Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Tuesday, June 30, 2009

Injunction Against Strike Is Not a Prior Restraint On Speech

Commonwealth Employment Relations Board v. Boston Teachers Assoc., ___N.E.2d___ (Mass. App. Court  June 28, 2009), is an interesting public sector labor law case. A state appellate court held that a trila court's preliminary injunction prohibiting a teachers strike in connection with the negotiations over a new collective bargaining agreement placed no prior restraint upon the union to engage in public debate and speech. Rather, the injunction simply prohibited the union from engaging in actions prohibited under state law. State law outlaws such pubic employee strikes.

Unfortunately, this decision is not particularly well written and is conclusionary. There is not much analysis of the case law with respect to this important issue.

Mitchell H. Rubinstein

June 30, 2009 in Public Sector Labor Law | Permalink | Comments (0) | TrackBack (0)

Madoff Sentenced To 150 Years

Madoff is Sentenced to 150 Years For Ponzi Scheme  is an interesting June 29, 2009 NY Times article. U.S.  Judge Denny Chin, a former labor lawyer, through the book at him and sentenced him to the max for one of the biggest schemes ever.
I have several thoughts about this. First, this crime is significant and therefore, it does not surprise me that the Judge gave him the max. However, defendants convicted on manslaughter do not get 150 years. Is this crime worse?? I think not.
In the end, does the amount of time really matter. Madoff is 71 years old. If he got 25 years, chances are that he would die in prison. But is 25 years a fair sentence. Again, what due people who commit manslaughter get??
To be clear, I am not defending Madoff. I am questioning our system.

Mitchell H. Rubinstein

June 30, 2009 in Criminal Law | Permalink | Comments (0) | TrackBack (0)

Law Journal Article On Arbitration Fairness Act

Businesses, Consumers At Odds Over Proposed Arbitration Act is an interesting June 5, 2009 article. It is about the Arbitration Fairness Act that was recently reintroduced into the 111th Congress. The Bill, if enacted would bar most mandatory predispute arbitration, including labor arbitration. The Bill effectively would overrule the U.S. Supreme Court decision in 14 Penn Plaza v. Pyett which ruled valid under federal law collective bargaining agreements that clearly and unmistakably require union members to arbitrate (rather than litigate) discrimination claims. The article describes the purposes of the Bill as follows:

 Proponents of the Arbitration Fairness Act believe that individual consumers and employees lack equal bargaining power when dealing with large companies. They see mandatory arbitration clauses as inherently unfair and intended to force an individual to forfeit his or her day in court and instead proceed before a private arbitration company whose arbitrators are unaccountable and may actually be predisposed to rule in favor of big business.

"Americans are sick and tired of a system that so strongly favors big corporations over consumers and in this case robs them of their constitutional right to their day in court," Mr. Feingold contends on his Web site. "Americans are often given no choice but to give up their rights if they want to sign credit card agreements, cell phone contracts, job applications or other basic contracts. It's time for Congress to side with consumers and employees and end the practice of forced arbitration, which stacks the deck against the people Congress is supposed to represent."

Mitchell H. Rubinstein

June 30, 2009 in Articles | Permalink | Comments (0) | TrackBack (0)

Sotomayor Nomination And Web Commentary

The National Law Journal is continuing to provide links to commentary appearing on the web concerning the confirmation of Sonia Sotomayor to the U.S. Supreme Court. For those interested in following these developments, this may be an easy way to do so. On June 24th, for example links and a brief description of articles from Politico, New York Times, Washington Times, as well as media commentator Pat Buchanan were provided.

Mitchell H. Rubinstein

June 30, 2009 in Supreme Court | Permalink | Comments (0) | TrackBack (0)

Monday, June 29, 2009

Supremes Decide Important Reverse Discrimination Case


Ricci v. DeStefano, 557 U.S. ___(June 29, 2009), is an important Title VII decision concerning reverse discrimination. The decision spans 93 pages and is well written. In a 5-4 decision, the Court holds that a fire department's rejection of a promotion test because too many whites passed it, was discriminatory. To avoid Title VII liablity, the employer must have a strong basis in evidence to reject it. Here, there was none. There was no objective evidence that the test was discriminatory. Subjective fear of a lawsuit is not a sufficient basis to reject a test.

Justice Ginsburg penned a 4 Justice lengthly dissent, which was joined by outgoing Justice Souter. The dissent believes that context matters. The dissent noted that there were flaws in the test and that better tests were available. Therefore, the dissent would not find the employers actions unlawful.

As this decision is so lengthly, it will take some time to digest it. The above is just  some highlights of  my first impression.

