Monday, November 30, 2009
Attorney barred from practicing before the New York City Office of Administrative Trials and Hearings [OATH]
The Chief Administrative Law Judge suspended an attorney indefinitely from practicing before OATH for willfully and persistently violating Section 1-13 of its rules of practice during a disciplinary hearing being held involving New York City Department of Education custodian, Craig Brust.*
The attorney, Raphael F. Scotto, Esq., was also sanctioned $2,500 by Administrative Law Judge Joan Salzman.
Scotto was found to have engaged in a pattern of misconduct during the 14-day hearing which included, yelling and screaming; interrupting and talking over opposing counsel, witnesses, and the ALJ; interfering with opposing counsel's questioning of witnesses; feeding answers to witnesses; making insulting and rude remarks to persons in the hearing room; abusing the lawful subpoena process; disrespecting the tribunal by crumpling up and throwing into the garbage in the hearing room, during the proceedings, a receipt for monetary sanctions and a lawfully signed subpoena; and audibly using profanity.
* The background and procedural history of the case can be found in Department of Education v. Brust, OATH Index No. 2280/07 (Sept. 29, 2008), adopted, Chancellor’s Decision (Oct. 22, 2008)
The decision is posted on the Internet at: http://archive.citylaw.org/oath/07_Cases/07-2280-mdsanction.pdf
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein
Nazir v United Airlines, Inc, ___Cal. Rept. ____(Ct. App. October 9, 2009), is an interesting case. In a case involving what a California Court of Appeal said "may well be the most oppressive motion ever presented to a superior court," the appellate court reminded trial courts of their inherent power and encouraged them to use it when appropriate. The case, which involved harassment, discrimination and retaliation claims brought by a man of Pakistani ancestry, placed a total of 5,415 pages of material before the trial court and produced an order granting summary judgment that purported to sustain without explanation 763 out of 764 objections to evidence. It was characterized by the appellate court as the "poster child" for criticism of summary judgment procedure in employment litigation. In particular, critics of summary judgment say that courts are sometimes making determinations properly reserved for the factfinder, sometimes drawing inferences in the employer's favor, and sometimes requiring the employee to essentially prove their case at the summary judgment stage. Here, the misleading picture painted by the mass of paper and the error that resulted was "undoubtedly related." Apparently the trial court did not read all of the papers, as shown by the facts that it sustained "objections" to evidence where no objection was set forth and saw a "physical assault" despite evidence of "arm wrestling." Wrote the appellate court: "While not reading the papers cannot be condoned, it can perhaps be understood…The incredible volume of material here simply has no place in a system where overburdened trial courts labor long and hard."
This case demonstrates that less is often more.
Mitchell H. Rubinstein
In a 7-3 vote, the Seventh Circuit denied an employee's petition for panel rehearing and rehearing en banc of a decision holding that employees must complain in writing in order to be protected under the FLSA's anti-retaliation clause. In June, a three-judge panel rejected the Secretary of Labor's contention that the retaliation provision should be read expansively to include such unwritten objections, reasoning instead that the provision refers to "filing" a complaint, which connotes a complaint made in writing. Accordingly, the panel ruled that the employee did not engage in protected activity because he only made verbal complaints about FLSA violations. Dissenting from the denial of rehearing, Judge Rovner wrote that, in deeming the statutory language to reach only written and not oral complaints, the court had taken a position contrary to the longstanding view of the DOL. Rovner noted that virtually any step that an employee may take in pursuit of his or her rights prior to filing a complaint with the DOL may be done by either the spoken or written word. "Oral inquiries, protests, and information supplied to an agency representative play no less an important role in the statutory scheme than do letters, e-mails, and sworn statements," she said, concluding "they must be protected as well." (Kasten v Saint-Gobain Performance Plastics Corp, October 15, 2009).
So what are the legal consequences for sneaking into a White House party and meeting the President and Vice-President?? It of course, depends upon the facts. What exactly was said and to whom. The Blog of the Legal Times believes that the most likely violation is 18 USC Sec. 1001, which allows for the prosecution of anyone who “falsifies, conceals, or covers up by any trick, scheme, or device a material fact” or “makes any materially false, fictitious, or fraudulent statement or representation.”
My take on this is that the couple is not going to prosecuted if the cooperate with the Secret Service and tell them exactly how they accomplished getting past Secret Service.
