Adjunct Law Prof Blog

Employee Polygraph Protection Act Prohibits Mandatory Arbitration

Harmon v CB Squared Services Inc,___F.Supp. 2d___ (E.D. Va.January 29, 2009), is an interesting case. The court held that a plaintiff asserted a valid claim under the Employee Polygraph Protection Act (EPPA) and thus was entitled to proceed to trial on allegations that his employer unlawfully caused him to take a polygraph examination, failed to provide him with documents required under the Act, and terminated him based on the test's results. The court rejected the employer's contention that the complaint should be dismissed because the employee had agreed to submit to mediation or arbitration any legal claims stemming from his employment. The EPPA expressly prohibits the waiver of a plaintiff's procedural right to bring suit in federal court for an alleged violation.

MItchell H. Rubinstein

Adjunctnation.com

I just found out about a web site called Adjunct Nation. It appears to be a commercial site geared towards college adjuncts. Adjuncts of all types, however, may find this information useful. Specifically, they have a job posting board, a commercial site where books and professional teaching materials can be purchased and links to other adjunct blogs. Adjuncts may want to check this site out.

Mitchell H. Rubinstein   

Breaking News! Secret Ballot Protection Act Introduced Into 111th Congress

A few days ago, the Secret Ballot Protection Act, H.R. 1176, S. 478 was introduced into Congress to contra act the Employee Free Choice Act which has not yet been reintroduced. This legislation is similar to legislation that was introduced in the 108th, 109th and 110th Congress. It is meant to conteract the Employee Free Choice Act. This legislation would amend the NLRA to make it an unfair labor practice for an employer to recognize a union that has not been selected by a majority of the employees through a secret ballot election. It has 101 co-sponsors in the House and 16 co-sponsors in the U.S. Senate. A newspaper article about this Bill is available here.

The Bill provides in relevant part:

  (a) Recognition of Representative-

  (1) IN GENERAL- Section 8(a)(2) of the National Labor Relations Act (29 U.S.C. 158(a)(2)) is amended by inserting before the colon the following: `or to recognize or bargain collectively with a labor organization that has not been selected by a majority of such employees in a secret ballot election conducted by the National Labor Relations Board in accordance with section 9'.

Significantly, this Bill does not address the other provisions of the Employee Free Choice Act, namely the provisions which increase penalties for employer unfair labor practices and for interest arbitration of first contract disputes.

Mitchell H. Rubinstein

Federal District Ct Holds FMLA protects ineligible employee's request for future leave when employee is eligible

Reynolds v Inter-Industry Conf. on Auto Collision Repair, ___F.Supp. 2d___(N.D. Ill. January 14, 2009), is an unusual FMLA case. The court held that an employee who informed his employer that he needed to take FMLA leave in three months, once the mother of his premature infant returned to work after exhausting her own FMLA leave during their newborn's stay in the NICU unit, stated a claim for FMLA retaliation based on his discharge soon after making his leave request. Significantly, the plaintiff  had not yet worked for twelve months and was not FMLA-eligible at the time he made the request; however, he would be eligible by the time his requested leave was to ensue.

In a case of first impression, the court reasoned that the FMLA clearly contemplates the scenario in which an employee requests leave beginning on a foreseeable future date.  Moreover, the implementing regulations are consistent with this reading; the rules clearly prohibit the firing of an ineligible employee for his intention to take leave once eligible.

Mitchell H. Rubinstein

NY App. Div Holds No Discovery Available In Civil Service Disciplinary Hearings

In New York, most civil servants (other than teachers and others who are covered by arbitration agreements) are subject to discipline under Civil Service Law Section 75. In Matter of Utica City School Dist. v. Fehlhaber, ___A.D.3d___(4th Dept. Feb. 6, 2009), the court held that there is no discovery in Section 75 hearings. However, an employee may subpoena documents if he can establish the requisite " factual predicate' [that] would make it reasonably likely that documentary information will bear relevant and exculpatory evidence." Here, the plaintiff was unable to make that showing.
The line between discovery and a subpoena is a thin one. Basically, you can only subpoena known documents that are relevant. Discovery relevance is a much loser standard that a plaintiff needs to meet.

