Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Sunday, November 30, 2008

On Remand From Supremes Sprint District Court Rejects "Me Too" Evidence

Mendelsohn v. Sprint?United, ___F.Supp. 2d (D. Kan. Nov. 4, 2008) is an important ADEA procedural case. On  remand from the Supreme Court, the court reiterated its view that the "me too" evidence of bias and age-derogatory remarks offered at trial by a manager who was discharged during a reduction in force was inadmissible because it was unrelated to her employer's discharge decision.

As readers may recall, the Supremes held that such evidence was "neither per se admissible nor per se inadmissible" under the Federal Rules of Evidence; rather, it depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case.

In the case at bar, the plaintiff, had not alleged a disparate impact or a pattern or practice of age bias. She presented no evidence that any supervisor who allegedly discriminated against the five employees-witnesses that were discharged in the RIF "had any connection to her chain of command or that her employer had a company-wide practice of age bias which infected its entire culture or of which her supervisors were aware."

I wrote a law review article about the Sprint Supreme Court case, available here.

Mitchell H. Rubinstein

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

11th Narrowly Interprets Garcetti

11thcir As readers of this blog know, Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), greatly narrowed public employee free speech rights. In Stokes v. Savannah State University, ___F.3d___(11th Cir. 2008), the 11th Circuit dismissed one such case brought by a Police Chief. The court held that the plaintiff was not speaking as a private citizen about a matter of public concern when he objected to the university employer's decision to place the police department building under a campus master key system. Rather, the plaintiff was speaking auspices of his official duties, and therefore, under Garcetti, his speech was not protected from discipline under the First Amendment.

Mitchell H. Rubinstein

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

Kaye's Legacy

As most New York lawyers know, Chief Judge Kaye is stepping down from the Court of Appeals. A December 1, 2008 New York Law Journal article about her tenure entitled Kaye's Legacy is available here. Chief Judge Kaye has been on the Court for 25 years and has been Chief Judge for the last 15. She has written hundreds of important decisions. This article is broken down into sections. One of the more interesting sections is entitled Kaye's Approach To Change Cautious and Pragmatic. The article provides in part:

Judge Kaye, who turned 70 on Aug. 4, must leave the Court due to a mandatory retirement rule in the state Constitution. But rulings she has authored in the last 25 years - 498 majority decisions and 83 concurrences or dissents, plus a vast number of unsigned rulings - have affected the lives of New Yorkers in a myriad of ways.

Her majority rulings have struck down portions of two death penalty laws, allowed homosexuals to legally adopt their partners' children and to succeed their partners in rent-stabilized apartments, opened car leasing to drivers as young as 18, made adults who serve alcohol to minors liable for damages caused by drunken party-goers, expanded state liability for injuries suffered by inmates at the hands of other prisoners and decreed that New York City public school children were not getting the "sound, basic education" the state Constitution guarantees them.

Mitchell H. Rubinstein

November 30, 2008 in New York Law | Permalink | Comments (0) | TrackBack (0)

Termination Check List

The Employment Law Blog reprinted a termination checklist for employers written by an attorney. There are 25 questions that are included. The first ten are as follows:
1. Have handbook and all written procedures been followed?
2. Is there a written employment agreement? Collective bargaining agreement?
3. Are any wages due?
4. Has the employee accrued unused vacation or paid time off benefits?
5. Has the employee incurred unreimbursed expenses?
6. Are there any needed deductions from the final paycheck?
7. Is the final paycheck ready to be delivered at the time of termination?
8. Are there any advances, loans, or negative vacation bank?
9. How will the termination affect stock options?
10. Is the employee entitled to a “golden parachute” or other termination payout?

Mitchell H. Rubinstein

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

Saturday, November 29, 2008

A Bad Economy Is A Boom For Employment Lawyers

Employment Lawyers: We're Busier Than Ever is an interesting Nov. 14, 2008 article from the American Lawyer. As most of us employment lawyers know, hard economic times are boom times for employment articles. This article interviews several lawyers who discuss this well known trend. As the article states:

Mandelman didn't have specific billable hours at his fingertips when he talked to The Am Law Daily, but employment firms nationwide say they are setting workload records as companies lay off employees at rates not seen in many, many years. In September alone, 284,000 jobs were lost in the U.S., and the number might be just as high for October once the final numbers shake out.

