Adjunct Law Prof Blog

Obama Report Out. It Concludes That There Were No Improper Contacts With Governor

No Improper Proper Contact With Governor is an important, Says Obama Report is an important December 23, 2008 New York Times article about the scandal in Illinois. A full copy of the December 23, 2008 report to the President-Elect is available here.  As the article states:

An internal report issued on Tuesday by lawyers for President-elect Barack Obama found that his top advisers had numerous contacts with the office of Gov. Rod R. Blagojevich and tried to guide his choice to fill a vacant Illinois Senate seat, but none of the talks suggested an attempt to play along with the governor’s alleged attempts to sell the seat.

Rahm Emanuel, the new White House chief of staff, had two conversations with Mr. Blagojevich and four calls with John Harris, the governor’s chief of staff, about the Senate seat. He provided a list of six names of Illinois Democrats who Mr. Obama favored to fill his Senate seat.

“At no time in the discussion of the Senate seat or of possible replacements did the president-elect hear of a suggestion that the governor expected a personal benefit in return for making this appointment to the Senate,” said the report, which was written by Gregory Craig, the new White House counsel.

Mitchell H. Rubinstein

White adults who see discrimination often overweight

White Adults Who See Discrimination Often Overweight is an interesting Oct. 24, 2008 article from Reuters. As the article states:

Certain white adults who say they've been discriminated against in their daily lives are more likely to be obese than their peers who haven't perceived personal discrimination, a new study finds.

The study of U.S. adults, reported in the American Journal of Public Health, found that perceived unfair treatment was associated with increased abdominal girth. Weight was not, however, clearly related to feelings of discrimination among black and Hispanic adults.

Mitchell H. Rubinstein

6th Issues Major Decision Holding CBA Promise of Retiree Lifetime Benefits Is Enforcable And Binding Many Years After Employees Retire

Cole v. ArvinMeritor, Inc., ___F.3d___(6th Cir. Dec. 16, 2008), is a major employee benefits/labor law case concerning lifetime health insurance benefits for retirees. For years, a CBA essentially promised lifetime health benefits. Over the years, the employer made some minor changes and then unilaterally substanially decreased benefits which prompted this lawsuit.The court stated that it was brought pursuant to Section 301 of the NLRA and ERISA, but the decision did not contain much discussion of ERISA.
Instead, the court adopted the Yardman theory of vested rights and analyzed whether the parties intended that retirees benefits should best for life. After undertaking a lengthly analysis, the court held that the health insurance benefits were intended to vest and therefore, they could not be unilaterally altered. As the court stated:

           Because this court’s precedents under the Golden-Meridian line of cases, alongwith Yolton, Noe, and other similar decisions, hold that the language of the CBAs creates an unambiguous promise for lifetime healthcare benefits, we need not consider extrinsic evidence of the parties’ intentions. But we note that such evidence, had we consideredit, weighs heavily in the favor of the plaintiffs and indicates the defendants’ intention to provide lifetime retiree healthcare benefits.    

This is a major issue in labor, employment and employee benefits law today. Those labor lawyers who shun away from employee benefits issues should really review this case and become familar with this issue because it is likely to come up in other industries.

MItchell H. Rubinstein

Labor Secy Solis

Congressperson Hilda Solis is apparently Obama's choice for Secretary of Labor. A December 19, 2008 Washington Post story about her appointment is available here. As the article states:

Barack Obama has selected Los Angeles congresswoman Hilda Solis to run his Labor Department, a labor source confirmed today.

Elected to Congress in 2000, she previously served two years in the California Assembly and six in the State Senate, where she was the first female Hispanic state senator. She attended California State Polytechnic University, Pomona, and earned a Master of Public Administration from the University of Southern California, beginning her career in the Carter White House Office of Hispanic Affairs. She later worked as a management analyst with the Office of Management and Budget.

I do not know much about Rep. Solis. However, what I see I like. She is also supported by the AFL-CIO.

