Model Rules of Professional Responsibility prohibited an attorney from disclosing client information relating to a completed crime in which the attorney's services were not used, meaning that an attorney could not disclose that his client committed a crime for which another man was charged or convicted. And while the ABA amended Model Rule 1.6(b)(1) in 2002 to permit attorneys to reveal client information to prevent reasonably certain death or substantial bodily harm, the few commentators to address the issue have curtly concluded that this exception would still not apply to the wrongful incarceration scenario presented by the preceding example. Conversely, Massachusetts Rule of Professional Responsibility 1.6(b)(1) permits attorneys to disclose client information to, inter alia, prevent the wrongful execution or incarceration of another. This article argues that the 25 states which have adopted some form of amended Model Rule 1.6(b)(1) can and should read a similar wrongful incarceration/execution exception into their existing Rules while the remaining 24 states (and the District of Columbia) which have not adopted some form of amended Model Rule 1.6(b)(1) should create such an exception and can do so while causing less violence to the rationales behind attorney-client confidentiality than existing exception.

Professor Miller's article is concise, readable and very informative on this issue.  The article also raises an important question regarding what event triggers this particular exception to the privilege.  The Massachusetts wrongful incarceration exception described by Professor Miller permits a lawyer "to reveal confidential information in the specific situation where such information discloses that an innocent person has been convicted of a crime and has been sentenced to imprisonment or execution."  Mass. Rule of Prof'l Conduct R. 1.6(b)(1) cmt. 9A.   This comment suggests a disclosure would not be authorized until after the trial, when the defendant has been convicted and incarcerated.  Such a disclosure would likely have to be made by motion for new trial or on post-conviction writ.

By contrast, Model Rule 1.6(b)(1) provides that, "[a] lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary...to prevent reasonably certain death or substantial bodily harm."  p. 3.  Professor Miller proposes that states without a wrongful incarceration exception in the ethics rules "construe wrongful incarceration as a reasonably certain bodily injury."  p.5.   Since the Model Rule allows the disclosure to be made to prevent substantial bodily harm, here defined as wrongful incarceration, Professor Miller's proposal to equate wrongful incarceration with substantial bodily harm seems to allow the disclosure to be made during the trial, or even before trial, where incarceration exists as a sentencing option.

In most jurisdictions, the burden of proof at trial differs from the burden in a post-conviction proceeding.  To obtain an acquittal, a defendant bears no burden of proof and the state must prove each element of the charged offense beyond a reasonable doubt.  A defendant on a post-conviction writ, however, typically bears a heavy burden.  In Texas for example, a defendant seeking to overturn a conviction based upon newly discovered evidence indicating actual innocence must show "that the newly discovered evidence unquestionably establishes his or her innocence."  To grant relief, "reviewing court must believe that no rational juror would have convicted the applicant in light of the newly discovered evidence."  Ex parte Thompson, 153 S.W.3d 416, 417 (Tex. Crim. App. 2005) (orig proceeding).  While different states may place different burdens on defendants seeking post-conviction relief on actual innocence grounds, the burden will necessarily be greater than the defendant's burden at trial.  When the exception is triggered, therefore, is important to know.

Attorney-client privilege exceptions require that the societal interest in promoting full and uninhibited communication between attorney and client be balanced against the interest promoted by the exception.  The need for disclosure is greater after conviction and incarceration and after all appeals have been exhausted than the need would be during pre-trial investigation or during trial when neither conviction nor incarceration are certain and when other facts presented may result in acquittal.  This temporal consideration, likely beyond the scope of Professor Miller's Colloquy article (and certainly so for this post), deserves further examination.

Congratulations to Professor Miller on a thought provoking article.  I look forward to its appearance in the Colloquy.

Craig Estlinbaum

May 29, 2008 in Criminal Law, Ethics | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 28, 2008

Blogging Federal Judge

Off the bench, judge blogs her mind is an interesting May 27, 2008 Boston Globe Newspaper article.  It is about US District Court Judge Nancy Gertner (D. Mass) who is an adjunct law professor at Yale Law School and who also is a blogger. She blogs over at Slate's new blog called Convictions. The Judge see's blogs as a new form of media, but not everyone likes the idea of judical blogging. As the article states:

Bruce M. Selya, a senior judge on the Court of Appeals for the First Circuit, which reviews cases from Gertner's court, said he respects her and is sure she has thought out the potential ramifications of blogging. But he would never do it.

"I think it would be a great strain on me to be careful not to say anything that could come back and make it seem like I prejudged a matter when it actually came before me," said Selya, who usually sits in Providence.

