Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Friday, July 31, 2009

Happy Belated Birthday To Medicare

July 30, 2009 marked the 44th Birthday of Medicare. To millions of Americans it seems like Medicare is an entitlement and that it always existed. However, nothing could be further from the truth. The AFL-CIO blog ran an interesting story about it in the context of todays heath care debate which provides in part:


Seniors and health care activists across the country are celebrating the 44th birthday of Medicare today by lobbying for improvements to the program and expanding quality, affordable health care for all.

In more than 30 events in 17 states across the country, members of the Alliance for Retired Americans are honoring Medicare’s success and outlining a positive agenda for comprehensive health care reform legislation that will help current and future retirees.

Thousands of Alliance members are holding birthday parties, sending letters to the editor to their local newspapers and visiting the local offices of lawmakers to call for real health care reform, not cosmetic changes.  

Calling Medicare “a great American success story,” which has helped reduce senior poverty by two-thirds, Alliance Executive Director Ed Coyle says. . .

Mitchell H. Rubinstein

July 31, 2009 in Employee Benefits Law | Permalink | Comments (0) | TrackBack (0)

Oldest Legal Blog

Ever wonder which is the oldest legal blog and how old is it. Well, those honors belong to Overlawyered. According to blogger Robert Ambrogi at Legal Blog Watch Overlawyered just turned 10.
Mitchell H. Rubinstein

July 31, 2009 in Blogs, Legal | Permalink | Comments (0) | TrackBack (0)

Thursday, July 30, 2009

White House Counsel Salaries

Ever wonder how much White House Counsel makes? It turns out to not be much. Just How Much Do Lawyers in The White House Make is an interesting July 6, 2009 article that discusses this very issue. This article reports that  White House Counsel Gregory Craig tops the list, at $172,200. His Deputy makes $158,500 and 12 Associate White House Counsel make about $130,000.   Click here for the full report on the salaries of White House staff and here (pdf) for a list with just the legal staff.

This job, of course, in addition to being exciting, will open doors when the attorney leaves office. Not a bad gig if you can get it. President Obama do you need an adjunct law professor!!

Mitchell H. Rubinstein 

July 30, 2009 in Lawyers | Permalink | Comments (0) | TrackBack (0)

The Benefits of Online Education

Inside Higher Education ran an interesting June 29, 2009 story about the benefits of online education.  Surprise, surprise a new study indicates that students really do learn by taking online classes. As the article states:

The study found that students who took all or part of their instruction online performed better, on average, than those taking the same course through face-to-face instruction. Further, those who took "blended" courses -- those that combine elements of online learning and face-to-face instruction -- appeared to do best of all. That finding could be significant as many colleges report that blended instruction is among the fastest-growing types of enrollment.

Mitchell H. Rubinstein

July 30, 2009 in Colleges | Permalink | Comments (0) | TrackBack (0)

New York State Human Rights Law Amended To Provide Civil Penalties and More Changes Proposed

On April 7, 2009, New York Governor Paterson signed legislation authorizing the imposition of civil penalties against employers and individuals found to have committed discriminatory practices under the New York Human Rights Law (the law is scheduled to take effect on July 6, 2009). Such penalties may be as much as $50,000 or even higher if maliciousness is proven.  Additionally, legislation is now pending in the New York Legislature, which, if passed, would allow for the recovery of punitive damages and attorneys’ fees in connection with claims against employers under the New York State Human Rights Law.

Hat Tip: Proskaurer Client Alert

Mitchell H. Rubinstein

July 30, 2009 in New York Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 29, 2009

Early Opposition To NLRB Nominee Craig Becker

The Chamber of Commerce and some of its political supporter have come out against the nomination of Craig Becker to the NLRB. Workplace Prof Blog notes that this is no surprise-given the fact that he is a union lawyer. Workplace Prof Blog editor Prof Jeff Hirsch opines that Becker will be confirmed because his nomination will likely be part of a package deal.
Craig will be confirmed because he is an excellent lawyer as well as a scholar. I have worked with him on an appellate brief and I can attest to his legal abilities. More fundamentally, by last count the Senate has 60 Democrats so I cannot imagine that he will not be confirmed easily.

