Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Monday, December 21, 2009

Misclassification of Employees as Independent Contractors Draws Heightened Government Enforcement

The law firm of Winston and Strawn issued a client briefing in December 2009 about misclassification of employees as independent contractors. It refers to an Illinois employer who was fined $318,000 for stating that certain employees were independent contractors.

Employers do this so they do not have to pay withholding taxes. Additionally, if an individual is not an employee, they may not be subject to employment laws such as Title VII.

December 21, 2009 in Employment Law | Permalink | Comments (2)

Sunday, December 20, 2009

Student Expelled From Graduate School For Plagiarism

Matter of Dequito v. New School, ___A.D.3d___(1st Dept. Dec. 18, 2009), is an unusual case. After a graduate student expelled from school for plagiarism, he brought an Article 78 proceeding against the university. Apparently, he was given two opportunities to change his paper, but he refused. The court described the applicable standard as follows:

Contrary to petitioner's contention, the policy of expelling a student for plagiarizing at any stage of her Master's thesis is not arbitrary, capricious or irrational. There is no indication that respondent's determination was made in bad faith as the result of discrimination based on petitioner's national origin. Since there is no issue of fact with respect to that issue, a hearing was not required (Matter of Feigman v Klepak, 62 AD2d 816, 819 [1978]; cf. CPLR 7804[h]). Given that petitioner was repeatedly advised to remove the plagiarized portions of her thesis from her various drafts, we do not find the penalty of expulsion to be shocking to one's sense of fairness.

The record indicates that respondent substantially complied with its procedures for suspending and expelling a student on the grounds of plagiarism (see Matter of Trahms v Trustees of Columbia Univ. in City of N.Y., 245 AD2d 124, 125 [1997]). Petitioner received adequate notice of the ad hoc committee's hearing, as well as a meaningful opportunity to be heard at the appeals committee meeting. There is no indication in the record that respondent's policies prohibited the professor who reported the plagiarism from serving on the ad hoc [*2]committee, or the Associate Dean of Academic Services from serving on both the ad hoc and appeals committees.

Mitchell H. Rubinstein

December 20, 2009 in Education Law | Permalink | Comments (0)

No Duty To Bargain Over Hair Drug Testing Analysis Involving Police

Matter of City of New York v. PBA, ___N.Y.3d___(Dec. 17, 2009), is an interesting public sector labor law decision. The Court held that a methodology for hair testing known as radioimmunoassay (hereafter, RIAH or hair analysis) for all drug screening of uniformed members was not subject to collective bargaining. The Court reasoned that the Police Commissioner's disciplinary authority over the NYPD vests him with discretion to choose the scientific methodology to be used for drug testing, and the circumstances prompting testing; i.e., so-called testing triggers.As the Court explained:

Moreover, the detection and deterrence of wrongdoing within the NYPD — particularly crimes, such as illegal drug use — is a crucial component of the Police Commissioner's responsibility to maintain discipline within the force. And both the Board and the unions concede that the Commissioner may unilaterally institute drug testing of uniformed officers. They would, however, check his discretion to select the investigatory measures that he deems most effective to discover and deter illegal drug use by requiring collective bargaining over testing methodology and testing triggers. In our view, however, these subjects are inextricably intertwined with the Commissioner's authority to conduct drug testing in the first place; they are not ancillary or tangential to his disciplinary authority.

Mitchell H. Rubinstein

December 20, 2009 in Public Sector Labor Law | Permalink | Comments (1)

Arbitration award vacated after court finds arbitrator exceed his authority

Matter of Manhattan & Bronx Surface Tr. Operating Auth. v Transport Workers Union of Am., Local 100, 2009 NY Slip Op 08013, decided on November 4, 2009, Appellate Division, Second Department

Article 75 of Civil Practice sets out the very limited reasons that allow a court to vacate or modify an arbitration award.

Section 7511 provides that an arbitration award may be vacated if the court finds that the rights of a party were prejudiced by:

1. Corruption, fraud or misconduct in procuring the award; or

2. The partiality of an arbitrator appointed as a neutral, except where the award was by confession; or

3. An arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or

4. The failure to follow the procedures set out in Article 75, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.

In contrast, a court may modify an arbitration award in the event it finds that:

1. There was a miscalculation of figures or a mistake in the description of any person, thing or property referred to in the award; or

2. The arbitrators made an award upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or

3. The award is imperfect in a matter of form, not affecting the merits of the controversy.

When the Manhattan & Bronx Surface Transportation Operating Authority file an Article 75 in an effort to vacate an arbitration award, a State Supreme Court judge denied its petition and granted the cross-petition filed by the Transport Workers Union to confirm the award.

