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Editor: Mitchell H. Rubinstein
New York Law School

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Saturday, January 31, 2009

Obama And His Blackberry

New Symbol of Elite Access-Email to the Chief is a very interesting Feb. 1, 2009, NY Times article.  As the title implies only a select view have access to President Obama's email address for security reasons. Both Obama and  V.P. Biden have secure Blackberrys. As the article states:

Neither does Nancy Pelosi, the speaker of the House, nor Steny H. Hoyer, the majority leader, but they do not use e-mail much anyway. Mitch McConnell, the Senate Republican leader, is a BlackBerry fiend, but he does not have Mr. Obama’s address. Nor do many members of the cabinet, including Defense Secretary Robert M. Gates.

Vice President Joseph R. Biden Jr. has it, along with his own new super-secret BlackBerry and e-mail address. So do Mr. Obama’s chief of staff, his top advisers and some of his oldest friends from Chicago.

Senator Richard J. Durbin, a fellow Illinois Democrat, probably has it but refuses to say. “We’re not going to discuss it,” said a spokesman, Joe Shoemaker. Asked why, he said, “That’s pretty obvious, isn’t it?”

It is now the ultimate status symbol in a town obsessed by status. Mr. Obama was spotted last week trying out his new BlackBerry — or actually a more sophisticated, encrypted variation — and aides say that he uses a computer in the study next to the Oval Office but that he has agreed to limit the number of people he would exchange e-mail with. In the process, he created a new measure for Washington to judge who really has the ear, or the thumb, of the president.

For decades, the capital scoured state dinner invitation lists and Camp David visitor logs for clues to who was in and who was out.

Former President Bill Clinton established a new class of insider with his Lincoln Bedroom sleepovers, although those usually came with an implicit price tag as he tried to raise campaign money. Former President George W. Bush provided fewer opportunities for the elite to demonstrate their eliteness by virtually abandoning state dinners, but there were invitations to his Texas ranch to clear brush, a dubious distinction, perhaps, during 100-degree Crawford summers.

It will only be a matter of time until someone guesses his email address. Frankly, I do not see what is such a big deal. For secure things, Obama does not have to use the email. Records could be keep simply by printing out everything.

Mitchell H. Rubinstein

January 31, 2009 in Misc., Non-Legal | Permalink | Comments (0) | TrackBack (0)

Conflict of interest for agency attorneys?

Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2008, All rights reserved http://lawprofessors.typepad.com/adminlaw/

An article on Law.com, "State of California Appears Favored in Attorney Conflict Case", describes a case before the Supreme Court of California arguing that an attorney who advises an agency decision-maker on unrelated matters should not be allowed to represent the agency in enforcement actions before that decision-maker. The author says that the Court's questions at oral argument suggest that it is leaning towards the State's position that such attorney-agency relationships are not a problem as a practical matter and that requiring separation between advising and enforcement attorneys would cause bad problems for small agencies.

The closest analogy I can think of would be a judge's law clerk arguing cases before her judge. Would this imply bias sufficient to violate due process as a matter of law? It could be an interesting discussion.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein 

January 31, 2009 in Administrative Law | Permalink | Comments (0) | TrackBack (0)

Friday, January 30, 2009

Obama and Employment and Labor Law

The law firm of Akin-Gump just released a 32 page report summarizes changes to the labor and employment law landscape which might occur as a result of the election of President Obama. It is quite detailed. The table of contents is a nice summary of what is contained in the report.

