Adjunct Law Prof Blog

Rostron & Levit: Information for Submitting Articles to Law Reviews & Journals

Allen Roston (Missouri-Kansas City) and Nancy Levit (Missouri-Kansas City) have posted "Information for Submitting Articles to Law Reviews and Journals" on SSRN.  Here is the abstract:

This document contains information about submitting articles to law reviews and journals, including the methods for submitting an article, any special formatting requirements, how to contact them to request an expedited review, and how to contact them to withdraw an article from consideration. It covers about 188 law reviews. The document was fully updated on June 8, 2008 and was revised on March 5, 2009.

Posted earlier today, this paper has already received over 1,800 downloads. 

Craig Estlinbaum

Employers Must Use New I-9 Form Effective April 3, 2009

On December 18, 2008, the INS published a rule announcing that there would be a new I-9 Form. That Form must be used by employers after April 3, 2009. A copy of an Employer's Handbook (published by the INS) which provides an excellent summary with examples and pictures as well as the new I-9 Form is attached.

Mitchell H. Rubinstein

Book Review Highlight-Dau-Schmidt, Malin, Corrada, Ruiz Cameron and Fisk's Labor Law in the Contemporary Workplace (American Casebook Series®)

I recently received a review copy of  Dau-Schmidt, Malin, Corrada, Ruiz Cameron and Fisk's Labor Law in the Contemporary Workplace (West's American Casebook Series® 2009) and I was quickly able to determine that this is not just another labor text. In fact, it is a very different text that should be appealing to professors who actually practiced labor and employment law.
The basics are all there and they are all done well. The book spans 1060 pages and there is an excellent 228 page statutory supplement. The cases are heavily edited-which is a nice feature which allows more ground to be covered.
What is different about this text is that it does not just stick to traditional labor law cases. It compares and contrasts public sector labor law and cites to some employment discrimination concepts as well. The statutory supplement for example, includes examples of state public sector labor laws as well as the Employee Free Choice Act. Thus, the book is able to cover such important topics as the right to strike in the public sector and Weingarten rights in the public sector.
The book also spends a lot of time covering contemporary issues such as neutrality agreements and the difficulty of determining when professionals are supervisors. Readers interested in an alternative text book may want to check this one out.

Mitchell H. Rubinstein

Public Policy Cause of Action Can Exist Even If Employee Does Not Make A Report Of Illegal Activity

Gossett v Tractor Supply Co, Inc, ___S.W.2d___(Tenn Ct App, March 2, 2009), is an interesting decision. The court held that an at-will employee who is terminated as a result of his refusal to participate in an illegal activity, or one in contravention of a clearly defined public policy, may maintain a common law cause of action for retaliatory discharge even where the employee fails to report the alleged activity. An employee cannot be discharged because the employee refused to participate in or to be silent about illegal activity in the workplace, the court explained, and reporting the alleged illegal activity is not a necessary element of a common-law retaliatory discharge claim. Noting that, in so ruling, it has created a split among state appeals courts on this issue, the court encouraged the Tennessee supreme court to resolve the question of "whether a common-law cause of action for retaliatory discharge exists for the refusal to participate in an alleged illegal activity or activity in contravention of a well-established public policy in the absence of a reporting to someone other than the person alleged to have instructed the employee to perform that act.

Optician who made complaint to state board has retaliatory discharge claim against Walmart under Tenn. law

Dishmon v Wal-Mart Stores, Inc, ___F.Supp.2d___ (MDTenn, February 17, 2009), is an interesting lower court decision applying Tenn state employment law.  The court denied summary judgment to Wal-Mart in a case in which a store optician alleged he was terminated in retaliation for making complaints about the company's practice of allowing unlicensed persons to dispense optical products without a licensed optician present. Wal-Mart fired the optician after an investigation into his own use of the practice and after he and another employee complained to a state board about the practice. He questioned the legality of the practice through his call to the state board—a report that "constituted an accusation that Wal-Mart's practices violated… state law." The optician was terminated mere days after he made his complaint although Wal-Mart knew of the policy weeks, if not months before. Moreover, the optician established a genuine issue of material fact that the stated reason for his discharge was pretextual, where the investigation into his conduct was unfair and did not conclusively find that he was responsible for the policy. Thus, the plaintiff established the elements of a retaliatory discharge claim under Tenn. law.

Texas Tech Law Review: Criminal Law Symposium

Texas Tech Law Review will present "Excuses and the Criminal Law" on April 3, 2009 in Lubbock, Texas.  Here is the summary:

For years, the issue of excuses has been both mystifying and tantalizing to criminal law theorists and philosophers. Are excuses necessary to keep the innocent from being convicted, or conversely, are they a means by which the guilty escape their just punishment? 

