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Editor: Mitchell H. Rubinstein
New York Law School

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Sunday, February 28, 2010

Resume Marketing

Interesting article in the Feb. 28, 2010 New York Times entitled "Writing a Resume That Shouts Hire Me", http://www.nytimes.com/2010/02/28/jobs/28search.html?8dpcwww.nytimes.com/2010 It is about resume marketing. The article is not geared for lawyers, but some of the tips may be helpful. The article states: You aren’t obliged to list every single job you have ever held. If a job is 15 or more years in the past, stop and consider how much it’s worth mentioning, or how much space to give it, said Wendy S. Enelow, a résumé writer for executives and co-author of “No-Nonsense Résumés.” “Your résumé is not an autobiographical essay of your entire life,” she said. If the sales job you had 20 years ago does not relate to where you are headed, leave it out or summarize it very briefly, she said. In listing your most relevant experience, quantify your achievements whenever possible, Ms. Enelow said. For example, you could write “automated internal record-keeping processes, resulting in a 27 percent reduction in annual operating costs,” she said. People with gaps in their recent work history often balk at a résumé that lists their latest jobs first, thinking that a “functional” type, stressing skills rather than dates, will work in their favor. But in most cases, job seekers should go the reverse-chronological route. Mitchell H. Rubinstein

February 28, 2010 | Permalink | Comments (0)

Attorney Who Profited From Escort Ring Disbarred

Matter of Committee on Professional Standards v. Bergrin, ___A.D.3d___(3d Dep't. Jan. 14, 2010), is one of those cases involving facts you just cannot make up. A New York attorney is disbarred for his criminal activity involving a high price escort ring. As the court states:

Considering the serious criminal conduct underlying respondent's convictions, which included his involvement in and profiting from a high-priced Manhattan escort-prostitution ring, we direct respondent's disbarment from the practice of law, effective immediately.

Mitchell H. Rubinstein

February 28, 2010 in Lawyers, Misc., Legal | Permalink | Comments (0)

Student who rejected written settlement that offered all requested relief was not entitled to attorney’s fees under IDEA

El Paso Indep. Sch. Dist. v. Richard R., ____F.3d____No. 08-50830 (5th Cir. Dec. 16, 2009), is an interesting case. The 5th Circuit held that a special education student who rejected a written settlement that offered all requested relief and attorney’s fees, was not entitled to attorney’s fees under the Individuals with Disabilities Education Act (IDEA) incurred prior to or subsequent to the written settlement offer because the student unreasonably protracted resolution of the dispute. The Fifth Circuit also rejected the school district’s claim for attorney’s fees.

The decision is lengthly and full of cites that might be helpful to researchers.

Mitchell H. Rubinstein

February 28, 2010 in Special Education Law | Permalink | Comments (0)

Illinois appellate court allows student with autism to bring service dog to school

Kalbfleisch v. Columbia Comm. Unit Sch. Dist. No. 4, No. 09-0447, ___F.Supp.___ (Ill.App. Dec. 16, 2009), is an important special education case. The Appellate Court of Illinois, Fifth District has upheld a lower court’s decision to grant a preliminary injunction compelling a school district to allow a student with autism to bring his service dog to school.

The parents alleged the school district was violating the state service animal statute, which states, "... service animals such as guide dogs, signal dogs, or any other service animal individually trained to perform tasks for the benefit of a student with a disability shall be permitted to accompany that student at all school functions, whether in or outside the classroom."  The court granted the parents’ motion for a preliminary injunction enjoining the Board from preventing Carter from attending school while accompanied by his service dog.

The Board's appeal raised three arguments: (1) the trial court lacked jurisdiction because the parents had failed to exhaust their administrative remedies; (2) the parents had failed to satisfy the requirements for a preliminary injunction; and (3) the trial court had failed to maintain the parties' status quo and to consider properly the public interest in balancing the equities between the parties.