Mitchell H. Rubinstein

Pending Employment Law Statutes

The Connecticut Employment Law Blog links to several interesting articles. One about recently enacted legislation and the other about pending legislation. The article on proposed federal employment and labor legislation is particularly interesting. It basically summarizes the proposed statutes and provides references to blog and other commentators as well citations to the Bill number. It was part of a December 4-6, 2008 ALI-ABA Course. The proposed statutes it reviews are as follows:

Arbitration Fairness Act of 2007 4

Airline Flight Crew Technical Corrections Act 4

Civil Rights Act of 2008 5

Civil Rights Tax Relief Act of 2007 5

Consumer Product Safety Commission (CPSC) Reform Act of 2007 6

Employee Free Choice Act 6

Employee Misclassification Prevention Act 7

Employee Non-Discrimination Act (ENDA) 8

Equality for Workers Under ERISA Act of 2007 9

Equal Remedies Act of 2007 9

Fair Home Health Care Act of 2007 10

False Claims Act Corrections Act 10

Family Leave Insurance Acts of 2007 and 2008 11

Federal Employees Paid Parental Leave Act of 2008 11

Federal Employee Protection of Disclosures Act 12

Forewarn Act of 2007 12

Healthy Families Act 13

Independent Contractor Proper Classification Act of 2007 14

Lilly Ledbetter Fair Pay Act of 2007 15

Paycheck Fairness Act 16

Private Sector Whistleblower Protection Streamlining Act of 2007 17

Protecting America’s Workers Act 17

Re-Empowerment of Skilled and Professional Employees and Construction Tradesworkers (RESPECT) Act 18

Renewable Energy and Job Creation Tax Act of 2008 18

Title VII Fairness Act 19

Whistleblower Protection Enhancement Act of 2007 19

Workplace Religious Freedom Act 20

Employment and Labor Legislative Priorities of the Upcoming Obama / Biden Administration 21

Mitchell H. Rubinstein

Comparators In Employment Discrimination Case Must Be Similar

Billue v. Praxair, ___F.3d___(2d Cir. Nov. 20, 2008) reminds us that in employment discrimination if you are going to make a claim of disparate treatment the comparators you use should be similar. As the 2d Circuit explained:

We agree with the District Court that plaintiff has not adequately
established disparate treatment because his proposed “similarly situated” employee was materially distinct from plaintiff. See Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (holding that, to establish an “inference of discrimination” in a prima facie case of discrimination, “[a] plaintiff may . . . show[ ] that the employer subjected him to disparate treatment, that is, treated him less favorably than a similarly situated employee outside his protected group,” and that a comparable employee must be “similarly situated in all material respects” (internal quotation marks omitted)). This
employee, who is white, left his delivery truck unattended for five minutes, with the rear trailer doors locked, within 100 yards of the defendant’s property, and under the surveillance of defendant’s security cameras. By contrast, plaintiff, who is African-American, urinated in a public
parking lot along a highway, temporarily abandoned his truck for roughly 20 minutes while he shopped in a sporting goods store, and did not secure the truck pursuant to defendant’s protocols. Accordingly, we conclude that defendant’s conduct was materially different from the conduct of his
proposed “similarly situated” employee.

Mitchell H. Rubinstein

Do Students Have A Right To A Summer Vacation??

Is Summer Vacation The Law? is a very interesting News Observer Blog entry about  a pending South Carolina Supreme Court case which will decide whether school officials can mandate that students attend school during the summer. Apparently, a school district wants to do this in order to avoid over-crowding. As the article states:

The state Supreme Court grappled with a question Tuesday that could affect thousands of Wake County school system students: Unless parents choose otherwise, are schools required to give children the traditional summer vacation?

Wake County school officials say there is no such mandate, and that allows them to assign as many students as needed to year-round schools in order to avoid overcrowding in a fast-growing district. Parents in a group called Wake CARES say that would deny their children the advantages of summers off and violate state law.

