Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Tuesday, January 26, 2010

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

January 26, 2010 in Education Law, Law Review Ideas | Permalink | Comments (0)

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

January 26, 2010 in Articles, Employee Benefits Law | Permalink | Comments (0)

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

January 26, 2010 in Education Law | Permalink | Comments (0)

Monday, January 25, 2010

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

SJ_Logo Masthead_lg

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

Mitchell H. Rubinstein 

January 25, 2010 in Conferences, CLE, Conferences, Faculty, Law Schools, Law Schools, News | Permalink | Comments (0)

Rubinstein, Privacy Legal Issues in the Public Sector

I was invited to submit an article in connection with NYU Annual Conference on Labor in 2005. My article was written in 2005, updated in late 2009 and just published. The abstract describes my article as follows:

This article appears as a Chapter in a book on Workplace Privacy and was part of New York University 58th Annual Conference on Labor in 2005. This article was updated in December 2009. The article focuses on privacy issues in the public sector. It explains that the right of privacy involves boundary lines, how notions of privacy have changed over time-particularly after September 11th, focuses on the constitutional right of privacy, workplace searches and surveillance, Electronic Communications Privacy Act, surveillance and labor relations issues, Sunshine laws and public employee statutory rights, the right to union representation at investigatory interviews, gay marriages and concludes that many of the boundary lines concerning the right of privacy in the public as well as the private sector can be negotiated by employers and unions.

Keywords: Employment, Employee, Unions, Privacy, Constitutional Law, Workplace Searches, Labor Relations, Public Sector Labor Relations, Collective Bargaining

JEL Classifications: J12,J13,J18,J50, J58,J59, K31, K10

Mitchell H. Rubinstein, Privacy Legal Issues in the Public Sector, ch. 18, pp. 629-669 (Jonathan Remy Nash & Samuel Estreicher, eds) (Wolters Kluwer 2010). 

Mitchell H. Rubinstein

January 25, 2010 in Law Review Articles | Permalink | Comments (0)

Parents sue district alleging officials ignored repeated anti-Semitic harassment of son

Courthouse News Service reports on a suit filed by a parent in federal court, where the parent claims her son was subjected to "unbearable" anti-Semitic harassment, including having "burn, Jew, burn" scratched onto his locker, while attending High School in California. The suit alleges that the principal and school board ignored her complaints about the harassment, and compounded the insults by staging a play called "Hitler Youth.” The complaint alleges the School District "ignored and even fostered an educational environment that is hostile to a Jewish student."

Courthouse News Service, 11/19/09, By Maria DinzeoEditor’s Note: The legal complaint is available at the link below.

Zysman legal complaint

Mitchell H. Rubinstein

January 25, 2010 in Education Law | Permalink | Comments (0)

Supremes Recognize the Importance of Blogs

Supreme Court

Citizens United v. Federal Elections Commission, 558 U.S. ___, slip op at 49 (Jan. 21, 2010) appears to be the first time the Supreme Court recognized the importance of blogs and in fact used the term "blog." Specifically, the Court stated:

Rapid changes in technology—and the creative dynamic
inherent in the concept of free expression—counsel against
upholding a law that restricts political speech in certain
media or by certain speakers. See Part II–C, supra.
Today, 30-second television ads may be the most effective
way to convey a political message. See McConnell, supra,
at 261 (opinion of SCALIA, J.). Soon, however, it may be
that Internet sources, such as blogs and social networking
Web sites, will provide citizens with significant information
about political candidates and issues. Yet, §441b
would seem to ban a blog post expressly advocating the
election or defeat of a candidate if that blog were created
with corporate funds. See 2 U. S. C. §441b(a); MCFL,
supra, at 249. The First Amendment does not permit
Congress to make these categorical distinctions based on
the corporate identity of the speaker and the content of
the political speech.

Hat Tip The Volokh Conspiracy

Mitchell H. Rubinstein

January 25, 2010 in Blogs, Legal, Supreme Court | Permalink | Comments (0)

Agriculture adjunct busted for growing pot

The Chronicle of Higher Edis reporting that the police busted a couple of adjunct professors at SUNY-Albany, including one who teaches in the school of agriculture, for growing pot.