Mitchell H. Rubinstein 

NLRB SIMPLIFIES AND ENCOURAGES E-FILING

The Board issued a Feb. 19, 2009 Press Release announcing that it will simplify and encourage e-filing. The Press Release states:

The National Labor Relations Board announced today three changes to its e-filing
program designed to simplify and encourage electronic filings:
1. The Board and the General Counsel will now accept electronic filings up to
11:59 p.m. local time at the receiving office on the due date.
2. The Board and the General Counsel will now require parties who e-file
documents to serve the documents on other parties to the case by e-mail
whenever possible.
3. The Board and the General Counsel will no longer require parties to provide
physical copies of long documents that they file electronically.
These changes apply to the Board, Offices of the General Counsel (including Regional Offices),
and the Division of Judges.

Mitchell H. Rubinstein

Albany Law School Freezes Tuition

Here is a new one. A law school, Albany, freezes its tuition because of the poor economy. The ABA Journal Blog states:

Dean Thomas Guernsey told the National Law Journal that the decision was made in recognition of the financial stress that many students are facing. In "these particularly uncertain times, we want to do what we can to make it easier for students who are the ones who are incurring all this debt,” Guernsey said.

A law school press release says a survey shows other law schools are increasing tuition by 3 percent to 15 percent. The National Law Journal gives two examples for law schools at the lower end of the range: Stanford is increasing tuition by 3.75 percent and Saint Louis University by 3 percent.

I for one do not believe for a minute that this has anything to do with the poor economy. Its about recruitment and ratings like it always is.

Mitchell H. Rubinstein

Prominent Economists Support Employee Free Choice Act

A group of prominent economists placed an add in the Washington Post on Feb. 25, 2009 arguing that passage of the Employee Free Choice Act is critical to rebuilding our economy and strengthening our democracy. That message was also delivered to Capital Hill. A copy is available here.

Mitchell H. Rubinstein 

Scholarly Article Demonstrates That There Is Little Undue Pressure In Card Check Campaigns

One of the major arguments against passage of the Employee Free Choice Act is that it will result in unions putting undue pressure on employees to sign cards. However, a major empirical study has just come out which demonstrates that under existing law unions have not engaged in such pressure campaigns. As a result, the public as little to fear from the Employee Free Choice Act.
The article is unfortunately not on the internet, but it is on Westlaw. Adrienne E. Eaton and Jill Kriesky, NLRB Elections Versus Card Check Campaigns: Results of A Worker Survey, 62 Indus. & Lab. Rel. Rev. 157 (Jan. 2009). The article's abstract provides:

The authors evaluate policy arguments for and against the use of card check as a method to determine union recognition. The results of an analysis of data from telephone surveys of 430 workers who had been through the NLRB election or card check campaigns of six unions in 2003 indicate that there was little undue union pressure to support unionization in card check campaigns, and that management pressure on workers to oppose unionization was considerably greater than pressure from co-workers or organizers to support the union in both card checks and elections. The authors also find that although workers in card checks do appear to have had somewhat less information about unions and about the recognition process than workers in elections, workers who felt they had insufficient information to make a decision about unionization tended not to sign cards.

Mitchell H. Rubinstein

Dismissed employee precluded from litigating her termination because of her failure to exhaust her administrative remedies

Matter of Yan Ping Xu v New York City Dept. of Health, 2009 NY Slip Op 50147(U), Decided on January 23, 2009, Supreme Court, New York County [Not officially published]

Yan Ping Xu, a New York City Research Scientist Level I, a position in the non-competitive class, was terminated from her position. She filed a petition pursuant to Article 78 of the Civil Practice Law and Rules seeking an order directing her former employer, the New York City Department of Health, rescind an unsatisfactory performance rating and reinstate to her former position with back pay and money damages and costs.

Yan contended that the Department acted in an arbitrary and capricious manner, in violation of lawful procedure, and in abuse of its discretion. She also contended that she received a copy of her "unsatisfactory" evaluation the day after she was terminated and that she was not provided with the pre-termination due process hearing to which, as a permanent employee, she was entitled.

Significantly, Yan’s appointment status is unclear.

Although Yan alleged that she was a permanent employee with tenure, the evaluation form presented to the court indicated that Yan was a full-time, provisional employee.*

In any event, Justice Paul G. Feinman, apparently accepted her representation that she was a permanent employee for the purpose of adjudicating her complaint.

Justice Feinman concluded that for the purposes of resolving this lawsuit, whether Yan, at the time of her dismissal, a permanent employee serving a probationary period or, in the alternative, having satisfactorily completed her probationary period, a permanent employee with tenure, was irrelevant.

