Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Sunday, August 31, 2008

Labor Day 2008

Laborday May Day"(May 1st) is celebrated as a labor holiday in many parts of the world as a holiday for labor. However, in the U.S., Labor Day is celebrated the first Monday in September. It is a holiday that too many of us simply take for granted. The media frequently refers to Labor Day simply as the "unoffical end of summer."

Actually, Labor Day has a rich and important history. The U.S. Department of Labor has a nice summary of the history of Labor Day on its web site.    From the web site:

Labor Day differs in every essential way from the other holidays of the year in any country," said Samuel Gompers, founder and longtime president of the American Federation of Labor. "All other holidays are in a more or less degree connected with conflicts and battles of man's prowess over man, of strife and discord for greed and power, of glories achieved by one nation over another. Labor Day...is devoted to no man, living or dead, to no sect, race, or nation."

Labor Day, the first Monday in September, is a creation of the labor movement and is dedicated to the social and economic achievements of American workers. It constitutes a yearly national tribute to the contributions workers have made to the strength, prosperity, and well-being of our country.

The AFL-CIO has a list of frequently asked questions concerning labor day that is available here. Additional information about Samuel Gompers, who founded the AFL in 1886, can be found here.

When lawyers and others across this country engage in anti-union campaigns, I hope that at least some of them will stop and think about what they are doing. As anyone who has studied labor history knows, the sweat, tears and blood of American labor has literally built this country.

Progressive employers look to labor as partners-not adversaries. They know that if we work together, a better product is produced. Employers who are willing to share some of their profits with labor are likely to find a partner helping them make those profits. Unfortunately, not many employers realize this. 

Mitchell H. Rubinstein

August 31, 2008 | Permalink | Comments (0) | TrackBack (0)

Saturday, August 30, 2008

Why Senator McCain Picked Governor Palin

McainpalinI usually do not comment on politics, but have commented on Obama and Biden. Therefore, it is now time to comment about McCain and Palin. One of the boldest moves in American political history was Senator McCain's choice of Governor Sarah Palin as his running mate. But why did he do it? Most of the so called "experts" theorize it was in order to satisfy the Republican base and in an attempt to get some Hillary voters. While satisfying the Republican base may have been a factor, I believe that the real reason Governor Palin was selected was because of her SEX APPEAL. Lets face it, she is a young and attractive woman.  She was selected to appeal to the MEN voters, particularly the young men voters that Obama is doing so well with.

To that extent, I believe the choice was brilliant. There is only one problem. She really is not qualified to be Commander-In-Chief. But, either is Obama. She has at least as much experience as Obama.

Mitchell H. Rubinstein

August 30, 2008 in Politics | Permalink | Comments (5) | TrackBack (0)

Friday, August 29, 2008

6th Holds USERRA Claims Must Be Arbitrated

6thcir Landis v. Pinnacle Eye Care, ___F.3d___(6th Cir. Aug. 11, 2008) is an important USERRA caes to be aware of.  An optometrist's action claiming employment discrimination based on his military service and his age was subject to arbitration because the employee signed an employment agreement containing an arbitration clause. The court reasoned:

Second, the legislative history of USERRA does not prevent arbitrability of claims. Id. at
680. Garrett argued that a portion of the 1994 legislative history of § 4302(b) from the House
Committee Report confirmed Congressional intent to forbid binding arbitration.2 Id. at 679. After noting “a powerful line of Supreme Court authority [suggesting] that legislative history should rarely be used in statutory interpretation,” the court stated that the text of USERRA was unambiguous, rendering resort to legislative history unnecessary. Id. It also noted that there was no comparable report from the Senate, no mention of Gilmer, and the totality of the circumstances supported the conclusion that “Congress intended § 4302(b) only to prohibit the limiting of USERRA’s substantive rights by union contracts and collective bargaining agreements, and that Congress did not refer to arbitration agreements between an employer and individual employee.” Id. at 679-80.