Lawyers for both sides argued the law was clearly on their side, but the justices peppered them with questions about what appears to be contradictory language about the school calendar in several areas of state law. For example, lawmakers passed legislation four years ago to extend the summer break well into August, but the law exempted year-round schools.

To the best of my knowledge, this is a case of first impression. My own view is that unless the statute expressly mandates school during a certain time of year, there is no prohibition against mandating school during the summer.

If the BOE goes through with this, this will cause problems for parents that work. I suspect that because of this, that BOE will not stay in office very long. This will be an interesting development to watch.

Mitchell H. Rubinstein

Hat Tip: The Ed Jurist

Discrimination Against Parents With Special Needs Children

The Boston Globe ran a very interesting and important article entitled A Parental Juggling Job on December 14, 2008.  It is about how difficult it is for parents to work full time and take care of special needs children at the same time. The article points out that many parents careers suffer because they need to take time off, sometimes at unpredicatable times. The article describes the legal protection parents have as follows:

Legally, parents caring for children with disabilities have some protection against discrimination. Amid rising claims by working caregivers in general, the federal Equal Employment Opportunity Commission issued guidelines last year to detail how laws banning discrimination based on sex or race protect such workers. For instance, a new mother who is placed into less desirable work because her boss assumes she is less serious about her career post-birth is protected against sex-based stereotyping under Title VII of the Civil Rights Act of 1964.

As well, the Americans with Disabilities Act outlaws discrimination against caregivers to the disabled, although it doesn't require that employers accommodate them by changing schedules or job duties, as is mandated for workers with disabilities.

If any one is aware of any case law on this issue, please let me know. Frankly, I think these cases are under reported and under litigated because no one cares. I also believe that aside from the FMLA, which provides extremely limited protection (12 weeks of unpaid leave), parents of special need children have very little protection under the law. I am actually not sure that the article is correct in implying that placing a mother in a less desirable job because the mother has a disabled child is unlawful. Unfortunately, I believe it is lawful. What is unlawful is if the employer makes sterotypical assumtions because of an employees sex.

Mitchell H. Rubinstein 

Recent NLRB Decisions

NLRB: Rare "Gissel" Order, MOU Not A Bar To Decertification Petition is an interesting December 5, 2008 New York Law Journal article that discusses several recent NLRB decisions. In describing one such important case, the article states:

In American Directional Boring Inc., 353 NLRB No. 21 (2008), the board issued the extraordinary remedy of a Gissel bargaining order, requiring the employer to bargain with the International Brotherhood of Electrical Workers (IBEW), absent an election, in light of the "egregiousness and pervasiveness" of the company's unfair labor practices.

As the board noted, the Supreme Court in NLRB v. Gissel Packing Co., 395 US 575 (1969), recognized that such a remedial bargaining order is appropriate in "'exceptional' cases . . . marked by unfair labor practices so 'outrageous' and 'pervasive' that traditional remedies cannot erase the coercive effects," thus rendering a fair election impossible.

Here, the employer was found to have discharged 13 union supporters (approximately 22 percent of the bargaining unit), many of whom were leaders of the organizing campaign, and created fake disciplinary reports in support of their terminations. The company also was charged to have threatened job losses, increased subcontracting of work and even company shutdown if the IBEW's organizing effort was successful; threatened discipline for wearing union pins; and created an impression of surveillance of employee activities. The board found such conduct was "in the realm of those exceptional cases warranting a [Gissel] bargaining order."

The board rejected arguments that a Gissel order would be inappropriate because of turnover of management and the passage of time (almost five years) since the unfair labor practices occurred. It found that although the manager who purportedly committed many of the violations had left, his actions were in accordance with the anti-union sentiment of the company's owner, and that the passage of time "will not dissipate the coercive effects of the [employer's] unlawful coercive conduct."

