Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Sunday, October 26, 2008

College Professor Loses Title VII Case

6thcir_2 Giles v. University of Toledo, ___F.3d___(6th Cir. 2008) is an interesting decision which reviews basic Title VII principles fairly well. The plaintiff, a black professor, who was fired for job abandonment for refusing to return from an LOA failed to identify a faculty member who received more leave than he did since the faculty was unionized. Therefore, his claim of disparate treatment was dismissed. Plaintiffs state law claims were also rejected.

Mitchell H. Rubinstein   

October 26, 2008 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

What Is Plagiarism?

Clinicians With Not Enough To Do reports on a recent law review article,  Carol M. Bast & Linda B. Plagiarism and Legal Scholarship in the Age of Information Sharing: The Need for "Intellectual Honesty," 57 Cath. U. L. Rev. 777 (2008). They explain that this article provides a definition of plagiarism and addresses such issues as using student work, lifting passages from judges decisions and lifting your own prior work. I could not find a copy of this article on SSRN, but surprisingly there is a significant amount of scholarship with respect to this issue.

This article is 37 pages long and did come with an abstract. Therefore, I decided to paste a copy of the table of contents.


I. Plagiarism: Definitions and Scope.. 780
A. Definitions of Plagiarism.. 780
B. Unintentional Plagiarism.. 783
C. Self-Plagiarism: Borrowing from One's Own Prior Publications.. 784
D. Authorship: Giving Credit.. 787
E. The Distinction Between Plagiarism and Copyright Infringement.. 790
II. Plagiarism and Authors of Legal Documents: Professors, Judges, Practitioners, and Bar Applicants................................................................................................... 793
A. Plagiarism and Legal Academe.. 793
B. Plagiarism and the Judiciary.. 800
C. Plagiarism and the Practicing Attorney.. 803
D. Plagiarism and the Bar Applicant.. 806
III. Analysis and Recommendations.. 807
A. Developing Standards.. 807
B. Prior Publications.. 810
C. Authorship.. 811
D. Negligent Plagiarism.. 812
E. Plagiarism Detection Technology.. 813
IV. Conclusion.. 815

This is an article that lawyers and profs should try to read.

Mitchell H. Rubinstein 

October 26, 2008 in Misc., Legal | Permalink | Comments (0) | TrackBack (0)

Many Older People Want To Work

Money not the motive for many to work until 67 is an important Oct. 7, 2008 A.P. article reprinted on that raises many important social issues. The article states that may older Americans work past normal retirement age (nowadays 67) because they want to stay mentally active. In other words its not about the money. As the article states:

A new survey conducted by the U.S. division of Toronto-based Sun Life Financial Inc. shows nearly half of the workers in the United States expect to be working at the traditional retirement age of 67, but like Stein, most say it's not just because of money.


The random telephone survey of 1,515 workers indicated that 48 percent of workers believe they will still be working either full- or part-time at age 67. The most cited reason among them - declared by 83 percent - was to stay mentally engaged.

Mitchell H. Rubinstein

October 26, 2008 in Employers | Permalink | Comments (1) | TrackBack (0)

Adjunct Blog Hits 100,000 Milestone

This weekend was an important one for me. I spoke at the Third Annual Colloquium on Current Scholarship in Labor and Employment Law Scholarship at California Western School of Law in San Diego California and this blog surpassed the 100,000 visitor mark. This blog started on May 7, 2007 which is less than a year and half ago.

Thank you for your continued support. Please continue to send me copies of articles or cases you think our readers may find of interest and please feel free to continue to pass around our URL. I also wanted to thank your two contributing editors for their support.

Mitchell Rubinstein

October 26, 2008 in Adjuncts in the News | Permalink | Comments (1) | TrackBack (0)

Friday, October 24, 2008

Maleness As A Disability

I bring A New Potential Disability: Being Male?, a Oct. 7, 2008 National Law Journal article,to your attention because it contains an over the line comment by a management lawyer who is obviously against the ADA Restoration Act which just passed Congress. As the article states:

If sleep disorders and sex problems can be used as criteria for filing disability claims, as courts have held, "being male" could also be a legally recognized disability.

