Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Tuesday, September 30, 2008

Ladies Night As Discrimination

Cert. Petition Filed Over Whether Student Must First Enroll In Public School

As readers of this blog know, the Supreme Court in Tom F split 4-4 over the issue whether a student must first enroll in public school before he is entitled to an out of district placement. However, a conflict in the circuit remains over this issue. An Oregon newspaper reported on September 14, 2008, that a school district in Oregon recently filed a cert. petition with respect to his same issue. That story is available here.  The cert. petition is available here. The 9th circuit decision is Forest Grove v. T.A., ___F.3d___(9th Cir. 2008).

Mitchell H. Rubinstein

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

NBC Producer Fails To Prevail In Breach of Employment Contract Case

7thcirseal_2 Bartel v. NBC, ___F.3d___(7th Cir. Sept. 11, 2008), is an interesting case which demonstrates just how narrow employee rights are in the public sector. In a breach-of-contract suit by a producer fired by defendant after she had raised concerns about ethics violations in defendant's "To Catch a Predator" news segment, dismissal for failure to state a claim is affirmed where: 1) the unambiguous language of the employment contract allowed defendant to fire plaintiff when and how it did; and 2) there was no implied term in the employment contract restricting defendant from firing plaintiff for reporting breaches of journalistic ethics.

Mitchell H. Rubinstein

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

7th Holds There Is A Duty To Mitigate Damages Under FMLA

7thcirseal Franzen v. Ellis Corp., ___F.3d___(7th Cir. Sept. 10, 2008), is an interesting case. In a suit alleging violations of the Family and Medical Leave Act (FMLA), breach of contract, and retaliation by defendant-employer, judgment that plaintiff was not entitled to damages or attorneys' fees is affirmed where: 1) while defendant had violated FMLA, plaintiff failed to prove that he would have been able to return to work or that he had attempted to mitigate his damages; and 2) FMLA's required award of attorneys' fees to prevailing plaintiffs did not apply since, despite the jury verdict for plaintiff on the liability issue, the final judgment was correctly entered for defendant.

Mitchell H. Rubinstein

September 30, 2008 in FMLA | Permalink | Comments (0) | TrackBack (0)

Monday, September 29, 2008

Online High School

'HOME' WORK: CITY BIDS FOR ONLINE HIGH SCHOOLS is an interesting September 29, 2008 New York Post article. It reports that NYC is working on allowing high school students to earn credits toward high-school graduation online. The NYC Department of Education is reportedly working with the state on getting a waiver of the requirement that students spend a certain amount of hours per year in a classroom - known as "seat time" - to get credits for a course. Apparently, this is known as "i-school."

Stay tuned on this. I am sure that other school districts will be watching what happens in NYC.

Mitchell H. Rubinstein

September 29, 2008 in Education Law | Permalink | Comments (2) | TrackBack (0)

3rd Holds That There Is No Private Right Of Action Over Improper FICA Deductions

3rdcircuit Umland v. Planco, ___F.3d___(3rd Cir. Sept. 9, 2008) is an important case. Employees were improperly classified as an independent contractor. As a result, they overpaid their FICA taxes because the employer did not pay its share. In this class action, the plaintiffs sought to bring a cause of action under FICA statute and state law. The FICA statute, however, does not provide a private cause of action and state law was preempted by the IRS Code which did contain procedures where plaintiffs coul obtain relief.

As the court stated:

We agree with PLANCO that permitting Umland’s suit
to proceed with respect to the 2000–03 damages she allegedly
experienced would interfere with the IRS’s administrative
scheme for handling such disputes. See IRS Form SS-8; see
also Treas. Reg. § 31.3121(d)-1 (defining employees for
purposes of FICA); IRS, Internal Revenue Manual, pt. 4, ch. 23,
§ 6 ( 2 0 0 3 ) , a v a i l a b l e a t

Mitchell H. Rubinstein

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

Insurance For Bloggers??

The Media Bloggers Association is offering insurance for defamation, invasion of privacy and copyright infringement. Additional details are available here.

There probably is a good idea for some of the more successful blogs to purchase such insurance.