Mitchell H. Rubinstein

School District Dismissal of Arab-American Not Discriminatory

Hasson v. Glendale School, ___F.3d___ (3d Cir. Oct. 10, 2008), is a well written opinion that reviews several basic principles of employment discrimination law. The court held that a school's proffered explanations for terminating an Arab-American Muslim superintendent were not a pretext for national orgin discrimination.
The school board's decision was made after a lengthly investigation that resulted in several charges of misconduct and misuse of funds. There was no indication that the charges were the product of a post-hoc fabrication.

Mitchell H. Rubinstein

Police chief captain wins judgment in officers' suit over video camera installed in locker room.

DeVittorio v. Hall, ____F.Supp. 2d___(SDNY Nov. 18, 2008 ) Download 121645-1.wpd is a very interesting case.  Police Officer plaintiffs alleged that the police chief and a captain installed a video camera in the police locker room and allegedly used the equipment to listen to private conversations.  Two plaintiffs also claimed retaliation, violating their First Amendment rights, after complaining of the camera. Seeking summary judgment, defendants asserted that the camera never worked and never had audio capability. Discussing Thompson v. Johnson County Community College, Trujillo v. City of Ontario and Avila v. Valentin-Maldonado, the court granted judgment in favor of the defendant. Because there was no reasonable expectation of privacy and no search, plaintiffs did not show their Fourth Amendment rights violated. Further, plaintiffs' complaints about the camera's installation did not address a matter of public concern. Thus, plaintiffs did not engage in constitutionally protected speech and lacked a claim for violation of their First Amendment rights.

Mitchell H. Rubinstein

Review of the Amendments To The ADA

The Americans With Disabilities Amendment Act: A 'National Mandate' Download 121633-1.wpd is an interesting December 3, 2008 New York Law Journal article. This article describes the ADA as a "failed law" and outlines the recent statutory changes.  As the article states:

The Americans with Disabilities Act of 1990 was a failed law. Its stated purpose was "to provide consistent, enforceable standards addressing discrimination against individuals with disabilities." However, the ADA resulted in years of litigation that, rather than clarifying appropriate nondiscriminatory standards for employers and others, was mired down in defining "disability" and ascertaining who is covered by the statute. Worse, in a series of decisions construing "disability" very narrowly, the U.S. Supreme Court inappropriately denied the ADA's protections to a wide swath of individuals.

Mitchell H. Rubinstein

Collateral Estoppel

Collateral Estoppel and Unreviewed Appellate Arguments is an interesting Nov. 5, 2008 New York Law Journal article. Download 121641-1.wpd The article reviews several New York cases and describes collateral estoppel as follows:

The doctrine of collateral estoppel, or issue preclusion, is "intended to reduce litigation and conserve the resources of the court and litigants and it is based upon the general notion that it is not fair to permit a party to relitigate an issue that has already been decided against it."1

The essential elements of the doctrine are: "[f]irst, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination."

Mitchell H. Rubinstein

Epstein on Employee Free Choice Act

Professor Richard Epstein, former Dean of Univ of Chicago Law School and currently a Visiting Professor of Law at NYU Law School wrote an interesting December 19, 2008 op ed article for the Wall Street Journal entitled The Employee Free Choice Act is Unconstitutional. I found his article very interesting, particularly since I debated the Employee Free Choice Act with him at Columbia Law School about 2 months ago and he did not claim that the EFCA was unconstitutional.

As I understand his argument, EFCA is unconsitutional because it violates the First Amendment since there will no longer be elections. If employees present cards, employers would not have enough of a chance to campaign. However, even if he is right (I doubt very many employers will have no idea that there employees are seeking to unionize), since when does the First Amendment mandate that an employer be given time to oppose unionization. Employers already can require employees to attend capative audience speeches and unions are not given any time to respond. I would gladly support an amendment to the EFCA which would build in some campaign time if unions were given equal time and equal access to employees at work.