In this year’s symposium, we will explore four major questions:

• Is there really a difference between justifications and excuses (or did we academics make it up)?
• In general should excuses be construed broadly or narrowly?
• In general should excuses be complete or partial? And
• What is the proper scope of the insanity defense?

Craig Estlinbaum

Will The AFL-CIO and Change to Win Reunite

NY Times reporter Steven Greenhouse wrote an excellent March 9. 2009 article entitled Unions Face Obstacles in Effort to Reunite. It is about the possible reunification of the AFL-CIO with the Change to win. The article places the odds of that happening as 50-50.  As the article states:

The push to reunify the nation’s fractured labor movement has run into serious obstacles, labor leaders said, with several saying the effort has only a 50-50 chance of success.

The presidents of 12 large unions have held talks since January, when they announced an effort to reunify organized labor, which split in 2005 when seven unions quit the A.F.L.-C.I.O.

According to several officials at last week’s A.F.L.-C.I.O. winter meeting here, union presidents have debated what the focus of a new federation should be, how much each union would pay in dues and what the leadership structure would be — whether there would be a strong, long-term president or a two-year rotating presidency.

“It’s too soon to say whether we’re going to succeed or not,” said John J. Sweeney, the A.F.L.-C.I.O. president, a participant in the talks and a major force behind the effort. “A lot of what we’re discussing is similar to what was said before the split, and some of the same issues are being raised. But no real agreement has been arrived at on any of the issues.”

My personal belief is that reunification is going to happen. Their is a labor friendly White House which wants it to happen. I also believe that the first President of the new organization will come from the public sector which would be a first.

Mitchell H. Rubinstein 

Law Firm Goes After Laid Off Associates Loan

Like many firms, Thacher apparently advanced first year associates relocation and bar costs. Thacher apparently did this in the form of a loan. Now that the firm is dissolving, it has rescinded the offers and is going after the money it advanced their associates. Thacher response, its not them; the bank wants to go after the associates. As a March 9, 2009 Law.com article states:

First-year associates laid off from dissolving firm Thacher Proffitt & Wood aren't just out of jobs -- they owe the firm money.

In an unusual move, the firm's dissolution committee and bank are pursuing the former associates for repayment of salary advances issued last year to cover their bar and startup expenses, even as the former associates scramble to find new jobs against a backdrop of law firm layoffs.

Omer "Jack" Williams, a former Thacher managing partner who left retirement to chair Thacher's seven-member dissolution committee, says associates knew the money was a loan when they took it. "In the exit interviews, we made it clear we anticipated they would pay their loans back," he says.

  Former managing partner Paul Tvetenstrand, now a partner with Sonnenschein Nath & Rosenthal, says Citigroup -- which held the firm's debt -- made the decision to go after the money. "The bank has asked for those loans back. It's not the firm. The firm is in dissolution," he says. Williams says the committee wasn't explicitly ordered to pursue the associates for repayment by the bank, but "the situation is the bank is our secured creditor, for better or for worse. And our main obligation as the dissolution committee is to collect all receivables."

Williams says the committee hasn't taken any legal action to collect the loan balances and hasn't discussed what it will do if associates don't pay. Other members of the dissolution committee include former Thacher partners Jonathan Forstot, John Kim, Robert McCarthy, Douglas McClintock and Donald Simone, all now at Sonnenschein.

Do you believe this! If I were one of those associates, I would make them sue me and consider filing  counter claim for breach of contract. Of course, this would all depend upon what the contract stated.

Mitchell H. Rubinstein

No individual liability for employees, including supervisors, under Title VII

Fantini v Salem State College, ___F.3d___(1st Cir. February 23, 2009), is an important decision which reviews settled Title VII law in the other circuits. The First holds that individual employees, including supervisors, cannot be held liable under Title VII. The First stated that it was persuaded by "the analysis fashioned by all of our sister circuits."
Plaintiff, a former accountant for a state college sued the college alleging she was subject to sex discrimination (including a hostile work environment and discriminatory discharge) and retaliation in violation of Title VII. The district court dismissed the employee's individual claims against her former supervisor (the alleged harasser) and the college president, holding that an individual employee is not liable under Title VII. Affirming the district court's decision, the First Circuit cited opinions of its sister circuits which explained that the statutory scheme of Title VII indicated that Congress did not intend to impose individual liability on employees. "If Congress did not intend to protect small entities from the costs associated with litigating discrimination claims, it would not have limited liability to employers with fifteen or more employees," the court wrote. Additionally, the court held that the 1991 amendments to Title VII, which added compensatory and punitive damages to the available remedies, tied the amount of these additional remedies to the size of the employer, and therefore, Congress did not intend to hold individuals liable.