Third, there is no inherent conflict between arbitration and USERRA’s underlying structure
and purposes. Id. at 680. The grant of administrative and enforcement authority to the Department of Labor and the Attorney General did not conflict with arbitration. Id. In Gilmer, the Court rejected the plaintiff’s argument that the Equal Employment Opportunity Commission’s authority and role in the enforcement of the ADEA precluded arbitration. Id. “The same reasoning applies to USERRA, which, like the ADEA and Title VII, affords both civil actions by the agency and private actions by an employee.” Id. at 680-81. “Even if Garrett had chosen to involve the Attorney General . . . nothing in [USERRA] suggests that the Attorney General would not have been able to represent Garrett in arbitration.” Id. at 681. Arbitration presents a fair opportunity for a claimant to present and prevail on a claim of a USERRA violation. Id. at 681.
Several district courts have agreed with Garrett and held USERRA claims arbitrable . . .

I believe the court may have erred here. If Congress intended that USERRA claims do not have to be arbitrated under union contracts, then individual employment contracts treated in the same manner. Query also whether the public policy supporting USERRA claims are different than regular employment law disputes.

Mitchell H. Rubinstein

August 29, 2008 in Employment Law | Permalink | Comments (0) | TrackBack (0)

Spying On Employees

Spying employers raise legal hackles is an interesting August 18, 2008 National Law Journal article (registration required). The article reports that a growing number of employers are spying on employees suspected of abusing FMLA leave. As the article states:

A growing number of employers are hiring private investigators to spy on employees suspected of taking leave dishonestly under the Family Medical Leave Act.

Management-side attorneys claim that FMLA abuses have gotten out of hand, and employers need a tool — in this case surveillance — to catch malingerers using FMLA improperly. And it's been pretty successful, they said, noting that private investigators in recent years have helped catch employees bowling, doing yard work or holding second jobs when they're supposed to be out on sick leave.

Employee-rights attorneys, meanwhile, view surveillance as harassment, intimidation and an interference with a worker's right to take FMLA leave. It also has a chilling effect on other employees who may not take the leave for fear of being spied on.

Both sides, however, note that the courts appear to be siding with employers.

Most recently, the 7th U.S. Circuit Court of Appeals upheld an employer's right to spy on a woman suspected of lying to get FMLA leave, holding that the surveillance provided the employer with an "honest suspicion" that she was using the FMLA improperly. She claimed she suffered from migraines, but was caught on camera mowing lawns as a second job, according to court documents. Vail v. Raybestos, No. 07-3621 (7th Cir.).

This should be nothing new to labor and employment lawyers. Employers have been hiring private investigators for years in disciplinary matters. I have personally been involved in a number of cases for over 20 years where one side or the other has used a PI.

Mitchell H. Rubinstein

August 29, 2008 in Articles, Employment Law | Permalink | Comments (0) | TrackBack (0)

MOU Found Not To Be A Collective Bargaining Contract

Nlrb Coca-Cola Enterprises, 352 NLRB No. 123 (Aug. 14, 2008), is an interesting decision. As this case demonstrates, it is important to know whether a MOU is intended to be a collective bargaining agreement. 

The Board held that a memorandum of understanding between employer and union regarding changes to employer's order-fulfillment system did not bar decertification petition filed after third year of five-year collective-bargaining contract, where, pursuant to Southwestern Portland Cement Co., 45 LRRM 1412 (1960), parties did not intend for MOU to be new contract embodying new terms and conditions, MOU lacked readily discernible effective date and expiration date, MOU's terms—that were limited to certain supplemental payments and training and to reclassification of drivers—applied only to minority of unit employees, and MOU did not incorporate by reference terms of parties' long-term contract.

Mitchell H. Rubinstein

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

USERRA Claims Against State Must Be Brought In State Court

5thcir_2  McIntosh v. Partridge, ___F.3d___ (5th Cir. Aug. 11, 2008), is an important decsion to be aware of. In a suit by a dentist dismissed from his position at a state-run home after his return from active military duty, summary judgment for defendant-employer is affirmed in part, and vacated with claims dismissed in part, where: 1) no federal jurisdiction existed to hear plaintiff's Uniformed Services Employment and Reemployment Rights Act (USERRA) claim, as a USERRA claim against the state as an employer was required to be brought in state court; 2) evidence considered at the summary judgment phase was admissible; 3) due process claims against defendant-supervisor in his individual capacity failed because plaintiff did not allege a constitutional due-process violation and because supervisor was entitled to a defense of qualified immunity; 4) due process claims against supervisor in his official capacity were barred by sovereign immunity; and 5) a state-law defamation claim was properly dismissed based on defendant-supervisor's official immunity.