Mitchell H. Rubinstein
Sunday, November 29, 2009
Employers ask Can we require Swine Flu Shots For Workers is an interesting and timely Oct. 20, 2009 National Law Journal article. The bottom line according to the article is yes. As the article states:
In the private arena, Michels said, "the law is pretty well established" regarding an employer's right to mandate vaccinations. If an employer can establish a legitimate business need or objective, he said, vaccinations against various illnesses can be a legitimate job qualification.
However, he added, employees may be able to challenge the newness of the H1N1 vaccine. "The question will be...has this been properly licensed, or are we requiring people to get vaccinated with something that is either experimental or not properly vetted," Michels said. "I think that's an open issue."
The better question is what if employees refuse? They will be considered insubordinate. If they have a right to a due process type hearing, such as arbitration, I could not imagine that any arbitrator would impose a severe form of discipline unless the facts were extreme-say when the employee may work with high risk patients.
Mitchell H. Rubinstein
Ekstrand v. School Dist., __F.3d___(7th Cir. Oct. 6, 2009) is an interesting case. Plaintiff, a former elementary school teacher with seasonal affective disorder whose requests for classroom with natural light were denied may proceed with failure-to-accommodate claim, even though she did not initially explain medical necessity of natural light and various classroom conditions that exacerbated her condition were resolve. The defendant school district had duty to accommodate after her psychologist informed it of medical necessity of natural light, and modest costs of switching classrooms would not have imposed undue hardship.
Mitchell H. Rubinstein
- Employers may ask employees whether they have symptoms of a cold or the seasonal flu because it is not a disability related inquiry.
- Whether pandemic influenza rises to the level of a “direct threat” depends on the severity of the illness. Employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.
- Employers may use an ADA-compliant pre-pandemic employee sample survey for employers, which the agency has prepared. It combines medical and non-medical inquiries about the ability of an employee to come to work during a pandemic. The objectives are to provide employers with information they need to plan for a pandemic and to shield employers from receiving information about chronic diseases or illnesses that employees might have.
- Employers may send employees home if they display influenza-like symptoms.
- If employees report feeling ill at work or call in sick, employers may ask them if they are experiencing influenza-like symptoms, such as a fever, chills, and cough or a sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
- Measuring an employee’s body temperature is a medical examination. Therefore, it must be justified by being job-related and consistent with business necessity. The pandemic influenza symptoms could meet this standard if they become more severe than the seasonal flu or the H1N1 virus during the 2009 spring/summer period, or if H1N1 becomes widespread in a community as assessed by state and local health authorities or the CDC.
- If the pandemic influenza remains similar in severity to seasonal influenza or the 2009 spring/summer H1N1 virus outbreak, employers may not ask employees who do not have symptoms of H1N1 flu to disclose whether they have a medical condition that could make them especially vulnerable to influenza complications.
- Employers may require employees to adopt infection control practices in the workplace.
- Employers generally should consider encouraging, rather than requiring, employees to get the seasonal and H1N1 influenza vaccines. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents the employee from taking the vaccine. Title VII might entitle some employees to an exemption also where an employee’s sincerely-held religious belief, practice or observance prevents him or her from taking the vaccine.
- During a pandemic, an employer may ask an employee why he or she has been absent from work if the employer suspects a medical reason.
- Employers may require employees who have been away from work during a pandemic to provide a doctor’s note certifying their fitness to return to work. However, as a practical matter, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, employers may need to adopt new approaches, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
You read the title right. Michigan just legalized medical Marijuana. A 24 year old found Med Grow Cannabis College where for $485 you can learn how to grow Marijuana. This organization is not really a college, of course, but a business. Why then does it use the title College?? Though I have no doubt that there is a place for the use of medical Marijuana, I also have no doubt that its use will be abused. Hopefully, this business will teach its students how to dispense Marijuana appropriately. I would however, like to know where the founder of this business got his training. A Nov. 28, 2009 New York Times story about this business is available here. This business, which I refuse to call a college, has a web site which is available here.
