Adjunct Law Prof Blog

ALPA Agrees To Largest Ever Duty of Fair Representation Settlement

United Airline Pilots Union to Pay $44 M To Settle Suit By Some Members is an interesting Chicago Crains article dated Jan. 21, 2010.  The article states that this settlement is the largest DFR settlement in history. As the article states:

The pilots union at United Airlines has agreed to pay $44 million to about 2,000 senior pilots who claimed they were shortchanged by a lump-sum financial deal the union cut to get the Chicago-based carrier out of Bankruptcy Court four years ago.

The settlement puts to rest a class-action lawsuit brought by several former leaders of the union, which potentially could have cost the Air Line Pilots Assn. nearly $200 million had it gone to trial.

Legal experts believe it to be the largest settlement ever in a case based on the “duty of fair representation,” an area of labor law where courts usually give union leaders a lot of leeway to define what’s fair.

“That’s a substantial settlement,” said Martin Malin, a Chicago Kent College of Law professor who has written a reference book for lawyers on the duty of fair representation. “It sounds like the union had a lot to be worried about.”

There is a recent court decision where the court denied ALPA summary judgment. My guess is that this court decision is what lead the parties to settle. Mansfield v. ALPA, 2009 WL 2386281 (N.D. Ill. Jan. 29, 2009), Download Denial.Motion.Summary.Judgment.7-29-09

Mitchell H. Rubinstein

Clerk who lacked "Midwestern girl look" could pursue sex stereotyping claim

Lewis v Heartland Inns of America, LLC, ____F.3d____(8th Cir. January 21, 2010), is an interesting case.

The 8th held that the lower court improperly granted summary judgment in favor of an employer on a hotel desk clerk's Title VII sex-stereotyping claim that she was discharged because she dressed like Ellen DeGeneres, lacked a "Midwestern girl look" and was not pretty enough. The plaintiff alleged that the  employer discharged her not because of her qualifications or job performance, but because her appearance did not comport with the employer's preferred feminine stereotype. An adverse employment decision based on "gender non-conforming behavior and appearance" is impermissible under Price-Waterhouse. Further, such criticism of an employee before terminating her may be found by a reasonable factfinder to be evidence of wrongful sex stereotyping. The district court also erred in requiring the employee to offer evidence that similarly situated men were treated differently. Supreme Court precedent does not compel a female employee alleging sex discrimination to prove men were not subjected to the same challenged discriminatory conduct or show that the discrimination affected anyone other than herself, noted the majority. Here, the employer did not follow its own disciplinary procedure in discharging the employee and only later alleged the discharge was for poor job performance.

Mitchell H. Rubinstein

Twenty-day statute of limitations for filing an appeal with the Unemployment Insurance Board strictly construed

Matter of Pascarella v New York State Thruway Auth., 59 AD3d 835

An agency Administrative Law Judge [ALJ] reversed an initial determination that denied former New York State Thruway employee James J. Pascarella’s application for unemployment insurance benefits. The ALJ’s decision approving Pascarella’s claim for benefits included a statement that a party had 20 days to file an appeal challenging the determination.*

The Thruway Authority filed an appeal, but it was dismissed on the grounds that it was untimely.

In the course of a hearing to determine if the Thruway’s appeal was timely, the Thruway’s representatives admitted the Thruway received the ALJ's decision shortly after it was mailed but testified that the Thruway’s delay in seeking to appeal was due to its mistaken belief that it, as the employer, had 30 days, within which to do so.

The Unemployment Insurance Appeal Board dismissed the Thruway’s appeal as untimely.
The Appellate Division affirmed the Board’s determination pointing out that Labor Law §621(1) requires that an appeal to the Board from an ALJ's ruling must be made within 20 days of the date the decision is mailed or personally delivered to the party wishing to appeal.

The court explained that statutory time limits are strictly construed and neither the fact that the party appealing failed to read or understand that part of the ALJ's decision indicating the time period for filing a timely appeal nor its mistaken belief that it had more time to appeal is not a reasonable excuse for failing to comply with the statutory time period provided to do so.

* Another example of a “short statutes of limitations,” an appeal challenging an Education Law §3020-a disciplinary determination pursuant to CPLR Article 75 must be filed within ten days of the receipt of the decision by the party challenging the decision [see Education Law §3020-a.5].