His next argument is even worse. Epstein attacks the interest arbitration provisions of the EFCA as an unconstitutional taking. By imposing terms and conditions of employment, Epstein somehow believes that this is a taking. I cannot believe that he is serious. First, interest arbitration has been around for years in the public sector. Second, this statute is no different than any other statute that restricts employer decisions on the basis of public policy set forth in statutes. For examples, some employers in some parts of the country may believe that it makes business sense to discriminate on the basis of race or sex. They cannot do this because our nation has indicated that such conduct is forebidden. More fundamentally, the EFCA also does not mandate that any particular terms of employment be implemented. Perhaps, government appointed arbitrators will award the same amount employees are making, perhaps less or perhaps more.

Richard, give me a break.

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

Sharpton Comes Out Against Employee Free Choice Act

Workplace Prof Blog ran an interesting December 18, 2008 story where they discuss Rev. Sharpton coming out against the EFCA, available here.  Thank G-d Rev. Al was never elected to political office. In my view, it is unfortunate that some  waste time discussing what he has to say.

Mitchell H. Rubinstein

When Can a Nonsignatory Compel Arbitration With a Signatory

When a Nonsignatory Can Compel Arbitration With a Signatory is a very interesting December 17, 2008 New York Law Journal article. It discusses the 2d Circuit's decision in  Sokol Holdings Inc. v. BMB Munai Inc., ___F.3d___ (2d Cir. 2008), which held that in certain circumstances a non-signatory to an arbitration agreement can be required to arbitrate under the FAA. As the article states:

While it is axiomatic that public policy strongly favors enforcing agreements to arbitrate, the extent to which a court will compel a signatory to an arbitration agreement to arbitrate against a nonsignatory seeking to enforce that agreement has been less certain.

Recently, however, the U.S. Court of Appeals for the Second Circuit provided some clarity on this issue. In Sokol Holdings Inc. v. BMB Munai Inc., the court concluded that a nonsignatory can compel arbitration under a theory of equitable estoppel only when the signatory's agreement to arbitrate can be reasonably extended to include the nonsignatory based on the relationship between the parties.

While factual intertwinement between the issues the nonsignatory seeks to arbitrate and the agreement containing the arbitration provision is required, the Second Circuit held that intertwinement by itself is not sufficient to compel arbitration. Rather, the Court made clear that foreseeability is paramount, and that the over-arching inquiry is whether the parties reasonably should have expected to arbitrate with each other.

Mitchell H. Rubinstein

New York Adopts ABA Model Rules Effective April 1, 2009

N.Y. Adopts New Conduct Rules Aligned With ABA Model is an important December 17, 2008 New York Law Journal article which all New York attorneys should become familar with. Effective April 1, 2009, the Code of Professional Responsibility will be replaced by the Rules of Professional Conduct. This puts New York in line with the vast majority of the states. The article states that only Maine and California have not adopted the model rules. The article points out that these new rules are largely the same as the Code, but there are differences. As the article states:
Stephen Gillers, a professor at New York University School of Law, estimated that about three-quarters of the new rules embody the current state code. The rest, he said, are the ABA standards or the ABA standards modified for use in New York state.

Gillers said that in some ways the new rules impose more strict codes of conduct on lawyers and in other ways relax ethical rules.

"I think these rules go part way toward modernizing the ethical standards for lawyers in New York," he said. "I think there is still work to be done and I hope it will be done."

A more stringent aspect of the new codes, for example, will be to require that attorneys get in writing assent from both sides that they can continue representing a current client in a case in which a former client is an adversary. Verbal consent is acceptable under the current code, Gillers said.

"There are no more oral consents" as of April 1, he said.

Gillers and Roy D. Simon Jr., a Hofstra University School of Law professor and vice chairman of the Committee on Standards of Attorney Conduct, both said they were disappointed that a recommendation made by the state bar committee on multi-jurisdictional practice by lawyers was not approved.