MItchell H. Rubinstein

July 29, 2009 in NLRB | Permalink | Comments (0) | TrackBack (0)

Illinois Supreme Court holds “patient safety” assertion won’t justify at-will public policy exception

Turner v Memorial Medical Center, IllSCt, June 18, 2009, is an important case and it demonstrates how difficult it is to establish a public policy cause of action even in states that recognize such an exception to the employment at will doctrine.
The Supreme Court of Illinois held that a respiratory therapist who alleged that he was fired after reporting his employer’s deviation from an electronic patient-charting standard could not proceed with his claim that he was wrongfully discharged in violation of public policy. Noting that “A broad, general statement of policy is inadequate to justify finding an exception to the general rule of at-will employment,” the court refused the employee’s request to declare definitively that patient safety is a matter of public policy in Illinois and that terminating an employee who speaks out in favor of patient safety violates that policy. According to the court, the employee failed to identify a specific source of public policy for patient safety. Although it acknowledged that providing good medical care is in the public interest, the court stated “It does not follow, however, that all health care employees should be immune from the general at-will employment rule simply because they claim to be reporting on issues that they feel are detrimental to health care.” Thus, the employee’s retaliatory discharge claim failed.

This was a tough decision.

Mitchell H. Rubinstein

July 29, 2009 in Employment Law | Permalink | Comments (0) | TrackBack (0)

Liquidated Damage Exception Under Hoffman Plastics and IRCA

Workplace Prof Blog has an interesting June 29, 2009 posting about NLRB v. C&C Roofing Supply, ___F.3d___(9th Cir. 2009), where the court drew a distinction between reinstatement, which was at issue in Hoffman Plastics and liquidated damages. As the court explained:

Unlike reinstatement and backpay, liquidated damages do not pose an irreconcilable conflict with ICRA, because they are not predicated on an employee’s availability for work. Rather, they are based on the company’s assessment that paying these sums was preferable to further litigation.

C&C can adhere to the terms of its bargained-for agreement without violating federal or state immigration laws. The Board has a procedure for just this situation: upon receiving proper proof of a person’s unauthorized status, the Board will absolve C&C of the obligation to rehire that person, in accordance the Board’s obligation to take into account the requirements of federal immigration law. See Sure-Tan, 467 U.S. at 902-03. Although C&C therefore cannot be ordered to reinstate workers who may not lawfully be employed in the United States, it must still comply with the Settlement in all other respects, including the requirements that it cease further NLRA violations and that it pay the liquidated sums to which it agreed. Having agreed to these sums and waived its opportunity to dispute the amounts owed to each individual, C&C cannot now escape the existing regulatory process for the settlement’s enforcement.

Mitchell H. Rubinstein

July 29, 2009 in NLRB | Permalink | Comments (0) | TrackBack (0)

ForeWarn Act Introduced Into Congress

H.R. 3042 would amend the Worker Adjustment and Retraining Notification Act to minimize the adverse effects of employment dislocation. This Bill would requiring more and smaller employers to notify workers of  plant closings or mass layoffs.  FOREWARN also would increase penalties for employers who violate the act.  For more information, click here to read Senator Brown's press release on FOREWARN.

Mitchell H. Rubinstein

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

Tuesday, July 28, 2009

Baseball's Use Of DNA Testing May Violate GINA

Baseball's Use of DNA Raises Questions is an interesting July 21, 2009 article from the New York Times. Apparently, to confirm age and identity, MLB conducts DNA testing. However, that may role a foul of GINA. As the article states:

Many experts in genetics consider such testing a violation of personal privacy. Federal legislation, signed into law last year and scheduled to take effect Nov. 21, prohibits companies based in the United States from asking an employee, a potential employee or a family member of an employee for a sample of their DNA.

Dozens of Latin American prospects in recent years have been caught purporting to be younger than they actually were as a way to make themselves more enticing to major league teams. Last week the Yankees voided the signing of an amateur from the Dominican Republic after a DNA test conducted by Major League Baseball’s department of investigations showed that the player had misrepresented his identity.

Some players have also had bone scans to be used in determining age range.

This would make an interesting law review article.

Mitchell H. Rubinstein

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

Georgia teacher may raise consensual sex defense to sex assault charge

Chase v. State, No. S09G0139 (Ga. June 15, 2009), is an interesting case from the Georgia Supreme Court. The Court held a defendant teacher charged with sexually assaulting a student who had reached the age of consent was entitled to raise the defense that their sexual encounter was consensual.

