Monday, October 26, 2009
Call for Papers/Abstracts
The Education Law Section of the Association of American Law Schools
Mitchell H. Rubinstein
Tangled Discrimination Ends In $ 4.5 Million Malpractice Award is an interesting Sept. 17, 2009 National Law Journal article. In a nutshell, a major law firm waited over a year to tell a employment discrimination plaintiff that her case was dismissed. Therefore, it should come as no surprise that plaintiff obtained a multi-million dollar malpractice verdict. Moral of the story, keep your clients informed.
Mitchell H. Rubinstein
I admittedly do not practice family law, but found the case Rosensweig v. Givens, ____N.Y.3d___(Sept. 17, 2009), to be particularly interesting. New York's highest court recognized a cause of action for fraudulent inducement to marriage.What happened? The husband while still married to someone else married plaintiff and induced her to buy a condo with the husband being the lender. The facts are a bit fuzzy. The Court of Appeals explained them this way:
In connection with the mortgage foreclosure action, defendant has alleged sufficient facts to warrant denial of plaintiff's pre-discovery motion for summary judgment, [*2]having asserted that plaintiff, an attorney who was then her paramour, secured the mortgage through fraud and overreaching and by exploiting a fiduciary relationship with her (see generally Matter of Grieff, 92 NY2d 341, 345 ). She contends that, under the guise of buying her a condominium, he induced her to enter into a mortgage arrangement whereby he was the lender and she the borrower. Furthermore, plaintiff hired a friend to represent them both at the closing. Defendant claims that plaintiff paid all expenses related to the condominium and did not seek mortgage payments or any other contribution from plaintiff until three years later — after their marriage and defendant's subsequent discovery that plaintiff already had a wife and two children, rendering their marriage bigamous. Plaintiff then demanded payment, accelerated the loan and pursued foreclosure against defendant. We also conclude that defendant has stated a prima facie case of fraudulent inducement to marriage (see Blossom v Barrett, 37 NY 434 ; see also, Tuck v Tuck, 14 NY2d 341, 344 ).
Mitchell H. Rubinstein
Disabled student, who won court order to bring service dog to school, placed in private school by district
An autistic boy who won a temporary court order to bring his service dog to class in his hometown school district instead started at a new school nearly a half hour away, according to the St. Louis Post-Dispatch. Carter Kalbfleisch, along with his service dog, began classes at the Illinois Center for Autism in Fairview Heights instead of his former pre-kindergarten special education class in the Columbia School District. The remedy adds thousands of dollars to the cost of Carter’s education, with the district and the state picking up the tab. But while the district said it will pay for Carter’s transportation, it will not pay for the service dog to travel to the new school. The parents have vowed to continue to fight their school district to win Carter the right to bring his service dog to their neighborhood school.
Source: St. Louis Post-Dispatch, 8/14/09, By Nancy Cambria
Mitchell H. Rubinstein
These can be sticky situations, especially for adjuncts who are the most vulnerable members of the faculty when it comes to sorting out a dispute between the tuition-paying student and a part-time teacher. Here's the advice from the Career Adviser for Inside Higher Ed on how best to handle these situations:
It’s very important that you not talk to the complaining student or any other student in the class about the incident. You’re the instructor, so don’t take any steps that might be seen as trying to stack the deck or to intimidate or retaliate against anyone in the class. For example, do not ask students for their recollections of the incident. Any such action at this stage could put you in the wrong. Remember that you’re the authority figure and that you have power over students in the class; your actions might well be viewed by them differently than you intend them. Don’t muddy the waters, no matter how much you’re worrying and want to move things forward. Resist all impulses to “do” something before you have received the complaint and before you understand the process you’re in. It is not your place to collect witness statements or memories. If that becomes necessary, it should be done by a third party assigned to do so by your college. These cautions about your conduct apply doubly in the event your situation has already passed to the formal complaint stage of the process.