Jackson Lewis is on pace to bill about 15 percent more hours in 2008 than last year, managing partner Patrick Vaccaro says. Littler Mendelson billed 30 percent more hours this September than last, and expects October to end up being the busiest month in the firm's history, says Marko Mrkonich, Littler's president and managing director. Other firms that represent management, including Morgan, Lewis & Bockius and Seyfarth Shaw, also say their work hours have jumped substantially since September, though they couldn't provide figures.

"Employment law practitioners are uniformly saying they are much, much busier," says John Fischer, the founder and director of the National Employment Law Institute.

Law students take note.

Mitchell H. Rubinstein

November 29, 2008 in Law Firms | Permalink | Comments (0) | TrackBack (0)

Poaching Lawsuits On The Rise

Poaching Lawsuits Aim To Stifle Talent Raids is an interesting Nov. 24, 2008 National Law Journal article. What is poaching? When one company hires an executive from another company, usually a competitor. This article reports that these this is increasing because of the poor economy and as a litigation concerning non-compete agreements that executives may have signed is also increasing. Search firms (aka head hunters) are also being sued. As the article states:

  Poaching lawsuits are on the rise as employers, fighting to stay alive during turbulent economic times, are using litigation to keep competitors from snatching away top talent — along with trade secrets.

Lawyers across the country say they are being inundated with calls from employers facing poaching problems. Noncompete agreements are being ignored, they allege, and exiting employees are often wooing many others to leave as well.

JPMorgan Chase & Co. is suing an executive search agency for allegedly poaching several of its employees, including a top executive, and sending them to a competitor. JPMorgan Chase Bank v. The IDW Group, No. 08 CV 9116 (S.D.N.Y.).

International Business Machines Corp. (IBM) is suing a former executive who recently left to work for Apple Inc. to oversee its iPod and iPhone operations, in alleged violation of a noncompete agreement. International Business Machines Corp. v. Papermaster, No. 08-CV-9087 (S.D.N.Y.).

I do not buy the premise of the article that such lawsuits are increasing because of the economy. I am also question whether such lawsuits are really on the increase. These lawsuits are nothing new to employment lawyers. We even cover this topic in my employment law class.

Mitchell H. Rubinstein 

November 29, 2008 in Employment Law | Permalink | Comments (1) | TrackBack (0)

Friday, November 28, 2008

What Does Obama's Election Mean For Employment Law

Attorney Philip Berkowitz wrote an interesting Nov. 13, 2008 New York Law Journal article entitled Obama Victory Means Changes For Employers (free with registration). Berkowitz follows up on a quote in Steven Greenhouse's NY Times article which quoted a U.S. Chamber of Commerce official as saying Obama's election will be "Armageddon." Adjunct blog covered that story here.

Berkowitz does not thinki there will be an Armageddon, but some changes will occur. What are they?
1. Enactment of the Employee Free Choice Act. I personally believe that this is a lock.
2. Amending FMLA to it include business with less than 50 employees, probably a 25 employee threshold, giving parents up to 24 hours of leave to attend to school activities for children and 7 paid sick days. I believe these proposals will also pass, but I do not believe the paid sick leave provision will.
3.Expansion of WARN plant closing notice from 60 days notice to 90 days notice, increasing penalities and lowering the numerosity threshold from 100 to 50 employees. I think this will pass as  well, except the numerosity requirements will not change. Small employers cannot plan in as far in advance as large employers.
4.Enactment of ENDA which would outlaw discrimination on the basis of sexual orientation. I think it is a given that this will pass.
5. Equal Remedies Act of 2007 which would remove caps on damages under Title VII. Obama was a co-sponsor of this legislation and I believe it will probably pass.
6. Lilly Ledbetter Fair Pay Act which will over turn the 2007 Supreme Court case holding Title VII statute of limitations runs from the date of the discriminatory event, not from the last pay check or from when the employee felt the effects.

Us labor lawyers are in for some interesting times.

Mitchell H. Rubinstein 

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

The Downside Of A Law Degree

Discovering A Law Degree's Downside is an interesting Nov. 24, 2008 National Law Journal article. What is the downside? The cost together with the difficulty in finding a decent paying job-particularly with respect to students who are seeking a non-lawyer type job. As the article states:

"They made it sound like there were so many careers you could go into," said Allam, now a client engagement manager with Wipro Technologies in Columbus, Ohio. "I definitely think all the interviews I had were because I was in business school and not because I had a law degree."