A female teacher became romantically involved with a female student. The relationship culminated in a sexual encounter when the student was 16, the age of consent in Georgia. When the student’s mother learned of the relationship, she reported it to the police, who arrested Chase and charged her with sexual assault of a person enrolled in school. Under a state statute, “A probation or parole officer or other custodian or supervisor of another person referred to in this Code section commits sexual assault when he or she engages in sexual contact with another person ... who is enrolled in a school ... and such actor has supervisory or disciplinary authority over such other person.”

The trial court barred the teacher from raising consent as a defense to the charge brought under this statute. The court convicted her and sentenced her to 10 years in prison and 5 years of probation. The Georgia Court of Appeals affirmed.

The Georgia Supreme Court reversed, finding that “the plain language of the statute does not in any way indicate that the General Assembly intended to remove consent as a defense to a charge of violating subsection (b)” of the state statute. While acknowledging that the General Assembly had eliminated consent as a defense to three crimes under subsection (c) of the same statute, the high court rejected the lower courts’ interpretation that the elimination of this defense applied also to prosecutions brought under subsection (b). The court also rejected the prosecutor’s argument that the conviction should be upheld on public policy grounds because of the state’s “compelling interest in protecting children and the vulnerable status of students involved in secondary education programs.” While applauding the prosecutor’s “passion for protecting school-age children,” the court concluded that accepting this argument would constitute legislating “by judicial fiat, and to do so ex post facto to boot.” Moreover, to accept the argument that the consent defense is unavailable to charges brought under subsection (b) could lead to absurd, unjust, and contradictory results, the court found, such as the conviction of a 30-year-old law school professor who engaged in a fully consensual sexual encounter with a 50-year-old law school student.

Thus, the Court treated prosecutions under this statute different from prosecutions for statutory rape.

Mitchell H. Rubinstein

July 28, 2009 in Criminal Law, Education Law | Permalink | Comments (1) | TrackBack (0)

The Dilemma of Apologizing

Gonzalez v. State, ___N.E.2d___, 2009 WL 1765684 (Indiana Ct. App. June 23, 2009), illustrates the dilemma  criminal defendants and others have by offering an apologizing. Here, the defendant was convicted of criminal mischief and operating a vehicle while intoxicated after he had an accident with an empty school bus. The trial court admitted into evidence a letter the defendant wrote to the school apologing and explaining that the defendant had been drinking.
Sigificantly, however, that letter was written after the court gave the school time to decide if it was going to object to a plea that was being negotiated. The appellate court held that it was a reverseable error to admit that letter because it was effectively part of the plea negotiaton process. By giving the school time to decide if it will object, the court reasoned that a third party was effectively part of the negotiation process.
This case is an important illustration about the danager a party has if he or she offers an apology. On the other hand, apologies can reduce unnecessary litigation.
There is a significant amount of law review commentary addressing this dilemma and I am in the process of adding to that commentary. This case will be part of my article.

Mitchell H. Rubinstein 

July 28, 2009 in Criminal Law, Litigation, Procedure | Permalink | Comments (0) | TrackBack (0)

White House Continues To Support Employee Free Choice Act As A High Priority

On June 2, 2009, in response to a reporters question, Press Secretary Gibbs stated the President continues to support the Employee Free Choice Act and it remains a priority. Specifically, the exchange was as follows:

Q    Robert, the Employee Free Choice Act, you've got a full plate, but that seems to have gotten pushed aside.  There are some labor leaders who feel that there has not been enough vocal support from the administration on the Employee Free Choice Act.  So two questions:  Is this something the President supports, and is it a priority for this year?

MR. GIBBS:  I don't have anything new on it from what we've -- I don't know when the last time we were asked.  I think you heard the President talk about his support for it throughout the campaign, and it's obviously one of many things that we will work on throughout our time here.

Q    High priority for this year?

MR. GIBBS:  Let me check.  I believe it is -- I believe it is, again, something the President campaigned on and we'd like to see happen.

A copy of the full White House Press Release is available here.