Advice to new teachers and old, drop perfectionism and don't blame yourself for your students' failings
That's the advice from Ms. Mentor (Professor Emily Toth author of "Ms. Mentor's New and Ever More Impeccable Advice for Women and Men in Academia"), of the Chronicle of Higher Ed to a new teacher who finds herself worrying too much about pleasing every student. In particular, Ms. Mentor recognizes that for adjuncts, who live and die by their students evals, this may an especially acute source of stress:
Beginning teachers often feel that they are responsible for everything that happens everyday in the classroom when, in fact, much of it is beyond their control. Bad weather can ruin a class dynamic.
So can a student who interrupts class with, "Why do you make us read such a boring textbook?" or "Why do we have to do these problems if they're not even going to be on the test?" Worse yet are the grade combatants: "I deserve an A because I worked really hard on this. I even read most of the assignment."
Those students drain your motivation to teach, to learn, to live. They give you chest pains. They worry you sick if you're an adjunct, dependent on student favor and evaluations to keep your job. They make you question why you ever wanted to be a professor, unless …
You can train yourself to say, "So what?"
Your field matters to you, or you wouldn't have studied it for at least a decade. But disgruntled students—most often teenagers—will learn what they wish. You cannot be their helicopter parent.
In other words, for your own mental health, learn to live with "good enough." You can read Ms. Mentor's full column from the Chronicle of Higher Ed here.
In a sign of the economic times, faculty at the University of Oregon are considering forming a union in response to low wages and the administration's "top-down" management style.
The effort still is in the informational stage with meetings being held around campus to discuss the idea and hear from faculty members at other universities who have formed unions. Organizers say it’s not certain if or when professors will be asked to vote on the question, but one said an election could be held before the end of the current academic year.
The UO ranks last in average salary and in average total compensation — pay plus benefits — on a list of nine large public universities the state uses for comparing budgets. The average faculty salary is 80 percent of the average for the other eight universities, and total compensation is 84 percent of the average.
But of as much concern to some people on campus is the voice faculty have in major decisions affecting the university. Vitulli said many people feel that the university’s top executives don’t give much weight to faculty views.
You can read the full story here in the Eugene Register-Guard
Hat tip to Inside Higher Ed.
Sunday, October 25, 2009
Criminal convictions of corporations or corporate like organizations are very rare. Here, five health-care workers were criminal convicted of various crimes for failing to provide care to a patient in a persistent vegetative state. There criminal conviction were not at issue.
Significantly, however, a New York appellate court held that the company was held responsible for intentionally falsifying health records and for stating in company records that the care had been provided.The workers' employer, was a Cortland County nursing home. At issue was whether a limited liability company, as opposed to a corporation, can be held criminally liable under New York law for acts of its employees committed within the scope of their employment.
A New York Law Journal article about this case is available here. (registration required). The case is New York v. Highgate LTC Management, ___,A.D.3d___ (3rd Dep't. Oct. 22, 2009).The charges stem from an investigation by the New York Attorney General's Medicaid Fraud Control Unit, which used video surveillance in the room of one of the facility's residents. The employer was fined $15,000. The decision states in part:
Contrary to defendant's argument, such an unincorporated
association may be convicted of an intentional crime committed by
its employees or agents, under certain circumstances (see People
v Newspaper & Mail Deliverers' Union of N.Y. & Vicinity, 250 AD2d
207, 212-214 , lvs denied 93 NY2d 877, 1023 , cert
denied 528 US 1081 ; People v Lessoff & Berger, 159 Misc 2d
1096, 1097-1098 ; People v Smithtown Gen. Hosp., 92 Misc 2d
144, 147-148 ; see also United States v A & P Trucking Co.,
358 US 121, 124-126 ). We note that the United States
Supreme Court has held that "with regard to corporations and
other associations[,] . . . it is elementary that such impersonal
entities can be guilty of 'knowing' or 'willful' violations of
regulatory statutes through the doctrine of responde[a]t
superior" (United States v A & P Trucking Co., 358 US at 125
[emphasis added]; see New York Cent. & Hudson Riv. R.R. Co. v
United States, 212 US 481, 492-496 ). As the Court
explained, "[t]he treasury of the business may not with impunity
obtain the fruits of violations which are committed knowingly by
agents of the entity in the scope of their employment" (United
States v A & P Trucking Co., 358 US at 126).
