Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Sunday, May 31, 2009

Cert. Petition Filed In 2 Member NLRB Circuit Decision

Nlrbseal Supreme Court

Workplace Prof Blog has done an excellent job following the issue of whether or not the NLRB has the authority to issue two member decisions. As readers to this blog know, there is a conflict in the circuits with respect to this issue. On May 28, 2009, they reported that:

 As it said it would do, the NLRB recently issued two, two-member decisions (dated May 21) following the D.C. Circuit's holding in Laurel Baye that such decisions were invalid.  The cases are Regional Emergency Medical Services and Iron Workers, Local 378  

On May 27, 2009, Workplace Prof Blog reported on a cert petition being filed by the employer which stems from a 7th Circuit case:

   The first cert petition coming out of the recent circuit split over the validity of two-member NLRB decisions has arrived.  In New Process Steel, the Seventh Circuit held that the two-members decisions were valid which, along with an earlier First Circuit decision), created a split with the D.C. Circuit.  So, the employer in New Process petitioned the Supreme Court to hear the case (Download Cert petition).


On May 28, 2009 Workplace Prof Blog reported that the NLRB was seeking a rehearing in the Laurel Baye case:

In more developments on the two-member NLRB issue, the Board announced today that it will petition the D.C. Circuit for rehearing and rehearing en banc in Laurel Baye.  According the Board's press release:

After very careful consideration, we have determined that, as a quorum of the National Labor Relations Board, we will continue to issue decisions and orders in unfair labor practice and representation cases. While a recent panel decision of the United States Court of Appeals for the District of Columbia Circuit held that we lack the authority to do so, two appellate courts have upheld our authority, and the issue is pending before seven other Circuits. Our original determination to act as a two-member Board was supported by a legal opinion that the Board earlier had sought from the Department of Justice’s Office of Legal Counsel.
Adjunct Law Prof Blog reported on the Laurel Baye case on May 2, 2009 here.
Mitchell H. Rubinstein


May 31, 2009 in Labor Law, Law Review Ideas, NLRB, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Employment Non-Discrimination Act ("ENDA") May Be Reintroduced Next month

Workplace Prof Blog is summarizing reports from other blogs that Congressman Barney Frank may reintroduce the Employment Non-Discrimination Act, ("ENDA") next month.The article they cite to  suggests that this version will prohibit discrimination on the basis of sexual orientation and sexual identity, including non-conformity with gendered stereotypes of identity and expression Additonal information can be found at Transgender Workplace Diversity reports and the Washington Blade.

Mitchell H. Rubinstein

May 31, 2009 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Employee Denied Injunction In FMLA Case Even Though He Established Probability Of Sucess On The Merits

Cantrall v Zeon Chemicals, LP, ___F.Supp.2d____(W.D. Ky. April 23, 2009), demonstrates how difficult it is to get an injunction ordering reinstatement pending a resolution of an employment dispute. A federal district court declined to issue a preliminary injunction prohibiting an employer from improperly using its attendance program to terminate an employee who was a plaintiff in ongoing FMLA litigation, rejecting the employee’s contention that an injunction is necessary to prevent the possibility of his being unlawfully terminated prior to the trial date. The court found the employee will likely prevail on the merits of his claim—the employer had acted on “the questionable belief that it can end Plaintiff’s FMLA protections based upon a medical opinion that is later overruled by a third physician.” Nonetheless, the employee has an adequate remedy at law if his employer is found to have violated the Act.

Mitchell H. Rubinstein

May 31, 2009 in FMLA | Permalink | Comments (0) | TrackBack (0)

Employer violated NLRA in unilaterally canceling dues checkoff

DCCIR Tribune Publishing v NLRB, ___F.3d___(D.C. Cir. April 28, 2009), is an interesting decision. The D.C. Circuit affirms a decision of the NLRB which held that an employer committed a ULP when it unilaterally discontinued using its direct deposit system to collect union dues. The parties' collective bargaining agreement, which contained a provision for payroll deduction of union dues, expired in 2001, at which point the parties briefly agreed to use the company's direct deposit system to collect the dues. When the employer unilaterally discontinued the practice, the union filed a complaint with the NLRB. The Board found the unilateral cancellation was unlawful. The DC Circuit affirmed, ruling the second agreement, although never reduced to writing, represented a new agreement that imposed new requirements. In creating the new agreement, the parties implemented a term and condition of employment that the employer could not unilaterally discontinue.