The Authority appealed and the Appellate Division reversed the Supreme Court’s ruling “on the law,” vacating the award.

The Appellate Division held that the arbitrator “exceeded his authority in modifying the original arbitration award by reaching the merits of an issue which he had deemed uncontested in the original award.”

Accordingly, said the court, the arbitrator "went beyond correcting a miscalculation or mistake, correcting an award upon a matter not submitted to him without affecting the merits of the decision, or correcting a matter of form not affecting the merits of the controversy."

The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law Blog

Mitchell H. Rubinstein

December 20, 2009 in Arbitration Law | Permalink | Comments (0)

Saturday, December 19, 2009

Supreme Court Legal Research

Researchers take note. The Supreme Court Database just got a major grant and will include all Supreme Court decisions. A National Law Journal story about this is available here. The website describes the database as follows:

The Supreme Court Database is the definitive source for researchers, students, journalists, and citizens interested in the U.S. Supreme Court. The Database contains over two hundred pieces of information about each case decided by the Court between the 1953 and 2008 terms. Examples include the identity of the court whose decision the Supreme Court reviewed, the parties to the suit, the legal provisions considered in the case, and the votes of the Justices.

Mitchell H. Rubinstein

December 19, 2009 in Legal Research | Permalink | Comments (0)

Friday, December 18, 2009

No-No Questions On Employment Interviews

KRNTV News 4 ran an interesting story which summarized the types of questions that should not be asked at interviews. That story is available here. All of this should be obvious, but maybe its not.

Mitchell H. Rubinstein

December 18, 2009 in Employment Discrimination | Permalink | Comments (0)

An unemployed law grad's "Christmas Carol"

Here's a very clever, if cynical, video series that's been making the legal blogosphere rounds.  It's a law school adaptation of Charles Dickens' Christmas Carol with a student playing the role of Ebenezer Scrooge.  This 1L student is visited by various "spirits" who point out the folly of his decision to attend law school.

Below is the first installment.  After it concludes, you can click on parts 2 to 5 of the video story, plus an epilogue, to learn what our young protagonist decides about law school.

Hat tip to both the online ABA Journal and the Law Librarian Blog.


December 18, 2009 | Permalink | Comments (0)

University of Akron rescinds DNA testing policy that caused one adjunct to resign in protest

To follow up on a story we blogged about early, the University of Akron has rescinded a policy that required all new hires to agree to submit to DNA testing if the school asked. It was a measure originally taken to help the university conduct more effective background checks prior to hiring all new personnel, not just adjuncts.  But one adjunct resigned in protest over the move stating that: 

'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.

It appears that the policy created enough bad will and publicity that the university board of trustees recently voted to rescind it.

You can read more about these latest developments here.


December 18, 2009 | Permalink | Comments (0)

Do you get nervous during your students' final exam?

That's the question posed on PrawfsBlawg in which law schools profs exchange stories and comments about their anxiety over discovering a problem with an exam after it's been distributed to students.  The post begins:

My environmental law exam is set to start in a few minutes, and so I've come to the office early to sit here and wait for "the call."  By "the call," of course, I mean the hypothetical call from the registrar or someone else that I could conceivably receive sometime during the next three hours informing me that something has gone terribly, terribly wrong on my exam.  For example, I don't know, something like the plaintiff's name keeps changing and so the students can't tell who I'm talking about in the second paragraph, or maybe there's a sentence missing or a page missing or it says there are three questions but there are only two or I don't have any idea what else "the call" might be about.  I should say that in eight years of teaching and stressing out over whether I'm going to get "the call," I have never actually gotten "the call," but this doesn't mean that I'm still not freaking out and hoping that I don't get it this time around (in this way, it's sort of how I still really worry every single class session that I'm going to run out of material to talk about with 45 minutes left in the class, even though in probably 600 class sessions it's never happened a single time).