A similar rule has long prevailed in New York, predating
the enactment of Penal Law § 20.20. Specifically, the longstanding
rule as set forth by the Court of Appeals was that a
corporation could be held liable for the intentional acts of its
agents that are either (1) in "violat[ion] [of] positive
prohibitions or commands of statutes regarding corporate acts"
(People v Canadian Fur Trappers Corp., 248 NY 159, 163 ),
"authoriz[ed] through action of its officers or which [are
done with the the acquiescence of its officers" (id. at 164),2 or
(3) performed on behalf of the corporation if undertaken "within
the scope of [the agents'] authority, real or apparent" (People v
Rochester Ry. & Light Co., 195 NY 102, 105 ). These three
alternative grounds for corporate criminal liability are now
codified in Penal Law § 20.20 (2), and the parties are in
agreement that they form the basis for the legal theory
underlying the indictment in this case. We emphasize that the
three grounds do not represent a departure from the courts'
traditional reluctance to employ the doctrine of vicarious
liability in criminal prosecutions because corporations, like
limited liability companies, "are legal fictions [that] can
operate only through their designated agents and employees[;] the
acts of the latter are, in a sense, the acts of the corporation
as well" (People v Byrne, 77 NY2d 460, 465 ). Unlike the
imputation of the conduct of one natural person to another, the
corporation "is, in reality, being made to answer for its own
acts. Such a theory of liability is a far cry from one involving
true vicarious liability" (id. at 466; see People ex rel. Price v
Sheffield Farms-Slawson-Decker Co., 225 NY 25, 30 ; cf.
People v Leonard, 8 NY2d 60, 62 ).
Mitchell H. Rubinstein
We have discussed the difficult legal issues in defining employee status often on this blog. Now, the Government Accountability Office has issued a report that includes various recommendations to DOL and IRS to enhance enforcement of proper worker classification, improve outreach to workers about classification, and improve interagency coordination in addressing misclassification.
Researchers might find this report very helpful.
Mitchell H. Rubinstein
Hennagir v Utah Dept of Corrections, ___F.3d___(10th Cir. September 10, 2009), is an important decision. The 10th holds that job functions that are rarely required may still be essential for purposes of the ADA, so long as the potential consequences of employing a person incapable of performing the function are sufficiently severe. held
Here, the plaintiff, a physician's assistant (PA) at a prison, suffered from various ailments that rendered her unable to participate in physical activities that were necessary for the prison's emergency-response training program. When the employer required that all PAs be certified in the program, and the PA was unable to comply, the employer gave her an option of a transfer or termination. The Tenth Circuit held that the certification was an essential job function even though it was rarely performed.
Law commentary with respect to this issue would be most welcome.
Mitchell H. Rubinstein
Saturday, October 24, 2009
Humphries v Pulaski County Special Sch Dist, ___F.3d___(8th Cir. September 3, 2009), is an important decision.
The 8th held that "evidence that an employer followed an affirmative action plan in taking a challenged adverse employment action may constitute direct evidence of unlawful discrimination." This was a case of first impression in the 8th Circuit. The Eighth Circuit noted that it joined the Fourth, Fifth, Ninth, Tenth and Eleventh Circuits.
A white elementary school counselor claimed she was denied eight promotions to assistant principal positions during a seven-year period due to the district's affirmative action plan, which she claimed resulted in racial discrimination in favor of black applicants. The affirmative action plan included, but may not have been limited to, policies, practices, procedures, and goals under a consent decree plan resulting from a long history of intentional racial discrimination by the school district. The lower court found that the counselor failed to set forth direct evidence of discrimination: she did not present any evidence that the affirmative action plan played any part in the district's decisions not to promote her, and she failed to establish that the plan was invalid. Reversing, the Eighth Circuit found a factual issue concerning whether there was a specific link between the school district's decisions not to promote the counselor and the district's affirmative action plan. The appellate court then explained that the counselor also had to show that the district's affirmative action plan was invalid under Title VII and the Equal Protection Clause.