There is alot to this case. We focus here on the USERRA claim where the court stated:

USERRA’s jurisdictional statute provides that in “an action against a
State (as an employer) by a person, the action may be brought in a State court.”
38 U.S.C. § 4323(b)(2) (emphasis added). This language provides no indication
that Congress intended for these cases to be brought in federal court.4 This
omission is significant when compared with Congress’s explicit provision for
federal jurisdiction in cases where the federal government brings an USERRA
claim or when the defendant is a private employer. 38 U.S.C. § 4323(b)(1), (3).
These provisions demonstrate that Congress knew how to provide for federal
jurisdiction but specifically chose not to do so for USERRA claims brought by
individuals against states as employers. The Seventh Circuit has interpreted
the statute in a similar manner. See Velasquez v. Frapwell, 165 F.3d 593, 594
(7th Cir. 1999) (per curiam) (holding that “Congress’s intention to limit USERRA
suits against states to state courts is unmistakable”).
This interpretation is also supported by a comparison of the current
statute with its prior version. Previously, Congress had authorized the United
States district courts to exercise jurisdiction over USERRA claims, with claims
against a state as an employer to be brought in “any district in which the State
exercises any authority or carries out any function.” 38 U.S.C. § 4323(b).

I am not sure that the court is correct here. Frankly, the word "may" utilized in the statute is significant. Given the fact that the USERRA must be interpreted liberally in favor of our returning veterans, I believe the correct approach would be to interpret the provision at issue as given state courts jurisdiction to hear USERRA claims, while not eliminating a federal court's jurisdiction over such claims.

Mitchell H. Rubinstein 

August 29, 2008 in Employment Law | Permalink | Comments (0) | TrackBack (0)

Forbes Best College Ranking

Forbes has now gotten into the business of ranking colleges. Here is their top 25 list:

1 Princeton University NJ 47,975 1,242
2 California Institute of Technology CA 46,560 231
3 Harvard University MA 48,550 1,668
4 Swarthmore College PA 48,215 365
5 Williams College MA 47,140 540
6 United States Military Academy NY NA 1,272
7 Amherst College MA 48,352 NA
8 Wellesley College MA 47,870 590
9 Yale University CT 50,350 1,318
10 Columbia University NY 49,260 1,333
11 Northwestern University IL 49,779 1,981
12 Wabash College IN 35,550 250
13 Centre College KY 37,000 316
14 Massachusetts Institute of Technology MA 48,200 1,067
15 Bowdoin College ME 48,260 476
16 United States Air Force Academy CO 0 1,214
17 Middlebury College VT 50,160 644
18 University of Chicago IL 49,976 1,300
19 Smith College MA 47,976 656
20 Pomona College CA 47,580 375
21 Wesleyan University CT 49,346 733
22 Haverford College PA 48,932 315
23 Stanford University CA 49,227 1,721
24 Hamilton College NY 47,900 468
25 Sarah Lawrence College NY 52,210 363

Unlike US News and World reports, the entire report is free online.  Rate My Professors has also gotten into the ranking game. U.S. News ranking system is far from perfect. Therefore, competetion is welcome. Will law school rankings be next?

Mitchell H. Rubinstein

Hat Tip: Law Librarian Blog

August 29, 2008 in Colleges | Permalink | Comments (0) | TrackBack (0)

State Solictor Generals

The August 18, 2008 National Law Journal contaied a very interesting article entitled State solicitor general appointments open doors for appellate practitioners. Several states are adding solicitor general offices to oversee state appellate work. As the article states:

A trend among states in recent years to appoint a solicitor general has increased opportunities for young attorneys to get into court and ultimately return to private practice far from Washington, the traditional heart of the nation's appellate bar.