Law schools and placement professionals frequently tout the versatility of a law degree as a path to alternative careers. But even in good economic times, the advantage of a juris doctor degree in landing a job in another field may well be overblown.

With student loan debt at an all-time high and law schools churning out about 44,000 degrees each year, graduates looking for nonlawyer jobs are finding that they often are priced out, overqualified and undervalued.

My response to this article is "join the club." The economy is hurting so it is going to be hurting for everyone. It will get better and eventually everyone will find a job. Articles like this one should not stop anyone from going to law school. Go to law school because you want to be a lawyer. With respect to non-traditional jobs, I still believe that a law school degree is more valuable than an MBA degree. Guess what? In this economy, MBA's are going to have difficulty finding jobs as well.

Mitchell H. Rubinstein

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

Thursday, November 27, 2008

Not All Procedural Violations Result In Lack of FAPE

3rdcircuit Sinan v. School District of Philadelphia, ___F.3d___(3d Cir. Sept. 24, 2008), demonstrates and important IDEA principle. The parents of a disabled student were not entitled to tuition reimbursement under the Individuals with Disabilities Education Act (IDEA). The district court applied the correct legal standards and determined that the school district's proposed individualized education program (IEP) was appropriate, thereby providing the student with a free appropriate public education (FAPE). Because the Court of Appeals found no error in the district court's determination that the Philadelphia school district's procedural shortcomings did not deny the student a FAPE, it did not reach the question of whether procedural errors in and of themselves entitled the parents to tuition reimbursement.

Mitchell H. Rubinstein

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

Case Dismissed Because of Plaintiff's Abuse

Waivio v. Board of Trustees of Univ. of Illinois, ___F.3d___(7th Cir. 2008) is an important decision to be aware of. 
The court dismissed a series of law suits filed by a Ph.d graduate student after she was dismissed from school and dismissed from her graduate assistant position. The student's history of delay, her inattention to court rules and her threatening and hostile conduct, which included a threat to kill opposing counsel and accusing two opposing counsel of killing her baby, justified dismissal on the basis of abuse of process. The 7th reasoned that plaintiffs behavior went well beyond what the district could could be expected to indulge.

Mitchell H. Rubinstein

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

Wednesday, November 26, 2008

Happy Turkey Day!

Turkey Adjunct Prof Blog would like to wish all of our readers a happy Thanksgiving.
I would also like to thank our readers for their continued support of this blog.

Mitchell H. Rubinstein

November 26, 2008 | Permalink | Comments (0) | TrackBack (0)

President Elect Obama Wants To Keep His Blackberry

Bb_bold Update Obama Fighting to Keep his Blackberry is Crackberry posting  which reports on an interview that Barbara Walters did of the President Elect.  The interview went as follows:

WALTERS: How are you going to get along without your Blackberry?

OBAMA: (Laughs). This is a problem. I, you know, one of the things that I'm going to have to work through is how to break through the isolation ... the bubble that exists around the president. And I'm in the process of negotiating with the Secret Service, with lawyers, with White House staff ...

WALTERS: You might have a Blackberry?

OBAMA: Well, I'm, I'm negotiating to figure out how can I get information from outside of the 10 or 12 people who surround my office in the White House. Because, one of the worst things I think that could happen to a president is losing touch with what people are going through day to day.