Mitchell H. Rubinstein

Hat Tip: Law Library Blog

September 29, 2008 in Blogs, General | Permalink | Comments (0) | TrackBack (0)

Dartmouth College Prof Looses ADEA Case

1stcir Sabinson v. Trustees of Dartmouth College, ___F.3d___(1st Cir. Sep't. 12, 2008) is an interesting decision. The First affirmed summary judgement over a professor's claims under Title VII, the federal age discrimination, and for retaliation, where: 1) plaintiff offered no direct evidence of religious, gender- or age-based discrimination; and 2) plaintiff's retaliation claim failed when absent a decision by plaintiff to retire, unwelcome assignments were inevitable regardless of the complaint. Specifically, the court held that the fact that plaintiff may have been treated unfairly was not necessarily proof of a discriminatory motive. As the court reasoned:

But, whether or not personal or professional hostility played a role in the assessment, federal law does not protect generally against arbitrary or unfair treatment in private employment, but only against actions motivated by listed prejudices such as race, age and gender. Hazen Paper Co., 507 U.S. at 609; Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 22 (1st Cir. 1999); Smith v. Stratus Computer, Inc., 40 F.3d 11, 16 (1st Cir. 1994). Discrimination is a form of unfairness; but not all unfairness is discrimination.

          Even if we were to assume that Sabinson has produced evidence of pretext, the problem is that Sabinson's evidence did not tend to establish a discriminatory purpose, but rather tended to establish that a preexisting animus against her (unrelated to discrimination) was the reason for the adverse action. Thus, in a sense, the existence of personal or professional hostility toward Sabinson based on other reasons tends to work against her claim of discrimination. Sabinson's case might well be stronger if, after raising doubts about the purported reason for her treatment, the only plausible reason left appeared to be discrimination.

Mitchell H. Rubinstein

September 29, 2008 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Sunday, September 28, 2008

Breaking News Full Copy of Proposed Bailout Legislation

The proposed bailout legislation that the House is expected to vote on is available here. It spans 110 pages. Query how many legislators will actually read it.

Mitchell H. Rubinstein

Hat Tip: Huffington Post

September 28, 2008 in Current Events | Permalink | Comments (0) | TrackBack (0)

ABA Arbitration and Employment Materials From Sept. 2008 Conference Available Online

From Sep't 10,2008 to Sep't. 13, 2008, the ABA put on what appears to be a wonderful CLE conference in Denver. The papers that were submitted are available here. The material is extensive and may be helpful to researchers or students seeking to learn more about labor and employment law. As an example, the labor track of papers include the following:


Introduction to the Law and Practice Before the NLRB

NLRA Basics: A Short Primer

Steven W. Suflas and Dorothy Moore Duncan

Hot Topic: Neutrality Agreements, Card Checks and Voluntary Recognition After Dana

Hot Topic: Neutrality Agreements, Card Checks and VoluntaryRecognition After Dana

Amy Moor Gaylord and Jennifer A. Niemec

An Academic’s Perspective on Current Labor Law Issues

An Academic’s Perspective on Current Labor Law Issues

Roberto L. Corrada

Hot Topics: Remedies in Unfair Labor Practice Cases

Rights Without Remedies: The Failure of the National Labor Relations Act

Nancy Schiffer

Current Issues in Remedies for Unfair Labor Practices

Jeffrey I. Kohn

Mitchell H. Rubinstein

September 28, 2008 in Conferences, CLE | Permalink | Comments (0) | TrackBack (0)

EEOC Issues ADA Q and A Guide

Eeoc On September 3rd, 2008, the U.S. Equal Employment Opportunity Commission (EEOC) issued a comprehensive question-and-answer guide addressing how the Americans with Disabilities Act (ADA) applies to a wide variety of performance and conduct issues. That guide is available here.

This guideline is very practical and well written. As an example, it provides the following with respect to the use of alcohol and drugs:

The ADA may protect a “qualified” alcoholic who can meet the definition of “disability.” The ADA does not protect an individual who currently engages in the illegal use of drugs,82 but may protect a recovered drug addict who is no longer engaging in the illegal use of drugs, who can meet the other requirements of the definition of “disability,”83 and who is “qualified.” As explained in the following questions, the ADA has specific provisions stating that individuals who are alcoholics or who are currently engaging in the illegal use of drugs may be held to the same performance and conduct standards as all other employees.

Mitchell H. Rubinstein

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

9th Issues Primer On Subpoena Power of EEOC

Federal Express v. EEOC, ___F.3d___(9th Cir. Sept. 10, 2008), is an important decision for it reviews the subpoena power of the EEOC. As one could expect, this power is quite broad. The court described the applicable standard of review as follows:

As we have explained:
The scope of the judicial inquiry in an EEOC or any
other agency subpoena enforcement proceeding is
quite narrow. The critical questions are: (1) whether
Congress has granted the authority to investigate; (2)
whether procedural requirements have been followed;
and (3) whether the evidence is relevant and
material to the investigation.