In the past decade, a dozen states, including California, Florida and North Carolina, have added state solicitor generals, many of whom oversee large staffs, said Dan Schweitzer, Supreme Court counsel for the National Association of Attorneys General. Nationwide, 37 states have a solicitor general, he said .

I am a bit surprised by this article. While I understand that many states may now be calling someone a "solicitor general," I question whether anything has really changed. The appellate work was probably previously simply done by the state's office of general counsel.

Mitchell H. Rubinstein

August 29, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 27, 2008

Front Page Wall Street Law Journal Article On Law School Rankings

In a August 26, 2008 Wall Street Law Journal front page article entitled Law School Rankings
Reviewed to Deter 'Gaming'
reporter Amir Efrati reports that U.S. News and  World Reports is considering changing its ranking system to include part time students. Currently part time students are not included and some schools apparently "game" U.S. News and World Reports rankings by admitting more of these part time students.

Tax Prof Blog covered this on August 26, 2008 and cited to a number of other law professors who covered this story as well.  Greg May over at the California Blog of Appeal also presents an interesting prospective on this.

In my view, this just demonstrates how flawed the U.S. News rankings really are. Will including part timers improve the rankings-maybe, but maybe not. The problem is that including part timers is a disadvantage to law schools which offer part time programs. This may result in some schools cutting back their part time programs.

I certainly do not believe that the rankings are accurate. If I were shopping for a school, I would look at U.S. News as well as other ranking systems such as Professor Leiter's. It would be a factor in my decision, but a small factor. I would visit the school, kick the tires and see if there was fit. I would look to see what the bar passage rate was and if students historically obtained jobs in an area of law that interested me.

In the end, whether the school ranked number 73 or number 50 does not mean much. However, if the comparision is between a school ranked number 73 and a school ranked number 3 that may mean something.

Mitchell H. Rubinstein   

August 27, 2008 in Law Schools, Rankings | Permalink | Comments (0) | TrackBack (0)

10th holds disclosure of medical records was protected, but nurse's aid was properly fired

10thcir Vaughn v. Epworth, ___F.3d___(10th Cir. Aug. 19, 2008) is an important Title VII case. The 10th holds that even though a African-American nurse's aid engaged in protected activity under Title VII's anti-retaliation provision when she sent copies of a patient's unredacted, private medical records to the EEOC in order to substantiate her disparate treatment claims, the employer was entitled to summary judgement. The court held that the aid violated her employer's policy regarding confidentiality when she provided the medical records to the federal agency. The aid alleged she was disciplined based on her age and race for "making errors with respect to a patient's medical records, while a younger, white employee was not disciplined for making the same errors." To show the disparity, the aid provided the EEOC with "medication sheets" supposedly containing errors by the other employee similar to those for which she had been disciplined. After the employer learned the aid disclosed the records, she was fired. Disclosing the medical records to the EEOC constituted protected activity under the participation clause, the appeals court held, rejecting the district court's belief that the participation clause places an "obligation to resort only to honest and loyal conduct in advancing a claim unless the employee proves that it is necessary to resort to other means." Nonetheless, the employer's discharge was supported by legitimate, non-retaliatory reasons: In addition to violating the company's policy regarding confidentiality of medical records, and perhaps Oklahoma law, the employee may have violated HIPAA.

Mitchell H. Rubinstein 

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

Are Mediation Settlement Agreements Binding??

I always assumed that mediation settlement agreements were binding and have wrote many such agreements. However, the City of El Paso apparently thinks differently. Workplace Prof Blog ran an interesting August 14, 2008 story entitled EEOC and DOJ File Suit to Enforce Mediation Agreement which discusses El Pasco's refusal to abide by a mediation settlement agreement that resolved an EEOC charge. A DOJ press release is available here.

The City's actions seem totally frivolous. Let's see if the court will have the guts to issue sanctions against a public entity.