Mitchell H. Rubinstein

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

Monday, July 27, 2009

State Senate required to provide employee payroll records in response to a Freedom of Information Law request

Matter of Polokoff-Zakarin v Boggess, 2009 NY Slip Op 03823, decided on May 14, 2009, Appellate Division, Third Department

Penny Polokoff-Zakarin filed a Freedom of Information [FOIL] request seeking documents concerning an employee of the State Senate, including the individual’s date of employment and date of termination of employment, the title or position of employment held, the salary paid, and “complete time and attendance records for [the individual] employee of the State Senate sometime between 1990 and 2007."

The Secretary of the Senate, Steven M. Boggess, supplied Polokoff-Zakarin with the individual’s dates of employment, title and salary but denied her request for time and attendance records on the ground that she was not entitled to them under FOIL.

After Michael A. Avella, Counsel to the Senate Majority, affirmed Boggess's determination, Polokoff-Zakarin sued, seeking a declaration that the Senate’s FOIL determination was incorrect.

Supreme Court dismissed her petition and Polokoff-Zakarin appealed.

The Appellate Division commenced its analysis of the issues involved by noting that FOIL, as it applies to “agencies,” is based on a presumption that all records are available to the public unless it falls within a specific statutory exception and the custodian of the record elects to withhold it on that basis. In contrast, “the Legislature is only obligated to disclose records that fall within a specifically enumerated category.”*

In this regard, the Senate is statutorily required to "maintain and make available for public inspection and copying . . . a record setting forth the name, public office address, title, and salary of every officer or employee" (Public Officers Law §88(3)(b), [emphasis supplied by the Appellate Division]). Further, providing such information in a letter prepared in response to a FOIL request does not satisfy this requirement.

According to the Appellate Division, “the ordinary meaning of the term "personnel payroll record" is broader than "name, public office address, title and salary … and includes information concerning an employee's time and attendance — information that would typically be included in a time and attendance record such as those at issue here.”

The court’s conclusion: time and attendance records fall within the definition of personnel payroll records which are available for public inspection pursuant to Senate Rule XIV §(1)(a) and they must be disclosed in response to a FOIL request.

* The Legislature is specifically excluded from the definition of the term "agency" for purposes of FOIL (see Public Officers Law §86[3]).

The decision is posted on the Internet at:

Reprinted with permission from New York Public Personnel Law

Mitchell H. Rubinstein

July 27, 2009 in Public Sector Employment Law | Permalink | Comments (0) | TrackBack (0)

What Ever Happened To The Employee Free Choice Act

We have not heard much about the Employee Free Choice Act. I had expected Congress to act by the August recess. So what happened? My best guess is that it can be summed up in one word-"healthcare." The last couple of weeks, the President and the Congress have been busy trying to reform the healthcare system-leaving little time for anything else. Once health care reform is taken care of, look for labor law reform to be next.

Mitchell H. Rubinstein

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

Streamlining of Financial Aid Applications

Obama Wants To Trim Complex College Aid Form  is an interesting June 24th article from the New York Times.   It reports that the Obama Adminstration wants to trim the 153 question student financial aid application form. The article describes the changes as follows:

The administration is taking three steps to simplify the form, which some consider more complicated than a tax return:

--Shorten and streamline the online application, reducing the number of screens by about two-thirds.

--Create a Web application to use tax data families have already submitted to the IRS, helping to eliminate confusion in answering questions.

--Ask Congress to pass legislation that removes more than half of the financial questions on the form.

Mitchell H. Rubinstein

July 27, 2009 in Colleges, News | Permalink | Comments (0) | TrackBack (0)

Sunday, July 26, 2009

Biometric Identification And Employment Law

Employment Lawyers Voice Skepticism About Biometric Verification is a very interesting July 24, 2009 article from the National Law Journal. It is about using biometric data, such as fingerprints and retina scans, to verify if employees are eligible to work in the United States. Such a system is controversial and currently being debated by Congress. As the article states:

Lawyers are expressing both skepticism and criticism about the concept, which was formally announced during a congressional hearing this week.

Sen. Charles Schumer (D-N.Y.), who chairs the Senate Immigration Subcommittee, said that he would like to pursue a biometric workplace verification tool that would replace or enhance the current E-Verify system, the online system that lets employers check the eligibility status of workers. Schumer, who believes E-Verify doesn't work and plans to file a biometrics bill in the fall, stated at Tuesday's hearing: "The only way to stop illegal immigration is to stop employers from hiring illegal immigrants. We must...adopt a system that relies upon objective, rather than subjective, criteria to prove identity and legal status. The system must be non-forgeable and airtight."

