Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, March 31, 2010

Obama Health Bill Includes Whistleblower Protection For Health Care Workers

Today's Workplace has an interesting and important article about a little noticed part of Obama Care. It includes Whistleblower protection for health care workers. As the article states:

Section 1558:  Health care worker whistleblower protections added to the Fair Labor Standards Act.  Section 1558 prohibits retaliation against an employee who provides or is about to provide to an employer, Federal Government, or a state Attorney General, information that the employee reasonably believes to be a violation of Title I of the Bill.  The provision also protects individuals who participate in investigations or object to or refuse to participate in any activity that the employee reasonably believes to be a violation of Title I of the bill.   Title I contains a wide range of rules governing health insurance, including a prohibition against denying coverage based upon preexisting conditions, policy and financial reporting requirements and prohibitions against discrimination based upon an individual’s receipt of health insurance subsidies.  Accordingly, Section 1558 will likely protect a broad range of disclosures.

The procedures, burden of proof, and remedies applicable to this new retaliation claim are set forth in the Consumer Product Safety Improvement Act of 2008, 15 U.S.C. 2087(b), including (1) a 180-day statute of limitations; (2) a requirement to initially file the complaint with OSHA, which will investigate the complaint and can order preliminary reinstatement; (3) the option to litigate the claim before the Department of Labor Office of Administrative Law Judges or to remove the claim to federal court 210 days after filing the complaint; (4) the right to try the claim in federal court before a jury;  and (5) a broad range of remedies, including reinstatement, back pay, special damages, and attorney’s fees.  Similar to Section 806 of the Sarbanes-Oxley Act, the causation standard and the burden-shifting framework are very favorable to employees.

A complainant can prevail merely by showing by a preponderance of the evidence that her  protected activity was a contributing factor in the unfavorable action.  A contributing factor is “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.”  Once a complainant meets her burden by a preponderance of the evidence, the employer can avoid liability only if it proves by clear and convincing evidence that it would have taken the same action in the absence of the employee engaging in protected conduct, an onerous burden.

Mitchell H. Rubinstein

March 31, 2010 in Employee Benefits Law, Employment Law | Permalink | Comments (0)

School Must Provide One On One Aide To Student Enrolled In Private School


Matter of Board of Education Bay Shore Union Free School Dist. v. Thomas K, ____N.Y. 3d___(March 30, 2010), is a major special education decision. The Court held that where a student is entitled to a one on one aide under the IDEA, it must be provided to a student even if he or she enrolls in a private school. As the Court stated:

Education Law § 3602-c, known as the dual enrollment statute, requires the provision of special education programs "on an equitable basis" to students who attend nonpublic schools (Education Law § 3602-c [2][b][1]). That statute also provides that "[p]upils enrolled in nonpublic schools for whom services are provided pursuant to the provisions of this section shall receive such services in regular classes of the public school and shall not be provided such services separately from pupils regularly attending the public schools" (Education Law § 3602-c [9]). Bay Shore argues that it does not have a statutory obligation to provide such services to students at their nonpublic schools.

In Board of Educ. of Monroe-Woodbury Cent. School Dist. v Wieder (72 NY2d 174 [1988]) we determined that the dual enrollment statute requires neither that educational services be provided at a student's nonpublic school, nor that they be provided at the public school. Rather, Wieder recognized that the purpose behind the statute was to allow private school students with disabilities "equal access to the full array of specialized public school programs" and that, if the student received those services in the public school, the student should be integrated with, rather than separated from, other public school students (Wieder, 72 NY2d at 184). The Court recognized that where the services must be provided should be determined based upon the child's "individual educational needs in the least restrictive environment" (Wieder, 72 NY2d at 188).

Although the dual enrollment statute does not mandate that the School District provide services at a nonpublic school for each student, that does not end the inquiry. Applying Wieder to this case, the pertinent question is what the educational needs of this student require. Both the IHO and the SRO essentially found that, in order for this child to receive a free appropriate public education, the services of an individual aide would have to be provided at his nonpublic school. The fallacy of the School District's position is that it advocates for the student, under the tutelage of an aide, to be kept focused and on task at a site removed from his own teacher and classmates, and indeed, from his regular school. As a practical matter, if the School District's position were upheld, it would be necessary for the child to withdraw from the school [*4]his parents selected for him in order to receive the required services. Under these circumstances, the courts below properly determined that the School District was required to provide the one-on-one aide at the student's private school.