Scott R. Davidson, a part-time lecturer in marketing at SUNY-Albany, was arrested Friday and charged with growing marijuana plants after agents raided his home and found 80 plants, along with growing equipment, lights, scales, and packaging materials. He is scheduled to appear in court this month.

Earlier last week, the paper reports, an adjunct lecturer in the agriculture and engineering division of SUNY-Cobleskill was charged with a misdemeanor after the police raided his home and found a small amount of marijuana as well as equipment for growing it.

You can read more about the story courtesy of the Albany Times Union here.

Hat tip to the CHE.


January 25, 2010 | Permalink | Comments (0)

Sunday, January 24, 2010

Union Membership Continues To Decline

On Jan. 22, 2010, the BLS issued its annual report on union membership. Union membership has continued to decline. As the report states:

In 2009, the union membership rate—the percent of wage and salary workers who were members of a union—was 12.3 percent, essentially unchanged from 12.4 percent a year earlier, the U.S. Bureau of Labor Statistics reported today. The number of wage and salary workers belonging to unions declined by 771,000 to 15.3 million, largely reflecting the overall drop in employment due to the recession. In 1983, the first year for which comparable union data are available, the union membership rate was 20.1 percent, and there were 17.7 million union workers.The data on union membership were collected as part of the Current Population Survey (CPS). The CPS is a monthly sample survey of about 60,000 households that obtains information on employment and unemployment among the nation's civilian noninstitutional population age 16 and over.
Some highlights from the 2009 data are:
 More public sector employees (7.9 million) belonged to a union than did private sector
employees (7.4 million), despite there being 5 times more wage and salary workers in the
private sector.
Workers in education, training, and library occupations had the highest unionization rate at
38.1 percent.

Black workers were more likely to be union members than were white, Asian, or Hispanic
Among states, New York had the highest union membership rate (25.2 percent) and North
Carolina had the lowest rate (3.1 percent).
Industry and Occupation of Union Members
In 2009, 7.9 million public sector employees belonged to a union, compared with 7.4 million union workers in the private sector. The union membership rate for public sector workers (37.4 percent) was substantially higher than the rate for private industry workers (7.2 percent). Within the public sector, local government workers had the highest union membership rate, 43.3 percent. This group includes workers in heavily unionized occupations, such as teachers, police officers, and fire fighters. Private sector industries with high unionization rates included transportation and utilities (22.2 percent), telecommunications (16.0 percent), and construction (14.5 percent).

Hat Tip:
Workplace Prof Blog

Mitchell H. Rubinstein

January 24, 2010 in Unions | Permalink | Comments (0)

What Ever Happened To Employee Free Choice Act

As readers to this blog all know, I am a strong supporter of EFCA and have debated its merits at Columbia and Cardozo Law Schools. However, the reality of life is that the legal landscape has changed. The Democrats no longer have a supermajority in the Senate. A few years ago, EFCA was not enacted because the Senate did not have 60 votes to cut off debate. With the election of Scott Brown, it appears to me that history may be repeating itself.

Though I am a supporter of card check, perhaps if that portion of the Bill was removed, EFCA might have a better chance of being enacted. Something is better than nothing.

Mitchell H. Rubinstein  

January 24, 2010 | Permalink | Comments (0)

Testing employees for unlawful drug use a mandatory subject of collective bargaining

Matter of Deitch v City of New York, 2009 NY Slip Op 52402(U), Decided on November 30, 2009, Supreme Court, Kings County, Justice Arthur M. Schack [Not published in the Official Reports.]

Terence J. Deitch was terminated from his position as a New York City Police Officer after a sample of his hair tested positive for drugs.

Justice Schack granted Deitch’s petition seeking reinstatement to his former position with back salary and benefits, declaring that Deitch’s drug test was a “nonconsensual hair analysis drug test … outside a departmental investigation” and violated the collective bargaining agreement between the New York City Police Department [NYPD] and Deitch’s union, the Patrolmen's Benevolent Association of the City of New York, Inc. (PBA).

Observing that “routine drug screening tests are a mandatory subject of collective bargaining,” Justice Schack ruled that the hair analysis drug test administered to Deitch by NYPD to Deitch was implemented without any consultation with the PBA.