By her own admission, Gertner is limited in what she can write, unlike the law professors and writers who make up the blog's other contributors. The Judicial Code of Conduct says a judge cannot make public statements that "might reasonably be expected to affect the outcome or impair the fairness" of cases pending in any federal court. She also avoids expressing views that could prompt litigants to ask her to disqualify herself, she said

I strongly believe in blogging. It is an extension of education. Who better than Judges can educate the public about legal issues. We trust our judges with important cases. I think that we can trust that they will not blog about pending cases or cases likely to arise before them.

Keep up the good work Judge!

Mitchell H. Rubinstein

May 28, 2008 in Blogs, Legal | Permalink | Comments (0) | TrackBack (0)

More Trouble For School District Lawyers Who Were Classified As Employees Of School Districts

Learning Experiences is an interesting article from June 2008 ABA Journal about the New York School lawyers who were placed on the payroll of several school districts even though they were not employed by those school districts. As the article points out, the NYS Attorney General is investigating this incident as is the NYS Comptroller.

This article adds another wringle. The article postulates that the attorneys may have also violated ethical rules if they are found to have engaged in illegal conduct or moral turnpitude. As the article states:

But experts on professional conduct issues caution against a rush to judgment in situations like the inves­tigation in New York. They note there is nothing in­herently improper about a private lawyer taking on a salaried job with a government entity while keeping his or her position in a law firm. It all depends on how and why it was done.

“There’s no prohibition against multiple hats,” says Stephen Gillers, a professor at New York University School of Law who chairs the Joint Committee on Lawyer Regulation of the ABA Center for Professional Responsibility. “The real question is whether there’s value received and whether the lawyer is truly doing the work he’s being paid for.”

But the reason for the agreement also must be con­sidered, Gillers says. “Did the school board negotiate a good deal for itself, or was this simply a back door way to give a lawyer a benefit to which he was not entitled as a reward or a private act of generosity?” asks Gillers. “It’s a distinction that makes a difference.”

A separation of duties within a firm to avoid double billing can raise questions if it potentially favors one lawyer at the firm, says Susan Brotman, a lawyer in New York City who is president of the Association of Profes­sional Responsibility Lawyers. In the school district context, for instance, it can appear to be “a ruse through which that person enjoys rights under the New York state retirement system that he or she would not be eligible for as a private contractor,” Brotman says.

Mitchell H. Rubinstein

May 28, 2008 in Ethics | Permalink | Comments (0) | TrackBack (0)

Lawyers' Writing Are Still Not Up To Par

The title of this May 12, 2008 National Law Journal article says it all,  Lawyers' writing skills still bad. Moreover, electronic gizmos are tending to make things worse. As the article states:

Law firm leaders, judges and even clients have complained for years about the lack of solid writing skills in the legal profession, where huge decisions often turn on the written word.

And despite the development of software gizmos that have helped catch a cockeyed spelling of "egregious" or flag an incomplete sentence, observers say that much of the more sophisticated electronic finery is thwarting attempts at clear and concise prose.

The real question is what to do about it. I believe two things need to be done. First, there should be more law school paper classes-much more. The only way to learn how to research and write is, well- to write. That is one of the main reasons that I do not favor law school clinics. I think law school is a time to learn the fundamentals. Second, in those states that have mandatory CLE, legal writing should be a required part. I do not care if someone is a senior partner at a Park Avenue law firm. Everyone can always improve their writing.

Mitchell H. Rubinstein

   

May 28, 2008 in Lawyers | Permalink | Comments (0) | TrackBack (0)

Title VII Does Not Protect Sexual Orientation Discrimination

Title VII has not protected discrimination on account of sexual orientation for quite some time. Kapiamba v. Securitas Security, __F.Supp. 2d___ (S.D.N.Y. April 29, 2008)(registration required), is a recent case which illustrates this proposition of law. As the court stated:

Second, even if Plaintiff had been employed by Novotel, the offensive conduct would not be actionable under Title VII. While Plaintiff claims that Defendant Securitas discriminated against him on account of his national origin, the only acts of discrimination that he alleges against Novotel relate to sexual preference. He claims that a Novotel employee called him a "faggot" and that he was removed from his post at Novotel because he "complained to [the Novotel head of security] that I was victim of discrimination about my sex male (bisexual feelings that reflect in my voice and physical) [sic] . . . ."

Mitchell H. Rubinstein

May 28, 2008 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Lawsuit Challenging Democratic Party's Refusal To Seat Florida Delegates Dismissed

DiMaio v. Democratic National Party, ___F.Supp. 2d ___(M.D. Fla. Oct. 5, 2007), is a very interesting case which was just posted on Findlaw. The court dismisses a lawsuit by a Florida voter upset that Florida's primary will not count because the DNC chose not to accept early primaries in Florida and Michigan.

The suit was brought under Article II of the Constitution as well as under the Equal Protection clause of the 14th Amendment. The court granted a 12(b) motion to dismiss on the basis of standing, the lack of state action as well as on the merits.