Mitchell H. Rubinstein

March 31, 2010 in Special Education Law | Permalink | Comments (1)

Abercrombie & Fitch draws EEOC complaint for banning hijab

Acbercrombie & Fitch, the upper class store for pre-teens and teens recent was hit with an EEOC complaint for banning a hijab according to a recent article in the National Law Journal.

As the article states:

The complaint came five months after the EEOC filed suit against the clothing retailer over a similar complaint.

Abercrombie reached a $50 million agreement with the EEOC in 2004 resolving racial discrimination claims over its hiring and recruiting practices and its marketing "look," which predominantly featured white men and women.

"The company has a history of very explicit discrimination," said Zahra Billoo, programs and outreach director in CAIR's office in Santa Clara, Calif. "It's a disappointing pattern to see in a mainstream American company."

CAIR, one of the nation's largest Muslim civil liberties organizations, filed its complaint on Wednesday on behalf of Umme-Hani Kahn, 19, a stockroom worker who had been employed by Abercrombie subsidiary Hollister Co. in San Mateo, Calif. When she was hired in October, Kahn was told she could wear the hijab, Billoo said.

"It didn't come up in terms of, 'Can I wear it?'" she said, but rather "how it fits with the 'look' policy. Local management said, 'Yes, as long as it's white, gray or Navy blue. Everything they wear has to be in those colors."

She wore the hijab at work with no problems until this month, when a district manager, upon visiting the store, arranged a meeting in the stockroom with Kahn and someone from the company's human resources department, who participated via telephone. They told Kahn that scarves and hats did not fit the company's "look" and sent her home.

On Monday, Kahn was ordered to remove her hijab during work hours. When she refused, claiming that it would violate her religious beliefs, they fired her, Billoo said.

Mitchell H. Rubinstein

March 31, 2010 in Employment Discrimination | Permalink | Comments (0)

Tuesday, March 30, 2010

Obama Health Bill Mandates Unpaid Employee Lactation Breaks For One Year

Professor Marcia McMormick over at Workplace Prof Blog wrote an important article on March 30, 2010 which explains that the Obama Health Bill (Act) requires most employers to give female employees unpaid breaks to lactate for one year after the child's birth. This portion of the Bill is actually an amendment to the FLSA and provides in Section 4207:

      Section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) is amended by adding at the end the following:
      `(r)(1) An employer shall provide--
            `(A) a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk; and
            `(B) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.
      `(2) An employer shall not be required to compensate an employee receiving reasonable break time under paragraph (1) for any work time spent for such purpose.
      `(3) An employer that employs less than 50 employees shall not be subject to the requirements of this subsection, if such requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business.
      `(4) Nothing in this subsection shall preempt a State law that provides greater protections to employees than the protections provided for under this subsection.'.

Mitchell H. Rubinstein

March 30, 2010 in Employee Benefits Law, Employment Law | Permalink | Comments (0)

NYS Court of Appeals Issues Guidance Re; Individual's Ability To Pay For Arbitration

Matter of Brady v. Williams,___N.Y.3d___(March 25, 2010), is an important case.  It addresses the issue of whether an arbitration agreement will be enforceable if it is prohibitively expensive? The answer, at least with respect to an individual appears to be "no." In making this determination, the Court explained that the following factors must be examined:

In adopting the standard New York courts are to apply in resolving the question of a litigant's financial ability, we are mindful of the strong State policy favoring arbitration agreements and the equally strong policy requiring the invalidation of such agreements when they contain terms that could preclude a litigant from vindicating his/her statutory rights in the arbitral forum. We believe that the case-by-case, fact-specific approach employed by the federal courts (see e.g. Bradford; Morrison v Circuit City Stores, Inc., 317 F3d 646 [6th Cir 2003]; Spinetti v Service Corp. Intl., 324 F3d 212, 218 [3d Cir 2003]), as well as the principles set forth in Gilmer and Green Tree, properly acknowledge and balance these competing policies.