The court concluded that the exhaustion requirement was excused because: “[E]xhaustion is not required if the administrative remedy is inadequate or futile or in instances where the litigant will be subjected to irreparable injury due to lengthy administrative procedures that fail to provide interim relief.” It also found that even if the parents had pursued an administrative claim, the trial court “still would have had jurisdiction to enter a preliminary injunction pending the completion of the administrative process.”

The court rejected the Board's argument that allowing Carter to bring the dog to school could not be the status quo because prior to the suit Carter had not brought the dog to school. It found that accepting the Board's argument would leave the parents with no avenue to prevent suffering irreparable harm, which is the purpose behind issuing a preliminary injunction. A “probable violation of law should never be the status quo,” it noted. It also emphasized that the “function of a preliminary injunction is not merely to contain ongoing damage but to prevent prospective damage.” Regarding the balancing of hardships, the appellate court found that there was ample evidence to support the trial court’s finding that Carter would suffer irreparable harm if the dog was not allowed to accompany him to school. Because there was some testimony of competing school district interests, i.e. another student with a lung disease who is highly allergic to dogs, the court delayed implementation of the injunction in order to give the Board time to accommodate both students.

Mitchell H. Rubinstein


February 28, 2010 in Special Education Law | Permalink | Comments (0)

Saturday, February 27, 2010

E-mails between board members prior to open session violated Massachusetts’ open meeting law

District Attorney for the Northern Dist. v. School Comm. of Wayland, No. 10406 (Mass. Dec. 31, 2009), is an important case to be aware of. The Massachusetts Supreme Judicial Court has ruled that e-mail communications between school committee members prior to open session regarding the school district superintendent’s performance violated the state’s open meeting law. It also ruled that the committee violated the open meetings law by going into executive session to conduct an evaluation of the superintendent’s performance.

With respect to the emails, the issue was whether e-mails constituted “improper deliberation[s] under the open meeting law.” The Court held that “while some of these exchanges were not between a quorum of members, and therefore were not strictly ‘deliberation,’ they had the effect of circumventing the requirements of the open meeting law and must be made available to the public.” It pointed out that the e-mail exchange regarding the superintendent’s performance was compiled by the chairman into a draft evaluation and was then circulated among the committee members prior to the next committee meeting. The supreme court stated: “The mechanism used here, however, was an improper attempt to avoid a public discussion of the superintendent's professional competence in an open meeting, and was not in compliance with the open meeting law.”

Mitchell H. Rubinstein


February 27, 2010 in Education Law | Permalink | Comments (0)

Unreasonable Accommodation and Due Hardship

Professor Mark Weber (DePaul) just posted on SSRN another important article entitled Unreasonable Accommodation and Due Hardship. The abstract provides:

This Article analyzes authoritative sources concerning the
Americans with Disabilities Act accommodation requirement and concludes:
       (1) Reasonable accommodation and undue hardship are two sides of
the same coin.  The statutory duty is accommodation up to the limit of
hardship, and reasonable accommodation should not be a separate hurdle
for claimants to surmount apart from the undue hardship defense. There
is no such thing as "unreasonable accommodation" or "due hardship."
       (2) The duty to accommodate is a substantial obligation, one
that may be expensive to satisfy, and one that is not subject to a
cost-benefits balance, but rather a cost-resources balance; it is also
subject to increase over time.
       (3) The accommodation duty entails mandatory departure from
neutral workplace rules, effectively creating a preference for workers
with disabilities, but one not to be confused with the affirmative
action concept found in other anti-discrimination regimes.
       These conclusions are in some respects consistent with, and in
other respects quite inconsistent with, leading judicial
interpretations, including the single Supreme Court case on
accommodations in employment, U.S. Airways v. Barnett.  The Article will
suggest avenues by which courts may be led back to the correct
interpretation of reasonable accommodation by looking to the text of the
statute and its legislative history, interpretations by the enforcing
agency, judicial construction of analogous language elsewhere in the
ADA, and precedent from other jurisdictions.
       For twenty years, judicial and scholarly attention focused on
who is a person with a disability entitled to the protections of the
ADA.  Narrow readings of coverage kept many cases with accommodations
claims from reaching decision on the merits.  Recently, Congress enacted
the ADA Amendments Act, vastly expanding the range of covered
individuals.  After the Amendments, attention will turn to what
accommodations employers must provide.  This Article is the first to
return to the original sources to determine what Congress required and
to analyze both Barnett and the lower court cases in light of that
understanding.