Mitchell H. Rubinstein
Mikula v Allegheny County, Penn, ___F.3d___(3rd Cir. September 10, 2009), is an interesting case. the 3rd holds that under the Lilly Ledbetter Fair Pay Act, a grants coordinator could proceed with her Title VII compensation discrimination action against her county employer alleging that she was denied a pay raise because of her sex.
The coordinator first lobbied for a salary increase and change in job title in October 2005 received a report in August 2006 from the county's HR department informing her that her allegations of discrimination were unfounded, yet she did not file an EEOC charge until April 2007. While the Third Circuit originally affirmed the district court's dismissal of her Title VII claim, finding that the August 2006 letter was not a pay decision or "other practice" affecting compensation under the Ledbetter Act, on rehearing, the court determined that the Title VII claim was indeed timely. "Despite our earlier decision, we now hold that the failure to answer a request for a raise qualifies as a compensation decision because the result is the same as if the request had been explicitly denied." Therefore, the coordinator's Title VII compensation discrimination was timely as to paychecks she received after June 20, 2006 (300 days before she filed her EEOC charge).
Mitchell H. Rubinstein
Aside from whether an employer, has the authority to require that its employees take a mandatory flu shot, issues can arise under the ADA. On Oct. 9, 2009, the EEOC issued guidelines on pandemic preparedness, here. It is written in question and answer format and provides in part:
During a pandemic, may an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?
Yes. Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA.
During a pandemic, may an employer require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of pandemic infection?
Yes. An employer may require employees to wear personal protective equipment during a pandemic. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.
May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?
No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(
Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.
Mitchell H. Rubinstein
In New York, the Commissioner of Health mandated that all health care workers receive both swine flu and regular flu shots. The New York Times reported on Oct. 16, 2009, that a state judge has issued a TRO staying enforcement of that regulation, here. As the article states:
The temporary restraining order by the judge, Thomas J. McNamara, an acting justice of the State Supreme Court in Albany, comes amid a growing debate about the flu vaccine. On Friday afternoon, the State Department of Health vowed to fight the restraining order, saying that the authorities “have clear legal authority” to require vaccinations, and noted that state courts had upheld mandatory vaccinations of health care workers against rubella and tuberculosis. Justice McNamara scheduled a hearing for Oct. 30 on the three cases before him, involving the flu vaccine.
Mitchell H. Rubinstein
Thursday, October 22, 2009
Though the Senate Committee on Health, Education, Labor and Pensions did not hold hearings on the NLRB nominations, nominee Becker, who is the most controversial, submitted a 105 page response to questions he has been asked. That document is available here.
I have worked with Craig Becker and I have no doubt that he will be a first rate Board Member. Like Professor Jeff Hirsch, I think his nomination as well as all of the nominations are going to be presented as one package deal which also involves the Employee Free Choice Act.
Mitchell H. Rubinstein
Hat Tip: Workplace Prof Blog
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(Aulicino v New York City Dept of Homeless Servs, ___F.3d___ (2d Cir. September 8, 2009), is an interesting case that readers might want to take note of.
The 2d held that a white motor vehicle operator's failure-to-promote and hostile work environment claims were wrongly dismissed because the lower court failed to consider the evidence in the light most favorable to the plaintiff. A rational jury could find that the operator was qualified for the promotion he sought; although he did not have one year's full-time experience as a dispatcher, he did have the job posting's alternative qualification of one year's permanent service as an operator. As for the operator's lack of a commercial driver's license, the job posting only noted that it "may be required." Moreover, the African-American hired for the position also lacked dispatching experience and a commercial driver's license. Discriminatory intent could be inferred in the promotion denial based on the African-American fleet coordinator's statements to the operator that he "deserved" to be called a racially derogatory name by a client and that "white people are lazy."
