Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Saturday, October 31, 2009

Plenary Action For Breach of CBA

Nowadays most collective bargaining agreements have arbitration clauses and most disputes are arbitrated. However, some contracts do not have binding arbitration or the arbitration clause specifically excludes a certain subject from arbitration. These cases arise more frequently in the public sector than in the private sector. West Chester County Correction Officers v. Westchester, ___A.D.3d___(2d Dept. Sept. 22, 2009), is an example from a case that arose in the public sector where retirement benefits were excluded from arbitration. The case also involves other procedural issues.

Mitchell H. Rubinstein

October 31, 2009 in Arbitration Law, Public Sector Labor Law | Permalink | Comments (0)

Liza Minnelli forced to testify in her-ex chauffeur’s sex harass suit against her

An entertainment newspaper is reporting that Liza Minnelli is being ordered to testify in a sexual harassment case brought by her chauffeur. That article is available here. As the article states:

LIZA MINNELLI has been ordered to a New York court to testify in her former chauffeur’s sexual harassment suit against the star.

The Cabaret actress/singer has avoided taking to the stand since her ex-driver M’Hammed Soumayah filed papers in 2004 alleging he had been forced to “engage in sexual relations” with the 61 year old.

Mitchell H. Rubinstein

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

Friday, October 30, 2009

Yale Sued By Employer For Confirming Non-Degree

Here is a new one. A major university (Yale) is being sued for falsely confirming that a student obtained a P.hd degree. A New York Times article about this suit, which involves a Korean firm, is available here. This article highlights an important reality of the workplace. Employees frequently lie on their resumes.

Mitchell H. Rubinstein

October 30, 2009 in Colleges | Permalink | Comments (0)

Book Review Highlight Stone and Bales Arbitration Law

Katherine Stone (UCLA Law School) and Richard Bales (Northern Kentucky Law School) just published Arbitration Law, 2d ed. (Foundation Press 2010). The book spans 795 wages and all I can say is wow!. Though it is designed as law school case book, lawyer may find it to be a helpful reference. What I found most interesting is that the book separates commercial arbitration chapters from labor arbitration chapters. After the discussion of Pyett, the authors then raise the question whether this is still necessary. The book covers all leading cases and is full of helpful recent decisions as well. The book is also well organized and well written.

I would have liked to have seen more references to law review articles in the notes and was kind of surprised that there very few-particularly since both Stone and Bales have written large numbers of important articles. No doubt this was because the authors were trying to keep the book a manageable length-which they certainly accomplish.

The publisher describes the book as follows:

This casebook presents a comprehensive treatment of the legal issues involved in arbitration. The first four chapters address issues that arise in private arbitration, that is, arbitration that is the product of an agreement between two contracting parties. The last chapter addresses issues that arise in court-ordered arbitration. Together they will give the student a thorough and up-to-date understanding of arbitration law and provide a foundation for legal practice, whether in alternative dispute resolution or in the civil justice system. Extensive notes following each case provide supplementary materials and introduce topics for discussion.

Congrats to both authors. This book will be in my law office and I expect you might want to put it in yours as well.

Mitchell H. Rubinstein

October 30, 2009 in Book Reviews | Permalink | Comments (0)

Thursday, October 29, 2009

Adjunct resigns over university DNA testing policy.

Inside Higher Ed. is reporting that adjunct professor Matt Williams of the University of Akron, and Vice President of The New Faculty Majority- an adjunct rights group, has resigned over that school's requirement that new employees submit to DNA testing as a condition of employment.  Many schools already require employees to undergo a criminal background check prior to hiring which seems reasonable enough.  But as DNA testing begins to replace fingerprinting as the most reliable way to identify criminal suspects, Akron's Board of Trustee's passed a measure in August that requires new hires to consent to such testing.  Most Akron faculty didn't even know about the new policy until this story hit the blogosphere.  At present, Akron says it has not tested anyone nor does it have plans to do so.  Instead, the school wants to reserve the right to do mandatory DNA testing in the future should it so chose.