Mitchell H. Rubinstein

Cost of College Increases Competitiveness of Public Colleges

Public Colleges Get A surge of Bargain Hunters is an interesting March 1, 2009 article from the New York Times. The cost of a college education together with the poor economy is causing a surge in public college applications. As the article states:

Admissions officers at the State University of New York college campus here are suddenly afraid of getting what they have always wished for: legions of top high-school seniors saying “yes” to their fat envelopes.

Students are already tripled up in many dorm rooms after an unexpectedly large freshman class entered last fall. And despite looming budget cuts from the state, which more tuition-paying students could help offset, officials say they are determined not to diminish the quality of student life by expanding enrollment at their liberal-arts college beyond the current 6,000 undergraduates.

At SUNY New Paltz, as at many other well-regarded public institutions this spring, admissions calculations carefully measured over many years are being set aside as an unraveling economy is making less expensive state colleges more appealing.

This actually is nothing new. Public colleges are becoming more and more competitve. The reality is that it is not so much where you go to college, but where you go to graduate school.  On the other hand, you might stand a better chance of getting into a "better" graduate school if you went to "better" college.

Mitchell H. Rubinstein   

Lets Go To The Video Tape

Supreme Court Enters the You Tube Era is another excellent March 3, 2009 NY Times article by Adam Liptak. It is about the use of video by courts and how that may change things. How? Because courts and jurors would be viewing the video. The article highlights the Supreme Court decision last year,   Scott v. Harris, which included a video link. That video was referred to in the decision by both the majority and the dissent. Additionally, a cert petition that was recently filed included a video link.
If you ask me, its about time.
Mitchell H. Rubinstein

Harvard and Stanford Law Schools Switching To Pass/Fail Grading

Grading Policies Get Tweaking is an interesting Feb. 23, 2009 article from the National Law Journal. If reports that Harvard and Stanford Law Schools are switching from letter grades to a pass/fail grading system. The article also discusses how some other schools grade.Why is Harvard switching? It promotes education. As the article states:

Harvard Law School is among the schools making some changes. The institution announced that starting this fall, it will switch from the letter-grade system to an honors/pass/low pass/fail system. The school said that no one was available to comment, but according to an e-mail from the dean published in September in the Harvard Crimson, the faculty believes that the new policy will "promote pedagogical excellence and innovation and further strengthen the intellectual community."

Yale Law School has used a pass/fail system for decades. Another top school, Stanford Law School, switched to a similar system in the fall. The school abandoned its letter grading system in favor of one that gives an honors, pass, restricted credit or a failing grade for all semesters and quarters. The new system also provides norms for the proportion of students who may be awarded with honors in their course work.

Sorry, I do not buy this for one minute. Harvard students are just like my students. They need an incentive to do work. Otherwise, there is no incentive to do the readings. The trick in law school is learning to teach yourself how to read and understand the law. Take that away and quality may suffer greatly. But whom am I to comment. I am only an adjunct law professor.

Mitchell H. Rubinstein   

National Law Journal Article Concludes AIG Bonuses Are Legal

The March 25, 2009 National Law Journal has a story about the AIG bonuses which is basically just an interview of attorney Carolyn Plump. Plump basically argues that the bonuses are legally binding contractual obligations and any effort to tax them is punitive.
Plump is of course correct. Additionally, the federal stimulus legislation specifically states that it does not apply to previously written employment contracts. Moreover, any attempt to take away compensation may run afoul of New York Labor Law.
The issue of a  punitive ex post facto tax is a different story. I am less concerned with its ex post facto nature as no crime is involved. I am just not sure whether the IRS is prohibited from punitive taxation. I am also not sure if this is punitive. Rather, it is reflection of betrayal because AIG has been given millions in bailout money.  

Mitchell H. Rubinstein

Yale Launches 3 Year JD/MBA

Yale Launches 3 year JD-MBA is an interesting March 6, 2009 article from the National Law Journal. This is in addition to its existing four year program. The article is a bit short and does not provide much details. The program is described as follows:

The new accelerated and integrated J.D. and MBA program is geared to students with an interest in business law, but will also prepare students for careers involving management and other business fields.

The coursework will be spread over six semesters, and participants will graduate at the same time as their entering J.D. class. They will also graduate from the management school. Like their classmates in the regular J.D. program, those in the integrated and accelerated program will have two free summers in which they can work in the law or business fields. Students in the new program will spend their first and third years at the law school, and the second at the management school. Students must apply for the program during their first year at the law school.

