Adjunct Law Prof Blog

New York State Assembly passes bill banning transgender discrimination

The New York State Assembly Passed a Bill outlawing discrimination against transgendered individuals. The Bill amends the state’s human rights law to include anti-discrimination protections based upon gender identity and expression. The Gender Expression Non-Discrimination Act (GENDA, A.5710) provides civil rights protections for transgender New Yorkers by banning discrimination in housing, employment, credit, public accommodations, and other areas of everyday life. Additional details about this Bill are available here.

Mitchell H. Rubinstein

Legal Aide Society Case Loads To Be Capped

State Law to Cap Public Defenders’ Caseloads, but Only in the City is an interesting April 5, 2009 New York Times article. It is about a New York law that is going to cap public defender case loads. Currently, its over 100. The article does not state what the caseloads will be capped at. While in theory, this all sounds good we all know that not all cases are the same. An arbitrary number does not account for the differing complexity of the cases.The article provides in part as follows:

Judge Lippman did not speculate what the caseload limits would be. But in 1995, the Appellate Division in Manhattan adopted caseload guidelines that would amount to public defenders handling roughly 70 cases at a time, Mr. Banks said.

But those guidelines were not binding, and Legal Aid has been too understaffed to meet them, Mr. Banks said. Last year, the agency had 435 criminal defense lawyers who were responsible for 227,000 new cases, up from 210,000 in 2005, Mr. Banks said. The society’s criminal defense division is expecting an $11.3 million shortfall for the fiscal year that starts in July, he said.

Although easing the caseload for public defenders is a prudent step, said John Feinblatt, the mayor’s criminal justice coordinator, it is more important to invest in technology and other resources that help lawyers work more efficiently. The city has already invested millions of dollars to modernize methods of data entry and systems for looking up a client’s bail status or the details of a case, Mr. Feinblatt said.

“We need to bring this paperbound system into the 21st century,” he said. “In the long run, those kinds of investments in technology will be far more important than just counting cases.”

Mitchell H. Rubinstein

Law Professors and P.hd's

As we all know, there is a trend in the academy to hire new profs with advanced degrees. To my dismay, years of legal practice is not considered valuable. In fact, I have been recently been told by a Dean at a major law school (not where I teach) that law schools rarely hire anyone with more than 5 years of experience.Professor Wu over at Concurring Opinions has a very interesting April 4th posting which criticizes this practice entitled  Who Could Be Hired Today?

As Professor Wu states:

While it is better that those of us whose research cross over into other fields (as mine does) are trained formally, rather than dilettantes (as I am), I have a concern that we will see this new breed of law professor not as one of many valuable types an institution should recruit and nurture but rather as the best and the only type that matters -- to the exclusion of those with substantial practice experience, those who would teach in clinical programs, and those who produce the sort of doctrinal analysis that was perfectly respectable a generation ago and valuable to judges and lawyers today still. It does a disservice to our students, among others, if we become so enamored with our own speculations and engrossed in impressing one another with our citations to Wittgenstein (and, yes, I know enough about Wittgenstein to distinguish between the earlier and the later) that we forget we earn our keep by training individuals who by and large become advocates and counselors for causes and clients. Some of us should do work that is of greater interest to sociologists, but some of us also should do work that is of greater interest to the bench and the bar; others of us will try our best to do a little of each. These are all worthwhile contributions.

It is a common observation among us that “I couldn’t be hired today,” certainly those of us who have no better than a naked J.D. Curiously, we treat this development as if it were a force of market dynamics. However, it is very much within our collective control. Faculty governance is at its strongest in the decisions about who to invite to join the body, and all it takes is a few members of an Appointments Committee to point out the strengths of the applicants who would have been the norm only a short while ago.

Professor Wu is right on the money. If you ask law students what they value more, good research or good teaching, we all not what the answer is. If you also ask what is good teaching, most students would say they are interested in learning about practical issues that they might find useful when they become lawyers. As Professor Wu states, its high time for Law Professors to recognize that they earn their keep by teaching, not writing articles that no one other than other law professors read.