But for Professor Williams, this was the last straw:

'It's not enough that the university doesn't pay us a living wage, or provide us with health insurance, but now they want to sacrifice the sanctity of our bodies. No,' said Matt Williams, who had been teaching four courses this semester in the communications and continuing education programs

[Williams] felt it was time to take a stand and say that there are limits on how much those off the tenure track will take from their employers. While the criminal background checks and potential DNA sample apply to those hired for any position, Williams noted that adjuncts like himself are technically hired and rehired semester by semester, and thus could face this prospect term after term.

You can read more about this story here.

(jbl)

October 29, 2009 | Permalink | Comments (0)

State, Federal and Local Government Research

Govengine.com is a commercial site  that complies links to most of the important state, federal and local government sites. Readers may find this web site helpful.

Mitchell Rubinstein

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

Substitute teacher ineligible for unemployment insurance based on assurance of reemployment

Hammond v Commissioner of Labor, App. Div., 252 A.D.2d 638

The Unemployment Insurance Appeals Board ruled that Sherry Hammond, an “occasional per diem substitute teacher,” was ineligible to receive unemployment insurance benefits because she had a reasonable assurance of continued employment.

Hammond had worked for 44 days as an occasional per diem substitute during the school year. Significantly, testimony presented to the Appeals Board indicated that Hammond was considered one of the more desirable substitutes and that the school had written to her indicating that her name would be maintained on its “per diem list” and that “there would be as much work for occasional per diem substitute teachers during the following school year as in the prior year.”

The Appellate Division upheld the Board’s determination, holding that such testimony constituted substantial evidence to support to Board’s decision.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

October 29, 2009 | Permalink | Comments (0)

Classes Past Midnight

The boom in student enrollment at community colleges has results in late night classes-real late classes. A Oct. 27, 2009 New York Times article about this is available here. As the article states:

He is a typical part-time student, with one exception. His class runs from 11:45 p.m. to 2:30 a.m., the consequence of an unprecedented enrollment spike that has Bunker Hill scrambling to accommodate hundreds of newcomers. In the dead of night, he and his classmates dissect Walt Whitman poems and learn the finer points of essay writing, fueled by unlimited coffee, cookies and an instructor who does push-ups beforehand to stay lively.

Similar booms have forced many of the nation’s 1,200 community colleges to add makeshift parking lots, rent extra space and keep thousands of students on waiting lists this fall. While Bunker Hill offers two midnight classes — the other is Psychology 101 — and Clackamas Community College in Oregon holds welding classes until 2 a.m., others have added classes as early as 6 a.m. to make room for the jobless and others whom the recession has nudged back to school.

The deluge also includes an unusually large number of recent high school graduates, diverted from more expensive four-year colleges by the economic downturn.

Frankly, this is hard for me to believe. But, this is apparently the case at some schools.

Mitchell H. Rubinstein

October 29, 2009 in Colleges | Permalink | Comments (0)

Discharged Attorney Looses First Amendment Case

Attorneys are employees just like anyone else. Thus, though we do not hear about it very often, they can have employment issues themselves. Ex-Disciplinary Attorney Lawsuit Is Rejected By Jury is an Oct. 30, 2009 New York Law Journal article that discusses one such case. In this case, an attorney claimed that she was discharged in retaliation for the exercise of her First Amendment rights. However, the jury determined that she was discharged for performance related reasons. As the article states:

The unanimous, eight-member Southern District jury rejected the civil rights suit brought by Christine A. Anderson, who claimed she was fired in 2007 because she objected that officials at the committee were "whitewashing" complaints and giving preferential treatment to attorneys with connections.

The jury credited the claims of the Office of Court Administration and three individual defendants that Ms. Anderson had been fired for insubordination. The state argued that she had exaggerated her complaints and had spurned numerous opportunities to repair her frayed relationship with her direct supervisor, Sherry K. Cohen, the committee's deputy chief counsel and a defendant in the case.

Mitchell H. Rubinstein

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

Wednesday, October 28, 2009

Difficulty Older Workers Have In Finding Employment

65 and Up is another great New York Times article by Steven Greenhouse dated Oct. 23, 2009. I bring it to your attention because it reminds us just how difficult it is for older workers to find work. Now, because many seniors saw their 401(k)'s decrease in value, many more seniors are seeking work but cannot find it. As the article states:

Less well known, though, is that nearly half a million workers 65 and older want to work but cannot find a job — more than five times the level early this decade and this group’s highest unemployment level since the Great Depression.