Mitchell H. Rubinstein

May 31, 2009 in NLRB | Permalink | Comments (0) | TrackBack (0)

Saturday, May 30, 2009

Jon Plus Kate Labor Law Violations??

On May 29, 2009 Workplace Prof Blog raised an interesting legal issue. Whether the children on the reality TV show, Jon plus Kate are working. If they are, FLSA child labor law requirements kick in. The issue in my mind boils down to whether or not they are employees of the TV show. Since they are getting paid and not doing this for their health, my view is that they are employees.
The FLSA applies an economic reality test to determine employment status. The defintion of employee and employ under the FLSA is broader than under most other employment law statutes.  The family is filmed at certain times and that is all probably planned out. In other words, the show is directed their work-at least to some degree.
However, this is really a relatively novel question and would make a great law review article.

Mitchell H. Rubinstein

May 30, 2009 in Employment Law, Law Review Ideas | Permalink | Comments (1) | TrackBack (0)

Why Write Law Review Articles??

Erwin Chemerinsky (Dean, UC-Irvine) has published Why Write?, 107 Mich. L. Rev. 881 (2009).  Here is the abstract:

What is the purpose of legal scholarship? The foreword to the University of Michigan Law Review's book review issue provides an excellent occasion for addressing this question. This in turn requires considering who are the audiences for legal scholarship and what should count as legal scholarship. This essay offers thoughts and suggestions on these important topics.

Mitchell H. Rubinstein

May 30, 2009 in Law Review Articles | Permalink | Comments (0) | TrackBack (0)

Friday, May 29, 2009

Legal Research Over The Internet

Get Your Free Case Law On The Web is an important May 8, 2009 article. It reviews the pros and cons of 10 different free internet research sites on the web-none of which compare to Lexis or Westlaw. The 10 sites it reviews are:
1. Fastcase and Casemaker.
2. FindACase.
3. PreCYdent.
4. The Public Library of Law.
5. AltLaw.
6. Justia
7. FindLaw.
8. Public.Resource.Org.
9. LexisONE.
10. Legal Information Institute

Adjunct Law Prof Blog lists a number of free internet research sites on the left hand side of this blog. I encourage you to use it. My view is that if your only looking for recent cases, LexisOne is the best free service. For older caselaw, PreCYdent is also good.

Mitchell H. Rubinstein

May 29, 2009 in Legal Research | Permalink | Comments (0) | TrackBack (0)

Free College Textbooks (Well, Sort Of!)

I just became aware of Flatworld Knowledge. They post open source Free College Textbooks online. Whats the catch? They are online books. You need to purchase a book if you want a hard copy. The books appear to be softcover and reasonably priced, however (around 40 dollars for the ones I looked at). Given the cost of textbooks, this type of service may have a future. I wonder if Law Schools are next.

Mitchell H. Rubinstein  

May 29, 2009 in Colleges | Permalink | Comments (2) | TrackBack (0)

Thursday, May 28, 2009

2d holds Assertion that men have propensity to harass was invidious sex stereotyping

Here is an interesting one. In Sassaman v Gamache, Dutchess County Bd of Elections and Dutchess County, ___F.3d___(2d Cir. May 22, 2009), the 2d Circuit held that a male employee who was charged by a coworker with sexual harassment provided sufficient evidence to make out a prima facie case of discrimination against his employer based on sex stereotyping, including his supervisor’s statement that men have a propensity to commit sexual harassment and his employer’s failure to properly investigate the charges lodged against him.

The plaintiff employee was told he would be terminated unless he chose to resign. Remarkably, his supervisor told him, “you probably did what she said you did because you’re male and nobody would believe you anyway.” The district court discounted the comment as a stray remark, but the Second Circuit disagreed. The employer’s claim that it feared a lawsuit by the accuser did not justify reliance on sex stereotypes to shortcut its investigation, discriminating against the accused employee in the process.

Sometimes you just cannot make these cases up.

Mitchell H. Rubinstein

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

Labor Peace Agreements And Gov. Patterson

New York Governor's New Order To Benefit Unions is an important May 3, 2009 New York Times article. It reports on an Executive Order issued by the Governor which may make it easier to organize unions in New York. It requires that certain companies that have state to have labor peace agreements. As the article states:

The directive, which was signed on April 24 and issued on Friday, will require the operators of projects that receive assistance like loans, tax breaks or property leases from state agencies or public authorities to obtain “labor peace” agreements with unions seeking to organize their workers.