Mitchell H. Rubinstein

August 27, 2008 in Litigation | Permalink | Comments (1) | TrackBack (0)

2nd Circuit rules courts should weigh a petitioner’s interest in proceeding anonymously against the public’s and defendant’s interests in disclosure

SEALED PLAINTIFF, v. SEALED DEFENDANT #1, et al, USCA Second Circuit, Docket #06-1590-cv, decided: August 12, 2008

The district court dismissed the “Sealed Plaintiff’s complaint sua sponte after she failed to file an amended complaint in her actual name rather than a pseudonym and for other perceived pleading deficiencies.

The Circuit Court reversed the lower court, holding that the District Court’s denial of plaintiff’s request to file under a pseudonym was erroneous, as was its dismissal of the complaint and remanded it to the district court for further consideration.

In a ruling of “first impression,” the Circuit Court ruled that district courts must balance a plaintiff’s interest in anonymity against both (a) the public's interest in disclosure and (b) the potential prejudice to defendants when determining whether to permit a plaintiff to proceed under a pseudonym.*

According to the decision, Sealed Plaintiff commenced this pro se action against state and municipal government entities under a “Jane Doe” pseudonym alleging that she had suffered a physical and sexual assault in violation of her civil and constitutional rights.

Citing a Circuit Court of Appeal, Ninth Circuit, decision, Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000), the Second Circuit said that “the interests of both the public and the opposing party should be considered when determining whether to grant an application to proceed under a pseudonym.”

Noting that the District Court, “lacking the benefit of the guidance set forth herein,” the Circuit Court said that it was remanding the case for further proceedings and as the Sealed Plaintiff was representing herself in this action, commented: “In light of the serious nature of the claims pressed in this action, we encourage the district court to consider whether it should appoint a pro bono counsel to represent the [sealed plaintiff] in this action” as authorized by federal law [see 28 U.S.C. § 1915(e)(1)].

The full text of the opinion is posted at:

http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA2LTQxMjQtY3Jfb3BuLnBkZg==/06-4124-cr_opn.pdf#xml=http://www.ca2.uscourts.gov:8080/isysquery/irl669b/2/hilite

* Filing litigation under a pseudonym does not appear to trouble New York State courts. For example, a case recently decided by the Appellate Division, Second Department was captioned Doe v Department of Education of City of New York, [2008 NY Slip Op 06586, also decided on August 12, 2008]. In this action, the plaintiff “Jane Doe” was seeking to recover damages for injuries she allegedly sustained when she was sexually assaulted by a fellow student in a stairwell of a New York City High School.

Reprinted with Permission from New York Public Personnel Blog. Contact publications@nycap.rr.com for subscription information. Mention Adjunct Law Prof. Blog for a free extended 45 day trial.

Mitchell H. Rubinstein

August 27, 2008 in Litigation | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 26, 2008

More on Professor Joe Biden

Biden300x266faculty_de Adjunct Law Prof Blog discussed the fact that Vice-President candidate Senator Joe Biden is also an adjunct prof at Widener Law School, available here. The August 26, 2008 web site,  Roll Call, provides additional detail of his teaching career. It turns out that Biden is only guarantees he will be there 50% of the time and he team teaches with another prof who does most of the work such as grading papers. Interestingly, Biden has stated he will make at least one appearance this semester. The article also notes that Biden's adjunct salary of $20,500 is much higher than what other adjuncts make. As the article states:

Since September 1991, Biden has been an adjunct faculty member at the Widener School of Law, which has campuses in Harrisburg, Pa., and Wilmington, Del. Biden team-teaches a seminar called “Selected Topics in Constitutional Law” with professor Robert Hayman. The class meets Saturday mornings, and, according to Hayman, Biden guarantees that he will be present for at least half of the class time.

Biden used to teach the course alone, Hayman said, but in 2003, the Senator “went to our dean ... and told him he just didn’t have the time to teach anymore.” The two decided that “maybe a possibility to reduce the time in the classroom was by taking on a co-teacher ... so they settled on me as his co-teacher, with the understanding then that while he wouldn’t be there for the whole class, he would be there for at least half the time.”

Biden spokesman David Wade said “Sen. Biden teaches with the approval of the Senate Ethics Committee and discloses his salary in his Senate Financial Disclosure form each year.”

Hayman said that he manages the administrative duties for the class and that he reads all of the student papers and proposes grades to Biden. The Senator may then suggest changes to the grades Hayman has suggested, but Hayman said that is rare.