Last year I heard Mark present a portion of this Article at Seton Hall Law School. I cannot wait to read it.

Mitchell H. Rubinstein

February 27, 2010 | Permalink | Comments (0)

Friday, February 26, 2010

Supremes hear arguments on deference due ERISA plan administrators

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One of the most difficult issues in ERISA concerns the degree to deference that must be paid to plan administrators. The Supremes recently heard arguments in Conkright v Frommert (Dkt No 08-810), an ERISA case, regarding the degree of deference courts should give plan administrators in interpreting an employer's ERISA-covered benefits plan. The Second Circuit below held the district court had no obligation to defer to the ERISA plan administrator's reasonable interpretation of the plan terms if the plan administrator arrived at its interpretation outside the context of an administrative claim for benefits.

Mitchell H. Rubinstein

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

Online vs. Main Stream Law Reviews

A recent study by  Professor Ross Davies of George Mason University School of Law,  states that law review subscriptions rates are in decline, in some cases precipitously so. More about this can be found in the National Law Journal, here, as well as Professor Davies' original study, here, via SSRN. Legal Writing Prof Blog also covered this important story, here. My response is "no kidding."

I have published four articles with online law reviews. Rutgers Law Record published my article within 3 weeks of acceptance and I published three articles with Northwestern Colloquy-all within 3-4 months. There really is no comparison to main law reviews. Both are on lexis and westlaw and both are cite checked by the students.

Subscriptions are down because law reviews are no longer relied upon by courts and not read by the bar. They are largely only read by professors. That is a shame. Perhaps, if more articles were published timely (less than 4 months max) online more people will read them.

The problem is that the legal academy does not view online journals the same as the main stream law review articles. That warped of thinking needs to change and it need to change now. 

Mitchell Rubinstein

February 26, 2010 in Law Review Articles | Permalink | Comments (0)

Thursday, February 25, 2010

Arbitration panel may not retain jurisdiction of a matter it adjudicated indefinitely

Matter of Brisman v Hebrew Academy of Five Towns & Rockaway, 2010 NY Slip Op 01480, Decided on February 16, 2010, Appellate Division, Second Department

Nachum Brisman was terminated from his “tenured teaching position” at the Hebrew Academy. He subsequently filed a petition pursuant to CPLR Article 75 with Supreme Court in an effort to confirm an arbitration award* that granted him reinstatement to his fomer teaching position with the Academy at an annual salary of $100,000, awarded him back contributions to his pension plan, and awarded him the sum of $50,000 in back salary.

The Academy contended that the award “created a new contract” between itself and Brisman and cross-petitioned to vacate the award. Supreme Court granted the Academy’s petition and vacated the arbitration award. Brisman appealed.

The Appellate Division reversed the lower court’s ruling and confirmed the arbitration panel’s award. The court noted that the arbitration panel had found that Brisman had been [1] ”wrongfully terminated, without just cause;” [2] directed Brisman’s reinstatement with back salary; and [3] ruled that it would “retain jurisdiction over the matter indefinitely.”

Noting that "An arbitration award can be vacated by a court pursuant to CPLR 7511(b) on only three narrow grounds, i.e., [1] if it is clearly violative of a strong public policy; [2] if it is totally or completely irrational, or [3] if it manifestly exceeds a specific, enumerated limitation on the arbitrators' power," the Appellate Division said that Supreme Court was incorrect in granting the Academy’s cross-petition.

Significantly, the Appellate Division commented that “The panel's retention of jurisdiction [indefinitely] is not ‘inextricably intertwined’ with its reinstatement of [Brisman] to a tenured position with [the Academy] or with the provisions of the award referable to [Brisman’s] pension and salary.