PART I – LEGISLATIVE PRIORITIES .........................................................................................................1
The Employee Free Choice Act – Card-Check and Binding Arbitration for First Contracts.....................1
The Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers
(RESPECT) – Redefinition of Supervisor for Union Organizing...............................................................4
The Lilly Ledbetter Fair Pay Act – Continuing Violations for Discriminatory Pay Decisions ....................5
The Equal Remedies Act and the Civil Rights Act of 2008 – Expansion of Employer Liability and
Employee Remedies................................................................................................................................6
Employment Non-Discrimination Act of 2007 – Sexual Orientation as a Protected Class.......................6
Fair Pay Act of 2007 – Equal Pay for Equal Worth ..................................................................................7
Protecting America’s Workers Act – Safety Regulation Expansion .........................................................7
The Patriot Employer Act – Tax Credits for Voluntary Adoption of Favored Employment Policies .........7
Arbitration Fairness Act – Elimination of Pre-Dispute Arbitration Agreements ........................................9
PART II – WORKPLACE LEAVE POLICIES AND REGULATION...........................................................10
Military Leave Legislation .......................................................................................................................10
Expansion of the FMLA ..........................................................................................................................11
Mandatory Paid Sick Leave....................................................................................................................11
Flexible Work Schedules ........................................................................................................................12
PART III – FEDERAL WORKPLACE REGULATION................................................................................13
Occupational Safety and Health Administration .....................................................................................13
Wage and Hour Division........................................................................................................................15
Equal Employment Opportunity Commission.........................................................................................16
PART IV – CHANGING NATIONAL LABOR POLICY THROUGH EXECUTIVE BRANCH ACTION.....21
Organizing and Recognition ...................................................................................................................22
Employee Coverage ...............................................................................................................................26
Employee Rights....................................................................................................................................26
Striker Protection ...................................................................................................................................27
Remedies............................................................................................................................................... 28
Employer Regulation During Organizing Campaigns.............................................................................28
PART V – THE “FAIR TRADE” APPROACH TO INTERNATIONAL TRADE AGREEMENTS............... 30

Mitchell H. Rubinstein

January 30, 2009 in Legislation, Politics | Permalink | Comments (0) | TrackBack (0)

Court Summarize Rule 12(b) and 56(c) Requirements In Context of Discrimination Case

11th_circuit Lewis v. Asplundh Tree Expert Co., ___F.3d___(11th Cir. Dec. 30, 2008), is an employment discrimination case which demonstrates the importance of federal procedure in litigation. Because this case was treated as one for summary judgment, it was subject to the additional procedural requirements contained in Title VII. Since the plaintiff did not so comply, the case was dismissed. As the court explained:

As a general rule, the district court must “limit[] its consideration to the
pleadings and exhibits attached thereto” when deciding a Rule 12(b)(6) motion to
dismiss. Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000)
(internal quotation marks omitted). If the parties present evidence outside of the
pleadings, and the district court considers that evidence, then the motion to dismiss
is converted into a motion for summary judgment. See Fed. R. Civ. P. 12(b)(6);
Finn v. Gunter, 722 F.2d 711, 713 (11th Cir. 1984). “It is clearly the law in this
circuit that whenever a district judge converts a 12(b)(6) motion to dismiss into one
for summary judgment by considering matters outside the pleadings the judge must
give all parties ten-days notice that he is so converting the motion.” Donaldson v.
Clark, 819 F.2d 1551, 1555 (11th Cir. 1987); see also Fed. R. Civ. P. 56(c). Here
the district court’s order shows that it considered various exhibits that were
attached to the parties’ briefs  . . .
By considering those materials, the district court converted the motion to dismiss
into one for summary judgment. See Finn, 722 F.2d at 713 (“The
defendant-appellee in this case filed a Rule 12(b)(6) motion with various attached
exhibits. Appellant responded to the motion and also attached exhibits. The court
considered all these documents in rendering its decision. The 12(b)(6) motion thus
was converted into a summary judgment motion necessitating all the procedural
safeguards of Rule 56.”).
We have a “bright line rule” on this issue: “If a district court fails to comply
with the ten-day notice requirement [of Rule 56(c)], the case will be reversed and
remanded so that the district court may provide the non-moving party with
adequate notice.” Jones v. Auto. Ins. Co. of Hartford, Conn., 917 F.2d 1528, 1532

Mitchell H. Rubinstein

January 30, 2009 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Sorkin on Voir Dire

Professor David E. Sorkin (John Marshall Law School) has posted "Voir Dire:  A Two-Way Street" on the Social Science Research Network (SSRN).  Here is the abstract:

Voir dire is more than merely the procedure used to select a fair and impartial jury; it also represents the attorney's first chance to communicate with the jury. In some jurisdictions attorneys can use voir dire to educate potential jurors about the substance of a case. Even when a judge asks the questions, attorneys send important messages to potential jurors during voir dire. Jurors form their first impressions of the attorneys and the case during voir dire, and these impressions are difficult to reverse.

This short article originally appeared in the Illinois Bar Journal in 1995.  Nonetheless, the article is as relevant to trial practice now as it surely was then.  Some of the suggestion sound simple and obvious, but are often overlooked by attorneys so eager to argue the case that they look past voir dire's true purpose.  Voir dire is often most effective when the jurors are sufficiently at ease with the attorneys to speak openly and freely about their experiences and opinions that bear on their impartiality toward the case's facts and legal issues.  This short article is packed with tips to accomplish just that.