Mitchell H. Rubinstein


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

Tuesday, November 25, 2008

FedCir: Disadvantaged minority set-asides for DOD contracts unconstitutiona

(Rothe Dev Corp v Dep't of Defense, November 4, 2008). A federal law that sets a goal of awarding five percent per fiscal year of defense contracting dollars to companies owned by "socially and economically disadvantaged individuals" has been found unconstitutional by the Federal Circuit Court of Appeals. The law incorporates the Small Business Act's rebuttal presumption that African-Americans, Asians, Hispanics and Native-Americans are socially disadvantaged individuals, but implementing regulations require all owners to demonstrate the economic disadvantage element. The plaintiff corporation, owned by a Caucasian woman, claimed the law was unconstitutional on its face and as applied by the Department of Defense (DoD) when it awarded a contract to an Asian-American-owned business despite the fact that the plaintiff was the lowest bidder. In 1995, the US Supreme Court held in Adarand Constructors Inc v Pena that all race-conscious government programs must be evaluated pursuant to strict scrutiny standards to determine whether they violate the Constitution's equal protection guarantees. Under strict scrutiny analysis, such programs must be narrowly tailored to further a compelling government interest. In the present case, the Federal Circuit found that Congress did not have "a strong basis in evidence" upon which to conclude that the DoD was a passive participant in racial discrimination in relevant markets nationwide. Thus, Congress did not have a compelling state interest to justify the race-conscious remedial measures contained in the law when it was reenacted in 2006.

Mitchell H. Rubinstein

November 25, 2008 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

With The Poor Economy, More Wall Streeters Are Turing To Psychics

Sometimes you just cannot make fact up. The November 21, 2008 New York Times ran an interesting article entitled Love, Jobs and 401(k)s which is about Wall Streeters and others turning to Psychics because of the poor economy. And some of these psychics charge big bucks.   As the article states:

“Your mortgage agents, your realtors, your bankers, you can’t go to these people anymore,” said Tori Hartman, a psychic in Los Angeles. “They’re just reading a script — at least that’s how my clients feel. People are sensing that the traditional avenues have not worked, that all of a sudden this so-called security that they’ve built up isn’t there anymore. They come to a psychic for a different perspective.”

Psychics say their business is robust, as do astrologers and people who channel spirits, read palms and otherwise predict the future (albeit not the winning lottery numbers). Their clients, who include a growing number of men, are often professional advice-givers themselves, in fields like real estate and investments, and they typically hand over anywhere from $75 to $1,000 an hour for this form of insight.

“My Web traffic is up and up and up,” said Aurora Tower, a New Yorker who constructs spidery star charts for her growing clientele. “People will entertain the irrational when what they consider rational collapses.”

Quackery? Whatever. But after all, the nation’s supposed experts on the economy, from pundits on the networks to billionaire investment bankers, have not been exactly reliable. And spiritual readings, as they are known, appear to be one of the few growth sectors in a contracting economy.

Mitchell H. Rubinstein

November 25, 2008 in News | Permalink | Comments (0) | TrackBack (0)

Attorneys Seek To Overturn California's Gay Marriage Ban-Proposition 8

The November 12, 2008 National Law Journal in an article entitled A Small Army Of Attorneys File Amicus Briefs In Proposition 8 Case is reporting that several attorneys are seeking to overturn California Proposition 8 which bans gay marriages in California.  As the article states:

Dozens of lawyers filed friend of the court briefs on Monday in support of a petition before the California Supreme Court seeking to overturn Proposition 8, a state constitutional ban on gay marriage that passed on Nov. 4 by a 52.3% to 47.7% vote.

The petition was filed on behalf of six same-sex couples by Shannon Minter, legal director of the National Center for Lesbian Rights in San Francisco, and Gregory D. Phillips, a partner in the Los Angeles office of Munger, Tolles & Olson. Strauss v. Horton, No. S168047 (Calif.). In a separate case earlier this year, Minter successfully argued before the California Supreme Court that same sex couples have the fundamental right to marry.

One of the recent briefs, filed by a team of lawyers at Los Angeles-based Gibson, Dunn & Crutcher on behalf of 44 state legislators, argues that Proposition 8 constitutes a change in the constitution that discriminates against a minority group — something that requires a two-thirds vote of the legislators, not a simple majority vote.

I cannot imagine that the California Supreme Court will accept this argument-though I hope that they do.

Mitchell H. Rubinstein

November 25, 2008 in Discrimination Law | Permalink | Comments (0) | TrackBack (0)

Watch Dog Group Wants Obama Administration To Be More Open Than Bush Administration

OMB Watch, a government watch dog group is asking the Obama Administration to post more public records on the internet and be more open than the Bush Administration. Group Seeks Web-Savvy, More Open Government is a November 12, 2008 Washington Post article which outlines this groups proposals.As the article states:

The incoming Obama administration needs to use the Internet to publish reams of new information about federal spending, policies and performance as well as other records that have been increasingly shrouded from public view, a coalition of conservative, libertarian and progressive groups is recommending today.