* The parties had agreed to arbitrate the matter of Brisman termination in accordance with Jewish law and the rules of the Beth Din of America.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

February 25, 2010 in Arbitration Law | Permalink | Comments (0)

No Fundamental Right To Pension Benefits Contained In A CBA

2dcircseal

Walker v. Burns, ___F.3d___(2d Cir. Jan. 13, 2010), is an interesting public sector case. The legal issue in this case was whether pension benefits contained in a CBA were fundamental rights. If they were, due process rights would attach. The court held that there was no fundamental right, reasoning:

This Court has made clear that “simple, state-law contractual rights, without more,” are
not protected by substantive due process. Local 342, 31 F.3d at 1196. This view finds support in the caselaw of several other Circuits. See, e.g., Taake v. County of Monroe, 530 F.3d 538, 542 (7th Cir. 2008); Nicholas v. Pa. State Univ., 227 F.3d 133, 143 (3d Cir. 2000); Charles v. Baesler, 910 F.2d 1349, 1353 (6th Cir. 1990). While we recognize the important public service that the plaintiffs provide, we cannot conclude that they enjoyed a fundamental right to the pension benefits they received pursuant to an ordinary employment contract.

Mitchell H. Rubinstein

February 25, 2010 in Employee Benefits Law | Permalink | Comments (0)

District officials had no authority to discipline student for non-disruptive off-campus speech

J.C. v. Beverly Hills Unified Sch. Dist., No. 08-03824, ____F.Supp.2d____ (C.D. Cal. Nov. 16, 2009), is an interesting decision. A California federal district court has ruled that school officials, who suspended a student for creating a vulgar, derogatory video about another student off-campus and posting it from her home computer on YouTube, violated that student’s First Amendment free speech rights because the video did not cause or was not reasonably likely to cause a “material and substantial” disruption of the educational process.

The district court granted the student's motion for summary judgment n the free speech claims and granted the school officials’ motion on the ground of qualified immunity. The court stated that in order to resolve J.C.’s claim that school officials had no authority to discipline her for speech that took place entirely off-campus, the court must determine the scope of a school’s authority to regulate student off-campus speech that has no on-campus effect. Under U.S. Supreme Court precedent from Tinker to Morse and application thereof by lower courts, the district court found that “geographic boundaries generally carry little weight in the student speech analysis.” It stated: “Where the foreseeable risk of a substantial disruption is established, discipline for such speech is permissible.” Based on its review of the case law, the district court enunciated three principles regarding the application of Supreme Court precedents to off-campus student speech/expression: (1) the majority of courts will apply Tinker where speech originating off campus is brought to school or to the attention of school authorities, whether by the author himself or some other means; (2) some courts will apply the Supreme Court’s student speech precedents, including Tinker, only where there is a sufficient nexus between the off-campus speech and the school; and (3) in unique cases where the speaker took specific efforts to keep the speech off campus … or clearly did not intend the speech to reach campus and publicized it in such a manner that it was unlikely to do so … the student speech precedents likely should not apply.

The district court then applied those principles to the instant case. It found that under the majority rule and the rule established in LaVine v. Blaine School District, 257 F.3d 981 (9th Cir. 2000), the Tinker “substantial disruption” standard applies to both on-campus and off-campus speech because the geographic origin of the speech is immaterial. It concluded that it was “reasonably foreseeable” that J.C.’s video would make its way on campus because she posted on the Internet on a site readily accessible to the general public. It also found that the content of the video, i.e. its vulgar, derogatory and defamatory nature, increased the foreseeability of on-campus exposure. With respect to actual disruption, however, the court determined that “no reasonable jury could conclude that J.C.’s YouTube video caused a substantial disruption to school activities, or that there was a reasonably foreseeable risk of substantial disruption as a result of the YouTube video.”