Under the agreements, workers would pledge not to strike, boycott or engage in other actions that would disrupt business or deprive the state of revenues.

The directive will give unions unprecedented leverage to demand right-to-organize provisions — including “card-check” rights that allow a union to be recognized as soon as a majority of workers sign authorization cards — for the roughly 2,000 workers expected to be hired at various facilities around the state once they are completed.

Administration officials said the order would benefit taxpayers by preventing interruptions to the revenue from projects built with state assistance.

Reportedly, this is the first time a Governor has required such agreements. Query whether those contracts are preempted by the NLRA??

Mitchell H. Rubinstein

May 28, 2009 in Interesting Cases, Law Review Ideas, New York Law, Unions | Permalink | Comments (1) | TrackBack (0)

Public Policy Exception To Employment At Will and Porn

Blog Workplace Prof Blog picked up on a story by Mass Lawyers Weekly here and the Legal Ethics Forum blog about a Massachusetts appellate decision that reversed a trial court's dismissal of an unlawful termination claim.  The plaintiff is an attorney who discovered child pornography on the computer of one of his firm's important clients.  He notified his firm, which instructed him to hire a specialist to erase the pornography from the computer.  He refused, stating that they couldn't destroy evidence of a crime and he ultimately notified the FBI.  The attorney was eventually fired by the law firm.  The appellate court held that revealing the child pornography didn't threaten any protected privileged or confidential information.  It is hard to believe that it took a reversed trial decision to get to that point. It is also hard to believe that a law firm would not know better. This just demonstrates once again, that lawyers are employees like everyone else.

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

May 28, 2009 in Employment-At-Will & Exceptions | Permalink | Comments (0) | TrackBack (0)

Non-Custodial Parent Does Not Have The Right To Make Special Education Decisions

NYSCOAseal Fuentes v. Board of Education, ___N.Y.3d ___(April 30, 20009), is an important Education and Family law decision coming out of the New York Court of Appeals. The Court answers a certified question put to it by the Second Circuit and concludes that  under New York Law, the non-custodial parent of a child does not retain decision-making authority pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control such decisions. The Court reasoned:

It is now well settled in the Appellate Division that, absent specific provisions in a separation agreement, custody order, or divorce decree, the custodial parent has sole decision-making authority with respect to practically all aspects of the child's upbringing (see e.g., Fedash v Neilsen, 211 AD2d 1003 [3d Dept 1995]; De Luca v De Luca, 202 AD2d 580 [2d Dept 1994]; De Beer v De Beer, 162 AD2d 165 [1st Dept 1990]; Stevenot v Stevenot, 133 AD2d 820 [2d Dept 1987]; Bliss v Ach, 86 AD2d 575 [1st Dept 1982]).

In appropriate circumstances, courts routinely include specific provisions in custody orders addressing decision-making authority between the parents (see e.g., Wideman v Wideman, 38 AD3d 1381 [4th Dept 2007]; Chamberlain v Chamberlain, 24 AD3d 589 [2d Dept 2005]; Davis v Davis, 240 AD2d 928 [3d Dept 1997]). Plaintiff asks this Court to recognize an implied right of non-custodial parents to exercise decision-making authority with respect to their child's education notwithstanding the custody order's silence on this subject. We decline to do so and emphasize the importance of parties determining these issues at the time of separation or divorce.

Finally, we note the distinction between a non-custodial parent's right to "participate" in a child's education and the right to "control" educational decisions. Generally, there is nothing which prevents a non-custodial parent (even one without any decision making authority) from requesting information about, keeping apprised of, or otherwise remaining interested in the child's educational progress. Such parental involvement is to be encouraged. However, unless the custody order expressly permits joint decision-making authority or designates particular authority with respect to the child's education, a non-custodial parent has no [*4]right to "control" such decisions. This authority properly belongs to the custodial parent.