Based on the foregoing, we hold that in this context, the issue of a litigant's financial ability is to be resolved on a case-by-case basis and that the inquiry should at minimum consider the following questions: (1) whether the litigant can pay the arbitration fees and costs; (2) what is the expected cost differential between arbitration and litigation in court; and (3) whether the cost differential is so substantial as to deter the bringing of claims in the arbitral forum (see Bradford, 238 F3d at 556). Although a full hearing is not required in all situations, there should be a written record of the findings pertaining to a litigant's financial ability. Finally, we do not see the need to detail the precise documentation a court should request to resolve this issue. Such matters are best left to the court's discretion.

Mitchell H. Rubinstein


March 30, 2010 in Arbitration Law | Permalink | Comments (0)

Sabbath Observer Loses Title VII Discrimination Suit Alleging Failure to Accommodate Observance

Waltzer v. Triumph Apparel Corp, ___F.Supp. 2d___, NYLJ, Feb. 26, 2010 (S.D.N.Y. 2010)(registration required) is an interesting case. I bring it to your attention because the court does a nice job in reviewing the duty to accommodate Sabbath observers.

The court dismissed plaintiff's Title VII employment discrimination action asserting defendant's refusal to reasonably accommodate her religious observance. Plaintiff failed to establish a prima facie claim for religious bias. Moreover, defendant showed it offered her a reasonable accommodation of her religious practice by permitting her to leave early enough each Friday to travel to her declared home in New Jersey. In concluding that defendant also showed that accommodation of plaintiff's request to leave early would impose undue hardship, the court noted defendant had shown that plaintiff's absence from her office for hours every Friday substantially interfered with the efficient operation of its business.

    As the court stated:

Once the plaintiff establishes a prima facie case, the employer "must offer him or her a reasonable accommodation, unless doing so would cause the employer to suffer an undue hardship." Baker, 445 F.3d at 546 (citation omitted). An accommodation is not a reasonable one if it does not "eliminate the conflict between the employment requirement and the religious practice." Id. at 548. An accommodation may be unreasonable if it causes an employee "an inexplicable diminution in his employee status or benefits…. In other words…if it imposes a significant work-related burden on the employee without justification, such as the neutral operation of a seniority system." Cosme v. Henderson, 287 F.3d 152, 160 (2d Cir. 2002).

"In formulating such an accommodation, both the employer and employee should remain flexible, with an eye toward achieving a mutually acceptable adjustment." Id. at 158. The Equal Employment Opportunity Commission ("EEOC") publishes a Compliance Manual to provide guidance and instructions for investigating claims under the statutes enforced by the EEOC. 6 With respect to the employee's responsibility to cooperate in negotiating a reasonable accommodation, the Compliance Manual instructs: "If the employer requests additional information reasonably needed to evaluate the request, the employee should provide it." It also notes that

courts have ruled against employees who refused to cooperate with an employer's requests for reasonable information when, as a result, the employer was deprived of the information necessary to resolve the accommodation request. For example, if an employee requested a schedule change to accommodate daily prayers, the employer might need to ask for information about the religious observance, such as time and duration of the daily prayers, in order to determine if accommodation can be granted without posing an undue hardship on the operation of the employer's business.

EEOC Compliance Manual §12-IV(A)(2) (July 22, 2008). Employees are "not entitled to hold out for the most beneficial accommodation," Baker, 445 F.3d at 548 (citation omitted), and the "employer need not offer the accommodation that the employee prefers. Instead, when any reasonable accommodation is provided, the statutory inquiry ends." Cosme, 287 F.3d at 158.

The question of undue hardship arises only when an employer claims that it "cannot afford any reasonable accommodation without such a hardship." Baker, 445 F.3d at 548 (quoting Ansonia Bd. of Educ. v. Philbrook, 479 U.S. at 68, 69). To require an employer to "bear more than a de minimis cost" in order to provide an accommodation is an undue hardship. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977). See also Baker, 445 F.3d at 548.