Mitchell H. Rubinstein

Foreman Found Not To Be A Supervisor

Determining whether or not an individual is a supervisor under the NLRA is often difficult-particularly with respect to professionals and Foreman. Diversified Enterprises, 353 NLRB No. 120 (March 26, 2009), is a case holding that a Foreman was not a supervisor because his job was largely routine. The Board reasoned in part:

I find that Respondent failed to meet its burden of establishing
that Hornsby was a supervisor within the meaning of Section
2(11) of the Act. While Hornsby gave his crew members
individual tasks those assignments were repetitive in nature and
based on skills sets largely defined by the crew member’s job
classification, i.e., carpenters versus operators. Houchins met
with the crew and Hornsby in the morning and informed the
crew of its actual assignment. Houchins met the crew multiple
times on a daily basis and was in phone contact with Hornsby.
Houchins used his judgment for when it was necessary for him
to step in and assign the crew members individual tasks which
he did during the course of the week. Thus, I find that the level
of judgment Hornsby used in assigning tasks did not rise above
the level of routine. See Iron Workers Local 28 (Virginia Assn.
of Contractors), 219 NLRB 957, 961 (1975), where a group of
working foremen and a general foreman were found not to be
statutory supervisors when they acted “within a very limited
sphere in giving instructions to employees, bounded by the
blueprints and instructions from the contractor or his supervisor.”
Their authority was found to be routine not requiring the
use of independent judgment. See also Electrical Workers
IBEW Local 3 (Cablevision), 312 NLRB 487, 488–489 (1993)
(Monopoli); George C. Foss Co., 270 NLRB 232, 234–235
(1984) (Merrow), enfd. 752 F.2d 1407 (9th Cir. 1985); and
Ogden Allied Maintenance Corp., 306 NLRB 545, 546 (1992)
(Michot), enfd 998 F.2d 1004 (3d Cir. 1993).
I also find Respondent failed to establish Hornsby responsibly
directed he crew members. There was no showing that
Hornsby’s directions to employees were anything other than
repetitive and routine in nature. There was also no showing
Hornsby was vested with the authority to take corrective action
if his directives were not followed, or that Hornsby was aware
of or subject to any adverse consequences based on the lack of
performance by his crew members. Respondent has not shown
any discipline or reward to Hornsby or any of its foremen for
the performance or lack thereof of their crew members. In fact,
there was no suggestion that Hornsby had the authority to discipline,
effectively recommend such, or evaluate their performance.
Hornsby was only evaluated once in 4 years, none of the
criteria in the evaluation were tied to the performance of his
crew, and there was no showing that the evaluation impacted on
Hornsby’s rate of pay. See Golden Crest Healthcare Center,
supra at 732–733.

Mitchell H. Rubinstein

The Swine Flu Outbreak and International Law-American Society of International Law (ASIL) Publication

We do not discuss International Law issues much here. However, the American Society of International Law just published an "Insight" paper written by a Indiana law professor David P. Fidler about the Swine Flu Outbreak. Insights are electronically published articles produced periodically by the American Society of International Law (ASIL) and written by legal experts on timely issues dealing with international law.  You can find past Insights on a variety of topics at http://www.asil.org/insights.cfm

The Swine Flu Outbreak and International Law is available at http://www.asil.org/insights090427.cfm.

It discusses a whole host of public policy issues and recommendations that can range from merely watching the situation and reporting outbreaks (which the World Health Organization has done) to full blown restrictions on trade. The article, which is well written, provides in part:

Under the IHR 2005, if the WHO Director-General declares a public health emergency of international concern, then the Director-General must issue temporary recommendations (Article 15(1)). The nature of the temporary recommendations depends on the threat, and the IHR 2005 provides possible recommendatory actions (Article 18). Temporary recommendations are not binding under the IHR 2005.

On April 25, 2009, the WHO Director-General issued the temporary recommendation that “all countries should intensify surveillance for unusual outbreaks of influenza-like illness and severe pneumonia.”[24] The Director-General did not recommend trade or travel interventions with respect to countries affected by the outbreak. However, some countries have adopted such measures, including issuing travel notices warning against travel to Mexico (e.g., Hong Kong),[25] screening air passengers arriving from affected countries (e.g., Japan),[26] and banning pork exports from Mexico and affected states in the United States (e.g., Russia).[27]

The IHR 2005 do not preclude States Parties from implementing measures that achieve a greater level of health protection than WHO temporary recommendations, provided that such measures are (1) otherwise consistent with the Regulations, and (2) not more restrictive of international trade and travel, and not more invasive or intrusive to persons, than reasonably available alternatives that would achieve the appropriate level of health protection (Article 43(1)) (see analysis below on trade and travel restrictions).