I am against shortening educational programs. Law school is short enough. It takes time to learn how to argue and how to read a case. That is why I am against clinical programs as well. I realize I am in the minority hear, but my view is that law school and b school exist to teach you the tools to be successful. Of course, the problem is that at least with law school, too often the faculty do not have those tools. That however, is another story.

Mitchell H. Rubinstein

The custodian of the records has the burden of proving that information it withheld in responding to a FOIL request is within a FOIL exemption

Matter of U.S. Claims Servs. Inc. v New York State Dept. of Audit & Control, 2009 NY Slip Op 29071, Decided on February 20, 2009, Supreme Court, Albany County, Platkin, J.

The U.S. Claims Services case concerned a FOIL demand for certain information held by the State Comptroller concerning the value of fund held by the State pursuant to the Abandoned Property Law [APL].

The APL requires banks, insurance companies, utilities, and other businesses to turn dormant savings accounts, unclaimed insurance and stock dividends, and other inactive holdings over to the State. If there has been no activity in the account for a set period of time, usually between two and five years, the money or property is considered unclaimed or abandoned.

Not only are funds owned by individuals turned over to the Comptroller – in some instances the monies are the property of governmental and private sector organizations. NYPPL reported that Albany City School; BOCES, Nassau County; City of New York; Erie County; State of New York; SUNY – Binghamton; SUNY Buffalo and Walmart Stores were among such institutions in an report published earlier. [The item is at:
http://publicpersonnellaw.blogspot.com/2008/11/unclaimed-funds-under-abandoned.html

U.S. Claims, an asset finder engaged in the business of assisting individuals and institutions in locating and recovering abandoned property, contacted respondent Office of the State Comptroller ("OSC"), requesting "information on [abandoned property] claims that fall within a [specified] range of dollar values, sorted alphabetically … [ranging in value from $250 up to $500]."

Although the Comptroller is required by law to publish semiannually a statement of abandoned property held by the State reporting the names and addresses of persons with an abandoned property value in an amount of at least twenty dollars, Eric Duvall, the Director of Services for the Office of Unclaimed Funds, denied U.S, Claims access to the records it had requested.

Mr. Duvall wrote U.S. Claims indicating … “under Section 1401 of the New York State Abandoned Property Law (APL) we cannot reveal dollar amounts for unclaimed accounts, unless the claimant has provided proof of entitlement or a satisfactory interest in the funds.” Noting that Section 1402 of the Abandoned Property Law has a $20, Mr. Duvall said the Comptroller “maintain a $50 threshold for our Internet website” but … “in keeping with the spirit of the law, we do not provide segments of the account owner list based on higher dollar amounts … to maintain the general confidentiality of the funds."

U.S. Claims appealed, claiming that it was entitled to the information pursuant to FOIL. Justice Richard M. Platkin dismissed its petition, noting that all records of a government agency are presumptively available to the public, unless the requested records fall within one of the enumerated exemptions set forth in the FOIL statute and “[t]he burden of demonstrating the applicability of a FOIL exemption rests squarely with the government agency," citing Daily Gazette v Schenectady, 93 NY2d 145.*

At to whether the FOIL exemption from disclosure for the abandoned property records are "specifically exempted from disclosure by state or federal statute," Justice Platkin said that "[s]o long as there is a clear legislative intent to establish and preserve confidentiality of records, a State statute need not expressly state that it is intended to establish a FOIL exemption."

Accordingly, the issue to be decided, said Justice Plankin, is whether the State Comptroller's construction of the APL is rational and reasonable.

The court’s conclusion: “The State Comptroller's construction of [the APL] as prohibiting the disclosure of abandoned property claims that fall within a targeted range of amounts [requested by U.S. Claims] is a reasonable method of giving effect to the Legislature's expressed intent of withholding from third parties information concerning the value of abandoned property claims."

* The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_29071.htm

Reprinted with permission from New York Public Personnel Law Blog

Mitchell H. Rubinstein

Employment Law Reference

The folks over at Manpower employment agency maintain an excellent Employment Blawg which they describe as everything you wanted to know about employment law, organized by subject.  This might be useful to students, non-lawyers and researchers. Some of the topics included are as follows:

• Abortion (1)
• ADA (12)
• ADA Amendments Act (3)
• ADEA (5)
• American Idol (1)
• April Fools' Day (2)
• Arbitration (1)
• Associational Discrimination (2)
• Attorneys' Fees (5)
• Babies (1)
• Benefits (2)
• Body Art (2)

Mitchell H. Rubinstein

Principal Must Teach After Probationary Period Expiration To Obtain Tenure By Estoppel

Matter of Ronga v. Klein, ___Misc. 3d___(N.Y. Co. March 19, 2009), demonstrates a fundamental principal of Education Law. Tenure by estoppel can only occur if the employee teaches after his or her probationary period expires. Here, a Principal was removed June 30th and was reassigned July 1st. As June 30th was the last day of his probationary period he did not acquire tenure by estoppel.
This case also demonstrates that school principals, like teachers, are entitled to the protections afforded by Education Law Section 3020-a.