Craig Estlinbaum

January 30, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 29, 2009

President Obama Has A Blog

Guess what, President Obama has a blog! Its called "The Blog." Interestingly, viewers cannot comment on the blog, but they can comment on the White House web site. The Blog also does not have any links. Hey President Obama, I have a deal for you. I will link to your blog if you will link to mine!!
Mitchell H. Rubinstein

January 29, 2009 in Blogs, General | Permalink | Comments (0) | TrackBack (0)

Big Brothers/Big Sisters of America cannot be held liable for the actions of a volunteer mentor, but there local affiliate can be

We have discussed the difficulty in determining who is and who is not an employee many times on this blog, and in particular with respect to whether volunteers can be treated as employees. Now comes another twist, can companies be liable in tort for the actions of volunteers. A recent New York lower court decision held that that parent companies could not.   Lamarche v. Big Brothers/Big Sisters of America, ___Misc. 3d___(Richmond Co. Jan. 23, 2009). The reasoning was one of duty. The court held that a parent organization had no duty to a member of the public serviced by its NYC affiliate.

However, that NYC affiliate could be responsible for the actions of one of its volunteers. The court essentially applied a negligent hiring type of analysis and concluded that summary judgment to the defendant was inappropriate because of the volunteer's alcoholism and emotional past.

A New York Law Journal article about this case is available here (registration required).

Mitchell H. Rubinstein

January 29, 2009 in Recent Developments | Permalink | Comments (0) | TrackBack (0)

D.C. Cir. Issues Excellent Primer On Labor Arbitration

Dccir American Postal Workers v. U.S. Postal Service, ___F.3d___(D.C. Cir. Dec. 23, 2008), provides an excellent summary of how difficult it is to vacate an arbitration, that arbitration is a creature of the parties contract and even if the arbitrator makes a serious error, courts should not vacate the decision. As the court explained:

The 2003 Award is the arbitrator’s interpretation of the
CBA. As such, judicial review of the award is “extremely
limited,” and the award may not be overturned on the basis of
even a serious error if the arbitrator was “even arguably
construing or applying the contract and acting within the scope
of his authority.” Teamsters Local Union No. 61 v. United
Parcel Serv., Inc., 272 F.3d 600, 604 (D.C. Cir. 2001) (internal
quotation marks omitted) (emphasis in original). However, the
primary issue here is not whether the arbitrator properly
construed the CBA or exceeded his authority, but what the 2003
Award means. To answer that question, a court first looks to the
four corners of the award, for arbitration awards “may be made
without explanation of [the arbitrators’] reasons and without a
complete record of their proceedings.” Wilko v. Swan, 346 U.S.
427, 436 (1953); see Sargent v. Paine Webber Jackson & Curtis,
Inc., 882 F.2d 529, 532 (D.C. Cir. 1989).
An arbitration award, as a conceptual matter, is to be
“treated as though it were a written stipulation by the parties
setting forth their own definitive construction of the contract.”
Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465, 1475 (D.C. Cir.
997) (quoting Theodore J. St. Antoine, Judicial Review of
Labor Arbitration Awards: A Second Look at Enterprise Wheel
and its Progeny, 75 MICH L. REV. 1137, 1140 (1977) (footnote
omitted)); see Am. Postal Workers Union v. United States Postal
Serv., 789 F.2d 1, 6-7 (D.C. Cir. 1986). Thus, the interpretation
of an arbitration award is, like the interpretation of a contract,
primarily a question of law, see O'Hara v. District No. 1-PCD,
56 F.3d 1514, 1522 (D.C. Cir. 1995), and like a contract,
analysis of what an arbitration award means must begin with its
text, see id. at 1523; cf. also Am. Fed’n of Gov’t Employees,
Local 2924 v. Fed. Labor Relations Auth., 470 F.3d 375, 381
(D.C. Cir. 2006). Because we conclude that the 2003 Award is
unambiguous on its face, we need not decide under what
circumstances a court may appropriately look to the arbitral
record to resolve an ambiguity and thereby render the award
enforceable, see, e.g., Ethyl Corp v. United States Steelworkers
of Am., 768 F.2d 180, 188 (7th Cir. 1985).

