Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, December 31, 2008

More and More Employers Are Shutting Down During The Last Week Of The Year And A Holiday Message

Week 52: What Sense Does It Make? is an interesting December 12, 2008 New York Times article. With the recession it notes that more and more employers are shutting down or requiring employees to take vacation. As the article states:

Normally, the unfortunate people who are stuck at work during the molasses-slow week between Christmas and New Year get to know its spooky charms. Corridors and conference rooms lie empty, the telephone on the desk sits as quiet as a headstone.

But this year, a week that is usually just carefree and unproductive is likely to be positively dead. Companies in industries like high technology and manufacturing, pressed to the wall by the recession, are forcing workers to take the week off for accounting reasons as well as to reduce lighting and heating bills. Other people will also be taking the week off for the first time — not to dash off to ski at Killington, Vt., but because they lost their jobs.

Well, if your reading this, chances are your either working or have nothing to do on New Years. I do not think that is a negative. At least your being productive with your time and still have a job. I know a lot of people who lost their jobs and my bet is that you know some of these people as well.

In any event, take this time to relax and enjoy the holiday in any way you can. I would also like to thank you for your continued support of this blog.

Happy New Years!!!

Mitchell H. Rubinstein 

December 31, 2008 in Misc., Non-Legal | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 30, 2008

Newdow Seeks To Bar Chief Justice From Swearing Obama In By Using The Words Under God

Atheists Sue Chief Justice Over Inaugural Oath is an important December 30, 2008 posting from the Blog of Legal Times. It reports on famed atheist Newdow (of Pledge fame) efforts to restrain Chief Justice Roberts from using the word under god in Obama's inaugural oath of office. The oath is in the constitution, but the words under oath are not present. A copy of the 32 page complaint filed in the District of the District of Columbia is available here.

My question is why Newdow does not seek to prevent the oath to be taken over a bible and why Newdown does not seek to prevent the future President to be sworn in. When you swear, my understanding is you swear to god.

Mitchell H. Rubinstein 

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

Pre-employment screening cannot prohibit use of legally prescribed drugs

Connolly v First Personal Bank, ___F.Supp.2d ___(N.D. Ill. November 18, 2008), is an interesting ADA decision. The court held that the plaintiff, a job applicant who had an offer of employment rescinded after a pre-employment drug test indicated a positive result for a drug legally prescribed to her, may go forward with her claim that the bank violated the Americans with Disabilities Act. The theory is that the Bank violated the ADA's provisions limiting pre-employment medical testing based on plaintiffs disability or perceived disability.
At the time of her drug test, the applicant informed the bank president that a recent cervical epidural shot might result in additional medication showing up on the test. After the test showed positive for Phenobarbital, lawfully prescribed to her, the bank refused to allow her to explain the presence of the drug in her system. Although the bank moved to dismiss the claim, the court concluded that the applicant sufficiently alleged that the drug test was used in order to prohibit the use of even legally prescribed medication, without regard to whether such medication would impair her ability to effectively perform her job.

December 30, 2008 in Employment Discrimination | Permalink | Comments (2) | TrackBack (0)

Union Apprenticeship Program Is FMLA Employer

Frees v UA Local 32 Plumbers & Steamfitters, ___F.Supp.2d___(D. WA November 21, 2008). is an important FMLA decision to be aware of. The court held held that an apprenticeship program was, in fact, the joint employer of a plumbing apprentice under the Family and Medical Leave Act and the Washington Family Leave Act (WFLA). The apprentice, who missed a few days of school and work to attend to his wife's medical issues, was subsequently dismissed from the program for poor attendance.