The situation is made more dire because of numerous recent trends: many people over 65 have lost their jobs as seniority protections have weakened, and like most other Americans, a higher percentage of them took on debt than in previous generations.

The expectation once was to pay off your 30-year mortgage before you retired, or come close. Instead, the level of indebtedness among older Americans has risen faster than in any other age group, partly because so many obtained second mortgages to take money out of their homes.

Mitchell H. Rubinstein

October 28, 2009 in Employers, Employment Discrimination, Employment Law | Permalink | Comments (0)

Supreme Court's 'Iqbal' Ruling to Get Congressional Hearing

Supreme Court's 'Iqbal' Ruling to Get Congressional Hearing is an interesting Oct. 26, 2009 article from the National Law Journal. In Iqbal,the Court raised the pleading standard for most civil complaints, making it more difficult to keep cases from being thrown out.

I would be very surprised if anything comes of these hearings.

Mitchell H. Rubinstein

October 28, 2009 in Legislation | Permalink | Comments (0)

2d Circuit Reviews Standard For DFR Cases

2dcirseal


Lindsay v. Association of Professional Flight Attendants, ___F.3d___(2d Cir. Sept. 21, 2009),  is and interesting case. In a 31 page decision, the 2d held that the union did not breach its duty of fair representation by negotiating a restructing plan. For those interested in the RLA, the court also extensively reviews relevant RLA case law. The court describes the duty of fair representation as follows:

"The statutory duty of fair representation was developed [in the 1940s] in a series of cases involving alleged racial discrimination by unions certified as exclusive bargaining representatives under the Railway Labor Act." Vaca v. Sipes, 386 U.S. 171, 177 (1967). In these cases, the Supreme Court ruled that "the exclusive agent's statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Id.; see Ramey v. Dist. 141, Int'l Ass'n of Machinists & Aerospace Workers, 378 F.3d 269, 276 -77 (2d Cir. 2004). This "tripartite standard" applies to "'challenges leveled not only at a union's contract administration and enforcement efforts but at its negotiation activities as well,'" i.e., to both "major" and "minor" disputes under the RLA. Air Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 77 (1991) (quoting Communications Workers v. Beck, 487 U.S. 735, 743 (1988))

Mitchell H. Rubinstein

October 28, 2009 | Permalink | Comments (0)

8thCir: Evidence showed desire to displace older workers

Baker v Silver Oak Senior Living Mgmt Co, LC, ___F.3d___(8th Cir. September 14, 2009), is an interesting case. The 8th held that plaintiff, a discharged 53-year-old employee presented enough evidence of age-based discriminatory animus to get her ADEA and state law claims to a jury. Under any test, the employee raised a genuine issue for trial on the ultimate question of age bias vel non. Most significant were statements showing preference for younger workers made by the employee's supervisor and the CEO: the management team was "missing the boat by not hiring more younger, vibrant people"; they "should start looking over applications better and try to consider hiring younger people"; and instructions that the employee fire certain workers in their 50s and 60s so that "younger workers" could be hired who would be "better workers, have more energy, be more enthusiastic and stimulate the residents." The clearly reflected age-based bias in these statements infected other remarks that might otherwise be subject to interpretation. There was also ample evidence of pretext given the employee was placed on probation for reasons the evidence suggested were false and known to be false, and she was asked twice during her probation if she intended to resign, suggesting a quest to end her employment.

Mitchell H. Rubinstein

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

Tuesday, October 27, 2009

EEOC Updates Employer Poster

EEOC

EEOC Form EEOC-P/E-1 (Revised 11/09) has been updated and is available here. It reflects the ADA Amendments Act of 2008 (effective on January 1, 2009) and the Genetic Information Nondiscrimination Act of 2008 (effective November 21, 2009). The revised poster also includes updates from the Department of Labor. Employers are required to post notices describing the federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability and genetic information. A description of this revised poster from the EEOC is available here.