So claims Louis Solomon, a partner and co-head of the Global Litigation Department at Proskauer Rose, who believes "maleness" is on its way to becoming a new category for disability claims.

Men, he argues, have a greater susceptibility to certain diseases, a shorter life expectancy and a testosterone level that predisposes them to more aggressive behavior -- all factors that could be classified as a disability.

"A good-faith argument could be made -- and I predict it eventually will be made -- that being male would meet the broadest definition of disability," said Solomon.

I could not disagree more. These comments are beyond the pale management advocacy. I suspect that if someone actually makes this argument in federal court they may be looking at Rule 11 sanctions.

Mitchell H. Rubinstein

October 24, 2008 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

NLRB Reviews Wright Line Dual Motive Standard

Nlrb_2 Faurecia Exhaust, 353 NLRB No. 34 (Sept. 30, 2008), reviews some basic principles of NLRB law. Specifically, the NLRB reviews how to treat mixed motivation cases. As the Board stated:Faurecia Exhaust, 353 NLRB No. 34 (Sept. 30, 2008), reviews some basic principles of NLRB law. Specifically, the NLRB reviews how to treat mixed motivation cases. As the Board stated:

Where, as here, an employer is charged with violating
Section 8(a)(3) by taking adverse action against an employee
for engaging in Section 7 activity, the Board applies
the test in Wright Line to determine whether the
violation has been established. Under Wright Line, the
General Counsel must first show by a preponderance of
the evidence that protected activity was a motivating
factor in the employer’s adverse action. If this is established,
the burden shifts to the employer to show that it
would have taken the same adverse action even in the
absence of the protected activity. See, e.g., SFO Good-
Nite Inn, LLC, 352 NLRB No. 42, slip op. at 2 (2008).
Cases analyzing adverse action under Wright Line are
treated as presenting either a question of “dual motivation”
or one of “pretext.” In a dual motivation case, the
“employer defends against a § 8(a)(3) charge by arguing
that, even if an invalid reason might have played some
part in the employer’s motivation, the employer would
have taken the same action against the employee for a
permissible reason.” Palace Sports & Entertainment,
Inc. v. NLRB, 411 F.3d 212, 223 (D.C. Cir. 2005). If the
employer cannot demonstrate, by a preponderance of the
evidence, that it would have taken adverse action against
the employee for the permissible reason, then its rebuttal
defense fails and a violation will be found. In a pretext
case, i.e., a case in which the “reasons given for the employer’s
action are . . . either false or not in fact relied
upon . . . the employer fails by definition to show that it
would have taken the same action for those reasons, and
thus there is no need to perform the second part of the
Wright Line analysis.” SFO Good-Nite, supra, slip op. at
2. See also Rood Trucking Co., 342 NLRB 895, 897–
898 (2004).
Here, the judge found that the General Counsel satisfied
his initial burden under Wright Line. That part of
the judge’s analysis is clear to us. What is not clear,
however, is the judge’s Wright Line analysis in rejecting
the Respondent’s rebuttal defense. Specifically, we cannot
discern whether it is based on a dual-motivation
analysis or a pretext finding.

Mitchell H. Rubinstein

October 24, 2008 in NLRB | Permalink | Comments (0) | TrackBack (0)

Ex-Dechert Attorney Sues Firm, Alleging False Work Promises, Religious Discrimination

Ex-Dechert Attorney Sues Firm, Alleging False Work Promises, Religious Discrimination is an interesting Oct. 6, 2008 news article. It is about a lawsuit filed by a big firm associate after he was terminated. He claims religious discrimination and that the firm falsely made promises to him to woo him from his former firm. He also claims that he gave up other opportunites based upon representations that were made to him about the job.

If true, these facts seem alot like the 2d Circuit decision in the Jackson, Nash case which recognized a cause of action for fraudulent inducement. A cause of action may also be stated under Pennsylvania law for breach of contract if such causes of action are recognized in Pennsylvania employment law.