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

E-Mail Etiquette For Lawyers

One of my colleagues at St. John's Law School, Judge Jerry Lebovits wrote a very interesting December 2009 article for the NYS Bar Journal entitled E-Mail Netiquette for Lawyers.(No link available). It provides some common sense advice concerning the use of email. His general advice is "Think.Pause. Think again, Then send." He warns attorneys not to hide behind the electronic curtain, to end confrontations, to be concise and to limit back and forth lengthly conversations. Check the article out.

Mitchell H. Rubinstein

School Law Jobs

School Law Jobs
Job Title	Employer	Job Location
General Counsel	Oxnard School District	Oxnard, California
School Attorney	Harbottle Law Group	Orange County, California
General Education / Labor & Employment Attorney	Lozano Smith	Los Angeles, California
Special Education Attorney	Lozano Smith	Northern/Central California
Associate Attorney	Schwartz & Shaw	Raleigh, North Carolina

Adjournments

We all need them at some point. Sometimes we really need them and it can make the difference in a case. What are they? Adjournments or continuances. There has not been much written about this important litigation topic and their are relatively few reported decisions concerning same. "To Be Continued" is an excellent December 2009 NYS Bar Journal article written by David Paul Horowitz.

Courts, of course, have broad discretion is deciding whether to grant an adjournment. This article reviews some of the leading New York cases on this important fact of litigation life. The article discusses some cases concerning adjournments because of witness availability, extensions to gather documents and attorney scheduling conflicts.

Mitchell H. Rubinstein

Bus Driver Unable To Establish Discrimination Claim on the Basis of Obesity

An obese woman who was passed over for a bus driver position was not the victim of perceived disability discrimination under California's Fair Employment and Housing Act because her obesity was not caused by an underlying physiological condition, a California court has ruled. The 2nd District Court of Appeal rejected the plaintiff's claim that an amendment to the FEHA, Cal. Gov't Code § 12900, allowed such a cause of action without a medical reason for the disabling physical condition.

Hines v. Los Angeles County Metropolitan Transportation Authority, No. B208389, 2009 WL 3682603 (Cal. Ct. App., 2d Dist., Div. 5 Nov. 6, 2009).

Mitchell H. Rubinstein

Supremes hears arguments in dispute over CBA formation, interference

The Supreme Court heard oral arguments last week in Granite Rock v Int'l B'hood of Teamsters (Dkt No 08-1214): Does a federal court have jurisdiction to determine the existence of a bargaining agreement where there is a dispute as to whether a contract was actually formed? Alternatively, should the issue of contract formation go to an arbitrator, pursuant to the putative contract's arbitration clause? Also at issue is whether the Labor Management Relations Act provides a cause of action for tortious interference with contract against an international union that is not a signatory to the bargaining agreement, but effectively displaces the signatory local union and causes a strike. In the decision below, the Ninth Circuit reversed a district court order denying a union's motion to compel arbitration on the question of whether a contract was formed. The appeals court also affirmed dismissal of the employer's LMRA claim against the international union.

Mitchell H. Rubinstein

Court Upholds Dismissal of Dental Student From Dental School

In Flores v. NYU, __Misc. 3d___(N.Y. Co. Nov. 30, 2009), the court upheld the dismissal of a student from dental school for cheating. As the court explained:

Here, the court finds that NYUCD’s decision must be upheld because the
College substantially complied with its own Code, and its determination was
rationally based after consideration of all the evidence before it. While Petitioner
disputes that he explicitly admitted to cheating on a quiz, Petitioner himself states
in the petition that he “admitted to briefly glancing at another student’s quiz 011 a
single occasion.” Whilc Petitioner maintains that this was inadvcrtent - and was in
fact the product of his ADHD - Petitioner’s facially plausible explanation does not
render NYUCD’s contrary finding (ie., that Petitioner looked at the student’s quiz
to obtain answers) unreasonable or arbitrary. Accordingly, the court cannot disturb
NYUCD’s findings of fact and assessments of witness credibility (see Ehert v.
Yeshiva Univ., 28 A.D.3d 3 15, 3 16 [lst Dcpt. 20061). Finally, where Petitioner was
found to have cheated on a quiz, the court cannot conclude that the penalty of
expulsion was so disproportionate to the offense as to shock thc conscience.

This case demonstrates how courts pay extreme deference to decisions of university administrators.

Mitchell H. Rubinstein

The ABA responds to the claim there are too many law schools

As many readers may know, the LA Times recently featured an editorial by Mark Greenbaum that blasted the ABA for abdicating its responsibility to lawyers, the public and prospective law students by not doing more to stem the tide of debt-burdened law grads seeking jobs where non exist.