The comment section features shared stories of both near misses and crashes.  Feel free to add your own stories about "good exams gone bad" in the comment section, below, or over at the PrawfsBlawg, here.

Hat tip to Legal Blog Watch.


December 18, 2009 | Permalink | Comments (0)

Thursday, December 17, 2009

Yamada on Workplace Bullying in Healthcare

Professor David Yamada (Suffolk) recently started a series of posts, on his blog Minding the Workplace, about workplace bullying in healthcare.  The Joint Commission, an independent, non-profit organization that accredits health care organizations and programs, has issued two standards on intimidating and disruptive behaviors at work, citing concerns about patient care. This is a very big deal in the health care industry because accredition by the Joint Commission is necessary for a hospital to be eligible for Medicare Funding.

Law review commentary on this issue would be most welcome.

Hat Tip:    Workplace Prof Blog

December 17, 2009 in Law Review Ideas | Permalink | Comments (0)

INS Announces Audits Of Employers

The Department of Homeland Security’s Immigration and Customs Enforcement (“ICE”) recently announced 9 that it would deliver I-9 audit notices immediately to approximately 1,000 employers across the country. It appears that the notices are primarily subpoenas for I-9 and supporting documentation.

Since 1986, it has been unlawful under IRCA to hire undocumented workers and to hire anyone without completing reviewing the necessary documentation required by Form I-9.

Hat Tip: Jackson Lewis Newsletter

Mitchell H. Rubinstein

December 17, 2009 in Employment Law | Permalink | Comments (0)

Article suggests matching teaching style to students' learning style does no good

The Chronicle of Higher Ed. reported yesterday on new research suggesting that matching one's teaching style to students' learning style doesn't help them learn better.  Most, if not all of us who teach, have been told about the importance of recognizing that our students have different learning styles (i.e. visual, kinestic, aural, etc.) and the importance of the teacher adopting congruent teaching techniques in order to reach all of our students.  And I'm also guessing that just about everyone, including myself, has taken that advice at face value because it seems so self-evident there was never a reason to question it.

But now some researchers have published a paper suggesting that although each of us has a different learning style, there is no empirical evidence to support the assumption that students learn best when their teacher tries to match those individual styles.  As expected, the paper has drawn critics who argue that the researchers have missed, or failed to take into account, several important papers on the importance of matching teaching style to learning style.  Among them is

David A. Kolb, a professor of organizational behavior at Case Western Reserve University, who began to study learning styles in the late 1960s. In an interview, Mr. Kolb agrees with Mr. Sternberg that Mr. Pashler's review of the literature seems too thin.

But Mr. Kolb also says that the paper's bottom line is probably correct: There is no strong evidence that teachers should tailor their instruction to their students' particular learning styles. (Mr. Kolb has argued for many years that college students are better off if they choose a major that fits their learning style. But his advice to teachers is that they should lead their classes through a full "learning cycle," without regard to their students' particular styles.)

"Matching is not a particularly good idea," Mr. Kolb says. "The paper correctly mentions the practical and ethical problems of sorting people into groups and labeling them. Tracking in education has a bad history."

OK, so does this mean the end of training teachers to recognize and play to the different learning styles of their students?  Maybe not according to one source quoted in the CHE article

If the matching hypothesis is not well supported, then why do so many learning-styles studies show positive effects? Hundreds of studies that do not meet Mr. Pashler's stringent criteria for experimental design suggest—at least loosely—that students do better when instructors are trained in learning-styles theory.

One possibility is that the mere act of learning about learning styles prompts teachers to pay more attention to the kinds of instruction they are delivering. An instructor who attends a learning-styles seminar might start to offer a broader mixture of lectures, discussions, and laboratory work—and that variety of instruction might turn out to be better for all students, irrespective of any "matching."

"Even though the learning-style idea might not work," says Richard E. Mayer, a professor of psychology at the University of California at Santa Barbara, "it might encourage teachers to think about how their students learn and what would be the best instructional methods for a particular lesson."

In other words, learning-styles seminars might be effective, but not for the reasons that their designers believe.

While this is an important paper for classroom teachers to read, a consensus won't begin to form around the results until they are repeated by other researchers.

Read the entire CHE article here.