The court reasoned that it was sheer speculation that constitutional rights were violated, that Article II which governs the electors for President is not applicable and does not provide a private right of action and that the Equal Protection clause could not be violated for want of state action. It also viewed the DNC First Amendment right of Freedom of Association as a paramount right over any other right.

Though I am no fan of Hillary Clinton, I believe that the court errd and its reasoning is circular. If there is no state action present for Equal Protection purposes then there is no state action present for First Amendment Freedom of Association purposes. It seems to me that the election process for the office of President is state action. Otherwise, a constitutional challenge could never be brought over the primary process. Though primaries are not mentioned in the constitution, this cannot be the law.

Ultimately, I believe that the case should have be dismissed on the merits because Article II simply is not applicable and there is a rational basis for the DNC actions under the Equal Protection clause of the 14th Amendment. The analysis used by the court is simply wrong and somewhat surprising given the national importance of this case.

Mitchell H. Rubinstein

 

May 28, 2008 in Politics | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 27, 2008

Supremes Hold (7-2) That Section 1981 Encompasses Retaliation Claims

Supreme_court_2 Section 1981 is an important discrimination statute. It applies to much more than just employment discrimination. Until the Supreme Court's May 27, 2008 decision in CBOCS West v. Humphries, 553 U.S. __(May 27, 2008), there was some question whether 1981 claims could encompass retaliation claims similar to that of Title VII. The Court held 7-2 that 42 USC Section 1981 does indeed include such claims.

The case is procedurally unusual in that the plaintiff also plead a Title VII claim which was dismissed due to his failure to pay the requisite filing fee. Section 1981, unlike many other statutes, does not have an explicit anti-retaliation provision. The Court held however, that there was no need for Congress to include an explicit language about retaliation. The Court largely relied on principles of stare decisis by looking to decisions restored by the Civil Rights Act of 1991 which, of course, amended Section 1981 to explicitly encompass employment discrimination. The Civil Rights of 1991, legislatively overruled the Court's 1989 decision in Patterson v. McLean Credit Union, 491 U.S. 164 (1989) which held that the statute did not apply to employment termination cases.

The two most conservative Justices on the Court, Justice Thomas and Scalia, dissented. They essentially would strictly construe Section 1981. Since the statute did not have an express anti-retaliation provision, they would not imply one. Retaliation, the dissent reasons "is not discrimination based on race. . . .rather, it is the result of his conduct."

Mitchell H. Rubinstein

May 27, 2008 in Employment Discrimination | Permalink | Comments (1) | TrackBack (0)

D.C. Circuit Holds Agreement Not To Picket Store In A Mall Is A ULP

Dccir Fashion Valley Mall v. NLRB, ___F.3d___ (D.C. Cir. May 9, 2008), is an unusual, but important decision. California is the only jurisdiction in the country where the right to privacy applies to private individuals by virture of the California Constitution. The Board and the Circuit previously held that it was a ULP for the Mall to insist that as a condition of getting a permit, the permitee agree not to boycott a store in the Mall. This was because that restriction was violative of the California constitutional right of privacy.

In this case, Fashion Valley, now claims that it had the right to insist on this clause by virture of the Due Process Clause of the U.S. Constitution. However, the court does not reach this question because it was not raised below.

This decision in a bit disappointing as it is not particularly well written. It is also conclusionary and the analysis is fairly brief.

Mitchell H. Rubinstein

May 27, 2008 in Labor Law | Permalink | Comments (0) | TrackBack (0)

RSS U.S. Code Feeds

Cornell's Legal Information Institute just started a free RSS Feed service where you can get emailed changes to the U.S. Code. The service is available via U.S. Code Title. I signed up for Title 29 where the NLRA is located.

The Legal Information Institute or LII has run a wonderful email alert system which emails you everytime the Supremes decide a case. If this service is anything like that service, everyone should subscribe.

Mitchell H. Rubinstein

May 27, 2008 in Legal Research | Permalink | Comments (0) | TrackBack (0)

Teacher Terminated For Inappropriate Sexual Remarks

Lackow v. Department of Education, ___A.D. 3d___(2d Dept. May 27, 2008) is an interesting case. A 3020-a hearing officer recommended a tenured teachers termination, but a state supreme court decision vacated that decision. On appeal, the appellate division reversed the state supreme court decision (which is the lower court in New York), reasoning:

In view of petitioner's proven misconduct, and that he had three times been previously warned in writing about the inappropriateness of his behavior, the penalty of dismissal does not shock the conscience. Of particular concern is the repetitive nature of petitioner's misconduct. Petitioner continued in a pattern of conduct that was clearly irresponsible and inappropriate within the classroom setting. Discussing his own ejaculations, admonishing a student about putting her legs in the air, telling another student that he should take a good look at a diagram of a woman's vagina because he will not see one otherwise, talking about the color of a student's underwear, and responding to a student's inappropriate comment by remarking about seeing her name on bathroom walls, constitute more than isolated, aberrant behavior. Rather, such conduct [*5]is indicative of a continued pattern of offensive behavior that reflect an inability to understand the necessary separation between a teacher and his students.