With regard to a hostile work environment, the court found that the magistrate looked at the frequency of the racially derogatory comments in the light least, rather than most, favorable to the plaintiff. There were two sets of derogatory comments made by two different people during two different periods of time. The magistrate considered them cumulatively—apparently by calculating the length of time from the first comment to the last specific comment, which occurred several years later—and concluded that, while unfortunate, they were too isolated and discrete to be actionable.
Mitchell H. Rubinstein
The Chronicle of Higher Education surveyed more than 600 adjuncts at 90 institutions in the Chicago area to find out why they teach despite the long hours and low pay. "They don't make much money, they don't have health benefits, and they don't have job security. So why do adjuncts keep showing up to teach in college classrooms semester after semester, year after year?" Not surprisingly, it's because they love it, the teaching that is. Among the questions the CHE wanted to answer:
How long have you been teaching as an adjunct?
What's the highest degree you've obtained?
At how many institutions have you taught?
What is the lowest and highest amount you have earned as an adjunct?
What's your primary reason for wanting to work as an adjunct?
Are you satisfied with the job?
You can read the rest of the questions, along with the survey results, here. And here you'll find videotaped interviews with eight of the adjuncts surveyed. Finally, you can read excerpts of the adjunct interviews here.
File this under "I've got to get me one of these!" The Duluth News Tribune is reporting the case of a 62 year old man who recently pleaded guilty to DWI after crashing his motorized (!) La-Z-Boy into a parked car while driving (?) away from a neighborhood bar. His blood-alcohol level was, um, high at the time. Check-out the rest of the story:
"According to the criminal complaint, Anderson drove his motorized chair into a vehicle parked near a Proctor bar. Anderson told police he was traveling from the Keyboard Lounge after consuming approximately eight or nine beers. His blood-alcohol content was measured at 0.29 percent, more than three times the legal limit to drive.
Anderson claimed he was driving the chair fine until a woman jumped on it and knocked the chair off course.
. . . .
A National Hot Rod Racing Association sticker is posted on the chair’s head rest. The chair had a small steering wheel, about a third of the size of a golf cart’s, coming straight up from the middle of the La-Z-Boy."
You can read the rest (and I know you will) by clicking here.
A big hat tip to Adriana Duffy!
Following Professor Rubinstein's earlier post about several adjunct related articles in the Chronicle of Higher Ed comes this essay, also from CHE, reminding us that providing students with a good education means ensuring that adjuncts, who often hold the majority of teaching positions at many institutions, must have the resources, time and support to develop into expert teachers.
In the classroom, I exude confidence. I walk tall, tell jokes, and keep students' attention. I can lead discussion like nobody's business, and I can wing it if I need to. And that's a good thing, because I am often not prepared for class. Sometimes, I admit, I haven't even read my own assigned reading for the day. It's not that I don't want to; it's just that I had to take on those extra two courses at the community college and finish up the freelance article so I could pay the mortgage for the month. Winging it usually works OK. But sometimes it doesn't.
My not being prepared for class is only one way in which the students suffer. More and more, I find myself completely drained by the end of the day. In the middle of a great discussion, a student directs a comment to me. To the detriment of the discussion, I stopped listening a few comments ago, thinking instead about my decreasing checkbook balance or the dishes that have been piling up as I have been grading papers. Or I stopped listening just because I have had similar discussions four times already today, and I am, frankly, bored and/or exhausted. At least once, I stopped listening because of the loud construction across the street, where the university is building a new performance center. And I couldn't help but remember the news a week earlier that budget cuts had put my job in jeopardy.
In the end, how much does it matter to my department, and to my university, if I do a good job? It's not like I can share this information in any formal setting.
When I leave the classroom, I know I could have done better. That isn't an empty thought; I try to do better every day, every semester, every school year. And maybe my efforts succeed—maybe I do a little better. But I can't help but wonder: Is it enough? If some of these distractions that come with being an adjunct were taken away, wouldn't my students benefit? If I could talk about teaching and listen to others talk about teaching in that conference room, wouldn't my students benefit?
Of course they would. That means it's time to give adjuncts the tools they need to do the best job they can. You can read the rest of Professor Sweeney's essay here.