Mitchell H. Rubinstein

June 29, 2009 in Supreme Court | Permalink | Comments (0) | TrackBack (0)

ENDA Re-introduced Into the 111th Congress

On June 19, 2009, Rep. Barney Frank re-introduced H.R. 2981, the Employment Non-Discrimination Act or "ENDA."  The Bill makes it unlawful to discriminate on the basis of sexual orientation or gender identity. Specifically, the Bill provides in part:

 Employer Practices- It shall be an unlawful employment practice for an employer--

(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual’s actual or perceived sexual orientation or gender identity; or

(2) to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual’s actual or perceived sexual orientation or gender identity.

After health care is taken care of and after the Employee Free Choice Act debate is resolved, I believe Congress will likely take this Bill up. I believe it has the support of the President and will likely be enacted into law.

Mitchell H. Rubinstein 

June 29, 2009 in Legislation | Permalink | Comments (0) | TrackBack (0)

Student On Student Harassment Via Email-Not Actionable

Sauerhaft v. Board of Education, Hastings-on-Hudson U.F.S.D., ___F.Supp.2d. ____, NYLJ June 8, 2009 (S.D.N.Y. 2009) (registration required), is an interesting case. Plaintiff received three offensive e-mails through her high school e-mail account. She claimed the e-mails were student-on-student sexual harassment for which defendant board was liable under 20 USC §1681 et seq. (Title IX) and for which the individual defendants were liable under the Fourteenth Amendment and 42 USC §1983. There was no physical or public component to the alleged harassment. The court granted defendants summary judgment. The e-mails were not so severe or pervasive that a jury could find the standard for Title IX liability, as articulated in Davis v. Monroe County Board of Education, satisfied. Discussing Brodsky v. Trumbull Board of Education and Soriano v.Board of Education of the City of New York, the court concluded the two crude, sex-related e-mails sent to plaintiff - which were not public - did not undermine or detract from her educational experience to the point of effectively denying her equal access to school resources and opportunities.

This is an important case to be aware of as I am sure that we are going to see more of cases of this type. 

Mitchell H. Rubinstein

June 29, 2009 in Education Law | Permalink | Comments (0) | TrackBack (0)

Considering criminal conviction in determining qualification of an applicant for employment in the public service

Matter of El v New York City Dept. of Educ., 2009 NY Slip Op 50883(U), Decided on April 1, 2009, Supreme Court, New York County, Judge Alice Schlesinger [This opinion will not be published in the Official Reports.]

Civil Service Law Section 50.4 provides for the disqualification of applicants or eligibles for appointment in the Classified Service and states that: “The state civil service department and municipal commissions may refuse to examine an applicant, or after examination to certify an eligible … (d) who has been guilty of a crime … No person shall be disqualified pursuant to this subdivision unless he [or she] has been given a written statement of the reasons therefor and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.”

Education Law Section 3035.3, effective July 1, 2009,* deals with clearing an individual for employment as an educator, i.e., a position in the Unclassified Service, in consideration of “his or her criminal history.” Subdivision 3 provides that “All determinations to grant or deny clearance for employment pursuant to this subdivision shall be performed in accordance with subdivision sixteen of section two hundred ninety-six of the executive law and article twenty-three-A of the correction law. When the commissioner denies a prospective employee clearance for employment, such prospective employee shall be afforded notice and the right to be heard and offer proof in opposition to such determination in accordance with the regulations of the commissioner.”

Talib El filed an Article 78 petition seeking to annul a decision by New York City Department of Education (DOE) denying his application for employment as a substitute teacher, asserting that the decision is arbitrary and capricious and discriminatory in that it gives undue weight to the fact that he pleaded guilty to various crimes more than 20 years ago and fails to give appropriate consideration to the substantial evidence he presented in his favor, including a Certificate of Relief from Disabilities issued by the Parole Board.** Such a Certificate creates "a presumption of rehabilitation in regard to the offense or offenses specified therein."

DOE asked the court to dismiss El’s petition, arguing that "In light of [El’s criminal record history], granting employment will pose an unreasonable risk to the safety and welfare of the school community." DOE also contended that it did not receive a copy of the Certificate until after its decision had been rendered.

Judge Schlesinger said that Article 23-A of the Correction Law bars discrimination against persons previously convicted of criminal offenses*** and provides that employment cannot be denied based on an applicant's criminal history unless one or both of the following exceptions is found to apply:

1. There is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or

2. The issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

Section 753, subd. (1), lists eight factors which the potential employer "shall consider" when making a determination pursuant to §752 whether the "unreasonable risk" exception applies. Those factors include the following:

(a) The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses;

(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person;

(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities;

d) The time that has elapsed since the occurrence of the criminal offense or offenses;

(e) The age of the person at the time of occurrence of the criminal offense or offenses;

(f) The seriousness of the offense or offenses;

(g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct; and

(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.