Thus, the court held that the EEOC had the authority to issue a subpoena even after a right to sue was issued and the plaintiff filed suit in court.

Mitchell H. Rubinstein

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

Blackberry/Smart Phone Advice Sought

As many of you know, I have been a Treo user for years and am sick and tired of it. I am leaning towards purchasing a new Blackberry. I am trying to decide between the Storm and the Bold. Both are not out yet.

I am leaning towards the Bold because it has WiFi and the touch screen is not important to me. Does any one have any thoughts they could share on this.


September 28, 2008 in Misc., Non-Legal | Permalink | Comments (0) | TrackBack (0)

Saturday, September 27, 2008

Public Employee States First A Cause Of Action

6thcir_2  Public employees generally do not do well in First Amendment type cases. However, the plaintiff in Hughes v Region VII Area Agency on Aging, ___F.3d___, Nos. 07-1570/1647 (6th Cir. Sept. 8, 2008), managed to fight off dismissal. The court held that a public employee’s statements to reporter about allegations of sex harassment involved a matter of public concern; dismissal of First Amendment/discharge suit reversed.

The facts of this case are a bit unusual. The employee was fired after she was sought out and interviewed by a newspaper reporter about a sexual harassment lawsuit which had been filed against her supervisor by a co-worker. The plaintiff was interviewed about her belief that another employee was fired for advocating an independent investigation and about other arguably inappropriate conduct. The plaintiff also objected to disciplinary action and an unpaid suspension imposed against her for discussing with a colleague the affect of possible budget cuts at the agency. Following her termination, she filed suit under § 1983.

Mitchell H. Rubinstein

September 27, 2008 in First Amendment | Permalink | Comments (0) | TrackBack (0)

Employee Looses ADA "Regarded As" Claim For Refusing To Enroll in Inpatient Alcohol Treatment Program

8thseal Kozisek v County of Seward, Nebraska, No. 07-3682 (8th Cir, Aug. 27, 2008). The 8th affirmed the dismissal of ADA “regarded-as” claim by county worker who was fired for refusing to enroll in inpatient alcohol treatment program. Although the plaintiff employee claimed that the termination was based upon a “perceived” disability in violation of the ADA, the Eighth Circuit held that because the mandatory inpatient treatment was based upon the recommendation of a qualified medical provider and not upon myths or stereotypes about the disabled, it did not establish a perception of disability and, therefore, was not a violation of the ADA.

This is an interesting decision which we do not see very often.

Mitchell H. Rubinstein

September 27, 2008 | Permalink | Comments (0) | TrackBack (0)

Friday, September 26, 2008

Secunda on The Importance of State Law

Marquette Law Professor Paul Secunda posted on SSRN an abstract with respect to his upcomming article entitled The Ironic Necessity for State Protection of Workers which will appear in University of Pennsylvania Law Review PENNUMBRA, Vol. 157, 2008. The abstract provides:

Although there is a palpable irony in turning to the States for assistance in protecting workers in the workplace, the federal government has proven unwilling and unable to protect the basic rights of workers. In such an environment, it is time to "employ" state legislatures to see if they can find the necessary balm for what ills the American worker in areas where federal labor law remains silent. To borrow the federalism conception of Justice Brandeis, by allowing states to operate as laboratories of experimentation today, workplace rights will not only flourish at the state level in the short-term, but also gain traction at the federal level for years to come.

This series of essays is part of a PENNumbra debate with Professor Jeffrey Hirsch on the need for state regulation of the workplace. I favor states playing a gap-filling role in workplace regulation where federal law is absent or silent and as part of their traditional role in legislating minimum condition laws to protect workers from inhumane working conditions. Professor Hirsch, on the other hand, seeks the complete eradication of all state workplace regulation and advocates an exclusive federal law regime. His hope is that such a new system will actually make workers better off because they will more easily be able to enforce their remaining rights in a less complex regulatory world.

The problem, however, is not one of complexity, but that federal agencies charged with carrying out the current law do not have the financial resources, the political will, or the administrative tools to implement, enforce, and adjudicate these laws. Eradicating state authority over the workplace will not only not solve the present-day enforcement issues that Professor Hirsch and I agree are very real, but will leave workers even more vulnerable to abuse as a result of fewer employment protections.

The role of state law in labor relations to SUPPORT unions is a most interesting legal issues, particularly when one considers the history of state law which has been AGAINST unions. This article looks wonderful and I might assign it to my employment law students next summer.