The other interesting aspect of this case concerns the standard of review. Because this involved complusory arbitration, the court stated that the appropriate standard of judicial review was as follows:

Education Law § 3020-a(5) provides that judicial review of a hearing officer's findings must be conducted pursuant to CPLR 7511. Under such review an award may only be vacated on a showing of "misconduct, bias, excess of power or procedural defects" (Austin v Board of Educ. of City School Dist. of City of N.Y., 280 AD2d 365 [2001]). Nevertheless, where the parties have submitted to compulsory arbitration, judicial scrutiny is stricter than that for a determination rendered where the parties have submitted to voluntary arbitration (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; Cigna Prop. & Cas. v Liberty Mut. Ins. Co., 12 AD3d 198, 199 [2004]). The determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78 (Motor Veh. Mfrs. Assn. of U.S. v State of New York, 75 NY2d 175, 186 [2002]). The party challenging an arbitration determination has the burden of showing its invalidity (Caso v Coffey, 41 NY2d 153, 159 [1990]).

A May 28, 2008 New York Law Journal article about this case is available here.

Mitchell H. Rubinstein

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

Monday, May 26, 2008

6th Holds That Labor Arbitration Decision Does Not Bar ADA Litigation

6thcir Nance v. Goodyear Tire and Rubber Co., ___F.3d___(6th Cir. May 23, 2008) is an important decision. It concerns the affect of a prior arbitration on the ability of a plaintiff to pursue an ADA case in federal court. The court holds that such employee's can pursue such a claim in federal court and therefore, in a sense the employee gets two bites at the apple. The court reasoned:

We find it difficult to distinguish this case from Alexander. In Alexander, the Court
considered whether an adverse arbitration decision finding that Alexander was fired for “just cause”had a preclusive effect, and here, we consider whether an adverse arbitration decision finding that Nance “resigned without notice” has a preclusive effect. Both cases involve the adjudication of statutorily guaranteed rights, an inquiry that Congress reposed in federal courts.
This is also not the first time this Circuit has confronted and answered this question. In
Becton v. Detroit Terminal of Consol. Freightways, 687 F.2d 140, 141-42 (6th Cir. 1982), the
plaintiff, a discharged employee, appealed the district court’s conclusion that a prior arbitration on whether the employee had been fired for “just cause” precluded a federal court from considering evidence on the underlying racial-discrimination claim. We concluded that the district court engaged in “an impractical and excessively narrow application of [Alexander],” id. at 142, because “[t]here is no realistic way to sever the discharge from the claim of discrimination,” id. “Inasmuch as ‘just cause’ or similar contract questions are an integral part of many discrimination claims, the better rule avoids judicial efforts to separate and classify evidence offered by the plaintiff under the heading of ‘discrimination’ or ‘just cause.’” Id.

The key point in this line of cases is clear: While the expertise of arbitrators lies in the
application of facts to the terms of an employee’s contract or collective bargaining agreement, the expertise of federal courts lies in the application of facts to anti-discrimination statutes. In other words, because “the specialized competence of arbitrators pertains primarily to the law of the shop, not the law of the land,” Alexander, 415 U.S. at 57, whether Nance resigned without notice might mean one thing under Goodyear’s CBA, but it might very well mean an entirely different thing for the purposes of an “adverse employment action” under the ADA. Thus, the legal and factual issues raised in Nance’s ADA claim are beyond the competence of the ordinary arbitrator whose primary expertise concerns “the demands and norms of industrial relations.” Id.

This is a critically important issue in employment discrimination that likely will be clarified by the Supreme Court in the pending Pyett case. My review of Pyett v. Penn Building, ___F.3d___ (2d Cir. Aug. 1, 2007), cert granted, is available here.

Mitchell H. Rubinstein

May 26, 2008 in Arbitration Law, Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Colorado To Consider Ban On Affirmative Action

This November voters in Colorado will have the opportunity to consider a ban on affirmative action known as the Colorado Civil Rights Initiative which is actually a proposed amendment to the state constitution. If enacted this amendment would prohibits preferences based on race, gender, national origin, color and ethnicity in state hiring, contracting and education.

The May 20, 2008 Denever Post has an article which provides more details about this proposed amendment, available here.

Mitchell H. Rubinstein

May 26, 2008 in Discrimination Law, Legal News | Permalink | Comments (0) | TrackBack (0)