Mitchell H. Rubinstein

More On Law Schools Gaming U.S. News And World Reports Rankings

The December 2008 ABA Journal has an interesting story entitled Transfers Bolster Elite Schools about law schools gaming the U.S. News and World Reports rankings. How? Through transfer students. Schools encourage students to apply after spending a year at another law school. In that way, the schools LSAT and or GPA scores will not be adversely affected.

The article refers to this as "poaching" from students from other law schools and quotes Dean David Van Zandt of Northwestern Law School as stating the the poaching charge is "probably true."

This is another reason why the U.S. News ranking system simply stinks. The problem is that everyone still utilizes it.
Mitchell H. Rubinstein

NLRB Clarifies Single Employer Status

                         Two nominally separate employers can be a single employer for NLRA purposes. The significance is that each separate company that is in reality a single employer are jointly and severally liable. Shane Steel Processing, 353 NLRB No. 58  (Nov. 28, 2008) recently reviewed the criteria for finding a single employer status. As the Board explained:

First, the judge initially found single employer status
under the Board’s established analytical framework,
which considers four factors: (1) interrelation of operations;
(2) common management; (3) centralized control
of labor relations; and (4) common ownership. See, e.g.,
RBE Electronics of S.D., 320 NLRB 80 (1995). The
General Counsel and the Charging Party agree with that
finding, but argue that the judge erroneously failed to
find that the fourth factor, common ownership, is present
and supports a single employer finding. We find merit in
that argument, inasmuch as John Hartley held an 80-
percent ownership interest in Shane and a 50-percent
ownership interest in J&J. See Cimato Bros., Inc., 352
NLRB No. 99, slip op. at 2 (2008).
Second, although the judge found single employer
status under the Board’s traditional four-factor test, he
then analyzed that issue under what he described as “the
alternate one-factor test, concerning the presence or absence
of an arm’s length relationship.” The judge derived
this alternate test from a footnote in Lebanite
Corp., 346 NLRB 748 (2006). In that footnote, the
Board observed that “[v]iewing the single employer
analysis more globally,” certain Board decisions describe
single employer status as being characterized by, or synonymous
with, the absence of an arm’s-length relationship
among unintegrated companies. Id. at 748 fn. 5.
Unlike the judge, we do not read this observation as establishing
an alternate test for single employer status.
Rather, we think the Board in Lebanite was merely acknowledging
its occasional use of a generalized description
for the traditional four-factor test. Significantly, the
Board pointed out that evidence indicating the absence of
an arm’s-length relationship is often treated as bearing on
the traditional factor of interrelation of operations, and
expressly endorsed that approach. Id. Accordingly, we
do not rely on the judge’s alternate analysis in affirming
his finding that Shane and J&J constitute a single employer.
We do agree, however, with the judge’s factual
finding that there was no arm’s-length relationship between
Shane and J&J, and that this absence further supports
his finding that the interrelation of operations factor
strongly favors a single employer finding in this case.

Mitchell H. Rubinstein

Primer On Statutory Analysis

The New York Court of Appeals recently issued an important decision which summarized how courts should interpret statutes. As the Court explained in Matter of Suffolk Regional Off-Track Betting v. N.Y.S. Racing and Wagering Board, ___N.Y.3d___(Dec. 17, 2008):

Given the growth in codification of the law over recent decades, the principles governing the Court's statutory review have by now been extensively articulated. First and foremost, it is our role to implement the intent of the Legislature (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]). Deference to administrative agencies charged with enforcing a statute is not required when an issue is one of pure statutory analysis (Matter of Astoria Gas Turbine Power, LLC v Tax Commn. of City of N.Y., 7 NY3d 451, 455 [2006]). Even if no deference is owed to an agency's reading of a statute, a court can nevertheless defer to an agency's definition of a term of art contained within a statute (Matter of Trump-Equitable [*4]Fifth Ave. Co. v Gliedman, 57 NY2d 588, 595 [1982]). Against this backdrop, we turn to the specific issues in controversy.

Mitchell H. Rubinstein