ABA president Carolyn Lamm has now responded to the editorial as well as granting Above the Law an interview. In essence, Ms. Lamm says that the LA Times editorial got some of the key numbers wrong resulting in a misleading picture of the supply and demand for lawyers.  Further, she explains that anti-trust laws prevent the ABA from refusing to approve new law schools if they meet the licensing requirements:

Greenbaum’s proposal to erect barriers to entry in the profession and/or to new law schools would violate the antitrust laws of the United States, something the ABA cannot and will not attempt to do. To violate our nation’s laws as we strive to teach new lawyers ethical and responsible practice would offend public trust and disserve future clients. Before so causally dismissing antitrust “concerns,” Greenbaum should consider the basic precepts of antitrust law that ban concerted action to bar entry to a public profession. He proposes to protect income of lawyers already in practice by clamping the pipeline for bright, committed, energetic and talented new lawyers preparing to serve the public. Rather, the ABA is working to ensure that our profession is open to all from our communities who wish to serve the public. Our profession and those involved in our justice system must reflect our communities. It is a difficult time for all given the economic crisis.

You can read the rest of President's Lamm's response to the LA Times editorial as well as her comments to ATL here.

(jbl)

Arizona law would permit professors to carry guns

An Arizona legislator has introduced a bill that would allow faculty at public universities to carry guns on campus if they have a concealed weapons permit.  According to azcentral.com:

Senate Bill 1011, sponsored by Republican Sen. Jack Harper of Surprise, comes on the heels of passage last year of a bill that allows guns to be stored inside locked car trunks on public college campuses.  The latest bill is already generating debate among faculty, who are trying to figure out whether the legislation has legs. Faculty groups at Arizona have not yet taken positions.

“It's on our radar, and we're watching it with great attention and scrutiny,” said Rojann Alpers, an ASU professor and chair of the university's academic council.

 

Although the UA Faculty Senate has not voted, chair Wanda Howell said the senate wouldn't support the latest bill given the faculty's opposition to the previous law change that allows people to keep guns locked inside their cars on campus.

 

Since the 2007 shootings at Virginia Tech that left 33 people dead, a handful of states have sought to put legislation in place that relaxes college firearm laws. Most states still prohibit guns on campus

You can read the rest here.

Hat tip to the Chronicle of Higher Ed.

(jbl)

Union Membership In New York Continues To Remain Strong

Union membership in New York is about double than National average. A recent article which summarizes BLS data states:

Union membership in New York remains strong despite the downturn in the economy.

The US Bureau of Labor Statistics is out with its annual survey of union membership. New York once again has the highest percentage of union members. Just over one-fourth (25.2%) of those working in New York belong to a union. That's more than double the national rate (12.3%).

The total number of people employed in the state dropped by ten-percent from 2008 to 2009. But over the same period, the number of union workers declined only half as much.

Mitchell H. Rubinstein

LAW LIBRARIAN WAS PROPERLY FIRED FOR ‘DISRUPTIVE’ E-MAIL

Kaye v. Board of Trustees of the San Diego County Public Law Library et al., No. D053644, 2009 WL 3738795 (Cal. Ct. App., 4th Dist., Div. 1 Nov. 10, 2009) A California appeals court has refused to overturn summary judgment in favor of a public law library that fired its reference librarian after he circulated a scathing e-mail critical of management.

    A California Appellate Court rejected plaintiff's argument that his e-mail was protected speech and that his termination violated the California Constitution's free-speech clause.

“When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline,” the appeals court explained, citing Garcetti v. Ceballos, 547 U.S. 410 (2006).

The dispute arose in 2006 when a representative from the Administrative Office of the Courts contacted the San Diego County Public Law Library to arrange a speaker for a program about helping self-represented litigants with appeals.went directly to Kaye, as he had taught the library's appellate course for self-represented litints.

Mitchell H. Rubinstein

How to handle students who tell you they need to get an "A"

Apropos to the post below about students "demanding" to know why they didn't get the "A" they think they deserved is this essay from Inside Higher Ed, explaining how to handle students who subtly pressure the teacher at the start of the semester for an "A."

Unless you discourage it, someone will come to you early on and announce that s/he "needs" to get an A in your class. Variants include: "I have a 4.0 GPA"; "I want to know exactly what I need to do to get at least an A in your class"; "I’ve always gotten an A in (your discipline here) classes"; and "I’m applying to law/med school so I need to make sure this course won’t hurt my GPA."