It is apparent that Biden is not a "real" adjunct. He is simply a paid to give a series of lectures. Profs grade classes and interact with students. I would be curious to learn about how much interaction he has with students.

Mind you, I do not believe that there is anything wrong with this arrangement and I do not see anything wrong with a sitting Senator getting paid more than other adjuncts. I just think we should be honest in calling this arrangement what it is.

Mitchell H. Rubinstein

August 26, 2008 in Politics | Permalink | Comments (3) | TrackBack (0)

For A Waiver of Past Practices To Be Effective The Language In The CBA Must Be Clear And Unambigious

Nlrbseal Verizon North, 352 NLRB No. 120 (July 31, 2008), demonstrates several important and fundamental labor law concepts.  First, the NLRB holds that a unilateral elimination of a past practice is an unfair labor practice in violation of Sections 8(a)(1) AND 8(a)(5). Second, the NLRB notes that this past practice issue can be waived by an agreement to new contract language, but the waiver must be clear and unmistakeable.

Here, the langugage at issue could be subject to differingt interpretations. Therefore, the Board held that there was not waiver of the past practice. Accordingly, by changing the practice unilaterally without bargaining, the employer committed violated the Act.

Mitchell H. Rubinstein

August 26, 2008 in NLRB | Permalink | Comments (0) | TrackBack (0)

New York Law Journal Special Report on Labor and Employment Law

The July 7, 2008 New York Law Journal ran a special report on labor and employment law. It included the following articles which may be of interest.

Genetic Information

James E. Kellett, a partner at Crowell & Moring, writes that to some, the Genetic Information Nondiscrimination Act of 2008 may simply be a new entry into "the alphabet soup" of statutes governing employment in the United States, or another administrative burden and another set of potential legal liabilities for employers. Looking forward, the potential interactions of GINA with various other statutes, including the ADA and the FMLA will present interesting challenges.

Corporate Social Responsibility

Michael A. Levine, a member of Epstein Becker & Green, writes that many companies exhibit corporate citizenship through charity or philanthropy. Over time, however, a view evolved, for some corporate stakeholders, that success should be defined by evaluating businesses using a "Triple Bottom Line" comprised of its social, environmental and financial performance. Must, or may, corporations be socially responsible? Is corporate social responsibility an exercise of business judgment, or compliance with a legal mandate? The answer is: both.

Enforcing Restrictive Covenants in Times Of Layoffs

Jonathan Stoler, a partner at Sheppard, Mullin, Richter & Hampton, writes that in these challenging economic times, layoffs and corporate reorganizations are becoming more commonplace. Employers in the midst of such job actions are also being forced to address an array of employment laws and business issues relating to these matters. Central among their concerns is the ability to continue their business operations with minimal disruption and to protect their business interests in the face of large-scale terminations. Indeed, he argues, how to maintain protection over confidential business information and to ensure a company's continued competitive edge following layoff situations is the question of the day.

Employment Issues Arising In Internal Investigations

Mary Beth Hogan and Jyotin Hamid, partners at Debevoise & Plimpton, write that an internal investigation can be a painful episode in the relationship of a company to its employees. The climate can be ripe for conflict and litigation. A critical part of conducting an internal investigation, therefore, is to appreciate the strain that the process puts on the relationship of the company to its employees, anticipate the employee conflicts that might arise, and manage the process to avoid conflicts where possible and to position the company well for those conflicts that are inevitable.

Mitchell H. Rubinstein

August 26, 2008 in Articles, Employment Law | Permalink | Comments (0) | TrackBack (0)

Adjunct Law Prof Blog Cited In National Jurist

The September 2008 National Jurist has a story by Karen Dybis entitled "Law Professor Raises Eyebrows" (link not available) which is about a University of Arkansas at Little Rock Law Professor who, believe it or not, is suing one of his students for defamation. I am quoted as saying:

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

We originally reported on this here and here.

The article also cites to noted bloggers Paul Caron, Ann Althouse and Steven Bainbridge.