The apprenticeship program moved for summary judgment, arguing that it was an educational institution, not an "employer." In denying summary judgment, the court reasoned that it would be against the "totality of circumstances" to determine that all education institutions would be shielded from liability under the FMLA. The court also considered that the program in question controlled the length and location of apprentices' assignments as well their wage levels and benefits, the apprentice averaged 38.5 hours of work per week, but only had go to class 4.2 hours per week. Heavily weighting work verses class time distinguished the apprenticeship program from traditional educational institutions. The court concluded that the program was similar to a staffing or placement agency and an employer under the meaning of the statute.

Mitchell H. Rubinstein

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

"Stop the Greed on Wall Street Act" introduced in the Senate

Senator Bernard Sanders (I-Vt) introduced legislation (S. 3693) on November 19 that would limit the amount of compensation for employees of financial institutions receiving funds from under the $700 billion bailout. This Bill is called the Stop the Greed on Wall Street Act, and it  would amend the Emergency Economic Stabilization Act (P.L. 110-343) to limit the aggregate annual compensation of any employee of companies receiving funds under the Act to the amount paid to the President of the United States, which is currently $400,000.
The Bill has been referred to the Senate Committee on Banking, Housing, and Urban Affairs,and it would affect the 30 current companies that have received varying amounts of assistance.
I suspect that this Bill just might pass.

Mitchell H. Rubinstein

December 30, 2008 in Current Events | Permalink | Comments (1) | TrackBack (0)

Monday, December 29, 2008

Can Students Be Disciplined For Off Campus Conduct??

Legal Blog Watch ran a very interesting story entitled Can Students Be Disciplined For Off Campus Conduct?
This article cites to two other blogs and briefly discusses a few cases. There is actually a growing body of law on this issue and one of my students wrote a law review article on this exact topic and it appears in the June 2008 St. John's Law Review.
The issue arises when a student threatens or speaks inappropriately about a teacher or an administrator outside of school. With blogs and the internet this is occurring more and more. The case law generally, but not always, permits such discipline.
Want to learn more. Take my Education Law course this Spring at St. John's Law School! We cover this issue in some detail.
Mitchell H. Rubinstein   

December 29, 2008 in Education Law | Permalink | Comments (1) | TrackBack (0)

Battle Deepens Over Employee Free Choice Act

Battle Deepens Over Union Organizing is an interesting December 9, 2008 Washington Post article about the Employee Free Choice Act. The point of the article is that this is going to be one of the early political battles in the young Obama Administration. As the article states:

Business and labor groups are intensifying their battle over a measure that would make it easier to organize unions, offering a preview of what is certain to be one of the earliest and hardest-fought legislative battles in the new Congress.

The Employee Free Choice Act would require employers to recognize unions once a majority of their workers sign cards of support. It also would require employers and unions to submit to binding arbitration if they are unable to reach a contract agreement within 120 days.

The changes would be the most significant in federal labor law in six decades, both sides say. Labor leaders and other supporters -- including President-elect Barack Obama -- say the measure would help restore bargaining power to workers whose wages have fallen behind inflation in recent years.

The proposal was the subject of a flurry of television advertising in several battleground Senate races this fall, but it never emerged as a front-line issue. Now, however, it is shaping up to be one of the most divisive battles facing the new Congress, and ultimately the Obama administration. On the campaign trail, Obama expressed strong support for the measure, which he co-sponsored as a senator, and he calls it an essential element in his vision for restoring middle-class prosperity.

The proposed legislation is opposed by a growing number of business groups, which frame it as an early test of Obama's economic pragmatism and see it as an attempt by unions to gain power they have lost as their ranks have dwindled in recent decades.

Mitchell H. Rubinstein

December 29, 2008 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Public Employee Can Be Demoted Based Upon His Political Affiliation

10caseal Poindexter v. The Board of County Commissioners, ____F.3d____(10th Cir. Nov. 26, 2008), demonstrates that cases involves public employees who are terminated or demoted for political reasons are always difficult to decide. Here, a foreman's demotion and replacement with a supporter of the newly elected commissioner did not violate the plaintiff employee's right to free political association under the First Amendment. Significantly, the position in question required political allegiance for effective performance of public office and the position in question involved a significant amount of discretionary authority.