Waltzer has failed to carry her burden of establishing a prima facie claim of religious discrimination. While she has shown that she sincerely believed that she could neither work nor travel during the Jewish Sabbath, which lasts from sundown on Friday through sundown on Saturday, she has not shown that she sincerely believed that she needed to leave work before 3:00 p.m. in order to observe her religion. The undisputed testimony establishes that she could have followed each practice and custom she identified as necessary to the observance of her religion by commuting to either her New Jersey apartment or her Pennsylvania home depending on the time of sunset. For the summer months (when Triumph closed at 1:00 p.m.) and many other weeks of the year when sundown comes after 6:00 p.m., Waltzer had sufficient time to commute to her Pennsylvania home; the remainder of the year she had more than enough time to travel to her New Jersey apartment. 7 Because Waltzer never explained to her employer that she was living in Pennsylvania and needed three hours to commute to Pennsylvania each Friday, she also failed to advise her employer that her preferred manner of practicing her religion required her to leave work three hours before sundown on Fridays. Having chosen to conceal from her employer that she was commuting to Pennsylvania, Waltzer explained that she needed the extra time on Fridays to go to the kosher butcher and to prepare herself mentally for the Sabbath. For this same reason, Waltzer has not shown that Triumph fired her for failing to comply with a requirement of her employment that conflicted with a bona fide religious belief.

Mitchell H. Rubinstein

March 30, 2010 in Employment Discrimination | Permalink | Comments (0)

Justice Stevens About To Set Some Milestones

Supreme Court Stats Reveal Impending Milestones For Justice Stevens is an interesting Feb. 26, 2010 article from the National Law Journal. Stevens, who turn 90 in April, is about to pass Justice Marshall as the third longest Justice with the most tenure on the Court. He needs about 2 more years to surpass the Justice Douglas who has the most tenure with the Court. Stevens joined the Court in 1975. 

Stevens needs to work about another 10 months to become the oldest Justice. Currently, the oldest Justice is Oliver Wendell Holmes.

Congrats to Justice Stevens. He is a remarkable man.

Mitchell H. Rubinstein

March 30, 2010 in Supreme Court | Permalink | Comments (0)

Law professors won't have to worry about websurfing students if these blogs get their way

Apropos to the story below, is reporting on an emerging, informal collection of bloggers who are urging prospective students to avoid law school like the plague given the high cost of attending and the lack of jobs (at least presently) once they graduate.  If enough would-be law students follow the advice of these blogs, it will certainly make a dent in the problem of too many students surfing in class:

It has taken me a while to realize the scope of this, but I now see that there is a good-sized army of young lawyers who have taken to the blogosphere with a common mission: to alert any wannabe lawyers out there to the futility of such a decision. As the Big Debt, Small Law blog puts it, it is the beginning of a "quiet rebellion:"

We prefer not be crammed elbow to elbow in document review gulags for less money than an ex-con gets paid to stamp holes in sheet metal. We prefer not to run around toilet courts and haggle over $500 whiplash cases for 45 K a year and no health benefits. Our sole purpose is to dissuade, deter and prevent more hapless lemmings from repeating the mistake of law school. Law has no rewards. Instead of pots of gold, you'll find only piles of sh*t.

BDSL is hardly alone in this. Exposing the Law School Scamstates a similar mission: to expose the "dramatic oversupply of lawyers, and how that oversupply has been caused by bogus employment and income/salary statistics used by most law schools to induce applicants to apply to law school." A typical post this week on ELSS noted that while employers are running ads on Craigslist offering plumbers $50 just to go interview, "job ads for lawyers want you to work for free" or perhaps $10 per hour. "Lawyering is not where the demand is," ELSS advises. "We are trying to help you, to keep you from making the same mistake we did."

The Wall Street Journal has also picked up the story here.


March 30, 2010 | Permalink | Comments (0)

Yet more reasons for banning laptops in the classroom

According to this editorial in the Hufffington Post, the Harvard law faculty have voted unanimously to ban laptops in first year courses.  And that's a good thing according to this this editorial by U. of Washington law professor Maureen Howard who argues that classroom surfing not only undermines learning, but it also trains students to behave in ways that won't be tolerated in the "real world."

[Some say] it is we professors who are to blame for not grabbing and keeping the attention of 21st Century students. This view was humorously endorsed by NYU law students (#5 U.S. law school per U.S. News& World Report) in a music video acknowledging widespread internet surfing during NYU law school classes. The not-so-implicit message is that professors are responsible for student frolic and detour during class because we are boring.