Mitchell H. Rubinstein

January 29, 2009 in Arbitration Law | Permalink | Comments (1) | TrackBack (0)

Police Officer Who Violates Direct Order Forefeits 10 days Of Vacation

Matter of Clifford v. Kelly, ___A.D. 3d___(1st. Dept. Jan. 8, 2009), is an interesting case and I am somewhat amazed that it reached this point. A police officer was found to have violated a direct order and after a hearing the penalty was accessed as a forfeiture of 10 days vacation. Why so light? The police officer admitted the misconduct and the conduct was found to be de minimis in nature (she did not directly report to a certain assignment after she was 25 minutes late because she sought to do something else first). Yet, the police officer chose to litigant this case. I am surprised the employer did not cross move to increase the penalty.

Mitchell H. Rubinstein

January 29, 2009 in Public Sector Employment Law | Permalink | Comments (0) | TrackBack (0)

President Obama signs the Lilly Ledbetter Fair Pay Act of 2009

Earlier today, President Barack Obama signed the Lilly Ledbetter Fair Pay Act of 2009.  Here are the statements by President Obama, The First Lady, Michelle Obama, and Lilly Ledbetter from the signing ceremony, along with a copy of the law.  The Act, as many know, overturns the U. S. Supreme Court's 5-4 decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).  The Act is the first bill that President Obama signed into law.

Craig Estlinbaum

January 29, 2009 in Employment Discrimination, Employment Law, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 28, 2009

Union Membership Up Sharply in 2008

Union Membership Up Sharply in 2008 is an important Jan. 28, 2009 New York Times article by Steven Greenhouse. It summarizes just released BLS statistics on unionization rates. Union membership grew by 428,000 which is the largest gain in a quarter of a century. However, the percentage of unionization has not changed much. The overall  percentage of workers in unions rose to 12.4 percent of the overall work force last year, up from 12.1 percent in 2007. Of that number, 36.8 percent of government employees belong to unions, compared with just 7.6 percent of workers in the private sector.
Greenhouse predicts that this increase is going to add fuel to fire over the debate over the Employee Free Choice Act. I tend to disagree. The Employee Free Choice Act only applies to private sector workers the figure 7.6% remains quite low.

The BLS summarized its finding as follows:

Some highlights from the 2008 data are:

   --Government workers were nearly five times more likely to belong
     to a union than were private sector employees.
 
   --Workers in education, training, and library occupations had the
     highest unionization rate at 38.7 percent.
 
   --Black workers were more likely to be union members than were
     white, Asian, or Hispanic workers.
 
   --Among states, New York had the highest union membership rate
     (24.9 percent) and North Carolina had the lowest rate (3.5 percent).

Membership by Industry and Occupation

   The union membership rate for public sector workers (36.8 percent)
was substantially higher than the rate for private industry workers
(7.6 percent).  Within the public sector, local government workers had
the highest union membership rate, 42.2 percent.  This group includes
many workers in several heavily unionized occupations, such as teachers,
police officers, and fire fighters.  Private sector industries with
high unionization rates include transportation and utilities (22.2 per-
cent), telecommunications (19.3 percent), and construction (15.6 per-
cent).  In 2008, unionization rates were relatively low in financial
activities (1.8 percent) and professional and business services (2.1
percent).  (See table 3.)

   Among occupational groups, education, training, and library occupa-
tions (38.7 percent) and protective service occupations (35.4 percent)
had the highest unionization rates in 2008.  Sales and related occu-
pations (3.3 percent) and farming, fishing, and forestry occupations
(4.3 percent) had the lowest unionization rates.

The full BLS report is available here.

Mitchell H. Rubinstein 

January 28, 2009 in Unions | Permalink | Comments (0) | TrackBack (0)

NY Court Issues Major Decision Demonstrating The Importance of Local Employment Discrimination Laws

Williams v. NYC Housing Authority, ___A.D.3d___(1st Dept. Jan. 27, 2009), is a major employment discrimination case which demonstrates the importance of state and local law. In this lengthly decision, the Court analyzed the  Local Civil Rights Restoration Act of 2005 (Local Law No. 85 of City of New York [2005]). The court explained that core part of this statute  was its revision of Administrative Code § 8-130, the construction provision of the City HRL (Local Law 85, § 7, deleted language, new language italicized):

The provisions of this [chapter] title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed.

This statute also mandates that provisions of the City HRL be interpreted "independently from similar or identical provisions of New York state or federal statutes." As the court noted, this is significant. Some of the difference noted in the decision were as follows:

1.  With regard to retaliation claims, the court noted that a material adverse change in terms and conditions of employment is not required. Rather, the complained of conduct must simply be reasonably likely to deter a person from engaging in protected activity.
2. Sexual Harassment. The court rejects the "severe or pervasive" Title VII standard. Rather, the standar is whether the employee has been treated less well than other employees because of her gender.