Mitchell H. Rubinstein 

October 24, 2008 in Employment Law | Permalink | Comments (0) | TrackBack (0)

Firefox Legal Research Extension

Jureeka is a Firefox extension which is designed specifically for lawyers 
and legal researchers. It is designed to turn legal citations in web pages into hyperlinks 
that point to online legal source material.

I just started using Firefox and it is quicker than IE. Jureeka is available here.

Mitchell H. Rubinstein

October 24, 2008 in Legal Research | Permalink | Comments (0) | TrackBack (0)

Thursday, October 23, 2008

7th Notes Circuit Split Re: Whether Person Who Rejects Supervisor's Advance Engages In Protected Activity For a Title VII Retaliation Claim

7thcirseal Tate v. Executive Management, ___F.3d___(7th Cir. Oct. 10, 2008) is an important Title VII case that is ripe for law review commentary. Title VII, of course, outlaws both discrimination and retaliation. To establish a prima facie case of retaliation, a plaintiff must establish:

A plaintiff claiming retaliation under Title VII
must show: “1) a statutorily protected activity; 2) an
adverse action taken by the employer; and 3) a causal
connection between the two.” Boumehdi v. Plastag Holdings,
LLC, 489 F.3d 781, 792 (7th Cir. 2007).

Query, if an employee rejects a supervisor's sexual advance is that protected activity for RETALIATION purposes? There is a conflict in the circuits over this issue. As the court stated:

In order for Tate to have engaged in protected conduct,
he does not have to prove that Burban sexually harassed
him; therefore, the fact that the jury found against him
on his sexual harassment claim, a finding he does not
appeal here, is not dispositive. See Fine v. Ryan Int’l
Airlines, 305 F.3d 746, 752 (7th Cir. 2002) (“a plaintiff need
not prevail on her Title VII discrimination claim or have
opposed an action that in fact violated Title VII to win
a retaliation claim”). In order to engage in protected
conduct, Tate only has to show that he “reasonably be
lieved in good faith the practice [he] opposed violated
Title VII.” Id.
As a threshold matter, there is a circuit split about
whether a person who rejects a supervisor’s sexual advances
has engaged in a protected activity. Compare
LeMaire v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 389 (5th
Cir. 2007) (holding that a single, express rejection of sexual
advances does not constitute “protected activity” for
purposes of a retaliation claim) with Ogden v. Wax Works,
Inc., 214 F.3d 999, 1007 (8th Cir. 2000) (finding that when
the plaintiff told her supervisor to stop harassing her, she
engaged in the most “basic form of protected conduct”).
We have not addressed this issue. See Murray v. Chi. Transit
Auth., 252 F.3d 880, 890 (7th Cir. 2001) (declining to
resolve the issue of whether a plaintiff who rejects a
sexual invitation from a supervisor has engaged in protected
conduct because the plaintiff did not show an
adverse employment action). Even if we assume, for
purposes of argument, that there may be circumstances
in which a person who rejects his supervisor’s sexual
advances has engaged in a protected activity, Tate has not
shown that he “reasonably believed in good faith the
practice [he] opposed violated Title VII.” Fine, 305 F.3d
at 752.

Mitchell H. Rubinstein

October 23, 2008 in Employment Discrimination, Law Review Articles | Permalink | Comments (0) | TrackBack (0)

Gift of Company Stock Is Not A Mandatory Subject Of Bargaining

2dcirseal UNITE HERE v. NLRB, ___F.3d___(2d Cir. Oct. 14, 2008), is an interesting decision which enforced the decision of the NLRB below. A company unilaterally gave its employees stock without bargaining. The court held that the this was not an unlawful unilateral change. Why because it was a gift. The court reasoned in part:

The Union contends that the Board applied an incorrect legal
standard because “gift doctrine case[ ]law” requires that, to be
non-bargainable, an award must be of token value or given on
holidays such as Christmas. This argument challenges the Board’s
legal determination, which we will not disturb unless it is
arbitrary and capricious. The Union’s argument is without merit,
and we perceive nothing erroneous, much less arbitrary and
capricious, in the Board’s rejection of it.
The question of whether an award constitutes wages and
therefore is the subject of mandatory bargaining turns upon
whether the award is “so tied to the remuneration which employees
received for their work that [it was] in fact a part of it.”
NLRB v. Niles-Bement-Pond Co., 199 F.2d 713, 714 (2d Cir. 1952).
In ascertaining whether a stock award is so tied to remuneration
that it must be the subject of bargaining, the Board looks to the
relationship of the award to other employment-related factors,
including work performance, wages, hours worked, seniority, and
production. See Benchmark Indus., 270 N.L.R.B. at 22. An award
that is sufficiently tied to these work-related factors is
considered part of the overall compensation that an employee
receives and is therefore mandatorily bargainable.

Mitchell H. Rubinstein

October 23, 2008 in NLRB | Permalink | Comments (0) | TrackBack (0)

New Legal Search Engine From Lexis

LexisWeb is a new legal search engine from LEXIS. It searches the internet for legally related cites. It is also free. It is worth checking out.

Mitchell H. Rubnstein

October 23, 2008 in Legal Research | Permalink | Comments (0) | TrackBack (0)

2d Issues Short Primer on Title VII

2dcircseal_2 I bring Avaya v. Davis, ____F.3d____(2d Cir. Oct. 2, 2008), to your attention because it is a short decision which contains a nice summary of the elements of a Title VII case. As the court stated:

On a motion for summary judgment, claims of discrimination
under Title VII, Section 1981, the ADEA, the NYSHRL, and the
NYSCRL are analyzed under the framework articulated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under this three-part test, plaintiff must first establish a
prima facie case of discrimination by showing: (1) she
belongs to a protected class; (2) she was qualified for her
position; (3) she was discharged; and (4) the discharge
decision occurred under circumstances giving rise to an
inference of discrimination on the basis of her membership in a
protected class. Id. at 802. Once plaintiff has
satisfied this minimal burden, "the burden of production shifts
to the employer to articulate some legitimate,
non-discriminatory reason for the termination, . . . which, if
believed by the trier of fact, would support a finding that
unlawful discrimination was not the cause of the employment
action." Patterson v. County of Oneida, 375 F.3d 206,
221 (2d Cir. 2004) (internal citations and quotation marks
omitted). If the employer satisfies this burden, the burden
shifts back to the plaintiff to show that the defendant's
legitimate reasons were a mere pretext for discrimination.
Id. If plaintiff fails to "show that there is evidence
that would permit a rational factfinder to infer that the
employer's proffered rationale is pretext, summary judgment
dismissing the claim is apprpriate.

Michell H. Rubinstein

October 23, 2008 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 21, 2008

5th Holds That Plaintiff Is Not An Employee Under FLSA Even Though He Is An Employee Under Title VII

5thcir_2 Hopkins v. Cornerstone America, ___F.3d___(5th Cir. Oct. 13, 2008) is a major employment law case that has gone relatively unnoticed. At issue is whether certain sales leaders were independent contractors or employees under the FLSA. The 5th held that these employees were independent contractors even though these same employees were found to be employees for state law discrimination purposes.

How can this be? As readers of this blog know, there are several different tests of employee status. Under the FLSA, the economic realities test is applied, but under most areas of discrimination law a hybrid test which combines the common law right to control test and the economic realities test is applicable. As the court states:

Sales Leader Fox was previously sued for sexual harassment under the
Texas Commission on Human Rights Act (“TCHRA”). See Tex. Lab. Code Ann.
§ 21.001 et seq. (Vernon 1996). As a defense to that action, Fox asserted in his
pleadings and during his deposition that he was an independent contractor and
thus outside scope of the TCHRA. The matter eventually settled before trial.
In this case, the district court invoked judicial estoppel to prevent Fox from
asserting his employee status under the FLSA. The court reasoned that Fox’s
prior defense in the TCHRA action was clearly inconsistent with his current
claim, and that Fox intended for the previous court to accept his defense.
Fox contends that the district court erred in determining that his claim of
employee status under the FLSA was “clearly inconsistent” with his earlier
claim of independent-contractor status under the TCHRA. We agree.
Despite the semantic inconsistency, it is legally possible to be an employee
for purposes of the FLSA and an independent contractor under most other
statutes. See Nationwide Mut., 503 U.S. at 326 (noting that the FLSA “stretches
the meaning of ‘employee’ to cover some parties who might not qualify as such
under a strict application of traditional agency law principles”). The TCHRA,
which was modeled after Title VII of the federal Civil Rights Act, uses a “hybrid
economic realities/common law control test” to determine employee status.
Johnson v. Scott Fetzer Co., 124 S.W.3d 257, 263 (Tex. App.—Fort Worth 2003,
pet. denied). Because this hybrid test focuses on traditional agency notions of
control, it results in a narrower definition of employee than under a true
economic-realities test. See Deal v. State Farm County Mut. Ins. Co. of Texas,
5 F.3d 117, 118–19 (5th Cir. 1993) (discussing the hybrid test); Nationwide Mut.,
503 U.S. at 326. Furthermore, it is clearly possible for Fox to be an employee
under the FLSA even if he actually believes himself to be an independent
contractor. As the court below acknowledged, “[a] person’s subjective opinion
that he is a businessman rather than an employee does not change his status”
for purposes of the FLSA. Mr. W Fireworks, 814 F.2d at 1049. In sum, there is
no legal inconsistency in claiming to be an employee under the FLSA and an
independent contractor under the TCHRA.
While this conclusion may seem paradoxical, we are convinced that it is
in line with the purposes of the doctrine. Judicial estoppel is designed to reduce
“the risk of inconsistent court determinations.” New Hampshire, 532 U.S. at
750–51. Because Fox’s claim of employee status under the FLSA could not result
in a legally inconsistent court determination, we conclude that the district court
abused its discretion in applying judicial estoppel.

Mitchell H. Rubinstein


October 21, 2008 in Employment Law | Permalink | Comments (0) | TrackBack (0)

IWW Beats Back RICO and 303 Damage Action

Remember the IWW  or the Wobblies. They actually still exist, but on a much lesser scale than in the 1950's. Wild Edibles v. IWW, ____F.Supp.2d___(S.D.N.Y. Oct. 16, 2008)(registration required), is an important RICO and 303 case.

The union allegedly participated in secondary pickets and boycotts designed to force plaintiff seafood purveyor's recognition of the Industrial Workers of the World as the labor union. Plaintiff's April 14, 2008, amended complaint charged defendants with violating §1962 of the Racketeer Influenced Corrupt Organizations Act by forcing restaurants to stop buying plaintiff's seafood products in exchange for defendants' cessation of protest activities near those restaurants. Plaintiff also claimed defendants' liability under §303 of the Labor Management Relations Act (LMRA) because their secondary protests and boycotts violated the National Labor Relations Act (NLRA). The court dismissed the complaint, which insufficiently alleged facts establishing a RICO enterprise. The complaint also failed to allege facts that codefendant Brandworkers International was a "labor organization" under NLRA §2(5) for purposes of imposition of LMRA §303 damages.

This is an important decision which labor counsel needs to be aware of.

Mitchell H. Rubinstein

October 21, 2008 in Unions | Permalink | Comments (0) | TrackBack (0)

$10,000 Limit On Mental Distress Damages Without Medicial Treatment

Iroquois Nuring Home v. NYSDHR, ___A.D.3d___(4th Dep't. Oct. 3, 2008), is an important New York employment discrimination case. The court specifically limits damages for metnal anguish and humiliation to $10, 000 unless plaintiff sought medical treatment. As the court stated:

The complainant was awarded $25,000 in compensatory damages for mental anguish and humiliation. While we conclude that the determination is supported by substantial evidence (see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179-180), we further conclude that the award of damages for mental anguish and humiliation is excessive. Although mental anguish and humiliation may be proven by the testimony of the complainant alone (see Matter of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207, 216), here the complainant sought no medical treatment, and her testimony in support of the award of damages for mental anguish and humiliation was sparse. In our view, an award of $10,000 is "the maximum award supported by the evidence" (Matter of New York State Tug Hill Commn. v New York State Div. of Human Rights, 52 AD3d 1169, 1172; see generally Matter of Diaz Chem. Corp. v New York State Div. of Human Rights, 237 AD2d 932, 933, affd 91 NY2d 932), and we therefore modify the determination accordingly.