But much of day-to-day post-graduation life in law--or in any other profession--can be pretty darned boring. And it is career suicide, if not professional malpractice, to "zone out" or surf the web during a meeting/presentation/deposition/trial/surgery/real estate closing because the work isn't as entertaining as a television reality show. Professor Mariana Hogan at New York Law School acknowledged this multitasking behavior can be risky for law students post-graduation, noting "we've added material to our Professional Development curriculum to alert our students that partners in law firms might not see these work habits the same way." Professor Hogan observes that students are surprised to learn that such multitasking might be frowned upon in practice. And why wouldn't they be surprised, considering it is generally tolerated in classrooms all over the country?

Our role as post-graduate educators should include mentoring students about post-graduate professional expectations and professional behaviors. Allowing students to surf the internet unrelated to class work hamstrings their ability to learn both substantive information and professional behavior needed for a smooth and successful transition into the post-graduation workforce. How well-received would a recently-graduated, newly-hired entry-level management trainee be if she started surfing eBay for Prada shoes in the middle of a monthly department meeting, no matter how boring the meeting? We are failing students if we tolerate mindless election of disposable entertainment over legitimate education in the classroom--because the behavior will not be tolerated after the diploma is awarded and the student is no longer paying the freight, but pulling in a paycheck.

You can read the rest here.

Hat tip to Above the Law.


March 30, 2010 | Permalink | Comments (0)

Monday, March 29, 2010

Overqualified, But Happy To Have a Job

Overqualified? yes, but Happy to Have a Job is an interesting March 29, 2010 New York Times article. As the article indicates, it is about people who have to take a job-any job- even though they may be overqualified. As the article states:

Conventional wisdom warns against hiring overqualified candidates like Mr. Carroll, who often find themselves chafing at their new roles. (The posting for his job had specified “bachelor’s degree preferred but not required.”) But four months into his employment, it seems to be working out well for all involved.

It is a situation being repeated across the country as the aspirations of many workers have been recalibrated amid the recession, enabling some companies to reap unexpected rewards.

A result is a new cadre of underemployed workers dotting American companies, occupying slots several rungs below where they are accustomed to working. These are not the more drastic examples of former professionals toiling away at “survival jobs” at Home Depot or Starbucks. They are the former chief financial officer working as comptroller, the onetime marketing director who is back to being an analyst, the former manager who is once again an “individual contributor.”

The phenomenon was probably inevitable in a labor market in which job seekers outnumber openings five to one. Employers are seizing the opportunity to stock up on discounted talent, despite the obvious risks that the new hires will become dissatisfied and leave. “They’re trying to really professionalize this company,” said Mr. Carroll, who is the sole breadwinner for his family of four and had lost his home to foreclosure. “I’ve been able to play a big role in that.”

Though the article indicates that some academic studies indicate that overqualified individuals are more productive, many might question that. Additionally, when the economy improves many of these overqualified individuals may leave.

Mitchell H. Rubinstein

March 29, 2010 in Lawyer Employment, Misc., Non-Legal | Permalink | Comments (0)

Obama Care-Check The Fine Print

Coverage For Sick Children? is an important March 29, 2010 New York Times article. Some insurance companies are already arguing that they do not have to provide one of the benefits that the president calls a centerpiece of the law: coverage for certain children with pre-existing conditions. As the article states:

Insurers agree that if they provide insurance for a child, they must cover pre-existing conditions. But, they say, the law does not require them to write insurance for the child and it does not guarantee the “availability of coverage” for all until 2014.

William G. Schiffbauer, a lawyer whose clients include employers and insurance companies, said: “The fine print differs from the larger political message. If a company sells insurance, it will have to cover pre-existing conditions for children covered by the policy. But it does not have to sell to somebody with a pre-existing condition. And the insurer could increase premiums to cover the additional cost.”

Congressional Democrats were furious when they learned that some insurers disagreed with their interpretation of the law.

“The concept that insurance companies would even seek to deny children coverage exemplifies why we fought for this reform,” said Representative Henry A. Waxman, Democrat of California and chairman of the Energy and Commerce Committee.