Mitchell H. Rubinstein

Hat Tip: Legal Theory Blog

September 26, 2008 in Law Review Articles | Permalink | Comments (1) | TrackBack (0)

Pushing A Student Disqualifies Employee For Unemployment

Matter of Katz v. Commissioner, ___A.D.3d___(3d Dep't. Sep't. 11, 2008) is an interesting case. Employees are not eligible for unemployment if they engage in "misconduct." The question that is often litigated is what is"misconduct for unemployment purposes? The Appellate Division held that pushing a student is misconduct. As the court stated:

Claimant worked as a teacher's aide at the employer's day care center for almost four years. On November 2, 2006, she was in the hallway with a child while classes were in session and had an argument with a coworker concerning her presence there. The argument escalated in the presence of the child and others and, when the coworker directed her to take the child back to the classroom, claimant allegedly shoved the child forward in a forceful manner. Claimant's employment was terminated shortly thereafter. The Unemployment Insurance Appeal Board subsequently ruled, among other things, that claimant was disqualified from receiving unemployment insurance benefits because her employment was terminated for misconduct. The Board adhered to this decision upon reconsideration, resulting in this appeal.

We affirm. An employee's unprofessional conduct that is detrimental to an employer's interest has been held to constitute disqualifying misconduct (see Matter of Moore [Commissioner of Labor], 49 AD3d 1124, 1124 [2008]; Matter of Childs [Kaleida Health [*2]Commissioner of Labor], 42 AD3d 620, 621 [2007]). In the case at hand, claimant's actions were not only unprofessional, but had potentially adverse consequences for the employer inasmuch as it was legally required to report the incident to its funding agency. Although claimant denied engaging in such behavior, this presented a credibility issue for the Board to resolve (see Matter of Williams [Commissioner of Labor], 32 AD3d 1089, 1090 [2006]). Accordingly, we find no reason to disturb the Board's decision.

Mitchell H. Rubinstein

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

Thursday, September 25, 2008

Breaking News President Bush Signs ADA Amendments Act of 2008 Into Law

With all of the political and economic news going on an important piece of new legislation has largely been ignored by the media. On September 25, 2008, President Bush signed S. 3406, ADA Amendments Act of 2008 into law. Professor Alex Long just posted on  SSRN his essay forthcoming in the Northwestern University Law Review Colloquy, Introducing the New and Improved Americans with Disabilities Act:  Assessing the ADA Amendments Act.

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

September 25, 2008 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

So You Want To Be A FT Law Professor

Legal Scholarship Blog has an excellent biography with links concerning how to get a FT law school teaching job, the AALS meat market, Fellowships and more.

Unfortunately, if you did not go to top 20 school and clerk for at least a circuit judge your going to be pretty much out of luck, unless you also have a Ph.d from one of those same 20 or perhaps 10 schools. Does this make much sense to law schools who train lawyers? I think not, but it is what it is.

Mitchell H. Rubinstein   

September 25, 2008 in Appointment Information, Full Time | Permalink | Comments (0) | TrackBack (0)

Accepting Retirement Incentive Deems Employee Ineligible For Unemployment

Sometimes cases are important to discuss because they illustrate basic propositions of law. Matter of Standford v. Commissioner of Labor___A.D.3d___(3d Dep't. Sept. 11.2008) is one such case. To be eligible for unemployment if one voluntary leaves their employment, they must have left for "good cause." Acceptance of a retirement package is not good cause. As the court stated:

  Leaving one's job to take advantage of an early retirement package has been found not to constitute good cause for leaving employment (see Matter of Lucht [Commissioner of Labor], 49 AD3d 1048, 1049 [2008]; Matter of Cammisa [Commissioner of Labor], 38 AD3d 1146 [2007]). Here, there is no dispute that claimant left her job for this reason. Although she stated that the employer was downsizing and she felt pressure to resign, she was not told that she would be laid off. In any event, leaving a job in anticipation of a scheduled discharge does not constitute good cause for leaving employment (see Matter of Burke [Commissioner of Labor], 11 AD3d 870, 871 [2004]). Furthermore, inasmuch as claimant misrepresented that her employment ended due to a lack of work, there is no basis to disturb the Board's finding that she [*2]made a willful false statement to obtain benefits (see Matter of Lucht [Commissioner of Labor], 49 AD3d at 1050; Matter of Cuomo-Perez [Commissioner of Labor], 3 AD3d 777, 778 [2004]).

Mitchell H. Rubinstein

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