Mitchell H. Rubinstein

Labor and Employment Law Implications of Senator Specter Switching Parties

Senator Specter has been a Republican Senator since 1980. That's 29 years.  On April 28, 2009, he announced a bombshell. He is switching to the Democratic Party.  That may give Democratics a filibuster-proof majority (which would exist if Franken is seated). This of course, has implications far beyond labor and employment law. It will be interesting to see if he changes his mind again and decides to support the Employee Free Choice Act.

Mitchell H. Rubinstein

Email Etiquette

Legal Writing Prof Blog has an interesting April 28, 2009 posting entitled Professionalism alert - Email etiquette for students along with book recommendation which I recommend that you check out. It cites to
he career counselor column in the Chronicle of Higher Ed and provides email etiquette advise to students. Professor Jim Levy also provides some amazing statistics which I was completely unaware of. The average white collar worker sends 30,000 emails a year and receives 100,000. Wow!

Note, students are not the only ones who can benefit from email etiquette.

Mitchell H. Rubinstein

Payment of 4 Hours Pay To Come In And Vote Is Objectionable

Tea Party Concerts, 353 NLRB No. 130 (March 31, 2009), demonstrates an important principle of labor law. An employer may not pay employees to come in and vote. Such conduct is considered objectionable because it may interfere with employee free choice. The Board summarized applicable law as follows:

Sunrise Rehabilitation Hospital, supra, is current law
and is controlling.4 Pursuant to Sunrise, a party engages
in objectionable conduct by paying employees to attend
the election unless the payment is for the reimbursement
of actual transportation expenses. Cf. Good Shepherd
Home, 321 NLRB 426 (1996), enfd. 145 F.3d 814 (6th
Cir. 1998) (good-faith effort to reimburse an off-duty
employee’s actual transportation expenses for attending
election not objectionable).
In the present case, the Employer explicitly offered to
provide off-duty stagehands with 4 hours’ pay in exchange
for coming in to the polling location to vote. As
in Sunrise, the offer was substantial; it was not linked to
reimbursement for travel or other costs; and the number
of employees potentially affected was not de minimis.

Mitchell H. Rubinstein

EEOC issues best practices guidance on work/family balance

Best practices are proactive measures that go beyond federal non-discrimination requirements. The EEOC has issued a technical assistance document on best practices for avoiding discrimination against workers with caregiving responsibilities. The document, Employer Best Practices for Workers with Caregiving Responsibilities, supplements a guidance document issued in 2007 that examines how federal antidiscrimination laws apply to workers with caregiving responsibilities. It is full of helpful cites that litigants and researchers may find useful.

Mitchell H. Rubinstein

Patriot Employers Act reintroduced in Congress

Sen. Richard Durbin (D-Ill) reintroduced legislation that uses tax incentives to encourage US employers to create and keep jobs in the United States that meet specific pay and benefits criteria and maintain a policy of neutrality in union organizing campaigns. The Patriot Employers Act (S. 829), introduced on April 20, would amend the Internal Revenue Code to provide a one-percent tax credit on profits for so-called "Patriot employers" that do not outsource such jobs. To qualify, an employer would have to: show neutrality in union organizing drives; maintain corporate headquarters in the US if the company has been headquartered here; pay at least 60 percent of each employee's health care premiums; maintain or increase the number of full-time employees in the US relative to the number of full-time workers outside of the US; compensate each employee not less than the federal poverty level; and provide either a defined benefit plan or a defined contribution plan that fully matches at least 5 percent of worker contributions for every employee. Rep. Jan Schakowsky (D-Ill) introduced similar legislation (H.R. 1874) in the House.

Mitchell H. Rubinstein

Call for Papers for the Seton Hall Law Review 2009 Symposium, "Securities Regulation and the Global Economic Crisis: What Does the Future Hold?," to take place on October 30, 2009, at Seton Hall Law School

CALL FOR PAPERS

The SETON HALL LAW REVIEW will be hosting a Symposium on October 30, 2009, at Seton Hall Law School in Newark, NJ, to address the role of securities regulation in the current global financial crisis.  Specifically, this event will examine the origins and genesis of the crisis, address the future of securities regulation domestically and internationally, and attempt to anticipate the role of government agencies, self-regulatory organizations, and private market participants in shaping and effectuating regulation. This Symposium will bring together experts from both public and private sectors, as well as from the legal and academic communities, to explain, debate, and assess the challenges and opportunities presented by the current and prospective landscape of global securities regulation.