Mitchell H. Rubinstein

Incompetence At U.S. Dep't. of Labor

NY Times reporter Steven Greenhouse wrote an interesting March 24, 2009 article entitled :Labor Agency is Failing Workers; Report Says. It discusses a Government Accounting Office report which indicates that in 9 of the 10 cases examined, the Department of Labor mishandled cases. As the article states:

The federal agency charged with enforcing minimum wage, overtime and many other labor laws is failing in that role, leaving millions of workers vulnerable, Congressional auditors have found.

In a report scheduled to be released Wednesday, the Government Accountability Office found that the agency, the Labor Department’s Wage and Hour Division, had mishandled 9 of the 10 cases brought by a team of undercover agents posing as aggrieved workers.

In one case, the division failed to investigate a complaint that under-age children in Modesto, Calif., were working during school hours at a meatpacking plant with dangerous machinery, the G.A.O., the nonpartisan auditing arm of Congress, found. 

This issue was also reported on the March 25, 2009 edition of Good Morning America. The New Secretary of Labor takes this report seriously and vows to change things.

Mitchell H. Rubinstein

NY Gov. Establishes Task Force On Retiree Health Benefits

xecutive Order 7.15

Governor David A. Paterson issued an Executive Order, Executive Order 7.15,* establishing the New York State Task Force on Public Retiree Health Benefits. The Task Force will study health care benefits provided to employees of the State and local governments in New York by specifically addressing the preservation of quality retiree health care, and ways to make health care more affordable for local governments. Richard A. Berman has been designated to serve as Chairman of the Task Force. Mr. Berman has extensive experience in health policy and State government.

The Task Force is charge to gather information on benefits received by public retirees and will explore policy approaches to improving the current system of public retiree health benefits to advance goals such as maintaining quality and affordable health coverage for retirees, ensuring that retirees are treated equitably and fairly, limiting government health care costs, and maintaining sufficient flexibility for health care benefit management by the State and localities.

The Task Force will be comprised of representatives from New York State agencies including the Department of Civil Service, the Department of Health, the Office for the Aging, the Division of Budget and the Insurance Department, and the Governor will ask the New York State Comptroller, the Speaker of the Assembly and the Senate Majority Leader to make appointments as well. In addition to representatives from State government, the Task Force will include representatives from labor unions, retiree groups [the Retired Public Employees Association, Inc. and the Alliance of Retired Public Employee Organizations of New York, Inc., are authorized to recommend a “joint representative”], and organizations representing local governments.

The Executive Order sets June 1, 2009 as the target date for the Task Force Report. However, this date may be changed to a later date by majority vote of the Task Force.

* Executive Order 7.15 indicates that this is the 15th Executive Order issued by Governor Paterson. Executive Orders issued by previous governors are designated 1.xx, 2.xx, 3.xx, etc., commencing with Executive Order 1.1 issued by the late Governor Nelson A. Rockefeller. Executive Order 7.15 will be published in the March 25, 2009 issue of the State Register.

Reprinted with permission from NY Public Personnel Law Blog

Mitchell H. Rubinstein

Smith, Hodges, Stabile and Gely Principals of Employment Law

Four giants in the labor bar, professors Peggie Smith, Ann Hodges, Susan Stabile and Rafael Gely just published a needed book for Wests Concise Hornbook Series entitled Principles of Employment Law. The book is concise and that is one of its strengths. It spans 309 pages, but covers all the major topics and major cases. More importantly, it does it well. What is nice about this book is that cites fairly recent cases and articles. There is no need to cite cases from the year two, as many hornbooks do, and the authors seem well aware of this.
The book starts off defining the employment relationship and noting the different tests for employee status. The book goes on to discuss the employment at will doctrine and even includes a discussion of the proposed Restatement of Employment that has proven to be very controversial. The book also covers such topics as privacy and the emerging area of dignity in the workplace. Significantly, unlike a number of other employment law texts, this book discusses the NLRA in connection with the right to engage in concerted activity. The book also discusses OSHA and ERISA which are also often left out of employment law texts.
In short, this book is a must read for any employment law prof, for any student interested in employment law and for employment law attorneys.
Finally, here is a new one for labor scholars. The book is being sold  Target!

Mitchell H. Rubinstein