Noting El’s possession of a Certificate of Relief, Judge Schlesinger found that El presented to the Board of Education substantial evidence in support of his employment application demonstrating that he had been rehabilitated since his last conviction some 20 years ago including his having obtained a high school diploma, a Bachelor's of Science in Human Resources and a Master's of Science in Counseling and Education. In addition, the New York State Education Department had licensed El to practice as a Mental Health Counselor and he was also accredited by the State as an Alcoholism and Substance Abuse Counselor Trainee.

Further, said the court, State Education had certified El as a Teaching Assistant and issued a provisional certificate valid through 2011 to work as a School Counselor.

In addition, El had supplied DOE with his employment history and numerous references.

Despite this, El was notified that the Board of Education had denied his application “based on [his] criminal record history … including a serious felony conviction. In light of this, granting employment will pose an unreasonable risk to the safety and welfare of the school community.”

Although Judge Schlesinger indicated that the Board of Education has a certain amount of discretion in determining whether to hire a teacher, she ruled that “the decision must be annulled where, as here, it is arbitrary and capricious and fails to properly consider all the factors required by law.”

Judge Schlesinger, conceding that “the Court cannot substitute its judgment for that of the agency,” said that it has a duty to insure that the law is properly applied and that the decision is not based upon "speculative inferences unsupported by the record." In this instance, said the court, DOE’s decision on the whole, suggests that it was based primarily, if not entirely, on El’s criminal history, with little consideration of the other evidence and statutory factors.

Accordingly, the Court held that DOE’s decision denying El's substitute teacher application “is arbitrary and capricious and must be annulled.”

As to the appropriate remedy, Judge Schlesinger granted El’s petition and remanded the matter to DOE for a new determination “which applies the statutory presumption related to the Certificate of Relief from Disabilities and otherwise evaluates the relevant factors in accordance with the terms of this decision.”

* See, also, Section 3035.3(a) and (b), “effective until July 1, 2009.”

** El’s Certificate states that it "removes all legal bars and disabilities to employment, license and privilege except those pertaining to firearms under Sections 265.01(4) and 400.00 of the Penal Law and except the right to be eligible for public office."

*** The New York State’s Human Rights Law, [Executive Law §296(15)] and the New York City’s Human Rights Law [Administrative Code §8-107(10)] also prohibit rejection of applicants for public employment based solely on a criminal conviction.

The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

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

Sunday, June 28, 2009

Bill To Legalize Gay Marriage In New York Stalled In State Legislature

As most attorneys in New York know, the N.Y.S. legislature is in a state of disarray. Therefore, questions can be raised about any legislation that is passed. The New York Law Journal is reporting that because of this, legislation concerning gay marriage in New York has been taken off the table-at least for the moment. As the article states:

A bill legalizing same-sex marriage in New York dropped off Governor David A. Paterson's agendas for special state Senate sessions last week at the behest of sponsors and advocates, who argued that doubts over the legality of proceedings in the stalemated Senate should not extend to questions about the validity of a same-sex marriage measure, should one pass. Empire State Pride Agenda Executive Director Alan Van Capelle said the Senate must vote on the same-sex marriage bill (A7732/S4401) before concluding its regular 2009 session at the end of the year, but not until the leadership dispute is worked out or set aside and "we are certain that any such vote taken by the Senate is valid and not subject to legal challenge." The chief sponsor of the bill in the Senate, Thomas Duane, D-Manhattan, said he wants the legality of the Senate vote on the bill to be "crystal clear" before it is put before senators. The measure passed the Assembly 89-52 in May and Mr. Paterson said he will sign it if it reaches his desk. The New York State Bar Association has issued a revised memorandum in support of the same-sex marriage bill to reflect a change in policy approved by the group's House of Delegates earlier this month.

Mitchell H. Rubinstein


June 28, 2009 in Current Events | Permalink | Comments (0) | TrackBack (0)

Arbitration Fairness Act

Business Consumers At Odds Over Proposed Arbitration Act is an interesting June 5, 2009 NYLJ article. (registration required). It is about the "Arbitration Fairness Act." That Bill, if passed, severely limits  pre-dispute arbitration clauses in consumer, employment and franchise agreements. The Bill also specifically legislatively overrules the U.S. Supreme Court in 14 Penn Plaza v. Pyett by permitting employees to enforce employment discrimination claims in court. Unfair labor practices and other types of garden variety collective bargaining disputes are exempt from the proposed legislation.