Persons interested in participating as a speaker and/or in publishing a piece in the special Symposium issue of the SETON HALL LAW REVIEW should submit a CV and a 200-word abstract of their presentation to Laura Fant, Symposium Editor, by May 15, 2009.  Laura Fant may be reached at (617) 480-7428 / Laura.Fant@student.shu.edu.  Prospective speakers or panelists should indicate whether they would be interested in submitting a paper based on their presentation for publication.  Contributions are welcome from scholars and practitioners in all disciplines.

Mitchell H. Rubinstein

NYLJ Article on Employee Free Choice Act

The April 3, 2009 Labor Relations column for the New York Law Journal is on the Employee Free Choice Act, a topic we have extensively covered. For those who might not be family with this pending Bill, I highly recommend this article. It is short and to the point. Perhaps, most importantly it presents both sides of the arguments with respect why this Bill should or should not be enacted into law. The article's conclusion is as follows:

Compromise may be necessary in order to get the legislation passed. Alternative proposals have suggested expediting the timeframe between the filing of a petition and secret ballot elections; making it a ULP for a union or employer to visit an employee at home for reasons related to an organizing campaign; forbidding employers from conducting captive audience speeches unless the union is given "equal time under identical circumstances"; and modifying the NLRA to give broader authority for the imposition of a Gissel order (requiring an employer to recognize and bargain with the union) on a finding that the environment has deteriorated to the extent that a fair election is not possible.

MItchell H. Rubinstein

Volunteer Attorney Positions

With the down turn of the economy, more and more lawyers are out of work. The NYS Uniform Court System has started a volunteer attorney program where attorneys can volunteer for the courts while getting some good experience and exposure. The web site describes the program as follows:

With the sharp downturn in the economy, the number of self-represented litigants appearing in the New York State Courts has increased dramatically. In response, the court system has established the Volunteer Attorney Program as a free consultation service designed to ensure that these litigants have access to competent legal advice to guide them as they represent themselves.

Under the supervision of court staff, volunteer attorneys spend full days or parts of days in a courthouse, and are available to provide legal advice and assistance to self-represented litigants in:

• answering questions and inquiries
• completing petitions and other court forms
• preparing for court hearings
• interpreting court orders

In some areas, there are also opportunities for limited scope representation.

Participating attorneys select the court where they wish to serve and the types of cases on which they wish to consult. Matters in which legal assistance is needed include:

• consumer debt cases
• family matters (including custody, visitation and child support)
• mortgage foreclosures
• landlord/tenant cases
• matrimonials
• small estates

In each of these areas, the court system will provide free training, with CLE credit.

Attorneys can volunteer just a few hours a week or as frequently as every day on a schedule that is convenient to them. For attorneys who are interested, participation in the Volunteer Program can also lead to opportunities to represent clients in court proceedings.

If your out of work, this is something you may want to think about.

Mitchell H. Rubinstein

Law License Revoked Due To Failure To Repay Student Loans

Last week, I reported on Matter of Anonymous, 2009 NY Slip Op 02883, ___A.D.3d____(3rd Dep't. April 16, 2009), a New York Appellate Division decision which refused to admit a law school graduate who passed the NYS Bar examination to the New York Bar because he failed to repay his student loans. That posting is available here. Now, in Santulli v. Texas Board of Law Examiners, No. 03-06-00392 (Texas Ct. App. 3rd Dist. April 10, 2009),  a Texas appellate court pulled an attorneys license because he failed to pay back student loans. The lawyer had been granted a probationary license and given several opportunities to pay the loan or declare bankruptcy. He did neither. In agreeing with the lower tribunal which held that the attorneys license should be revoked, the court reasoned:

In its 2003 order, the Board found that Santulli's violation of his amended probationary license was "indicative of a lack of trustworthiness in carrying out responsibilities, especially given his prior failure to comply with the conditions of his agreed order with the Board," and concluded that there was "a clear and rational connection between Mr. Santulli's lack of trustworthiness in carrying out responsibilities, as evidenced by his failure to comply with condition 1 of his probationary license as amended, . . . and the likelihood that he would harm a client, obstruct the administration of justice, or violate the Texas Disciplinary Rules of Professional Conduct," and that his "failure to comply with condition 1 of his probationary license as amended is indicative of a lack of the good moral character required for admission." We must give appropriate deference to the Board's determination of whether there is a clear and rational connection between Santulli's financial irresponsibility and failure to meet his obligations under previous Board orders and the substantial possibility of harm to future clients or the obstruction of justice and must affirm if there is substantial evidence supporting the Board's decision. See Stevens, 868 S.W.2d at 776, 778 (Board has "considerable discretion" in applying admission standards).

The supreme court has held that the ethical standards required for admission to the Texas Bar demand more than "an absence of convictions involving serious crimes and crimes of moral turpitude" or the "mere absence of gross misbehavior." Id. at 776. Instead, the Board must affirmatively determine that an applicant has the good moral character and is fit to practice law. Id.; see Tex. R. Govern. Bar Adm'n IV(a) (West Supp. 2008). Under the rules governing admission to the Texas Bar, "[g]ood moral character is a functional assessment of character and fitness of a prospective lawyer," and the purpose of requiring present good moral character is to exclude from bar admission persons with character traits that "are likely to result in injury to future clients, in the obstruction of the administration of justice, or in a violation" of the rules of professional conduct. Tex. R. Govern. Bar Adm'n IV(b). "These character traits usually involve either dishonesty or lack of trustworthiness in carrying out responsibilities." Id. The supreme court has held that evidence of a "longstanding lack of financial responsibility" may be, on a case-by-case basis, "substantial evidence that [an applicant] suffers from a 'persistent inability to discharge, or unreliability in carrying out, significant obligations.'" Stevens, 868 S.W.2d at 781 (quoting Tex. Disciplinary R. Prof'l Conduct Terminology, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A, art. X, § 9 (West 2005) (defining "fitness")). "[T]here is a 'clear and rational connection' between . . . financial irresponsibility on the one hand, and 'the likelihood that [an] applicant would injure a client,' on the other." Id. (quoting Tex. Gov't Code Ann. § 82.028(c)(1)).

The 2003 hearing was held more than two years after Santulli agreed to the original order that required him to make payments under his CCCS and student loan debt-management plans. At the time of the hearing, Santulli could do no more than tell the Board that he planned to file for bankruptcy in the next month, which is essentially the same thing he told the Board a year earlier, during the 2002 hearing. In the intervening year, Santulli had not made any payments or made any arrangements to pay or discharge his debts; he "made arrangements" with one lawyer, whom he attempted to contact months later only to discover the attorney had moved away; and he testified that he had hired another attorney one to two months before the hearing but had not yet drawn up a petition or filed for bankruptcy. Santulli did not bring any documentation to the hearing showing that he was in the midst of filing or even preparing to file for bankruptcy, nor did he bring a contract or other proof that he had actually hired the second attorney or that the attorney was in the process of filing for bankruptcy on Santulli's behalf. We agree with the trial court that substantial evidence supported the Board's determination that there is a clear and rational connection between Santulli's lack of trustworthiness or reliability in carrying out responsibilities and the likelihood that he will harm a client, obstruct the administration of justice, or violate the disciplinary rules.

The sad thing about all this is that after the petition to revoke his license was filed, the attorney did file for bankruptcy. The court did not consider that because it dehors the record. A National Law Journal article about this case reports that the former attorney is a 1998 graduate of Texas Southern University Thurgood Marshall School of Law and the amount of loan debt was $67,000. The former attorney reportedly plans to appeal.

Is this another extreme case? Perhaps, it is because the dispute over repayment went on for several years. On the other hand, the amount is only $67,000 and the attorney did eventually file for bankruptcy. I am not even sure why the attorney filing for bankruptcy is material as student loans are generally not dischargeable. Additionally, I am not sure why this attorney was on probation in the first place. This may be one of those cases that raises more questions than it answers.