Unfortunately, the above is the entire court's analysis. It is conclusionary and not very helpful. However, it at least establishes a fairly easy (and low) rule.

Mitchell H. Rubinstein 

October 21, 2008 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

2nd Holds Sexual Orientation Discrimination Is Not Actionable Under Title VII

2dcircseal Kiley v. ASPCA, ___F.3d___(2d Cir. Oct. 2, 2008), is a short decision which reviews several fundamental Title VII principles.  The court holds that discrimination on account of sexual orientation is not actionable. Additionally, the court recognizes a cause of action may be viable as sexual sterotyping, but that a plaintiff cannot bootstrap a sexual orientation case as a sterotyping case. Unfortunately, the court does not provide much guidance with respect to how courts should distinguish between these two claims.

Mitchell H. Rubinstein

October 21, 2008 in Employment Discrimination | Permalink | Comments (1) | TrackBack (0)

Conference: Judicial selection in Washington

There will be an interesting conference next month in Seattle for those interested in the ongoing debate on judicial selection.  The University of Washington School of Law and the Judicial Selection Coalition are joining to present "Selecting Judges in Washington -- Looking Back to 2008 and Forward to 2009" on November 21 at W. H. Gates Hall at the law school.  The conference begins at 1:00 and includes some interesting presenters.  Here is a flyer with more information about this conference.

Hat Tip: Legal Scholarship Blog.

Craig Estlinbaum

October 21, 2008 in Conferences, CLE, Judges | Permalink | Comments (0) | TrackBack (0)

Monday, October 20, 2008

NY Court of Appeals Once Again Affirms Employment-at-Will Doctrine

Nysctappeals Goldman v. White Plains Center, ___N.Y.3d___(Oct. 16, 2008), is an important New York Employment-at-Will decision.
Plaintiff in this case had a two year employment contract. After her contract expired, she continued to work. She claimed that she had a common law implied contract after the contract expired. However, the court rejected that argument, based upon a line of common law cases dealing with the statute of frauds, reasoning:

Plaintiff nevertheless maintains that a one-year implied contract on the same terms as set forth in the original agreement was created each year that her employment continued after the expiration of the written contract. Aside from the fact that this position is contrary to the renewal provisions of the agreement, this contention conflicts with the well-established rule that, "absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party" (Sabetay v Sterling Drug, 69 NY2d 329, 333 [1987]; see e.g. Murphy v American Home Prods. Corp., 58 NY2d 293, 300 [1983]). Plaintiff therefore relies on a common-law rule that recognizes an inference that parties intend to renew an employment agreement for an additional year where the employee continues to work after expiration of an employment contract (see Cinefot Intl. Corp. v Hudson Photographic [*4]Indus., 13 NY2d 249, 252 [1963], citing Adams v Fitzpatrick, 125 NY 124 [1891])[FN3]. This common-law presumption — developed in the 19th century before the establishment of the employment-at-will doctrine — can be rebutted by demonstrating that the parties did not intend to allow a contract to renew automatically (see Cinfeot, 13 NY2d at 252).

Decisions such as Cinefot (13 NY2d 249) and Adams (125 NY 124) are distinguishable from this case. In Cinefot, the parties orally agreed that the plaintiff would be hired as the defendant's employee for one year and there was no indication that they agreed that the contract could not be renewed unless future negotiations occurred and a new agreement extending the term of employment was reached. Adams similarly involved an oral employment contract for approximately one year that also did not require negotiations for contract renewal. Since neither of these cases incorporated terms dealing with contract extension similar to those in the case at issue, the common-law evidentiary presumption was appropriate because its application did not contradict any express provision of the agreements. But in this case — where the employer and employee agree that the contract memorializes their understanding, can be modified only in writing and expires on a specified date absent additional negotiations for a new agreement — application of the common-law presumption would be contrary to principles of contract interpretation and the employment-at-will doctrine. In such a situation, the evidentiary presumption must yield — and this should be the result regardless of whether the contract is oral or written. We therefore hold that the common-law rule cannot be used to imply that there was mutual and silent assent to automatic contract renewal when an agreement imposes an express obligation on the parties to enter into a new contract to extend the term of employment [FN4]. Hence, plaintiff's employment became an at-will arrangement upon the expiration of the agreement on March 31, 1992 and defendants were entitled to summary judgment dismissing the breach of contract claim.