Mitchell H. Rubinstein
 

January 28, 2009 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Mere Change In Job Duties Is Not An Adverse Employment Action

Dccir2 Baloch v. Kempthorne, ___F.3d___(D.C. Cir. Dec. 30, 2008), reminds us that a mere change in job duties is not an adverse employment action under Title VII. Thus, the plaintiff here failed to make a claim for discrimination.
Here, the employer changed the job duties of the plaintiff who described himself as over 70, and a brown skinned Muslim from Pakistan. The changed duties did not require the plaintiff to qualitatively inferior work involving less skill or knowlege.  The reassignment of some duties were due to the fact that other employees were hired.

Mitchell H. Rubinstein 

January 28, 2009 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Lawyer Resume Fraud

The Legal Profession Blog had an interesting Jan. 2, 2009 posting about resume fraud by attorneys. It reports on a California and D.C. case where attorneys were sanctioned for misrepresentations on their resumes. Frankly, I am not sure that this should rise to the level of professional misconduct. I understand that it might be employment related misconduct and believe that termination from employment should be the only sanction.

Mitchell H. Rubinstein

January 28, 2009 in Lawyers | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 27, 2009

Supremes Grant Cert Over Whether Child Must First Be Denied Special Education Services

Supreme_court_3 The Supremes recently granted cert in Forest Grove v. T.A.The 9th circuit decision is Forest Grove v. T.A., ___F.3d___(9th Cir. 2008). The issue in the case is that which the court split 4-4 on in the recent  case, Board of Education v. Tom F. ex rel. Gilbert F., 128 S. Ct. 1 (2007). The issue, and its an important one, is whether IDEA permits a tuition reimbursement award against a school district and in favor of parents who unilaterally place their child in private school, where the child has not previously received special education and related services under the authority of a public agency.

Before 1997, the IDEA was silent on the subject of private school reimbursement, but courts had granted such reimbursement as "appropriate" relief under principles of equity pursuant to 20 U.S.C.A.  1415(i)(2)(C). Congress amended the IDEA in 1997 to include a new provision, 20 U.S.C.A.  1412(a)(10)(C)(ii), which provided that "if the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary school or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment."      

Thus, the question before the Court of Appeals was whether the reference in 1412(a)(10)(C) to students "who previously received special education and related services" barred private school reimbursement for students who had not "previously received special education and related services," or whether those students remained eligible for private school reimbursement, as they were before 1997, under principles of equity pursuant to 1415(i)(2)(C).

The Ninth Circuit Court of Appeals concluded that such students were eligible for relief under 1415(i)(2)(C). In so holding, the Ninth Circuit agreed with the Second Circuit's holding in Frank G. v. Board of Education, 459 F.3d 356 (C.A.2-N.Y. 2006).The Ninth Circuit said that interpreting the 1997 amendments to prohibit categorically reimbursement to students who had not yet received special education and related services would lead to the absurd result that the parents of a child with a disability would be required to wait until the child had received special education in public school before sending the child to an appropriate private school, no matter how uncooperative the school district and no matter how inappropriate the special education.

Mitchell H. Rubinstein

January 27, 2009 in Special Education Law | Permalink | Comments (0) | TrackBack (0)

Why Ed Genson pulled out of the Blagojevich case

The National Law Journal interviewed Gov. Blagojevich criminal attorney and asked him why he left the defense and some of his comments were revealing. Specifically, attorney Genson is quoted as saying the following:

NLJ: Why did you pull out of the case?

EG: I don't tell clients what to do, but they should at least listen to me. And since I wasn't being listened to, I said I would leave the case in the hands of more capable people.

NLJ: Is the governor's media blitz a mistake?

EG: I'm not going to give you an opinion. He's doing what he's doing, and he thinks it's the right thing and it has some argument.

NLJ: Did you disagree over strategy with the governor's other attorneys, Sam Adam Jr. and his father, Sam Adam Sr., and Sheldon Sorosky?

EG: It's not my strategy. I'm not even sure it was their strategy.

NLJ: What strategy did you advocate?

EG: I can't tell you whether I disagreed or agreed with anyone. I wish him well, and I want him to win.

My take on all of this is that  Gov. Blagojevich knows he is going to be convicted and loose his position (he has already been impeached). He wants to portray himself as a victim and someone who has suffered enough. What he is reallying doing is playing to the jury pool who will decide his criminal case.