Mitchell H. Rubinstein

October 27, 2009 in Employment Discrimination | Permalink | Comments (0)

Unions Win Concessions On Health Care Reform

There is an interesting article in the Oct. 26, 2009 edition of The Hill entitled "Unions Win Concessions But Fight On" which is about the health care debate.  What are the "concessions" that organized labor wants? The article states as follows:

Reid has not given labor unions everything. But he has done enough to keep them from turning completely against the bill: including a version of the government-run health insurance program; raising the taxable level on high-cost insurance plans; and increasing the penalty for those companies that fail to provide health insurance to employees.

Keeping labor unions, a reliable Democratic-base group, on his side is an important accomplishment for Reid as he heads into a multi-week floor debate on the party’s biggest legislative priority. If unions were provoked to oppose the bill’s central provisions, it could tear apart the Senate Democratic Conference, pitting liberals against centrists.

Mitchell H. Rubinstein

October 27, 2009 in Politics | Permalink | Comments (2)

School district not required to provide for defense, nor provide for indemnification, in lawsuit it brought against former school board member

Matter of Barkan v Roslyn Union Free School Dist., 2009 NY Slip Op 06541, decided on September 15, 2009, Appellate Division, Second Department

Michael F. Barkan initiated two lawsuits; one named the Roslyn Union Free School District as the defendant, the other named New York Schools Insurance Reciprocal as the defendant.

Barkan’s lawsuit against the school district challenged its decision to reject his request for his defense and indemnification in an action entitled Roslyn Union Free School District v Barkan, [Supreme Court, Nassau County, Index No. 05-5946].*

In Barkan’s lawsuit against the school district, the principal issue concerned whether a board of education that has essentially adopted the provisions of Public Officers Law §18** is obligated to provide a defense and indemnification to board members and employees against whom the school district, on behalf of the board of education, has commenced a civil action.***

The Appellate Division ruled that “if the board of education or the school district, on its behalf, commences a civil action against one of its employees, neither the duty to defend nor the duty to indemnify arises” and thus the board’s determination that that Barkan was not entitled to a defense in the underlying action pending in Supreme Court was neither irrational, nor arbitrary and capricious.****

It should be noted that Education Law §3811(1) provides for the defense and indemnification of a member of a board of education, a school officer, the district's superintendent and other employees of the district in the event such an individual is named as a defendant in a lawsuit, other than in a criminal action, involving the performance, or an omission, of an official duty by the district.

In the Appeal of Rheta Percy and Janice Ross, Commissioner's Decision 12,619, the Commissioner of Education observed that an individual “may have rights under both Education Law §3811, as a primary source, and Public Officers Law §18, as a secondary source.”

* Roslyn sued Barkan and other school board members alleging he and the other named Board members failed to properly monitor the School District's finances whereby they failed to detect the theft of millions of dollars by former School District employees during a six-year period from 1998 to 2004.

** In many political subdivisions of the State the jurisdiction provides for the defense and indemnification of its officers and employees being sued in connection with the performance of their official duties pursuant to Section 18 of the Public Officers Law. Public Officers Law Section 17 applies to State officers and employees.

*** The school district’s rule addressing the "Defense and Indemnification of School District Employees" provided, in relevant part, that “2. Defense: (a) … the Board shall provide for the defense of the employee [defined, in part, as a member of the Board] in any civil action . . . arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting within the scope of his public employment or duties. This duty to provide a defense shall not arise where such civil action or proceeding is brought by or on behalf of the Board [emphasis supplied]….”

**** See, also, Barkan v New York Schools Insurance Reciprocal, 2009 NY Slip Op 06494, also decided on September 15, 2009 by the Appellate Division, Second Department. This action involved Barkan’s claim that New York Schools Insurance Reciprocal must defend and indemnify him in connection with the litigation brought against him and the other plaintiffs in Roslyn Union Free School District v Barkan [Supreme Court, Nassau County, Index No. 05-5946].” This decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06494.htm

The Appellate Division's decision in Barkan v Roslyn Union Free School Dist is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06541.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

October 27, 2009 in New York Law, Public Sector Employment Law, Public Sector Labor Law | Permalink | Comments (0)

Lawyer Sanctioned For Cursing Ordered To Go To Dinner With Adversary

What is the appropriate sanction for a lawyer calling his adversary an "ass hole" in open court? A civility class and a required dinner with your adversary. That is what a federal judge did in Huggins v. Coatesville Area School District, A September 21, 2009 law.com article about  the case is available here.