Mitchell H. Rubinstein

October 20, 2008 in Employment-At-Will & Exceptions | Permalink | Comments (1) | TrackBack (0)

NLRB Advice Memo On Attorney Work Product

Nlrb Health Professionals, 11-CB-10589 (Div. of Advice Aug. 13, 2008), is an excellent Advice Memo I just noticed. It concludes that the union did not violate 8(b)(3) by refusing to turn over certain notes in connection with an arbitration because those notes because those notes were prepared by the grievant at the direction of the union's attorney. The Memo described the attorney work product privilege as follows:

It is well established that a union's statutory duty to
supply information parallels that of an employer.3 However,
otherwise relevant information is sometimes exempt from
disclosure because it is confidential, proprietary, or otherwise
privileged.4 The Board has found the work product doctrine to be
such a defense against allegations of refusals to provide
The work product doctrine provides a qualified immunity
from discovery for documents prepared by a party or its
representative in anticipation of litigation.6 The doctrine’s
purpose is to promote the adversary system by protecting the
confidentiality of papers prepared by attorneys in anticipation
of litigation, thereby enabling attorneys to prepare cases
without fear that their work product will be used . . .

Mitchell H. Rubinstein

October 20, 2008 in NLRB | Permalink | Comments (0) | TrackBack (0)

Role of State Law In Labor Law

Professor Paul Secunda and Jeff Hirsh had an interesting scholarlly debate on PENNumbra, Univ.of Pa., online law review companion journal, about workplace federalism. Secunda basically argues that more state intervention is needed for employees because federal labor law provides very little practical protection. While Hirsh seems to acknowlege many of the problems with our labor law, he sees additional problems with enacting additional state legislation. PENNumbra summarizes their debate as follows:

In a decision from the last term, the Supreme Court held that a state law prohibiting the use of state funds by employers for both anti- and pro-union advocacy was preempted by federal law. Chamber of Commerce v. Brown, 128 S. Ct. 2408 (2008). The Brown decision sparks this debate between Professors Paul M. Secunda, of Marquette University Law School, and Jeffrey M. Hirsch, of the University of Tennessee College of Law, as to whether the federal government or the states are best equipped to protect the rights of workers under the law.

Professor Secunda argues that federal regulation enacted to protect workers in the workplace has suffered from lack of enforcement and political bias. Thus, because "the federal government . . . has proven unwilling and unable to protect the basic rights of workers," he maintains that "state law should be permitted to play a complementary role in all of [the] areas of workplace regulation where federal law is silent or absent." Individual states, then, could act as "laboratories" that could "engage in thoughtful, legislative experimentation." Finding the idea of an exclusive federal scheme likely to result in "self-selection bias and inefficient prioritization of agency resources," he concludes that needed regulation may only be available to the states.

Professor Hirsch counters that Professor Secunda's proposal would exacerbate the problems with the current underenforcement of workers' rights, which at least partly results from the complexity created by a regulatory framework made up of federal, state, and local law. As a solution, Hirsch proposes that the federal government should be given exclusive control of the workplace, under a single system of enforcement and regulation. His suggested changes include a single workplace law statute, a single agency to administer that statute, and a litigation-based enforcement approach that includes the creation of private-rights of action for violations and the creation of a specialized Article III labor and employment court. Thus, while conceding that "[t]he federal government's regulation of the workplace has been far from perfect," he argues that "it is a far better choice than fifty different state regimes."

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog


October 20, 2008 in Law Review Articles | Permalink | Comments (0) | TrackBack (0)