Justice Feinman, for the purpose of deciding the issues raised by Yan, noted that “Article 78 proceeding against a public body may be commenced only when a matter has been finally determined” and an agency determination is deemed final "when the petitioner is aggrieved by the determination."

As a general rule a probationary employees may be terminated at any time,** without a hearing, provided that the dismissal was not for a constitutionally impermissible purpose or in violation of statutory or decisional law. In contrast a tenured employee is typically entitled to due process in the form of a pre-termination hearing.

In this instance it did not matter as Justice Feinman ruled that regardless of whether Yan was a probationary or a tenured employee,*** she failed to follow the proper administrative procedure relevant to her status in challenging her termination. In other words, the court concluded that Yan failed to exhaust the administrative remedies applicable to a probationary employee or a tenured employee, as the case may be.

As Yan contended that she is a tenured employee, Justice Feinman decided evaluate the legal issues involved on that basis.

Justice Feinman indicated that assuming, without deciding, Yan was, in fact, a tenured employee, she was entitled to file a disciplinary grievance challenging her termination in accordance with the terms of a collective bargaining agreement or demand notice and hearing in accordance with Section 75 of the Civil Service Law, as the case may be. Here, however, Yan did not seek a hearing before an arbitrator or a Section 75 disciplinary hearing but filed a lawsuit instead. This, said the court, was “premature” as she had not exhausted her administrative remedy.

As to Yan challenging her performance rating, the court noted that pursuant to “Rule 7.5.5 (a) and (b) of the Personnel Rules and Regulations, a permanent sub-managerial employee is to appeal her performance evaluation to the appeals board set up by each agency, and then appeal if necessary the determination of the appeals board to the head of the agency.” This, said the court, Yan did not do, again failing to exhaust her administrative remedy.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_50147.htm

* A provisional employee may be removed from his or her position without notice or hearing for any reason, other than an unlawful or unconstitutional reason, or for no reason at all.

** Typically State and municipal civil service commission personnel rules, and case law, provide that employees in the competitive class and the non-competitive class serving probationary periods have due process rights only if they have not yet completed the minimum period of probation set for their appointment.

For example, 4 NYCRR 4.5(b)(5)(ii), in relevant part, provides that “If the conduct or performance of a probationer is not satisfactory, his or her employment may be terminated at any time after eight weeks and before completion of the maximum period of service.”
In contrast, a probationary employee who has completed the minimum period of his or her probationary period may be terminated at any time prior to the end of his or her maximum period of probation without notice and hearing [see Gray v Bronx Developmental Center, 65 NY2d 904].

In order to dismiss a probationary employee before he or she has completed his or her minimum period of probation, the courts have held that the employer must serve the individual with disciplinary charges; find the individual guilty of such charges and imposes the penalty of dismissal as appropriate under the circumstances on the theory that an individual is entitled to a minimum period during which he or she can attempt to demonstrate the ability to satisfactorily perform the duties of the position.

*** A probationary employee holds a permanent appointment, or in some cases a contingent permanent appointment, but does not acquire tenure in the position until he or she satisfactorily completes the required probationary period.

Reprinted with permission from New York Public Personnel

Mitchell H. Rubinstein

Blog Layoff!

It seems as if the economy is effecting some of us blogers. Legal Blog Watch has an interesting Feb. 25, 2009 story about 3 more blogs closing their doors. As the article states:

It has seemed like a morbid week for followers of legal blogs. First came last week's post about legal bloggers throwing in the virtual towel after blogging left them feeling frustrated and depressed. Then came the news that the Wall Street Journal Law Blog had cut its lead writer, as we noted in a post here Monday. Then there was this week's Blawg Review #200, which, as we also noted here Monday, contained its own obituary. Turns out there was even more morbid news this week, as two long-time legal bloggers announced the shuttering of three different blogs. The good news is that one of the bloggers is ending his two blogs in order to make room for a new one.

But don't worry. I think Adjunct Law Prof blog is safe-at least for now!

Mitchell H. Rubinstein

Events before students' time--does it matter?