While the Judge probably meant well, I have serious problems with such an order. The judge is ordering someone to spend his free time with someone he may not like. There is something called Freedom of Association in this country and I am surprised the Judge was not aware of this.

Mitchell H. Rubinstein

October 27, 2009 | Permalink | Comments (0)

A great book on how to deal with disruptive students

Here's a book I thought I'd pass along to our readers some of whom may be looking for advice on how to handle disruptive or difficult students.  No matter how good or experienced a teacher you are, you will eventually encounter students who try to disrupt your class either by undermining you, monopolizing class discussion or otherwise acting out in ways that gives you fits and can ruin the class if you don't handle the situation correctly.  How can I be so confident that you'll eventually encounter such students?  Because you can take any random group of people, put them in high pressure situation (i.e. a law school classroom), and voila!  The interpersonal sparks will fly.  Indeed, every reality TV show ever produced depends on this self-evident truth.

The book is called Coping with Misconduct in the College Classroom:  A Practical Model (College Administration Series 1999) by Dr. Gerald Amada, a psychologist who provides proven strategies for successfully handling most behavioral issues you are likely to encounter in the law school classroom.  Along the way, Dr. Amada helps debunk some common misconceptions such as, to take an example, that disciplining students will lower your teaching evaluations (much more likely, students will hold you in higher esteem for enforcing the rules)

On a personal note, I found this book extremely helpful when I first began my teaching career.

(jbl).

October 27, 2009 | Permalink | Comments (0)

December workshops in Chicago and NYC for adjuncts interested in teaching legal writing

The Legal Writing Institute will be holding One-Day Workshops for Adjunct Professors and New Legal Writing Professors.  The workshops will take place on Friday, December 4, 2009, in two locations:  Chicago and New York City.  An updated brochure is attached to this message; please feel free to forward it to those who might benefit from attending the program.

The program will be held live in each location.  There will be four sessions:

1.  Nuts and Bolts (Choosing books, creating assignments, syllabus issues, etc.) 2.  Grading Papers and Handling Student Conferences 3.  Teaching Legal Research and Citation 4.  Thinking Forward

The attachment explains each session and provides names of those who will present in Chicago and New York.  We are extremely happy with the broad and enthusiastic participation of these highly-qualified panelists.

The cost of the one day workshop will be $100 for those who register in advance, and $120 at the door.  We recognize that even this relatively modest amount may be too much for some to pay, so partial tuition scholarships will be available for both locations.  Contact Mark Wojcik directly for more information about that (his contact information is below) and also on the attached brochure. 

Participants may register on line by following the links below, please note the first link is for the NYC location, the second for Chicago:

 

https://www.regonline.com/lwi-workshop-nyc

https://www.regonline.com/lwi-workshop-chi

 

Prof. Mark E. Wojcik

The John Marshall Law School

315 S. Plymouth Court

Chicago, IL 60604 USA

(312) 987-2391

[email protected]<mailto:[email protected]

 

(jbl)

October 27, 2009 | Permalink | Comments (0)

Reason # 47 why teaching law is better than practicing it

MSNBC is reporting the case of a criminal defendant on trial for robbery and home invasion, who sneaked a bag of feces (his own) into the courtroom.  He then proceeded to smear the feces on his lawyer and throw some at the jury, nailing the computer case of one juror.  The feces-throwing incident apparently contributed to the 31 year sentence handed down by the trial judge yesterday.  According to the story, the defendant may suffer from mental illness (although it's unclear whether that factored into the trial or sentencing).

You can read the rest here.

Hat tip to Mitchell Nathan.

(jbl)

October 27, 2009 | Permalink | Comments (0)