Mitchell H. Rubinstein
In a follow-up story to the case of bar applicant Robert Bowman who was denied admission to the New York bar back in April, 2009 as a result of owing $480k in student loans, the same court last week denied Mr. Bowman's request to reconsider its original decision. The court noted that:
We further affirm our prior determination that applicant has not presently established the character and general fitness requisite for an attorney and counselor-at-law (Matter of Anonymous, 61 AD3d 1214 , supra). His application demonstrates a course of action amounting to neglect of financial responsibilities with respect to the student loans he has accumulated since 1983. According to applicant, his Sallie Mae federal and private loans alone now total approximately $480,000, including interest. His recalcitrance in dealing with the lenders has been and continues to be incompatible with a lawyer's duties and responsibilities as a member of the bar (see e.g. Matter of Anonymous, 78 NY2d 227, 232 ; see also ABA Code of Recommended Standards for Bar Examiners, Standards 7, 12, 13).
Although the appellate court denied the applicant's motion without prejudice to his right to re-open the matter later should his financial circumstances change, Mr. Bowman told the New York Times in an interview that this decision has "destroyed my life.'
'Everything I’ve worked for, every effort, every fight that I’ve taken to make this progress, has been for nothing.' He has appealed to New York’s highest court.
Hat tip to Professor Randolph Braccialarghe.
Saturday, November 28, 2009
The 3rd Circuit recently affirmed the dismissal of 52 year old fired “Of Counsel” patent atty
demonstrates that attorneys are employees too and are covered by employment laws. As the court explained:
In this case, there is more than substantial evidence that the law firm terminated
Kelly’s employment for non-age reasons. Kelly had a prior lawsuit against the law firm,
and he had not met his billable-hours target in his first year. He had ongoing problems
working with his legal secretary, including problems with the handling of client
documents under his supervision. Most importantly, Kelly confirmed in his deposition
testimony that the law firm terminated his employment because of dissatisfaction with his work and the resulting loss to the law firm of more than $73,000...
Mitchell H. Rubinstein
Friday, November 27, 2009
ADEA cases were up almost 28% which is about double what the increase is according to a New York Times Op Ed. piece. Here. As the article states:
Discrimination on the basis of age takes place when older workers are laid off, or bypassed for promotion or a pay increase. Getting hired is a problem too. Unemployed workers between the ages of
55 and 64 have the toughest time finding new jobs; 30 percent of older men are out of work for almost 30 weeks compared to 25- to 34-year-olds who get work in 10 weeks. One reason is that health insurance can cost an employer twice as much for a worker over age 40. This is yet another good reason for health care reform.
The good news is that the increasing numbers of older workers may break down barriers and prejudice.
But asking a pension economist if it’s a good thing that older people are working more is like asking a vegetarian about the falling price of beef. Eroding pensions — 401(k) assets in mutual funds declined by 40 percent last year — and a lousy economy explains why many older people are clinging to their jobs or returning to the labor market after retiring. A hidden cause of the increase in age discrimination claims is the pension crisis.
Mitchell H. Rubinstein
Thursday, November 26, 2009
I recently came across a case concerning the partial grant of amicus status to the City of New York. Disability Advocates v. Patterson, ____F.Supp.2d____(E.D.N.Y. Nov. 24, 2009). The City sought to be a "litigating amicus" which would enable it to particpate in meetings, settlements and to be copied on correspondence. While the court rejected this application as unnecessary, the court did cite to some authority which supported this type of elevated amicus status. The court noted that if the City wanted to participate in the litigation it should seek to intervene as a party.
I have a big problem with the concept of a "litigating amicus" because if granted, such a litigant is treated as a party without having to intervene. Law review commentary on this novel idea would be welcome.
Mitchell H. Rubinstein
It's not surprising to see more of these stories pop-up lately as cash-strapped universities rely more heavily on contingent faculty resulting in some "push-back" by those faculty members. This time, it's the Boston Globe (via the Chronicle of Higher Ed) reporting that community college adjuncts in Massachusetts are suing the state over lack of health insurance coverage.
A group of part-time community college instructors filed a lawsuit yesterday against the state, saying that hundreds of adjunct faculty in Massachusetts’ public higher education system are unfairly denied health care coverage.
The lawsuit, filed in Suffolk Superior Court on behalf of five instructors, follows nearly a decade of unsuccessful wrangling with state legislators to get an adjunct health insurance bill enacted into law. It also comes as schools, particularly community colleges, are increasingly turning to adjuncts amid burgeoning enrollment.
“We’ve been trying on the Hill to persuade the state to do the right thing, and, to be frank, I just ran out of patience,’’ said Joseph T. LeBlanc, president of the Massachusetts Community College Council, which is a plaintiff in the suit, along with the Massachusetts Teachers Association. “It’s a case of justice. The state ought to be providing a large chunk of these people with a health insurance plan.’’