Mitchell H. Rubinstein 

January 27, 2009 in Politics | Permalink | Comments (0) | TrackBack (0)

D.C Circuit Issues Primer on Unilateral Change Doctrine and Majority Status Doctrine

I bring Kravis Center v. NLRB, ___F.3d___(D.C. Cir. Dec. 30, 2008), because the court does a nice job in reviewing several fundamental principles of labor law, including the long standing unilateral change doctrine and the presumption that a union maintains majority status. Here, the employer was found to have committed several ULP's by unilaterally declaring an impasse and withdrawing from further bargaining. The union was the exclusive representative and the obligation to bargain continued after the contract expired. The union's subsequent merger with another union was irrelevant to the employer's bargaining obligations.

Mitchell H. Rubinstein

January 27, 2009 in NLRB | Permalink | Comments (0) | TrackBack (0)

Court Vacates Labor Arbitration Involving Employee Discipline

I suspect we are going to here more about the little noticed case of  Matter of New York City Transit Authority v. TWU, ___A.D.3d___(2d Dept Dec. 30, 2008). In this lengthly decision, an employee was found guilty of assaulting a customer, but his termination was reduced to a suspension without pay by an arbitrator because of the employees long seniority. Remarkably, the court vacated this decision. Why? Because of a certain provision in the CBA which essentially provides that an arbitrator should only rarely overturn a penalty imposed by management. As the court reasoned:

Here, the language of the CBA makes clear that the arbitrator has plenary authority to determine whether certain enumerated underlying misconduct — in this case an assault — in fact took place. The issue of penalty presents a different situation. The CBA does not grant the arbitrator the power to fashion any penalty he finds appropriate under the circumstances. Rather, assuming he sustains the underlying charge, he is directed to uphold the TA's action unless credible evidence is presented demonstrating that it is clearly excessive in light of the employee's record and past precedent in similar cases. Furthermore, the exception is to be used "rarely and only to prevent a clear injustice." Thus, the arbitrator's authority on the penalty issue is limited and we have treated it as such in the past (see e.g. Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 306 [*4]AD2d 486, 487; Matter of New York City Tr. Auth. v Transport Workers Union of Am., 239 AD2d 421).

There is a big problem with the courts analysis. The court reviewed the merits of the arbitrator's decision  and concluded that this case did not fall within the contractual exception. This is exactly what courts may not do-a point that was made by a two Justice dissent.

Since there was a two Justice dissent, an appeal can be filed as of right with the New York Court of Appeals. If such an appeal is filed, this decision is likely to be reversed.

Mitchell H. Rubinstein   

January 27, 2009 in Arbitration Law | Permalink | Comments (0) | TrackBack (0)

Monday, January 26, 2009

Supremes Broadly Interpret Opposition Clause As Applying To Internal Complaints

Ussupremeseal In Crawford v Metro Government of Nashville & Davidson County, Tenn, Dkt No 06-1595, ___U.S.___(Jan. 26, 2009), the Supremes broadly interpreted Title VII's Opposition Clause to apply to internal investigations. This is a huge pro plaintiff decision as the Opposition Clause not limited to opposition voiced at the EEOC or in court. 
Plaintiff, Crawford, a public school employee, was discharged eight months after she cooperated in her employer's internal sexual harassment investigation of the district's employee relations director. Title VII's The "Opposition Clause" prohibits an employer from retaliating against an employee who opposes any practice made unlawful by Title VII. Reversing the Sixth Circuit, the Court held that while Crawford did not actually initiate a complaint of discrimination, it was her statement made in response to the school district's internal investigation that nonetheless opposed the discrimination the supervisor engaged in. The Court did not address whether plaintiffs conduct was also governed by the anti-retaliation provision's participation clause.

Mitchell H. Rubinstein

January 26, 2009 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Senate Passes Ledbetter Fair Pay Act

The Senate passed the Ledbetter Fair Pay Act of 2009, S. 181 by a 61-36 vote. The Bill would amend Title VII, the ADEA, the ADA and the Rehab Act to specify that a discriminatory pay decision or practice that starts the 180-day charge-filing period with the EEOC occurs each time a discriminatory paycheck is issued. The Senate bill must be reconciled with the House version, which passed earlier by a vote. A final Bill could then be sent to President Obama. President Obama, cosponsored the measure while in the Senate, and therefore, I expect him to eventually sign this Bill into law.

Mitchell H. Rubinstein

January 26, 2009 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)