The court also pointed out that Deitch had been terminated in violation of the First Department's decisional law and concluded that it was effected in bad faith in that Deitch was suspended one day after the Appellate Division, First Department’s ruling in City of New York v PBA, 56 AD3d 70, that the use by NYPD of the hair analysis drug test was "a mandatory subject of collective bargaining and its use without any consultation with the PBA violates public policy" and his termination occurred 56 days later.

Holding that NYPD's use of RIAH analysis without consultation with police unions violated public policy, Justice Schack characterized NYPD’s terminating Deitch almost two months after the First Department's decision in City of New York v PBA as “an arrogance of power and bad faith [and] arbitrary, capricious and an abuse of discretion.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

January 24, 2010 in Public Sector Labor Law | Permalink | Comments (0)

Saturday, January 23, 2010

New Jersey enacts medical marijuana law; no employer accommodation required

New Jersey enacted the Compassionate Use Medical Marijuana Act  and became the 14th state in the nation to legalize medical marijuana. The law removes statewide penalties for the possession and use of up to two ounces of marijuana when a New Jersey licensed physician recommends it for a qualifying medical condition. Patients will be issued ID cards in a program run by the state department of health and senior services. The marijuana will be obtained from tightly regulated alternative treatment centers set up across the state. The statute was signed into law by outgoing Gov. John Corzine.

Very significantly, the statute provides: "Nothing in this act shall be construed to require... a private health insurer to reimburse a person for costs associated with the medical use of marijuana, or an employer to accommodate the medical use of marijuana in any workplace."

Mitchell H. Rubinstein

January 23, 2010 in Legal News, Legislation | Permalink | Comments (0)

The Madoff Affair

PBS Frontline did a special report on the Madoff Affair. It includes several interesting interviews and a timeline. This material is not legal, but some professors may want to use it in class to stimulate discussions about ethics, the law and business.

Mitchell H. Rubinstein

January 23, 2010 in Current Affairs, Current Events | Permalink | Comments (0)

Friday, January 22, 2010

7th holds police sergeant was not transferred to other units in retaliation for activity protected under Title VII.


O'Neal v. City of Chicago, ___F.3d___(7th Cir. Nov. 17, 2009), is an interesting case.A Seventh Circuit panel has affirmed a court's grant of summary judgment for the Chicago Police Department (CPD) on an African-American female sergeant's retaliation claim under Title VII. She engaged in statutorily "protected activity" when she filed an employment discrimination lawsuit, and four years later when she filed her grievance for retaliation. Her two actionable transfers constituted "adverse employment actions" insofar as they negatively affected her ability to be promoted. The statements of a lieutenant who recommended her transfer to another unit, made without reference to the sergeant's lawsuit and before she arrived, constituted neither direct evidence nor a convincing mosaic of circumstantial evidence. Under the indirect method she needed to present evidence that she met the department's legitimate expectations, that she was treated less favorably than similarly situated employees who did not engage in statutorily protected activity, and that any nondiscriminatory reasons offered by the department for her two actionable transfers were pretextual. However, she failed to rebut the department's assertion that she was borderline insubordinate, had a confrontational attitude, and suffered from an inability to conduct street operations that "jeopardized the safety of an undercover officer."

Mitchell H. Rubinstein

January 22, 2010 in Employment Discrimination | Permalink | Comments (0)

Craig Becker Renominated To The NLRB

As expected President Obama renominated Craig Becker as a Member of the NLRB. I know Craig and think he would make an excellent Board Member. However, I also know that the legal landscape has just changed. The Democrats no longer have a super majority in the Senate. Therefore, there is a real possibility that he will not be confirmed.

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

January 22, 2010 in NLRB | Permalink | Comments (1)

Thursday, January 21, 2010

Moody's says financial future of higher edu is negative

The credit rating agency Moody's predicts that the near-term financial future of higher edu is negative (and here).  Of course, your results may vary but Moody's says:

that the "partial recovery in equity markets" has helped many colleges and that many institutions have found ways to increase their liquid assets. But many institutions, Moody's says, face "fundamental and cumulative risks of weakened student demand and donor support," as well as greater outside scrutiny. On issues of credit stability, Moody's says that the risks are greater for private institutions than public institutions.