You can read the full story here.
Wednesday, November 25, 2009
Reports began circulating last week that the number of those signing up to take the LSAT hit 60,000, a 20% increase from last year and an all time high. Of course, just because oodles of people sign up to take the LSAT doesn't mean that all of them will apply to law school (although the U. of Iowa is already reporting a 53% increase in the number of applicants from last year).
We've previously blogged aboutthe train wreck likely to occur when too many law grads with too much debt enter a terrible job market in which some individuals (including a tier 1 grad) so desperately want a job they'll work for free. The Wall Street Journal blog picked up on a story we'd blogged about concerning the reasons not to go to law school. The WSJ blog editor added his own thoughts:
. . . Law school is absolutely the right move for people of a certain prediliction, namely, those people who really want to practice law for a living. And there are a lot of those folks out there. Yes, there are lots of things you can do with a law degree, but the vast majority of them do, in fact, pursue careers as lawyers.
Back when I was applying to law school, the “pre-law” adviser at my undergraduate institution forced me to think if there was anything else I’d rather do than practice law. I told him yes, there was — and I told him what it was — and he very pointedly discouraged me from applying to law school, at least right away. I, driven by a rather overwhelming sense of fear and insecurity and uncertainty and directionlessness, and a sense that what I really wanted to do wasn’t very practical, didn’t take his advice. It was a mistake.
That was in the 1990s. Granted, times are tough now, but the stakes are higher too. Tuition is more expensive and even graduates of top-tier schools struggle to get high-paying jobs, let alone graduates from more middling institutions.
So, I’d encourage you to ask yourselves, LSAT-takers, is there anything else you’d rather be? Try that first. Law school will always be there
One issue all of this raises is what are law schools doing to help applicants make more informed decisions about whether, or when, to attend law school? Schools hold all the informational cards regarding the employment rates and average salaries of their grads We also know about the debt loads of these students and their prospects in the current job market. Given all that, do we have a moral duty, if not a regulatory or legal one, to provide this information to students - many of whom are just kids fresh out of college - before they plunk down all that money for a law degree? Is what we're doing any different from what mortgage brokers did a few years ago when they encouraged people to buy homes they couldn't afford? While a few professors such as William Henderson and Dean Matasar are raising questions of this kind, so far they are isolated voices.
The Georgia Supreme Court issued a ruling on Monday denying bar admission to the graduate of an online law school called Northwestern California University School of Law. The basis for the court's decision is that the applicant failed to provide the board of bar admissions with the proper paperwork including a letter from the dean, or her designee, of an ABA approved law school stating that the education provided by the online school was just as good as the one she would have received from an accredited school.
The Supreme Court said it would consider waiving the accreditation requirement "for good cause shown by clear and convincing evidence." That evidence would have to include proof that the non-accredited school provided a legal education on par with that of an accredited school. The Board of Bar Examiners had told Batterson that she could establish that equivalency by providing a letter from the dean or the dean's designee at an ABA-approved law school providing an analysis of her legal education.
She provided a letter from the dean of her non-accredited school and letters from an associate dean at the accredited TJSL program. While the TJSL letters praised Batterson, they "contained only general conclusions" about the quality of her legal education, the Supreme Court said. For this reason, it affirmed the board's denial of her application. "Batterson's petition was denied because she did not provide what the Board expressly required," the court said.
One year ago, the Massachusetts Supreme Judicial Court grantedthe bar application request of an online law school grad making him the first such graduate to be admitted to practice in that state.
Tuesday, November 24, 2009
Service Employees Int'l Union, Local 121RN v Los Robles Reg'l Med Ctr, ____F.Supp. 2d____(N. D. Calif. November 17, 2009), is an interesting case. A federal district court declined to issue an injunction prohibiting certain California hospitals from implementing a policy that required nurses and other health care workers who declined to be vaccinated against the flu to wear masks and ID badges indicating that they have not been vaccinated. The union sought an order requiring the hospitals to maintain the status quo and exhaust dispute resolution procedures prior to implementing the new policy. The court noted that while the union's claims were not insubstantial, the policy that the hospitals sought to implement directly implicated public health and was supported by infection control experts at the hospitals. Thus, the goal of the policy was to protect patients from exposure to illnesses to which they may be more susceptible than non-patients. Consequently, the court concluded that as long as the dispute resolution procedures in a collective bargaining agreement were implemented on an expedited basis, the equities appeared to weigh against injunctive relief.