Mitchell H. Rubinstein

March 29, 2010 in Employee Benefits Law | Permalink | Comments (0)

Obama Adminstration To Use Federal Procurement Policy To Deter Labor Violations

Plan to Seek Use of U.S. Contracts as a Wage Level  is another important article by Steven Greenhouse in the Feb. 26, 2010 New York Times. It is about the Obama Administration plans to use federal procurement policy to deter labor law violations. Federal procurement involves the awarding of federal contracts, which of course, can be substanial. As the article states:

By altering how it awards $500 billion in contracts each year, the government would disqualify more companies with labor, environmental or other violations and give an edge to companies that offer better levels of pay, health coverage, pensions and other benefits, the officials said.

Because nearly one in four workers is employed by companies that have contracts with the federal government, administration officials see the plan as a way to shape social policy and lift more families into the middle class. It would affect contracts like those awarded to make Army uniforms, clean federal buildings and mow lawns at military bases.

Although the details are still being worked out, the outline of the plan is drawing fierce opposition from business groups and Republican lawmakers. They see it as a gift to organized labor and say it would drive up costs for the government in the face of a $1.3 trillion budget deficit.

As I recall, the Clinton Administration proposed similar regulations just before President Clinton's term ended. President Bush withdrew those regulations without them ever being implemented. Seems to me that the federal government should not be doing business with corporations that violate the law-labor law or otherwise. These regulations are a no-brainer to me.

Mitchell H. Rubinstein

March 29, 2010 in Labor Law | Permalink | Comments (0)

EEOC Issues Regs on Reasonable Factors Other Than Age” (RFOA)

On  Feb. 16, 2010, CCH Workday ran an intersting posting on recent EEOC ADEA regulations on RFOA. As the article states:

The EEOC’s proposed regulations provide a nonexclusive list of factors relevant to determining whether an employment practice is reasonable:

  • Whether the employment practice and the manner of its implementation are common business practices;
  • The extent to which the factor is related to the employer’s stated business goal;
  • The extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers);
  • The extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;
  • The severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the numbers of persons adversely affected, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and
  • Whether other options were available and the reasons the employer selected the option it did.
Mitchell H. Rubinstein

March 29, 2010 in Employment Discrimination | Permalink | Comments (0)

Sunday, March 28, 2010

Happy Passover

Happy Passover to my Jewish readers. Hey, you do not even have to be Jewish to have a Seder. Just ask President Obama. Details here.

Mitchell H. Rubinstein

March 28, 2010 in Oddly Enough, Non-Legal | Permalink | Comments (0)

Can Employers Prohibit Texting While Driving??

CCH Workday ran an interesting Feb. 24, 2010 article on  restrictions on employee texting. President Obama, who issued an Executive Order on October 1, 2009, which directed federal employees not to engage in text-messaging while driving government-owned vehicles, when using electronic equipment. Additionally, the National Highway Traffic Safety Administration, along with some safety and industry organization, prepared a sample state law, which is to be used as an aid by state legislators in putting together laws to ban texting while operating an automobile. Currently, however, there is not much specific legislation. However, I fail to understand why special legislation is necessary. Would not existing negligence laws cover this behavior??

Mitchell H. Rubinstein

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

Article On Employment Releases

Navigating Murky Waters of Employment Waivers and Releases by Eve Klein, Joanna Varson, and Keith Greenberg is an interesting article on employment releases and waivers in the Feb. 2010 NYS Bar Journal. The article surveys the major employment statutes and focuses on New York law. As the article states, the basic requirement is that any waiver be knowing and voluntary. Under an amendment to the ADEA, additional notice requirements must be met for the waiver to be knowing and voluntary. With respect to the NLRA, the article states:

The National Labor Relations Board (NLRB) has long
held that an employee cannot waive his or her right to file
an unfair labor practice charge under the National Labor
Relations Act (NLRA).27 As a general matter, the NLRA
permits employees to file an unfair labor practice charge
if an employer interferes with their rights to organize; to
form, join or assist a labor organization; to bargain collectively
through representatives of their choosing; or
to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection.
Provisions of severance agreements that limit an
employee’s ability to file an unfair labor practice charge
to enforce such rights will be deemed unlawful.