December 17, 2009 | Permalink | Comments (0)

Vampire pleads guilty to threatening to torture and kill judge

Things just got even tougher for the over-worked and underpaid state judiciary.  According to the Associated Press, a 45 year old self-described Vampire named Rocky Flash (aka Jonathon Sharkey) recently pleaded guilty and was sentenced to jail for threatening to first torture and then kill an Indianapolis state judge and his family.  The story states that Mr. Flash is the leader of a group called Vampyre Nation.  The judge in question was presiding over another case in which Mr. Flash was involved and apparently something happened in that case that caused Rocky to threaten to "beat, torture, impale, dismember and decapitate" the judge. 

The bright-side to this story, if there is one, is that no matter how bad things may be in your life at the moment, at least you don't have to share an 8 x 6 jail cell for the next year with Rocky Flash.

You can read the rest of the story courtesy of the, here.

Hat tip to Michael Traister.


December 17, 2009 | Permalink | Comments (0)

Wednesday, December 16, 2009

Judge Sanctions Firm That Sued Adversary in Sex Discrimination Su

A well known NYC large law firm was sanctioned. The decision is Abrams v. Pecile, 110329/09. A article about this New York lower court decision is available here.

Mitchell H. Rubinstein

December 16, 2009 in Employment Discrimination | Permalink | Comments (0)

The Growth of State and Local Laws Prohibiting Family Responsibilities Discrimination

A new report has been issued about the growth of state and local laws prohibiting Family Responsibilities Discrimination. The full report is available  here.

The report states:

At least 63 local governments in 22 states—including some of the nation’s major urban areas—have passed employment anti-discrimination laws that go beyond federal and state statutes to ensure that those with caregiving responsibilities are not discriminated against at work.  Cases filed under these local laws, such as one recent decision in Chicago, have the potential to result in substantial damages, fines, and attorneys fees.

The Center for WorkLife Law at the University of California, Hastings College of the Law has released the first comprehensive nationwide survey of state and local laws that prohibit family responsibilities discrimination, or FRD.  The laws surveyed specifically include parental status, familial status, or family responsibilities as a protected class in employment protections—similar to sex, race, and religion.  Most call for administrative redress, fines, or injunctive relief.  Many allow for monetary awards for damages, some including punitive damages and attorneys’ fees. 

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

December 16, 2009 in Employment Law, Law Review Ideas | Permalink | Comments (0)

Life Without Parole For Juveniles Who Did Not Commit Murder-Supreme Court Preview

New York Times reporter Adam Litvak previews a U.S. Supreme Court case concerning violate juveniles who were sentenced to life without the possibility of parole even though they did not kill. There are apparently less than 100 such prisioners world wide and 88 of them are in Florida. As the article explains:

The state’s attorney general, Bill McCollum, explained the roots of the state’s approach in the first paragraph of his brief in Mr. Graham’s case.

“By the 1990s, violent juvenile crime rates had reached unprecedented high levels throughout the nation,” Mr. McCollum wrote. “Florida’s problem was particularly dire, compromising the safety of residents, visitors and international tourists, and threatening the state’s bedrock tourism industry.” Nine foreign tourists were killed over 11 months in 1992 and 1993, one of them by a 14-year-old.

Mr. Snyder, the state legislator, put it this way: “Instead of the Sunshine State, it was the Gun-shine State.”

In response, the state moved more juveniles into adult courts, increased sentences and eliminated parole for capital crimes.

The full article is available here. Look for the Supremes to strike down this punishment as cruel and unusual under the 8th Amendment. For those interested in criminal law, law review commentary seems appropriate.

Mitchell H. Rubinstein

December 16, 2009 in Criminal Law, Supreme Court | Permalink | Comments (0)

AALS Annual Newsletter Labor and Employment Law

The AALS Annual Newsletter for Labor and Employment Law has been released. 2010 AALS Section on Labor Relations and Employment Law Annual Newsletter.

It provides a summary of the recent important articles and books. Unfortunately, it does not include a discussion of recent caselaw. Readers interested in labor and employment law, should check this publication out.

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

December 16, 2009 in Labor Law | Permalink | Comments (0)

Tough economic times mobilize adjunct and contigent profs.