The article is well written and certainly worth a read.

Mitchell H. Rubinstein

June 28, 2009 in Legislation | Permalink | Comments (0) | TrackBack (0)

Unemployment Decision Not Given Preclusive Effect

Matter of Strong v. NYC Department of Education, ___.A.D.3d ___(1st Dep't. May 26, 2009), demonstrates a fundamental proposition of New York employment law. Unemployment insurance decisions are not binding on courts or employers. Thus, the decision to terminate a probationary teacher for corporal punishment is was not arbitrary and the finding of the Unemployment Insurance Appeal Board that the teacher did NOT engage in corporal punishment is not given preclusive effect. 

Mitchell H. Rubinstein

June 28, 2009 in Employment Law | Permalink | Comments (0) | TrackBack (0)

Board Member Who Has Interest In Dispute Should Have Recused Himself

Appeal of Laub, No. 15, 923 (May 22, 2009), involves several fundamental principles of Education Law that readers may be interested in.  First, under New York Law,  Education Law 3811 requires that the Board provide defense and indemnification with respect to most law suits where an employee or Board member is named as a party. Second, Board members should not vote on a matter if they have a personal stake in it. As the Commissioner explained:

I must, however, comment on respondent Stepien’s actions in this matter.  When he became a member of the board of education, he took this oath or affirmation: “I do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the State of New York, and that I will faithfully discharge the duties of the office of [member of the board of education], according to the best of my ability.”  It would seem that his actions in this matter, in participating in the discussion and voting to deny indemnification to petitioners, were motivated by personal animus against petitioners rather than the best interests of the district.

Although I am not able to find any specific violation of General Municipal Law Article 18, or the board’s code of conduct, I nevertheless believe that Stepien, who is an attorney, should have recused himself.  Opinions of the Attorney General have made it clear that public officials should avoid circumstances which compromise their ability to make impartial judgments solely in the public interest, and that even the appearance of impropriety should be avoided in order to maintain public confidence in government (see e.g. 1990 Op Atty Gen 38; 1984 Op Atty Gen 160; 1984 Op Atty Gen 86).

Mitchell H. Rubinstein

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

Saturday, June 27, 2009

Blogging As A Career??

Legal Blog Watch carried an interesting June 24, 2009 story about blogging lawyers who made a career out of bloging. It cites to a story in the West Virginia Record which is about Mike Florio, a labor lawyer who started a sports blog NBC Sports will now partner with Mr. Florio and promote this blog. Congrats.
There was another labor lawyer who made it big as sports commentator. Any one Remember who?? Howard Cosell.

Mitchell H. Rubinstein

June 27, 2009 in Blogs, Legal | Permalink | Comments (0) | TrackBack (0)

More Than 1,000 Businesses Come Out In Support of Employee Free Choice Act

On June 4, 2009 a new coalition, Business Leaders for a Fair Economy, that includes entrepreneurs, employers and leaders of businesses large and small who agree that a strong economy is compatible with the protection of workers' freedom to form unions and came out in support of the Employee Free Choice Act.  The coalition has released a new ad that is running in newspapers, like the Wall Street Journal, the Hill and Politico, aimed at the business community and political leaders.

Mitchell H. Rubinstein

June 27, 2009 in Legislation | Permalink | Comments (0) | TrackBack (0)

Friday, June 26, 2009

Michael Jackson-A Lawyers Dream!!

There are so many legal issues that arise concerning Michael Jackson's death that I do not know where to begin to start.

1.    Criminal Law Issues

Assuming Jackson died of an overdose, who gave him the medicine? Did the doctor know about the other medications he was taking. What about the pharmacy? Did they dispense the drugs properly?? Was more than one involved.

2.  Malpractice Issues and Professional Discipline Issues

Reportedly, Jackson had a personal doctor with him. Did the doctor know about the other medications? Did he ask??

3. Civil Law Issues

Perhaps the estate may bring a wrongful death suit against the doctor or persons who gave him the drugs.

4.  Family Law Issues

Jackson's children have two different mothers. Who will get custody? Will the children be separated?(I doubt that).  

5. Estate Issues

Did Jackson have a will? Who are his heirs?? What is the estate worth? Giving the complicated financial mess Jackson reportedly was in, it may take years to sort this out. These issues are important as Jackson's songs are likely to continue to generate royalty issues. Tax Prof Blog highlights some of the issues. 

I wish I could find a Education Law or Labor Law angle to all of this. I do not see one, but I would not be surprised if one arises.