Mitchell H. Rubinstein

UCLA Offers LLM Program For Deferred Associates

The April 20, 2009 National Law Journal reported that UCLA Law School has a new LL.M program which is designed to teach law students the skills that they would learn during the first year as an associate. The schools April 16, 2009 Press Release is available here and provides:

The newly admitted LL.M.s will have the option of participating in the new Transition to Practice program, which will focus on enhancing the practical skills and development of the new lawyer. The program will replicate significant parts of the learning that comes in the first year of practice, but in a controlled learning environment. 

"These challenging economic times have affected young lawyers in surprising ways. In response to the current economic climate, UCLA School of Law is reaching out to recent law school graduates, whether from our law school or not, to help them in their transition from law school to practice," Dean Michael H. Schill said. "Through the new Transition to Practice program, which will focus on experiential learning and skills, law school graduates and deferred hires will be able to expand on their legal education and develop additional legal skills during this transition period."

A core component of the Transition to Practice program will be capstone courses that will draw heavily on practice-oriented projects in addition to substantial research and written work. Capstone courses will include part-time externships within corporate legal departments, as well as clinical simulations, where students work with real legal problems in a controlled environment that permits reflection and generalization of lessons learned. The Transition to Practice program will also include a required workshop series designed to introduce students to the practical issues that confront new lawyers, ranging from how to define a work-product to understanding a client's business and goals, and handling practical problems of ethics and confidentiality.   Capstone classes will be taught both by the core faculty of the law school and prominent practicing lawyers.  The law school expects to develop curriculum in conjunction with leading law firms and corporate legal departments and to draw on the expertise of the Los Angeles legal community. 

To me this sounds like nothing more than a law school, one of the nations top law schools at that, capitalizing on a poor economy. Since when is an LL.M program designed to be an extension of law school? Isn't this more like a practice orientated clinic. Come on UCLA, I would have expected better from you!

Mitchell H. Rubinstein

 

More and More Seniors Looking To Re-enter Workforce: Age Discrimination on the Rise

Senior Citizens Look to Re-Enter the Workforce is an interesting March 30, 2009 Fox Business article.  With millions of seniors loosing thousands in their 401(k) plans, it should come as no surprise that many are looking to come back to work. It also should be no surprise that the amount of age discrimination cases are on the rise as well. As the article states:

RetirementJobs.com -- the number one career site for job-seekers over the age of 50, as measured by traffic, the number of employers, and the number of jobs -- saw  its visitor count nearly quadruple from August to February, when it hit 714,000.

Bob Skladany, vice president and chief career counselor for RetirementJobs.com, said “people who are retired and had no expectation of working again appear to be returning to the work force or job search in incredibly large numbers.”

Skladany said when the numbers began to spike, the company started calling visitors at random to find out why, and found it’s mostly “retirees who have to get back to work.”

Of those surveyed, over 60% of retirees returning to work said they’re looking for full-time work. Before the summer of 2008, Skladany said job seekers were looking for full-time jobs only about 25% of the time.

Mitchell H. Rubinstein

 

Mother-In-Law Not An Employee Under N.Y. Executive Law For Purposes Of Numerosity

Goldman v. Stein, ____A.D.3d___(2d Dept. March 24, 2009), illustrates that numerosity issues arise under state employment discrimination as well as federal law. Here, the NYS Human  Rights law only applies to employers with 4 or more employees. It excludes from that calculation any "individual employed by his or her parents, spouse or child, or in the domestic service of any person." Query, whether your mother in law would be considered an employeea? No says the court, reasoning:

  Dr. Stein could be considered Reichman's "child" only if the statutory term "child" were to be extended so far as to embrace sons-in-law and daughters-in-law. Contrary to the conclusion implicitly reached by the Supreme Court, the term "child" is not ordinarily used to refer to sons-in-law or daughters-in-law (cf. Matter of Gustafson, 74 NY2d 448 [construing testamentary term "children" so as to exclude grandchildren]; Caldwell v Alliance Consulting Group, 6 AD3d 761 [interpreting statutory term "parent" so as to include biological father who abandoned his son after birth]), and we see no evidence that the omission of sons-in-law and daughters-in-law from the terms of Executive Law § 292(6) was the result of legislative oversight. There is no basis upon which to conclude that a construction of the statute in accordance with its plain terms would frustrate the underlying legislative intent.