Mitchell H. Rubinstein

August 26, 2008 in Blogs, Faculty | Permalink | Comments (0) | TrackBack (0)

Monday, August 25, 2008

Montana Supreme Court Upholds Termination Under Employment Statute

Montana is the only state in the union that has a wrongful termination statute. Becker v. Rosebud, __-P.2d___(Montana, August 12, 2008), is a Supreme Court decision which discusses the paramaters under this statute.   

The Montana Supreme Court held that an employer has just cause to discharge an employee who calls his supervisor a "pr$ck" and tells him to "kiss my *ss." (A factual dispute over whether the employee had also used "the 'F word'" was irrelevant, the court found.) There was no evidence to support the employee's contention that his use of foul language was a pretextual reason for his termination. And the use of such language was cause enough. While the employee noted that obscenities were common at the workplace and the environment was "not that of `a ladies' tea party,'" the state high court found that directing profanity at one's supervisor is "much more egregious" than the use of such language in the course of an ordinary workday.

Mitchell H. Rubinstein

August 25, 2008 in Employment-At-Will & Exceptions | Permalink | Comments (0) | TrackBack (0)

New Twist On Evolution Debate

A Teacher on the Front Line as Faith and Science Clash is a very interesting August 24, 2008 New York Times article. Normally, when we hear about the evolution debate in schools it is because a school board is trying to mandate some type of biblical creation story as part of the school curriculm. As this story reports, however, Florida is now mandating that the theory of evolution be taught in schools. The article includes a chart which illustrates that only 6 states expressly mandate that evolution be taught.

Query whether a challange to this curriculm would suffer from the same constitutional infirmities as the biblical story of creation? I believe it would.

Mitchell H. Rubinstein

August 25, 2008 in Education Law | Permalink | Comments (0) | TrackBack (0)

Refusing Assignment Disqualifies Claimant From Unemployment

Worker refusing to accept reassignment to a similar position held disqualifying misconduct for the purpose of receiving unemployment insurance benefits
Matter of Miles v Commissioner of Labor, 2008 NY Slip Op 06530, decided on August 7, 2008, Appellate Division, Third Department

Stacey N. Miles was employed as a higher education assistant for a college in New York City. When Miles was told that she was to be reassigned from the affirmative action office to a position with similar duties in College’s the student enrollment services counseling center, she refused to accept the new position, contending that it constituted a demotion in retaliation for complaints she had made against the college president.

Miles was terminated and applied for unemployment insurance benefits.

The Unemployment Insurance Appeals Board, noting that the new position Miles refused to accept entailed duties similar to her former position and had the same salary, hours and payroll title, ruled that she was disqualified from receiving unemployment insurance benefits because her employment had been terminated due to her misconduct.

The Appellate Division, sustaining the Board’s determination, noted that “A claimant's refusal to comply with the reasonable request of an employer may constitute disqualifying misconduct.

Here, said the court, the College’s reassignment was reasonable inasmuch as the duties of the new position were similar to those Miles had been performing and the terms were essentially the same.

Miles contended that she had refused to accept the new position because she believed it resulted from her prior complaints against the college president and she was concerned that she would receive negative evaluations resulting in her discharge.

Noting that the College’s human resources director testified that there was no retaliation while Miles offered contrary testimony, the Appellate Division said that this presented a credibility issue for the Board to resolve.

The full text of the decision is posted at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06530.htm

Reprinted with permission from New York Public Personnel Blog. For subscription information contact  publications@nycap.rr.com. Mention Adjunct Law Prof Blog for a free extended 45 day trial.
Mitchell H. Rubinstein

August 25, 2008 in Employment Law | Permalink | Comments (0) | TrackBack (0)

Public Schools Thinking About 4 Day School Week

Schools Debate A Four-Day Week is an interesting story from the August 10, 2008 Parade.com. Why? To save costs. However, there is a problem and its a big problem. Parents work 5 days a week and if their children were in school for only 4, this would lead a void. However, this is an interesting thought.

Mitchell H. Rubinstein

Hat Tip: School and Education Law Blog 

August 25, 2008 in Education Law | Permalink | Comments (1) | TrackBack (0)