Mitchell H. Rubinstein 

December 29, 2008 in Public Sector Employment Law | Permalink | Comments (0) | TrackBack (0)

Section 301 Does Not Preempt Wage Claim Under State Law Concerning Employee Break Time

As most labor lawyers know, state law is often a significant source of employee rights. One such area involves wage claims involving employee break time. However, if employees are represented by a union, issues of preemption may arise. However as  Hinterberger v. Catholic Health, 08-cv-380S (SDNY Nov. 25, 2008), and Gordon v. Kaleida Health, 08-cv-378S (SDNY Nov. 25, 2008) demonstrates, Section 301 does not preempt all such claims. As the court explained in Hinterberger:

But section 301 does not always preempt state claims. When a claim derives from
an independent, substantive provision of state law, preemption has no application. Livadas
v. Bradshaw, 512 U.S. 107, 123, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994) (“In Lueck, and
in Lingle, we underscored the point that § 301 cannot be read broadly to pre-empt
nonnegotiable rights conferred on individual employees as a matter of state law, and we
stressed that it is the legal character of a claim, as ‘independent’ of rights under the
collective bargaining agreement [] that decides whether a state cause of action may go
forward.”); see also Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 260, 114 S.Ct. 2239,
129 L.Ed.2d 203 (1994) (“Clearly, §301 does not grant the parties to a collective bargaining
agreement the ability to contract for what is illegal under state law.“). As long as the state law claim can be resolved without interpreting the [CBA] itself, the claim is ‘independent’
of the agreement for §301 purposes.” Mack v. Metro-North Commuter R.R., 876 F.Supp.
490, 492 (S.D.N.Y. 1994) (citing Norris, 512 U.S. at 492). Even if resolution of a state-law
claim, “involves attention to the same factual considerations as the contractual
determination [] such parallelism [does not mandate preemption].” Lingle, 486 U.S. at 408.

A New York Law Journal article about these cases is available here.

Mitchell H. Rubinstein

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

Sunday, December 28, 2008

No Right To Union Representation During Criminal Investigatory Interview

Union presence during an interrogation of a unit member by the appointing authority
Seabrook v City of New York, 2008 NY Slip Op 09471, Decided on December 4, 2008, Appellate Division, First Department

Norman Seabrook, individually and as President of the Correction Officers' Benevolent Association, challenged the policy of not allowing an employee to consult with a union representative after a question is posed and before an answer must be given, at an interrogation conducted pursuant to [New York City] Mayoral Executive Order No. 16.

Mayoral Executive Order 16 requires city employees to report allegations of corruption to City's Department of Investigation.

The exclusion of union representatives, said the court, "ensures that the charges will be probed confidentially and professionally by investigators independent of the employee's own agency and superiors."

Holding that this policy “was reasonably designed to promote truthful responses by discouraging coaching,” the Appellate Division concluded that such action did not deprive the employee of his right to union representation under Civil Service Law §75(2) or National Labor Relations Bd. v J. Weingarten, Inc. (420 US 251 [1975]).

A similar issue was addressed by the Appellate division in City of Rochester v Public Employment Relations Board, 15 AD3d 922, Leave to appeal denied, 4 N.Y.3d 710. In Rochester the Appellate Division, Fourth Department, held that PERB abused its discretion when it decided that the City of Rochester committed an improper employer practice in violation of Civil Service Law §209-a(1)(a) (The Taylor Law) by denying city police officers, who were union members, access to union representation during a criminal investigation interview.

The Fourth Department said that "PERB abused its discretion in expanding a public employee's rights to include the right to have a union representative present during a criminal investigation" as New York State "has a strong public policy that prohibits union interference with criminal investigations."