Mitchell H. Rubinstein

June 26, 2009 in Current Events | Permalink | Comments (1) | TrackBack (0)

New Labor And Employment Law Blog

There is a new labor and employment law blog in town and it is excellent. Its called Workday and its put out by the folks at CCH so you know it has to be good. Check it out here.

Mitchell H. Rubinstein

June 26, 2009 in Blogs, Legal | Permalink | Comments (0) | TrackBack (0)

Thursday, June 25, 2009

Supremes Declare Strip Search Of Student Unconstitutional, But Officials Entitled To Qualified Immunity

Safford Unified School Dist. v. Redding, 557 U.S. __(June 25, 2009), is an important Education and constitutional law case. In a lengthly and well written decision the Court held that a strip search of a 13 year old girl was unconstitutional. The Court once again rejected the idea that probable cause must exist before a student can be searched. Instead, there merely has to be a moderate chance of finding evidence of wrongdoing. Additionally, the fact that a search involves what the Court calls "indignity," does not mean that the search is unlawful. However, that is relevant to whether or not the search was reasonable. Under TLO, a search must be reasonable.
Perhaps, the most interesting part of the decision concerned the discussion of qualified immunity. The Court held that the school district was liable, but that the individuals were not. Why? The law was not clearly established. That was evidenced by the fact that the case generated a dissenting opinion. Wow! I have never seen significance paid to the dissent before.
This is an interesting decision with interesting facts. It is already all over the media.

Mitchell H. Rubinstein    

June 25, 2009 in Constitutional Law, Education Law | Permalink | Comments (0) | TrackBack (0)

Arbitration Clause That Does Not Specifically Mention Discrimination Does Not Require Mandatory Arbitration Under Pyett

Shipkevich v. Staten Island Univ. Hosp. & Aramark, 2009 U.S. Dist. LEXIS 51011 (E.D.N.Y. June 16, 2009), is an interesting case. A lower court held that held that a CBA did not mandate arbitration of the plaintiff’s statutory anti-discrimination claims because the language of the CBA did not “clearly and unmistakably” require arbitration. The plaintiff alleged discrimination in violation of Title VII and related New York state laws. On its motion to dismiss, the defendant argued that the following arbitration provision in the CBA, which also prohibited discrimination, required arbitration of the plaintiff’s claims: “A grievance…which has not been resolved [under the grievance procedure] may…be referred for arbitration by the Employer or the Union[.]” The court reasoned that the CBA at issue was more like the CBA in Gardner-Denver than the one in Pyett: “Nowhere in the CBA is there an explicit statement that such claims are subject to mandatory arbitration.”

Mitchell H. Rubinstein

June 25, 2009 in Arbitration Law | Permalink | Comments (0) | TrackBack (0)

Freedom From Union Violence Act introduced in the House

The Freedom From Union Violence Act (H.R. 2537), introduced in the House on May 21, 2009 would impose a fine of up to $100,000 and/or a prison sentence of up to 20 years for anyone affecting commerce who commits robbery, extortion, or an act of physical violence to any person or property during a labor dispute.  The bill exempts conduct that is incidental to otherwise peaceful picketing during the course of a labor dispute, consists solely of minor bodily injury or minor damage to property, or threat or fear of such minor injury or damage, and any conduct that is not part of a pattern of violent conduct or of coordinated violent activity. The bill has been referred to the House Judiciary Committee.

Mitchell H. Rubinstein

June 25, 2009 in Legislation | Permalink | Comments (0) | TrackBack (0)

Lex Opus; an alternative to Expresso?

Prawf Blawg ran an interesting May 29, 2009 story about Lex Opus. Lex Opus is run by Washington and Lee Law School and it will send out your law review articles, just like expresso-but without charge! As Professor Markel explains:

The service has two facets: 1) An author can make an article available to all interested law journals, inviting journals to make offers. Journals are able to limit by subject matter the articles that they see as open to offers. 2) An author can make offers to law journals in an author-specified journal list, LexOpus making on behalf of the author a short-term exclusive offer to each law journal in sequence. For non-peer-reviewed journals 'short term' is one week. Author offers continue past each journal's exclusive period, on a non-exclusive basis, until rejected by the journal or withdrawn by the author, but any journal with an exclusive period always has acceptance priority. An author can make a work 'open to offers' as well as submit to specific journals, or can do one or the other. As the system does permit uploading of revisions, authors might make working papers open to offers and then, if no acceptable offers have been received, when the finished work is available submit that version to specific law journals.

Additional information is available here.

One was always able to submitt to law reviews from Washington and Lee citation study. It appears that have now refined the submission process. If any viewers have used them, please feel free to comment.

Mitchell H. Rubinstein

June 25, 2009 in Legal Research | Permalink | Comments (0) | TrackBack (0)