We've previously blogged (here, here and here) about several stories from around the country reporting on increasing efforts among (non-law school) adjuncts and other contingent faculty to organize, unionize and otherwise lobby for better job security and working conditions.  In a follow up to those stories, this one from the Chronicle of Higher Ed reports on a "surge" in adjunct activism resulting from hard economic times that have most adversely affected contingent faculty.  Entitled "Surge in Adjunct Activism is Spurred by Bad Economy and Hungry Unions," here's an excerpt:

Institutions like Western Michigan University, Montana State University, and Cooper Union for the Advancement of Science and Art are home to new adjunct unions. In Massachusetts a group of part-time faculty members sued the state on behalf of adjuncts who don't get health insurance at community colleges. And the part-timers' union at Rhode Island College has ratified the first contract for adjunct faculty members in the state.

This increasing activity is devoted to reversing the fortunes of the largest part of the professoriate, a population usually characterized by low pay and benefit levels and scant job security. Now a combination of factors has prompted adjuncts to organize, break new ground at the bargaining table, and embrace other forms of activism.

The battered economy has pushed adjuncts to seek protection in an environment where their jobs are more at risk than usual. National higher-education unions are paying new attention to these instructors, who make up an ever-growing pool of labor on the nation's college campuses. And some adjuncts report being energized by success stories from their unionized peers.

If you've got any information or news about adjuncts lobbying for better treatment at law schools, please let us know in the comment section, below.  In the meantime, you can read the rest of the CHE article here.


December 16, 2009 | Permalink | Comments (0)

Tuesday, December 15, 2009

Is Law School Worth It??

Going To Law School Proceed With Caution is an interesting December 14, 2009 National Law Journal article. The article questions whether law school is worth it? Why? Because of the time commitment, the expense, the difficulty in finding a job, any job-not just a high paying job. The article also quotes a study involving law students where 21% of them regret going to law school.

I could not disagree more. Law is a wonderful profession. One does not only have to practice in a law firm to be a lawyer. A law degree can be very valuable in business, for example. Dare I say it is more valuable than an MBA-except perhaps if you are going to read balance sheets all day.

Yes, it will be difficult to find a job. But guess what, those $170,000 big firm Wall  Street firm jobs are nothing to write home about. Most attorneys (partners too) who work in those firms will tell you that they do not like it. The trick in law, like the trick in any profession, is doing something you enjoy.

If you are into unions and labor relations (like me), then strive for a job in labor relations. If your into business, then get a job in business. If you cannot get a job now, then start taking steps that will get you that job. Become active in a bar association, go to meetings, volunteer, write an article etc.

Mitchell H. Rubinstein

December 15, 2009 in Law Schools, News | Permalink | Comments (0)

Preparing For Oral Argument

Legal Writing Prof Blog ran an interesting Nov. 5, 2009 story which cited to an article from the Chicago Tribune about a 4th year associate preparing for argument in the U.S. Supreme Court. You heard it right, 4th year associate. That article is available here. The Associate is from Mayer Brown and the article states:

Chicago Law: How did you get involved in this case?

Sanders: This is a good example of the firm's entrepreneurial culture. I began working on this case at earlier stages when it first came to the firm 2 1/2 years ago. I quickly became the person conversant in the case. I did the argument at the 8th Circuit (court of appeals).

Chicago Law: How did this case make it to the Supreme Court?

Sanders: We lost at the 8th Circuit, but the opinion was in direct conflict with a case in the 7th Circuit. I thought there was a reasonable chance the Supreme Court would grant cert. (certiorari, a legal term that means when a court reexamines the actions of a lower court.) I guess I have earned the confidence of the partners and clients to do the argument.

Chicago Law: How long have you been preparing for the oral argument?

Sanders: In some sense, for two years. The formal prep for the oral argument started earlier in October. (When I reached him by phone, he was returning from Ann Arbor, Mich., where had just done a simulated argument, also known as moot court, with some of his former law professors.) The moot court in Michigan is the second of five that I will do. It's a little more than others would do. This is a very tricky case. I want every opportunity to anticipate questions that might come up at oral argument.

Chicago Law: What's the moot court experience like?

Sanders: Professors read the brief and come to a certain point of view and want to debate you a little bit. You do get from the Supreme Court.

My bet is that this 4th year associate had something to do with landing this client. Otherwise, they would never let a 4th year associate (and perhaps any associate) argue in the Supremes.

Mitchell H. Rubinstein

December 15, 2009 in Litigation | Permalink | Comments (1)