Mitchell H. Rubinstein

May 28, 2009 in Education Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 27, 2009

In post-Pyett ruling, union member need not arbitrate ADA claims

Kravar v Triangle Services, Inc, ___F.Supp.2d___(S.D.N.Y. May 12, 2009), is also an important post-Pyett decision to be aware of. The court holds that an employer could not compel an employee to arbitrate her ADA claims pursuant to the arbitration provisions of a collective bargaining agreement that gave a union sole discretion over whether to arbitrate the union member’s claims.
The employee, an SEIU member, was covered under a bargaining agreement which requires union members to submit all claims to binding arbitration. In fact, the arbitration clause at issue here was “identical in all material respects” to the clause under review in Pyett. However, the union declined to request arbitration, thereby precluding the plaintiff from any avenue to redress her claims of disability discrimination and retaliation. The union’s action constituted a substantive waiver of the member’s federally protected rights and, as such, “falls within an exception to the enforceability of a union-negotiated arbitration agreement. “There is little question [under Pyett] that if [the] union prevented her from arbitrating her disability discrimination claims, the CBA’s arbitration provision may not be enforced as to her.” Accordingly, the court denied the employer’s motion to compel arbitration pursuant to the bargaining agreement.

Mitchell H. Rubinstein

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

In post-Pyett ruling, union member who chose to arbitrate must do so

Mathews v Denver Newspaper Agency, LLP, __F.Supp. 2d___ (D. Colo. May 4, 2009), is one of the first post-Pyett rulings and therefore, this case should be looked at carefully by all who practice in this area. the court holds that a union member who voluntarily submitted his Title VII and Sec. 1981 discrimination and retaliation claims to binding arbitration pursuant to the arbitration provisions of a collective bargaining agreement waived his right to seek a judicial remedy.
This was really an easy case for the court. The plaintiff chose to arbitrate his claim under the bargaining agreement even though the contract allowed him the option of directly pursuing litigation of his statutory discrimination claims. He only filed suit after the arbitrator ruled against him. Because he had a choice of forum under the union contract, the bargaining agreement was not a waiver of his substantive rights under Pyett, the court held. And because the arbitrator ruled against him, the plaintiff’s claims were now barred by res judicata.

Mitchell H. Rubinstein

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

Online Law Review Submission Guide

Professor Colin Miller (John Marshall Law School) and Editor Evidence Prof Blog recently wrote to inform me about a Submission Guide for Online Law Review Journals which he posted on SSRN.   This document, which spans 7 pages, is a wonderful resource for professors and others who would like to submit a piece for publication in an online journal. Professor Miller follows up on a posting that I did on the same subject, here.

I have published several articles in online law reviews. I believe that they are the waive of the future for two reasons. First, there really is no need for print versions-particularly since journals are only read by other researchers. Second, online law reviews tend to be much shorter and publication is much quicker. Indeed, I published an article in the Rutgers Law Record within 2 weeks of it being accepted. Timing is becoming more and more important since everything is online these days. Cases are available and discussed on blogs within hours of them being issued. There is little point in discussing an important new case a year and half after the decision.

Mitchell H. Rubinstein   

May 27, 2009 in Law Review Articles | Permalink | Comments (0) | TrackBack (0)

Federal Jurisdiction And Arbitration

Arbitration To Establish Federal Jurisdiction, Only the Complaint Counts is an interesting May 1, 2009 New York Law Journal article by Samuel Estreicher and Steven C. Bennett (registration required)
It is about a recent Supreme Court decision in Vaden v. Discover Bank, where the Court held that a federal court must "look through" a petition to compel arbitration under Section 4 of the Federal Arbitration Act to determine whether the court would have federal question jurisdiction over the underlying controversy. It is the initial federal complaint, not any defenses or counter claims that establishes federal jurisdiction.
For those interested in civil procedure, federal courts or commercial arbitration, this article is worth a read.

Mitchell H. Rubinstein

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

Tuesday, May 26, 2009

Who Is Judge Sonia Sotomayor??

USSupremeSeal SCOTUS Blog has a wonderful summary of Judge Sotomayor's civil cases, many of her employment discrimination decisions. Since joining the 2d Circuit in 1998, she authored over 150 opinions. With respect to her record on civil rights, SCOTUS Blog states:

During her years on the Second Circuit, Sotomayor has decided cases involving race, sex, age and disability discrimination.  In these cases, she has often - but not always - sided with the plaintiffs.

Sotomayor’s dissent in Gant v. Wallingford Board of Education, 195 F.3d 134 (2d Cir. 1999), is perhaps her most strongly worded opinion addressing discrimination.  Plaintiff Ray Gant, who was transferred mid-year from first grade to kindergarten because of academic difficulties, alleged that the school was deliberately indifferent to racial hostility that he suffered and discriminated against him through the transfer.  Sotomayor agreed with the majority’s decision to dismiss the racial harassment claim, but she rejected their conclusion that the transfer was not race discrimination.  In her view, the transfer was “unprecedented and contrary to the school’s established policies”:  white students having academic difficulties, she noted, received compensatory help, whereas Gant - the “lone black child” in his class - was not given an “equal chance” but was instead demoted to kindergarten just nine days after arriving at the school.