My own take on this is that there is no significant legal issue with biometric data that is different from the legal issues involved under current law. If employers must examine certain documents to verify employment eligibility (such as a birth certificate) as they do under current law, I fail to see how requiring prospective employees to be fingerprinted raises a higher level of concern over employee privacy

Mitchell H. Rubinstein

July 26, 2009 in Articles, Employment Law, Law Review Ideas | Permalink | Comments (0) | TrackBack (0)

Muslim workers lacked uniform beliefs, commonality; Title VII class cert denied

Haliye v Celestica Corp, ___F.Supp.2d ____ (D. Minn. June 10, 2009), is an interesting case. The district court in Minnesota declined to certify a class of 22 Muslim employees in a Title VII religious accommodation suit, concluding there was a lack of commonality among class members. Establishing a prima facie religious accommodation claim requires an individualized, fact-specific inquiry into whether the plaintiff has a bona fide religious belief, whether the plaintiff informed her employer of her belief, and “whether the plaintiff suffered discipline as a result of her failure to comply with a conflicting employment requirement.” In this case, none of those issues can be resolved on a class-wide basis. As the court stated  "[m]ost strikingly, plaintiffs do not hold uniform beliefs about when they are required to pray — the issue that lies at the heart of this case.”  Some plaintiffs believed it was necessary to pray at precise times; others believed they need only pray within a certain window of time.

Mitchell H. Rubinstein

July 26, 2009 in Litigation, Title VII | Permalink | Comments (0) | TrackBack (0)

Downloading Porn Disqualifies Employee From Unemployment

Matter of Pesant v. Commissioner of Labor, ___A.D3d___(3d Dep't. June 18, 2009), illustrates an important unemployment insurance principle. An individual is disqualified from unemployment if he was terminated for misconduct. The question frequently litigated is what is misconduct. This was an easy case as the court held that downloading porn was misconduct-despite the employee's denials. As the court explained:

An employee's knowing violation of an employer's reasonable rules and policies has been held to constitute disqualifying misconduct (see Matter of Graham [*2][Commissioner of Labor], 305 AD2d 922, 922 [2003]), particularly where the employee has received repeated warnings (see Matter of Baker [Eastern Connection — Commissioner of Labor], 10 AD3d 763, 764 [2004]; Matter of Limarzi [Sweeney], 244 AD2d 750, 751 [1997]). Here, the evidence established that claimant continued to violate the employer's Internet policy by downloading inappropriate materials even though he had been previously warned about the consequences of such behavior. Although claimant denied downloading the subject materials and postulated that it may have been done by a member of the cleaning staff, this presented a credibility issue for the Hearing Officer to resolve
(see Matter of Barcene [Commissioner of Labor], 6 AD3d 855, 855 [2004]; Matter of Limarzi [Sweeney], 244 AD2d at 751).

Mitchell H. Rubinstein

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

Employee Polygraph Protection Act claim may proceed

Harmon v CB Squared Servs, Inc, ___F.Supp. 2d___(E.D. Va. June 1, 2009), is an interesting case. A lower corut held that a manager who was demoted after the results of a polygraph exam may go forward within his wrongful discharge suit under the Employee Polygraph Protection Act (EPPA). The manager told several executives at his company, which provides automotive maintenance services at several Jiffy Lube franchises in Virginia, that a competing franchisee offered him a job. When the franchisee denied making the offer to his employer—which would have violated Jiffy Lube’s franchise agreement—his employer asked him to take a polygraph exam. The exam results revealed “deception.” The manager was demoted and reassigned to a new store location. Ultimately, he resigned. Filing suit, he alleged violations of the EPPA. Both parties filed summary judgment motions. Deciding the motions, the court held that the EPPA covered the suit, as the Act is concerned with protecting employees from illegal polygraphs, not the circumstances that led to the polygraph. Moreover, the court ruled that the manager proved violations of the EPPA, which “prohibits an employer such as “[the] [d]efendant from even asking an employee to take the exam in the first instance or from discussing or referring to the exam's results.”

Mitchell H. Rubinstein

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