Mitchell H. Rubinstein

Legislation To Prohibit Mandatory Arbitration Proposed

The April 25, 2009 Workplace Prof Blog had an interesting posting about the The Arbitration Fairness Act, a.k.a. H.R. 1020, that was proposed in Feb. 2009. If enacted, this Bill would prohibit mandatory arbitration of employment and consumer disputes. An interesting issue, and a potential article, is what effect would this statute have on the recently decided Pyett case. In Pyett, the Court held that a collectively bargained for discrimnation clause can effectively result in a waiver of the right to pursue statutory claims in court.

My own view is that this Bill has no application in most types of labor arbitrations because the parties to the arbitration are the union and the employer. This Bill applies to employee and employer agreements under the FAA. Also labor arbitration is governed by Section 301, 29 U.S.C. 185 as well as the Federal Arbitration Act which this Bill proposes to amend.
The result may be different in those few agreements where the individual gets to decide whether to arbitrate. Those agreements mostly exist in the public sector because arbitration is an alternative to some statutory disciplinary process. Even in that situation, the parties to the CBA are the union and the employer and therefore, the Bill probably would have no application.

Mitchell H. Rubinstein 

Union Violates Its Duty Of Fair Representation By Not Supplying Grievant With Copy Of Grievance

American Postal Workers Union, 353 NLRB No. 124 (March 30, 2009), is one of those rare decisions where a union is found to have breached its duty of fair representation. Why is it so rare? Because employees have a high burden to establish a breach, namely that the unions actions were arbitrary, discriminatory or done in bad faith. Here, the union  failed to give the charging party a copy of his own grievance. That said the Board was a breach of its duty of fair representation.
Interestingly, the union did not file any opposition. It must have known it was going to loose. I suspect something more is going on here. Why would the union not give the grievant a copy of his own grievance??

Mitchell H. Rubinstein

Breaking News: President Obama Nominates Two Union Lawyers To NLRB

In a April 24, 2009 Press Release, the President announced that he will nominate Craig Becker and Mark Pearce to the NLRB.  Their bios are as follows:

Craig Becker, Nominee for Board Member, National Labor Relations Board
Craig Becker currently serves as Associate General Counsel to both the Service Employees International Union and the American Federation of Labor & Congress of Industrial Organizations.  He graduated summa cum laude from Yale College in 1978 and received his J.D. in 1981 from Yale Law School where he was an Editor of the Yale Law Journal. After law school he clerked for the Honorable Donald P. Lay, Chief Judge of the United States Court of Appeals for the Eighth Circuit.  For the past 27 years, he has practiced and taught labor law.   He was a Professor of Law at the UCLA School of Law between 1989 and 1994 and has also taught at the University of Chicago and Georgetown Law Schools.  He has published numerous articles on labor and employment law in scholarly journals, including the Harvard Law Review and Chicago Law Review, and has argued labor and employment cases in virtually every federal court of appeals and before the United States Supreme Court.

Mark Pearce, Nominee for Board Member, National Labor Relations Board
Mark Gaston Pearce has been a labor lawyer for his entire career.  He is one of the founding partners of the Buffalo, New York law firm of Creighton, Pearce, Johnsen & Giroux where he practices union side labor and employment law before state and federal courts and agencies including the N.Y.S. Public Employment Relations Board, Equal Employment Opportunity Commission, the U.S. Department of Labor, and the National Labor Relations Board. Pearce in 2008 was appointed by the NYS Governor to serve as a Board Member on the New York State Industrial Board of Appeals, an independent quasi-judicial agency responsible for review of certain rulings and compliance orders of the NYS Department of Labor in matters including wage and hour law.  Pearce has taught several courses in the labor studies program at Cornell University’s School of Industrial Labor Relations Extension.   He is a Fellow in the College of Labor and Employment Lawyers.  Prior to 2002, Pearce practiced union side labor law and employment law at Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP.  From 1979 to 1994, he was an attorney and District Trial Specialist for the NLRB in Buffalo, NY.  Pearce received his J.D. from State University of New York, and his B.A. from Cornell University.

I have worked with Nominee Becker before and found him to be a first rate lawyer. Congrats!!

Obama still has one appointment left. My guess is that he will appoint a Republican, but I can be wrong. This is because the last several years, the Board has unofficially be composed of 3 members of the Presidents party. However, for the first time in a long time, the Democratic Party controls both Houses. Therefore, it is possible that Obama may break with that tradition. 

Politics remains alive and well at the labor board!

Mitchell H. Rubinstein