The district court also concluded that the school officials named as defendants were entitled to qualified immunity. It pointed out that even though it had found J.C.’s free speech rights had been violated, her right to engage in hurtful and embarrassing speech directed at a student’s classmate, which emanated outside the school grounds, was not clearly established. It pointed out that no case law addressed that right and the cases cited by J.C. were not “factually analogous.”

Mitchell H. Rubinstein


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

Wednesday, February 24, 2010

Passing a Psychiatrict Exam That Indicates That Employee Is Fit Does Not Mean He Is Qualified

2dcircseal

Shepheard v. NYC Correctional Dep't., ___F.3d___(2d Cir. Jan. 13, 2010), is an interesting ADA case. A very common issue in such cases is whether the plaintiff is qualified for the job in question. An issue sometimes arises as the meaning of a psychiatrist report which indicates that the employee is fit for work. Does that mean he is qualified? The answer is generally "NO." As the court explains:

Here, with respect to Shepheard’s reasonable accommodation, unequal terms and
conditions of employment, and termination claims, the district court properly granted summary judgment because Shepheard failed to demonstrate that she was qualified to perform the essentialfunctions of her position with or without a reasonable accommodation. See McBride, 583 F.3d at 97. While Shepheard asserts that her personal psychiatrist deemed her fit to return to work, the evidence does not establish that, even with the reasonable accommodation of an assignment to a steady midnight shift, Shepheard was capable of performing the essential functions of her position as a Correction Officer Captain, which included regularly and reliably reporting to work;quickly and efficiently responding to emergencies; overseeing the care, custody, and control of inmates; and supervising subordinate officers. The evidence, including medical records and adeclaration by the psychologist with the DOC’s Health Management Division who wasultimately responsible for clearing Shepheard to return to duty, indicates that at the time she made her reasonable accommodation request through the time of her termination, Shepheard suffered from symptoms that, inter alia, compromised her ability to be focused and alert,including excessive sleeping and grogginess, and therefore compromised her ability to perform the essential functions of her position.

Mitchell H. Rubinstein

February 24, 2010 in Employment Discrimination | Permalink | Comments (0)

NYC Police Officers Can Be Subject To Breathalyzer Tests After Police Discharge Their Firearm

A federal appeals court in Manhattan has ruled constitutional a New York City Police Department policy requiring breathalyzer tests for officers who use their guns to kill or injure someone. The 2nd U.S. Circuit Court of Appeals rejected a challenge to the policy mounted by two police officer labor unions, which argued that the officers' Fourth Amendment privacy interests outweighed the NYPD's interest in detecting and disciplining officers who use their guns while intoxicated.

Lynch v. City of New York, ____F.3d____(2d Cir. Dec. 11, 2009).

Mitchell H. Rubinstein

February 24, 2010 in Public Sector Labor Law | Permalink | Comments (1)

CT: No private right of action for employer's violation of state electronic monitoring statute

Gerardi v City of Bridgeport, ____Conn.____(Conn. Supreme Court January 5, 2010), is an interesting case.

Two city fire inspectors who were disciplined for improper job performance, which was detected through the use of global positioning system devices, had no private right of action against the city’s violation of a state electronic monitoring statute. As city fire inspectors, the employees were provided with city-owned vehicles. When the city acquired new vehicles it installed GPS devices, without advising the employees, in order to electronically monitor the fire inspectors’ movement and location while the vehicles were in use. After monitoring the employees’ activities the city brought disciplinary actions against the fire inspectors. The inspectors thereafter brought actions against the city for violating a state law, which prohibits an employer from electronically monitoring an employee’s activities without prior notice to the employee. However, the city raised the issue that electronic monitoring provision did not create a private right of action for a violation of the statute and implicated a trial court’s subject matter jurisdiction. The language of the statute requires each employer who engages in any type of electronic monitoring to give prior notice to all employees who may be affected. As city fire inspectors, the employees were clearly within the class of persons intended to be protected by the statute. However, the enforcement provisions of the statute authorizes the state labor commissioner to levy civil penalties for violations, and nothing in the law entitled employees who have been subjected to electronic monitoring without notice to any specific relief or remedy, determined the supreme court. Thus, it was clear that the legislature intended the enforcement mechanism of the statute to be limited to proceedings before the labor commissioner.