Mitchell H. Rubinstein
James Ottavio Castagnera just wrote an excellent article which appears as the cover story in the new edition of Chief of Police Magazine entitled "America's Homegrown Terrorists of the 21st Century, available Download Jim
Readers of this blog may be familiar with some of Professor Castagnera's work. He is the author of Al Qaeda Goes to College: Impact of the War n Terror on American Higher Education which is available here for purchase. A copy of that book sits on my bookshelf, except when I give it out to others to read. Our review of that important work is available here. If you have not seen this book, please take a look. It is absolutely fascinating.
Prof. Castagnera's article is a taken from this work. His chief premise is that America's homegrown terrorists pose a far more serious threat than Al Qaeda and the Taliban. Check it out.
Mitchell H. Rubinstein
To follow up on a story Professor Rubinstein blogged about earlier, USA Today is reporting that several more states are now considering adopting a uniform bar exam while other jurisdictions still have reservations.
Missouri has been out front with implementation of a uniform bar exam and could give the first one as early as 2010, says Kellie Early, Missouri Board of Law Examiners executive director. Jurisdictions including Colorado, the District of Columbia, Minnesota, New Hampshire and North Dakota are among those considering a uniform exam, bar officials in those jurisdictions say. Others, including officials from New York, Delaware and California, say they have reservations about the idea
Advocates of a uniform bar exam say that the advantages would benefit both attorneys who would be able to more easily between jurisdictions as well as consumers who could see their legal bills drop. "A uniform exam also 'levels the playing field' and could address concerns about bias against historically underrepresented groups in admission to the bar, said Micah Yarbrough, director of bar programs at Widener University School of Law in Wilmington, Del."
Monday, November 23, 2009
The American Association of University Professors ("AAUP") issued a recent report finding that the social contract with respect to faculty employment "has fallen apart." As of 2007, nearly 70% of all faculty work outside the tenure system in a contingent capacity (i.e. as adjuncts or contract faculty). As a consequence, academic freedom is severely undermined and the educational experience delivered to students is compromised:
Members of the nontenurable majority of faculty often work in subprofessional conditions and without basic protections for academic freedom. Yet they teach most of the classes at most institutions, often at shockingly low rates of pay. As the AAUP’s 2009 Report on the Economic Status of the Profession points out, the erosion of the tenure track rests on the “fundamentally flawed premise” that faculty “represent only a cost, rather than the institution’s primary resource.” Hiring faculty on the basis of the lowest labor cost and without professional working conditions “represents a disinvestment in the nation’s intellectual capital precisely at the time when innovation and insight are most needed.”
. . . .
We are at a tipping point. In addition to the injuries to students, campuses that overuse contingent appointments show higher levels of disengagement and disaffection among faculty, even those with more secure positions. The committee sees a steadily shrinking minority, faculty with tenure, as increasingly unable to protect academic freedom, professional autonomies, and the faculty role in governance for themselves—much less for the contingent majority.
The AAUP is calling upon legislators, administrators and tenured faculty to enact reforms that reduce the reliance on contingent faculty by offering them more stable working conditions. The AAUP report concludes that the best way to stabilize the creep towards the over-reliance on contingent faculty is to convert those positions to tenure track.
The best practice for institutions of all types is to convert the status of faculty serving contingently to eligible for tenure with only minor changes in job description. This means that faculty hired contingently with teaching as the major component of their workload will become tenure-eligible primarily on the basis of successful teaching
In this editorial, the Chronicle of Higher Ed expresses some well-founded cynicism that such a conversion will happen anytime soon. Unfortunately, these bad economic times only reinforce the need in the minds of cash-strapped administrators to maintain the kind of budgetary flexibility that contingent faculty provide.
"Rightly or wrongly, if there is a significant downturn, those faculty can be dismissed," says William G. Tierney, a professor of higher education at the University of Southern California. "Tenure is a long-term financial commitment for an institution, and at this point in time, I just don't see institutions making a long-term commitment like that."
I'm pretty skeptical myself that any significant change in job security for adjuncts is on the way in the near term. On the other hand, as a legal writing professor, I've seen incredibly improvements in working conditions within our field in the past 10 years. So there's already a template for contingent faculty to follow.