The best way to address such a statement is try to avoid needing to do so in the first place. Some professors like to use ice-breakers in the first class to build solidarity. If that works for you, who am I to criticize? I’m not comfortable with the touchy-feely stuff, so I prefer to get down to business. However you start, though, make sure you make several things clear when you pass out the syllabus.

First, advise students that your grading criteria are laid out in specific detail on the syllabus. Second, remind them that a B is an honors level grade and they must do honors level work to get a grade that’s at least that high. Third, tell the class that you will evaluate everyone’s work according to the same standards. Fourth, remind students that you can only evaluate products, not effort, perception, or personality.

Even then at least one student is likely to repeat the dreaded "I need to get an A" phrase. In such a case, the best route to go is to smile and tell the student, "I hope that your need will match what you earn, but you should know that this conversation will have no bearing on how I evaluate you. In fact, it would be a very good idea if this topic is never again mentioned." Don’t be surprised if said student drops your course. Don’t worry about that; in fact, count your blessings.

The author offers additional advice on students who tell you:

1. I need this course to stay in school and I’m willing to work hard.
2. Is this course going to be fun?
3. If I miss a few classes, will it hurt me?
4. If I screw up, can I do an extra credit project?

In addition to answering those questions, the author also provides a bibliography of readings on these topics.  You can find all of it here.

(jbl)

How to handle the student who gets a "B" but thinks she deserves an "A"

This post is for all our adjunct prof readers (and full-timers too).  Each of us has developed our own strategies for dealing with students who email or come see us after the semester ends demanding to know why they didn't get an "A."  One professor offers this advice via the Chronicle of Higher Ed:

I've always told the students they could discuss their grades with me once we are three weeks into the new semester, which is basically my version of hoping they'll forget. Usually they do.

[I made an exception for this student] because he was, in fact, a good writer and because he seemed genuinely perplexed by the fact that even though he did all the work, he didn't get the best grade possible. 

With very few changes, here's the note I sent:

Since I have a policy of not explaining or discussing grades until the second week after the new semester begins, consider this quick email a rare case of rule-breaking on my part: I'm making an exception because I think you have promise as a writer. 

First things first: Yes, you did misinterpret the following:  

If every assignment was completed on time and in its entirety with well thought out responses then the result would be an A in the class.

That's not a deal I make in any class or with any student. You should also understand that getting a B is, in fact, doing very well. You should give yourself credit. It is an excellent grade. The fact that you did well is an indication of precisely the promise I mentioned earlier.

Secondly,  of course you made the deadlines -- which is what I expect from everyone -- and you handed in the assignments -- which is also what I expect. That level of work secures students a "C" because that's what we call "meeting the minimum requirements" and in no case would that snag anybody an automatic A.

You can read the rest of this teacher's response to the student here.

(jbl).

Supervisor’s comments concerning an employee’s job performance protected by a qualified privilege absent a showing of malice

Bayer v City of New York, 60 AD3d 713

Hank Bayer, who was employed as a plumber by the New York City Department of Education, sued the City, the Department of Education and his supervisor, Nunzio Piro, alleging, that Piro defamed him and repeatedly accused him of misconduct and insubordination. He asked to be awarded damages for “intentional infliction of emotional distress and defamation.” Supreme Court dismissed Bayer’s complaint.

The Appellate Division affirmed the lower court’s granting the defendants’ motion for summary judgment, holding that the City, the Department and Piro had “established their prima facie entitlement to [summary] judgment as a matter of law.”

The court said the alleged defamatory statement made by Piro was protected by a qualified privilege since Piro made it to other persons who had an interest in his assessment of Bayer’s work behavior.

To overcome Piro’s qualified privilege Bayer was required to show that the statement was solely motivated by malice. The Appellate Division said that Bayer failed to do so.

In any event, said the court, Bayer “failed to raise a triable issue of fact as to whether Piro's conduct was so extreme, outrageous, and beyond the bounds of human decency as to constitute the tort of intentional infliction of emotional distress, citing Schell v Nassau County Dept. of Health, 237 AD2d 423.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

New Jersey school district considers imposing fine on parents of students sent to detention

The Newark Star Ledger reported that the Nutley, New Jersey, Board of Education is looking a proposal that would impose fines on the parents of students habitually sent to detention. The plan is to charge parents for detention, which they estimate costs the district $10,000 a year in overtime and maintenance fees. The size of the fines or how to define a student who is habitually in detention has not been decided. The proposal, which is being reviewed by the school board’s attorney, would be the first of its kind in the state, said Frank Belluscio, spokesman for the New Jersey School Board Association.