On the other hand, this story from the Chronicle of Higher Ed predicts giving to institutions of higher learning will rebound this year.

Hat tip to Inside Higher Ed.


January 21, 2010 | Permalink | Comments (0)

Supervisor's occasional gender-based inappropriate comments did not rise to the level of a hostile work environment.


Scruggs v. Garstt Seed, ___F.3d___(7th Cir. Nov. 20, 2009) is an interesting case. A supervisor's occasional gender-based inappropriate comments were not sufficiently severe or pervasive to rise to the level of a hostile work environment under Title VII. The comments included that the employee was "made for the back seat of a car" and looked like a "dyke." But, the supervisor was not physically threatening and did not make comments suggesting he was interested in the employee sexually. Additionally, the supervisor made similar comments to both male and female coworkers.

Mitchell H. Rubinstein

January 21, 2010 in Employment Discrimination | Permalink | Comments (0)

Citing Wikipedia In Court

A law review article was recently posted on SSRN about citing Wikipedia in court. It's entitled Wikipedia in Court: When and How Citing Wikipedia and Other Consensus Websites is Appropriate. The abstract provides:

Practitioners and courts are relying more and more on Wikipedia, a free online encyclopedia that anyone can edit. Hundreds of court opinions, including at least one from every federal circuit court, and thousands of law review articles cite Wikipedia. Some opinions have relied on Wikipedia for technical information, although others only turned to the consensus website for background information on minor points.

This practice has generated controversy, with newspapers, professors, practitioners, and judges weighing in. Wikipedia in Court examines the controversy and the history of Wikipedia in court opinions before proposing a framework to determine when it is appropriate and inappropriate to rely on Wikipedia for authority in legal writing. Given the inconsistency in the legal community's use of Wikipedia, courts and practitioners will benefit from this framework.

Readers may find this article of interest.

Mitchell H. Rubinstein

January 21, 2010 in Law Review Articles | Permalink | Comments (0)

Parents of ten-year-old student suspended for written statements stated 1983 First Amendment claim


Cuff v. Central Valley School Dist., ___F.3d___ (2d Cir. 2009), is an interesting decision. Allegations by the parents of a ten-year-old student that the student's suspension, for writing "blow up the school with all the teachers in it" on an in-class assignment, violated his First Amendment free speech rights were sufficient to state a claim under 1983. The court could not conclude at the pleading stage that it was reasonable as a matter of law to foresee a material and substantial disruption to the school environment, as the student's apparent threat was made in crayon in direct response to the assignment, he did not show the assignment to any classmates but rather handed it directly to his teacher, and the student had no other disciplinary history that would suggest a violent tendency.

Mitchell H. Rubinstein

January 21, 2010 in Education Law | Permalink | Comments (0)

Lawyer who lied about grades on his law school transcript is fired and then suspended

The ABA Journal is reporting that a U. of Chicago law grad who altered grades on his law school transcript in order to get a summer associate job with Sidley & Austin was not only fired, but also suspended from the practice of law for 18 months.  It could have been a lot worse:

In April, a hearing board had recommended that Loren Friedman be suspended for three years for altering his transcript from the University of Chicago Law School. The chief counsel for the Illinois agency that oversees lawyer discipline appealed, saying Friedman should be disbarred.

The appeal has resulted in a recommended 18-month suspension, according to the American Lawyer and the Legal Profession Blog. According to the opinion by the Review Board of the Illinois Attorney Registration and Disciplinary Commission, Friedman did not harm any clients.

“Based on his sincere remorse and his acceptance of responsibility for his actions, it appears that respondent has learned from his mistakes,” the opinion said. “In our view, a suspension of 18 months [until further order] is sufficient to protect the public, deter others from engaging in similar misconduct, and require respondent to satisfy his obligation of establishing his character and fitness before resuming practice.”

Friedman had whited out his first-year C and B grades on a transcript and changed them to As and Bs before submitting them to Sidley Austin and other law firms, the opinion says. He also altered second-year grades submitted to Sidley.

You can read the rest here.


January 21, 2010 | Permalink | Comments (0)