I expect that we are going to see more types of these cases in the future.

Mitchell H. Rubinstein

February 24, 2010 in Employment Law | Permalink | Comments (0)

Tuesday, February 23, 2010

Do Judges Have The Right To A Raise??

Yes, says New York's highest court. The denial of a raise to state judges for more than a decade violates the state Constitution, the state Court of Appeals ruled in a 5-1 opinion.

However, the majority declined to order any specific remedy, saying only that it expects "appropriate and expeditious legislative consideration" of its decision. The ruling adopts the argument of several judge-plaintiffs and the court system as a whole that the independence of the judiciary has been threatened by the improper linkage of judges' pay to other, unrelated issues.

Judge Smith dissented. He stated that while it is "depressing" that pay considerations have driven many fine judges from the bench, "it is also true that there are still plenty of able judges, and plenty of able people who would willingly become judges, even at today's pay levels."

I am deeply troubled by this decision. Though it clearly only involved judges, can the same rationale be applied to police officers or others who have not received a sufficient raise to remain "independent." Think about it, Judges are employees just like everyone else. Should they be subject to different rules than everyone else??

Mitchell H. Rubinstein

February 23, 2010 in Judges | Permalink | Comments (1)

Florida State U. lays off tenured faculty members: "It's totally changed my view of how academia works."

As the result of state budgetary problems, Florida's state university system made the decision last summer to target several tenured and tenure track faculty positions for lay-offs.  Among those getting a pink slip is a recent lateral hire recruited from U. of North Carolina who said FSU's decision has "totally changed my view of how academia works."  The story has also garnered some national attention:

FSU's decision to lay off 21 tenured and 15 additional tenure-track faculty isn't going unnoticed. The esteemed Science magazine last month detailed how the science programs at FSU have been affected by layoffs, and how FSU is letting go of more tenured faculty than the other 10 schools in the State University System combined.

Provost Larry Abele believes FSU was being pro-active when it adopted a three-year budget last June.

"Our plan minimizes the number of people we had to let go. It's painful to let someone go," Abele said. "We're trying to make it as palatable as possible."

Former FSU President T.K. Wetherell pledged to keep all targeted faculty on its payroll for two years, provided FSU receives a second year of stimulus money. However, Wetz and his colleagues in oceanography were told they would not receive a second year of funding.

You can read the rest here via Tallahassee.com

Hat tip to Inside Higher Ed.

(jbl)

February 23, 2010 | Permalink | Comments (0)

DCCir: Employee’s reassignment was not an adverse employment action

DCCir2

Czekalski v LaHood, ___F.3d____(D.C. Cir. December 29, 2010), is an interesting decision. The D.C. Circuit held that a senior female employee of Federal Aviation Administration, who was transferred to a new position where she supervised fewer employees and contractors, had no budget and reported to one of her former peers, did not suffer an adverse employment action so as to establish that she was a victim of sex discrimination. The applicable standard provides that an employee suffers an adverse employment action if she experiences materially adverse consequences affecting the terms, conditions or privileges of employment or future employment opportunities, such that a reasonable trier of fact could find objectively tangible harm. Consequently, since the trial judge relayed this standard in the jury instructions, the jury had the guidance necessary to render a verdict as to whether the employee suffered an adverse employment action and, when viewed as a whole, the jury instructions fairly presented applicable legal principles and standards. Further, it was not an abuse of discretion on the part of judge because she did not use the precise language requested by the employee, where the judge correctly instructed the jury on the relevant legal theory. Moreover, the record contained more than enough evidence to uphold the jury’s determination that the employee’s reassignment was not an adverse employment action under this standard. The employee retained her pay grade and executive status, and there was evidence that her new position proved vital, visible and prestigious.