Source: Star-Ledger, 11/18/09, By Halley Bondy

Query whether such a practice is constitutional? Law review commentary on this important issue would be welcome.

Mitchell H. Rubinstein

Employee Wellness Programs

Legal Implications of Employee Wellness Programs is an excellent December 7, 2009 article from the New York Law Journal (registration required). It outlines the legal issues which may arise under GINA, ERISA, HIPPA and the ADA. With respect to HIPPA, the article states:

HIPAA prohibits ERISA group health plans from using a health factor as a basis for discrimination with regard to either eligibility to enroll or premium contributions. See ERISA §702(a) and (b); 29 U.S.C. §1182(a) and (b). The enumerated list of "health factors" includes health status, medical conditions, claims experience, receipt of health care, medical history, genetic information, evidence of insurability, and disability. See 29 C.F.R. §2590.702.

If a wellness program does not condition a reward on an individual satisfying a standard that is related to a health factor, the wellness program does not violate HIPAA, so long as participation in the program is made available to all similarly situated individuals. Id. For example, a reward based on participation in a program, without regard to the health outcomes resulting from that program, would not violate HIPAA, if all similarly situated employees may participate in the program. However, if an employer wishes to condition rewards based on individuals satisfying standards related to a health factor, the HIPAA regulations provide an exception to the nondiscrimination provisions for wellness programs that satisfy the following requirements:

• The reward for the wellness program must not exceed 20 percent of the cost of employee-only coverage under the plan;

• The program must be reasonably designed to promote good health or prevent disease;

• The program must give individuals eligible for the program the opportunity to qualify for the reward under the program at least once per year;

• The reward under the program must be available to all similarly situated individuals, and the program must allow a reasonable alternative standard or waiver for any individual for whom it is unreasonably difficult due to a medical condition, or medically inadvisable to satisfy the condition; and

• All plan materials describing the terms of the program must disclose the availability of a reasonable alternative standard or the possibility of waiver of the otherwise applicable standard.

However, there is an exception for benign discrimination for wellness plans that discriminate in favor of an individual based on a health factor. For example, a program that waives a deductible for diabetic patients who enroll in a disease management program does not violate HIPAA's nondiscrimination provision.

Mitchell H. Rubinstein

Suit charges Florida district’s ban on T-shirt critical of Islam violates students’ speech rights

Two families have filed suit in federal court against the Alachua County School Board, according to Courthouse News Service, claiming their children’s constitutional rights to free speech and free religious expression have been violated because they are banned from wearing T-shirts with the caption “Islam is of the Devil” at school. The families are both members of the Dove World Outreach Center in Gainesville which displays a sign with that same caption on its grounds and sells the T-shirts through its website. The children wore the shirts as a group on the first day of classes. The parents assert the shirts caused no disruption, but that "starting the second day of school, the student plaintiffs who wore these T-shirts were subjected to disciplinary actions by school officials, ranging from requiring the student to change or cover up the T-shirt to suspension." They claim the school district's dress code is overly broad, and gives administrators too much power to decide what is "offensive to others" and what is "positive." "

The parents, who are represented by the American Civil Liberties Union (ACLU).

Source: Courthouse News Service, 11/25/09, By Tim Hull

ACLU legal complaint

Mitchell H. Rubinstein

Center For Labor and Employment Law at St. John's Law School

I am delighted to be part of The Center For Labor And Employment Law at St. John's University School of Law. Download Current bulletin of the center-1

Under the leadership of Professor David L. Gregory and Dean Michael A. Simons, the Center is designed to creatively and dynamically prepare law students as superb labor and employment lawyers. The Center, which was founded almost forty years ago as the labor and employment society, will continue to bring distinguished speakers and leaders to campus and expose students to cutting edge legal issues. Major events planned for 2010-2011 include the following:

1.  NLRB Chair Wilma Liebman will be the keynote speaker at a conference on the 75th Anniv. of the NLRA. That conference will be held on June 2, 2010 at St. John's Manhattan Campus, 101 Murray Street between 6 and 10 pm.

2. AFL-CIO President Richard Trumka has been invited to be the keynote speaker at a symposium conference on March 19, 2011 at the main campus of the law school.

3. The Center together with Cambridge University, England will sponsor a conference in England on July 17-23, 2011 entitled "Labor and Employment Dispute Resolution: International and Comparative Perspectives"

For additional information contact Professor David Gregory at gregoryd@stjohns.edu

Mitchell H. Rubinstein