The group, which has been studying government secrecy and ways to fix it for 20 months, called on Congress to invest in technology to bring federal record-keeping and communication into the 21st century.

"This was a group with very different political agendas, but we have enormous common ground on the view that government should be open and we should all have the same information to work with," said Gary D. Bass, executive director of OMB Watch, a nonpartisan group that organized the effort.

I fully support this plan.

Mitchell H. Rubinstein


November 25, 2008 in Politics | Permalink | Comments (0) | TrackBack (0)

Monday, November 24, 2008

NY Court of Appeals Holds Private Nuisance Action Not Preempted By NLRA

Helmsley-Spear v. Fishman, ___N.Y. 3d___(Nov. 24, 2008), is an important decision. It concerns the issue whether a nuisance tort is preempted by the NLRA. The alleged nuisance occurred during a labor dispute with union officials banging on metal pots and tin cans. In finding no preemption the majority followed the Sears decision which held that a state tresspass claim was not preempted even though the conduct was arguably protected under Garmon. The Court is probably correct here.

What I find most troubling however, is that the Court also rejected Machinists preemption. Isn't the drumming akin to an economic weapon that Congress intended to be left unregulated? The Court's analysis with respect to this issue is brief and conclusionary. It might also be wrong.

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog


November 24, 2008 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Substitute teachers may fall under professional exemption

Substitute teachers may qualify under the FLSA's professional exemption as long as their primary duties are to "[teach] and [impart] knowledge in an educational establishment," advises the Acting Administrator in a recently released Wage and Hour Division opinion letter. However, those substitute teachers whose primary duties are not related to teaching—for example, performing administrative tasks or clerical duties for the school—do not qualify for the exemption (W & H Opinion Letter No 2581 (FLSA2008-7), September 26, 2008 [released November 14, 2008]).

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

Amendments To Pension Protection Act of 2006 Sought

A November 12, 2008 New York Times article entitled Companies Push For Pension Relief is that several corporations are going to seek relief from the funding requirements under the Pension Protection Act of 2006.  Reportedly, a type of bailout will be sought which would give corporations that utilized defined benefit plans more time to fully fund their plans. As the article states:

The Pension Protection Act of 2006 included provisions meant to ensure that company pensions, also known as defined benefits, have money to meet the promises made to workers and retirees. While many companies have phased out such pools of money in favor of 401(k) plans, which cost less, about three-quarters of S&P 500 companies still have traditional plans, analysts say.

Under the law, companies facing shortfalls must bring their plans up to full funding over the next seven years. Those that fall short will be forced to take steps such as freezing the accrual of new benefits for current plan members.

The letter asks Congress for changes to the pension reform law, such as giving companies more time to reach full funding. It also seeks accounting changes that would allow companies to spread losses to their plans over longer periods of time, a process that would temper the effect of sudden drops in plan values.

With many plans heavily invested in equities, the recent drop in the market, which saw the S&P 500 index fall about 35 percent in a year, has caused steep pension losses. A report earlier this month by the Center for Retirement Research at Boston College estimated that equities held by private defined benefit plans lost nearly $1 trillion in value in the year that ended Oct. 9. The same study estimates companies will have to raise contributions to their plans by at least $90 billion next year because of the drop.

I am strongly opposed to any such changes. The Pension Protection Act of 2006, which was amendment to ERISA, is designed to protect pension plans-not corporations. In these tough economic times, more protection has to be given to pension plans-not less.

Mitchell H. Rubinstein   

November 24, 2008 in Employee Benefits Law | Permalink | Comments (0) | TrackBack (0)

Hospital Liable For Doctor Contractor's Negligence

Cordero v Christ Hospital, et al, ___A.2d ___ (N.J. Ct. Apps. October 29, 2008), is an important case, particular for those who represent doctors or hospitals.
The court held that  a hospital may be liable for the malpractice of a contract physician if the hospital leads its patients to believe the physician is on staff. The appellate court reversed a lower court's grant of summary judgment to the hospital defendant on a vicarious liability claim brought by the estate of a decedent.
The court reasoned: "With few exceptions, courts considering the issue have concluded that liability for a doctor's negligence should be imputed to a hospital when apparent authority is established."  The court rejected the argument that active or explicit misrepresentations of agency was required to impose liablity.

Mitchell H. Rubinstein

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