As I work through my personal income tax class this semester, I find it is becoming increasingly difficult for the students to relate to past events which aren't quite history but are before their time.  For example we worked on the Cottage savings and Loan case today which deals with a  S and L crisis era case where the S and L transfers a batch of mortgages (with FMV less than cost) for a similarly valued portfolio from another S and L.  While the case turns on whether there was a material difference between the portfolios I find the students have no understanding or appreciation of the S and L crisis.  While this is not necessary to have this to get the holding of the case, it certainly helps to understand the bigger picture at the time.  The same holds true for events around the Tax Reform Act of 1986.  Maybe it does not matter but I sure wish I wasn't the sole source of background for these issues. 

Does anyone out there face similar issues?  If so, how do you deal with them?

EAL

Congratulations To Secretary Harris

Congratulations to New York Law School Professor, and my college buddy, Seth Harris who was just nominated by President Obama to be Deputy Secretary of Labor which is the number 2 position in the Department of Labor. The February 23, 2009 Daily Labor Report announced this nomination and described Secretary Harris' background as follows:

President Obama Feb. 23 announced his intent to nominate Seth Harris—a former labor policy aide in the Clinton administration—to serve as deputy secretary of the Department of Labor. Harris most recently served as the Obama transition project's agency working group leader for the labor, education, and transportation agencies. His nomination must be confirmed by the Senate, which is expected to vote on the confirmation of Rep. Hilda Solis (D-Calif.) as labor secretary as early as Feb. 24. Harris, a professor and the director of labor and employment law programs at New York Law School, serves as a senior fellow of the Life Without Limits Project of the United Cerebral Palsy Association and is a member of the National Advisory Commission on Workplace Flexibility. An administration statement said Harris served as the chairman of Obama for America's labor, employment, and workplace policy committee and as co-chairman of its disability policy committee. In the Clinton administration, he served as counselor to the labor secretary and as acting assistant secretary of labor for policy, among other policy-advising positions, for nearly seven years. Before joining the Clinton administration, he was a law clerk to Judge William Canby of the U.S. Court of Appeals for the 9th Circuit and Judge Gene Carter of the U.S. District Court for the District of Maine. Harris graduated cum laude in 1990 from New York University School of Law where he was editor-in-chief of the Review of Law and Social Change. He received his bachelor's degree from Cornell University's School of Industrial and Labor Relations in 1983.

Seth, I remember a few years ago when you asked me how it felt to be called "professor." Now, I can ask you how it feels to be called "Secretary." I think that one feels a bit better. Congrats. The White House Press release is available here.   

Mitchell H. Rubinstein

Hat Tip: Evan Barouh

Idaho's ban on public employee payroll deductions did not violate free speech

In Ysursa v Pocatello Education Association, USSCt, Dkt No 07-869,___U.S.___(February 24, 2009), the Supreme Court has reversed a Ninth Circuit finding that an Idaho law banning public employee payroll deductions for political activities violated the First and Fourteenth Amendments, ruling that the law did not infringe free speech and that the state, therefore, needed only a rational basis for the law.

Chief Justice Roberts' majority decision turned on the distinction between state suppression of speech and instances in which states decline to promote speech. The majority held that governments are required only to refrain from suppression of speech; they are not required to assist in funding of expression. The ban on payroll deductions for public employees, the Court ruled, was merely an example of a state declining to assist in the funding of pro-union expression and did not, therefore, infringe upon freedom of speech. The law, ruled the Court, furthered the governmental interest in separating internal governmental operations and private speech.

Annulling four of forty-one specifications of alleged misconduct, court sustains finding the employee guilty of the surviving charges and the penalty

Matter of Levi v Lauro, 2009 NY Slip Op 00542, Decided on January 27, 2009, Appellate Division, Second Department

Thomas Lauro, Commissioner of the Westchester County Department of Environmental Facilities, adopted the report and recommendation of a hearing officer finding Miriam Baht Levi guilty of 41 specifications of incompetence and/or misconduct, and suspended her from employment without pay for a period of 60 days.

Levi appealed, and although the Appellate Division annulled specifications 14, 18, 40, and 41 of the disciplinary charges filed against her, confirmed the Commissioner’s determination and the penalty he imposed.

Levi, a receptionist at the Westchester County Department of Environmental Facilities, was charged with arriving late to work on 35 occasions over a period of 15 months, and with having failed to call in ahead of time on four of those 35 occasions.