The full text of the Seabrook decision is posted on the Internet at:

The text of Executive Order 16 is posted on the Internet at:

Reprinted with Permission From New York Public Personnel Law
Mitchell H. Rubinstein

December 28, 2008 in Public Sector Employment Law | Permalink | Comments (0) | TrackBack (0)

Employment Arbitration Award of $366,037 Upheld

4thseal Qorvis v. Communications, ___F.3d___(4th Cir. Dec. 3, 2008), demonstrates that employment arbitration awards can be quite large. Judgment on arbitration award for defendant-former executive employee's breach employment agreement in the amount of $366,037.22 is affirmed where the arbitration clause in the 2003 employment agreement between plaintiff and defendant authorized the district court to enter judgment on the arbitration award; 2) none of the grounds advanced by defendant were sufficient to justify vacation of the award. The decision is lengthly and decided under the FAA. Part of the court's reasoning was as follows:

"Courts of Appeals do not review the reasoning of arbitrators
in determining whether their work draws its essence from
the contract, but look only to the result reached; the single
question is whether the award . . . is rationally inferable from
the contract." Apex Plumbing, 142 F.3d at 193 n.5. In this
case, the arbitrator did not write a new clause into the contract,
modify an existing one, or compute damages irrationally.
Rather, he considered the contract as a whole, including
the non-compete period, to determine the proximity of lost
profits caused by Wilson’s breaches.

Mitchell H. Rubinstein

December 28, 2008 in Arbitration Law | Permalink | Comments (0) | TrackBack (1)

Who Will Be The Next Supreme Court Justice??

Making a Supreme Court short list is an interesting November 18, 2008 article from the National Law Journal. The article points out that whoever Obama appoints (if he gets that opportunity) will not face tough opposition given the Democratic control of Congress.The article believes implies that  D.C. Circuit Judge Merrick Garland who is 56 years old and appointed by President Clinton is the front runner. Others who are mentioned are  Harvard Law Dean Elena Kegan or Harvard Law School professor Charles Ogletree Jr.

Mitchell H. Rubinstein

December 28, 2008 in Supreme Court | Permalink | Comments (1) | TrackBack (0)

Law Firm Solicitation of Witnesses

In employment discrimination cases high power employer law firms often offer to represent witnesses. There unspoken goal is to indirectly influence their testimony and limit discovery.  Solicitation or Shrewd Tactics? Ethics of Speaking for Ex-Workers is an important December 8, 2008 New York Law Journal article (registration required) which discusses this practice. As the article states:

A recent Kings County Supreme Court case illustrates an ethical controversy concerning a practice that is not uncommon - a company's litigation counsel offers to represent, at the company's expense, a former employee who is a witness in pending litigation.

In Rivera v. Lutheran Medical Center, 2008 WL 4635476 (Sup. Ct. Kings Cty. Oct. 16, 2008), Justice Michael Ambrosio was "troubled to say the least" that the defendant's counsel, Morgan Lewis, had "solicited" nonparty witnesses in violation of DR 2-103(a)(1) of the Code of Professional Responsibility.1

While the court declined to disqualify defendant's counsel, Morgan Lewis had to advise the witnesses that it could no longer represent them. However, while the practice of representing former employees may strike some as unfair, there are substantial arguments why it does not violate the Code of Professional Responsibility's bar on solicitation.

Mitchell H. Rubinstein

December 28, 2008 in Litigation | Permalink | Comments (0) | TrackBack (0)

Saturday, December 27, 2008

Justice Stevens To Swear V.P. Biden In

I do not know why, but I am always interested to see who swears in the incoming President and Vic-President. The National Law Journal is reporting that Justice Stevens, a Republican and the most senior member of the Court, is swearing in Vice-President Biden, here. The article states that this might be a bipartisan gesture -- though Stevens is usually regarded as one of the most liberal justices on the Court. By long tradition, the President is sworn in by the Chief Justice. This will be the first time Chief Justic Roberts swears a President in.
My bet is that Vice-President Biden either knows Justice Stevens or respects many of his decisions. After all, Biden was an adjunct professor of constitutional law at Widener Law School until recently.