Mitchell H. Rubinstein

February 23, 2010 in Employment Discrimination | Permalink | Comments (0)

Rehab Act claim failed because superiors lacked notice of employee’s mental disability

DCCir2

Stewart v St. Elizabeths Hosp, ___F.3d___(D.C. Cir. January 5, 2010), is an interesting decision.

An employee’s claim that her employer violated the Rehabilitation Act by failing to accommodate her disability in refusing her request for a transfer from a facility housing mentally ill patients failed because her superiors did not have prior notice of her mental disability, and acted promptly and appropriately to assist her when she made the request. The Rehab Act requires federal employers to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” To prevail on a claim for denial of a reasonable accommodation, an employee has to produce sufficient evidence that she was disabled, that her employer had notice of her disability and that the employer denied her request for a reasonable accommodation of her disability. In this instance, the employee acknowledged that she did not inform any of her supervisors of her disability. Further, the employer did not receive constructive notice since her behavior was not so obviously a manifestation “of an underlying disability that it would be reasonable to infer that the employer actually knew of the disability.”

Mitchell H. Rubinstein

February 23, 2010 | Permalink | Comments (0)

Use of polygraph evidence in a disciplinary hearing

Ost v Town of Woodstock, 251 A.D.2d 724

One of the issues raised in Ost was the admission of testimony concerning a polygraph [lie-detector] test in the course of a Section 75 disciplinary hearing.

Shawn Ost, a Town of Woodstock police officer, was terminated from his position for allegedly using his police vehicle to "give a young civilian woman a ride to her home outside the geographical boundaries of the Town, without authorization and subjected her to unwanted sexual contact."

Ost argued that the disciplinary hearing "was tainted by the admission of testimony regarding a polygraph test" of the [young woman] involved in the incident.

The Appellate Division said that such testimony may be considered in a Section 75 disciplinary hearing "if it is otherwise material and relevant, so long as there is ... as there was in this instance ... substantial evidence of the reliability of the machine and the qualifications of the operator."

As to Ost's complaint that "he was not offered an opportunity to take a similar test," the court commented that although Ost indicated that he would be willing to submit to such an examination, he never asked for a test to be scheduled or take any steps to arrange for one on his own.

Motell v Napolitano, 186 AD2d 989, is another case involving the use of evidence resulting from a polygraph test. In Motell the Appellate Division ruled that the disciplinary hearing officer did not err as a result of allowing the results of the polygraph test to be introduced as evidence.

The court said that where the record contains substantial evidence of the reliability of the polygraph machine used and the qualifications of the person administering the test, evidence of the results of such an examination may be considered by the hearing officer in a disciplinary proceeding.

Reprinted with permission New York Pubic Personnel Law

Mitchell H. Rubinstein

February 23, 2010 in Employment Law | Permalink | Comments (0)

UNLV Law: Spring Conference on Contracts

The William S. Boyd School of Law at University of Nevada Las Vegas hosts the 2010 Spring Conference on Contracts February 26-27 in Las Vegas (H/T: ContractsProf Blog).

The program includes grouping papers within major topics.  Refer to the conference program for the complete presentation listing -- these are the major topics:


Friday, February 26th
**The Contract Law System and Power - Past, Present and Future
**Incomplete Information and Contract Law
**Arbitration and Unconscionability in Rent-a-Center West v. Jackson and Elsewhere
**Forming Contracts and Similar Relationships
**Vive la Difference!: Comparative Contract Theory

Saturday, February 27th
**Insurance and Contracts
**Morality and Contract Law
**Contract at the Systemic Level
**Catch and Release: When Should Contract Law Let a Party Off the Hook and When Should It Reel Them In?
**Failures of Statutory and Regulartory Regimes: Can Contract Law Help?
**Can I Get a Remedy?
**Contracts "Teach In" Redux (Part Two)

Craig Estlinbaum

February 23, 2010 in Conferences, Faculty, Contract Issues | Permalink | Comments (0)