The Appellate Division ruled that:

1. The hearing officer properly admitted into evidence time sheets indicating the dates and times Levi was late to work.

2. Although Levi alleged that her tardiness was due to arthritic knees and thus she was entitled to a reasonable accommodation, which was not provided, she “did not present any medical evidence to substantiate her claim that she suffers from a "physical impairment" such as arthritis.”

3. There was no evidence that during the period in question Levi informed the Deparetment of her alleged disability or that she requested a reasonable accommodation of her alleged disability.

Finding that the 37 surviving specifications of alleged misconduct were supported by substantial evidence and that the penalty imposed was not so disproportionate as to shock the judicial conscience as a matter of law, the so-called Pell standard, [Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222], the Appellate Division dismissed Levi’s appeal.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_00542.htm

Reprinted with permission from New York Public Personnel Law

Mitchell H. Rubinstein

1st holds plaintiff reasonably declined to report her harasser to his drinking buddy

Monteagudo v Asociacion de Empleados del Estado Libre Asociado, ___F.3d___ (1st Cir. January 26, 2009), is an important sexual harassment decision concerning employer liability and employer affirmative defenses.   An employer's argument that it should have been allowed to use the Ellerth/Faragher affirmative defense because an employee was not subjected to a severe or pervasive hostile work environment and she failed to use the company's sexual harassment policy was rejected by the First Circuit. The employee did not follow the company's procedure to report her harasser because she knew the harasser, a human resources manager, was close friends with the director of human resources and they often went out drinking together. Moreover, others had witnessed the harassment but also failed to report it, including a union delegate who told the employee the relationship between the men made the situation delicate. While the evidence was not overwhelming, a reasonable jury could conclude the employee's failure to report the harassment was based on "more than ordinary fear or embarrassment" and, therefore, was reasonable. Punitive damages were also upheld as a reasonable jury could conclude the harasser was acting in a managerial capacity when engaging in sexual harassment.

Obama To Include Unions In White House Summit

President Obama is bringing hundreds of advisers together to help find a solution to the financial crisis and curb the federal deficit laden budget. What is most significant about all of this is that President Obama is included unions. This demonstrates that the Obama Administration sees unions as part of the solution to this crisis. This is the first time I have seen unions included financial decisions.  A Feb. 23, 2009 Associated Press article about this summit is available here. 

Mitchell H. Rubinstein

No Child Left Behind To Be Renamed??

Rename Law? No Wisecrack Is Left Behind is an interesting Feb. 23, 2009 New York Times article. Newly appointed Education Secrectary Duncan believes that the statute should be renamed because of all the negative publicity under it. “Let’s rebrand it,” he said in an interview. “Give it a new name.” The article is short on details about how the Obama Administration plans to change this law. However, if there are going to be changes, lets make them substantive. I would hope our new Education Secretary has more on his plate than just thinking of a new catchy phrase.

Mitchell H. Rubinstein

1st Holds Title VII Statute of Limitations Runs From Date Of Termination Notice

Abraham v Woods Hole Oceanographic Inst, ___F.3d___(1st Cir. January 22, 2009), is an interesting decision. The First Circuit held that the limitations period on a discharged investigator's employment Title VII claim began to run when he received notice he was being discharged, not when he finally came to understand he was terminated. The court indicated that the clock begins to run when an adverse employment decision is made and communicated.
Plaintiff  asserted his employer threatened his discharge in order to induce him to renounce his religious belief in creation and to accept evolution as fact, and he thought his employer's termination notices were bluffs. The court was not persuaded, as the employee received at least four unequivocal notices of termination during the month before his discharge. An employee in those circumstances could not reasonably conclude his employer would not follow through.

Pro Se Must Be Given Access To Unreported Or Electronically Reported Decisions

Lebron v. Sanders, ___F.3d___(2d Cir. Jan. 26, 2009), is a decision which illustrates an important, but simple point. In New York, a federal district court rule requires that counsel provide pro se litigants copies of unreported decisions and decisions that are exclusively reported on Lexis or Westlaw. Here, the 2d held that the District Court errd by not granting a pro se criminal defendant copies of decision reported on Lexis and Westlaw as well as decisions which were only available in the Federal Appendix, which is not widely available. Interestingly, the 2d Circuit itself provided the pro se defendant with copies of the unreported decisions and reversed the decision below which had denied the pro se an extension of time with respect to his motion to (1) to proceed in forma pauperis and (2) for a certificate of appealability with respect to his
habeas petition.

Mitchell H. Rubinstein