Mitchell H. Rubinstein

December 27, 2008 in Politics | Permalink | Comments (0) | TrackBack (0)

Obama Adminstration Inheriting Fight Over No-Match Rule

Adjunct Prof Blog previously covered the government's so called "no match rule" which would require that employees be discharged if their social security numbers did not match Social Security Administration records. The implementation of that rule has been stayed and the December 9, 2009 San Francisco Chronicle reports that a federal judge has denied the Government's request to speed up a consideration of this important issue. The article also states that the Obama Administration has not taken a position about this new rule.   

Mitchell H. Rubinstein

December 27, 2008 in Employment Law | Permalink | Comments (0) | TrackBack (0)

Friday, December 26, 2008

Lawyer of The Year

People Magazine does it. Barbara Walters does it. And the National Law Journal does it. Does what? Name the most interesting, important person of the year. The National Law Journal named  U.S. Department of Justice Inspector General Glenn A. Fine as its 2008 lawyer of the year. The article describes some of his accomplishments as follows:

Besides the more routine work of his office in conducting audits and reviews of the different components of the Justice Department, consider Fine's special reports in 2008:

• An investigation into the removal of nine U.S. attorneys in 2006.

• An investigation into allegations of the mishandling of classified documents by former Attorney General Alberto Gonzales.

• An investigation of allegations of politicized hiring by Monica Goodling and other staff in the Office of the Attorney General.

• An investigation of allegations of politicized hiring in the Department of Justice Honors Program and the Summer Law Intern Program.

• A review of the FBI's involvement in, and observations of, detainee interrogations in Guantánamo Bay, Cuba; Afghanistan; and Iraq.

• A review of the FBI's use of national security letters.

• A review of the FBI's use of Section 215 orders for business records.

Mitchell H. Rubinstein

December 26, 2008 in Legal News | Permalink | Comments (0) | TrackBack (0)

Silent Age Discrimination

At What Age Does Age Discrimination Begin? is an interesting December 16, 2008 article from U.S. News. It reports on a survey which showed that only 1% of executives stated that age is never a factor in hiring decisions. Additionally, 73% of executives believe that they lost a job because of age.
Something to think about.

Mitchell H. Rubinstein 

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

Thursday, December 25, 2008

Free Phone Call From Any Computer To Any Phone In U.S.

Check out It is an advertising supported service that allows you to make free phone calls from any computer in the world to any phone in the U.S. Your limited to a 2 minute phone conversation without registration. With registration, your limited to a 15 minute phone call. There is no limit to the number of phone calls you make.

Don't believe me?  A NY Times article about this service is available here.

Mitchell H. Rubinstein

December 25, 2008 in Technology | Permalink | Comments (0) | TrackBack (0)

Lawyers Angling For Administration Jobs

Lawyers Angling For Administration Jobs is a very interesting Legal Times article from Nov. 17, 2008. It discusses how some lawyers trying to get a job in the administration. As the article states:

Arnold & Porter partner Christopher Rhee has seen his stock rise considerably in recent weeks.

As the presidential race bent hard in Barack Obama’s favor, friends and acquaintances started calling and e-mailing Rhee—who was an aide during the Clinton administration to then-Deputy Attorney General Eric Holder Jr.

“They want to know, ‘How do I get in the door, who do I talk to, can you put in a good word?’ ” Rhee says. “I think people are working whatever angles they can.”

Mitchell H. Rubinstein

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

Wednesday, December 24, 2008

Happy Holidays To You and Yours From Adjunct Prof Blog

Happyholidays_2 Adjunct Prof Blog would like to take this opportunity to wish you and yours happy holidays!
Thank you for your support.
Mitchell H. Rubinstein

December 24, 2008 | Permalink | Comments (0) | TrackBack (0)