However, in Norville v. Staten Island University Hospital, 196 F.3d 89 (2d Cir. 1999), Sotomayor wrote an opinion that dismissed claims brought by a disabled black woman, who alleged that her employer did not give her the same accommodations for her disabilities that it provided to white employees, on the ground that the plaintiff had failed to prove that she was similarly situated to the white employees. 

Mitchell H. Rubinstein

May 26, 2009 in Supreme Court | Permalink | Comments (1) | TrackBack (0)

AFL-CIO Applauds Nomination of Judge Sotomayor To Supreme Court

Here is the statement AFL-CIO President Sweeney issued earlier today on Judge Sotomayor's nomination:

America’s workers applaud the nomination of Judge Sonia Sotomayor to  the United States Supreme Court.  She is a brilliant jurist and in her  distinguished career has worked at almost every level of our judicial  system -- as a prosecutor, litigator, trial court and appellate judge --  and would bring more federal judicial experience to the Supreme Court than any justice in 100 years. 

Judge Sotomayor will also bring to the Supreme Court a direct and  personal understanding of the struggles America’s workers endure every day.  She grew up in public housing in the Bronx, the daughter of a  factory worker, and understands the real world consequences of the decisions she makes from the bench.  

Judge Sotomayor’s record reflects an understanding of the law’s impact  on working families and has consistently interpreted our labor laws in  the manner in which they were intended.  In the baseball strike of  1995, she recognized that the owners had forced the strike by engaging in unlawful conduct, and issued an injunction which reversed the unlawful acts. She has enforced the rights of all workers to be free of all types of discrimination at work, to be paid the correct wages and  to receive health benefits to which they are entitled.  She has  recognized that persecution for union activity can be a basis for granting asylum in this country.

Judge Sotomayor is a bipartisan choice -- she was initially appointed to the bench by President George H.W. Bush and has previously been confirmed by the Senate -- we urge the Senate to swiftly confirm her to the Supreme Court.

Mitchell H. Rubinstein  

May 26, 2009 in Supreme Court | Permalink | Comments (0) | TrackBack (0)

Qualified Immunity In Student 1st A 1983 Case

9thcircuit Harper v. Poway Unified Sch. Dist., No. 07-55224, ____F.3d____ (9th Cir. Mar. 10, 2009), is an interesting Education Law/Student First A type of case. In a brief, but important decision in a case involving a California district that restricted a T-shirt that expressed religious objections to homosexuality, the Ninth Circuit ruled that two high school students’ First Amendment claims for equitable and declaratory relief are moot and that school officials are entitled to qualified immunity from their First Amendment claims for nominal damages. The court found that the claim for equitable and declaratory relief had been rendered moot because both students had graduated from high school and the school’s student speech policies had been significantly amended since the suit was filed. The court followed the district court’s lead, and held that the individual defendants were entitled to qualified immunity. Relying on the U.S. Supreme Court’s ruling in Pearson v. Callahan, 129 S. Ct. 808 (2009), it found that given “the present state of the law and the parameters of the specific policies challenged,” it was not the case that a reasonable official would understand that the violated the First Amendment.

Mitchell H. Rubinstein

May 26, 2009 in Education Law | Permalink | Comments (0) | TrackBack (0)

First Amendment Case Involving Attorney Employed By Disciplinary Committee Can Proceed To Trial

Anderson v. State of New York, ___F.Supp. 2d___(S.D.N.Y. April 27, 2009), is an interesting case. In a lengthly decision, the court held that the plaintiff, a New York lawyer, who was fired after working six years as a staff lawyer at the First Department's disciplinary committee may proceed with a $10 million damage lawsuit alleging that she was discharged in retaliation for claiming her superiors were "whitewashing" cases. However, the judge, Shira A. Scheindlin, of the S.D.N.Y. threw out the attorney's claim that she had been fired because she is black, in ruling on a summary judgment motion brought by defendant the Office of Court Administration. The decision is full of excellent cites and an excellent primer on Title VII, 1983 and the First Amendment. 

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

Mitchell H. Rubinstein

May 26, 2009 in Employment Law | Permalink | Comments (0) | TrackBack (0)