Mitchell H. Rubinstein

March 28, 2010 in Articles, Employment Discrimination, Employment Law | Permalink | Comments (0)

Single Member of NLRB Has Authority To Issue Investigative Subpoena

I bring Expert Electric, 355 NLRB No. 12 (Feb. 18, 2010), because the employer sought to revoke an investigative subpoena by raising a host of procedural arguments based upon the fact that the NLRB is currently composed of two Members. Readers will recall that this issue is pending before the Supreme Court.

This case is a bit unusual because it deals with the Boards investigatory powers and one Member of the NLRB does have the authority to issue a subpoena. However, as this case was decided by two Members, if the Supremes ultimately invalidate the authority of the Board to issue two Member decisions then the subpoena is effectively not enforceable because this decision would not be enforceable.

Mitchell H. Rubinstein

March 28, 2010 in NLRB | Permalink | Comments (0)

“Firefighters Rule” bars police official from suing his or her employer for injuries he or she suffered as a result of employer's alleged negligence

Wadler v City of New York, 2010 NY Slip Op 01373, Decided on February 18, 2010, Court of Appeals

The parking lot of the New York City Police Headquarters in Manhattan is protected by a concrete barrier-gate that can be retracted into the ground to allow entry to the lot. If it is necessary to stop an entering vehicle, the gate can be raised, automatically and quickly, with enough force to lift a car off the ground.

The commanding officer of the New York City Police Commissioner's liaison unit, David Wadler, arrived at his place of work at Police Headquarters and displayed his credentials to one of the police officers guarding the parking lot. The barrier was lowered but then, accidentally, raised again while Wadler driving over it, lifting the vehicle some four feet into the air and Wadler was injured as a result.

Wadler sued, but the Court of Appeals, affirming lower court rulings, held that in this instance the "firefighter rule," which bars common-law negligence recovery by firefighters and police officers for injuries that result from risks associated with their employment, required the dismissal of his lawsuit notwithstanding the fact that he was injured by the negligent operation of a security device.*

The Court of Appeals explained that here the cause of the injury to Wadler, -- a high-security device protecting the police headquarters parking lot -- was plainly a risk "associated with the particular dangers inherent" in police work. Although “ordinary civilians” may encounter such devices, police officers, whose duties may include working in secure areas that are at risk of a terrorist attack, are far more likely to do so.

An act taken in furtherance of a specific police function - entry into a protected parking lot, which only Wadler's police credentials allowed him to enter - exposed him to the risk of this injury, said the court.

* In Zanghi v Niagara Frontier Transportation Commission, 85 NY2d 423. the Court of Appeals held that "[P]olice and firefighters may not recover in common-law negligence for line-of-duty injuries resulting from risks associated with the particular dangers inherent in that type of employment." Since 1996, the rule has been applicable only in actions against a "police officer's or firefighter's employer or co-employee" (General Obligations Law § 11-106[1]). The decision also notes that whether a police officer is on duty or not is not dispositive; police officers often, by the nature of their jobs, face significant risks even when they are not technically at work.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

March 28, 2010 in New York Law, Public Sector Employment Law | Permalink | Comments (0)

Saturday, March 27, 2010

Breaking News Obama To Make Recess Appointments To NLRB

On Sat. March 27, 2010 President Obama announced his intent to make recess appointments for 15 individuals, including Craig Becker and Mark Pearce to the National Labor Relations Board.  The White House announcement is here. The Press Release Provides:

After facing months of Republican obstruction to administration nominees, President Obama announced his intent to recess appoint fifteen nominees to fill critical administration posts that have been left vacant, including key positions on the economic team and on boards that have been left with vacancies for months.

“The United States Senate has the responsibility to approve or disapprove of my nominees.  But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis,”  said President Barack Obama. “Most of the men and women whose appointments I am announcing today were approved by Senate committees months ago, yet still await a vote of the Senate.  At a time of economic emergency, two top appointees to the Department of Treasury have been held up for nearly six months. I simply cannot allow partisan politics to stand in the way of the basic functioning of government.”

Following their appointment, these nominees will remain in the Senate for confirmation.

Mitchell H. Rubinstein

March 27, 2010 | Permalink | Comments (0)

Friday, March 26, 2010

Becker May Get NLRB Recess Appointment


We have covered the dysfunctional NLRB for quite some time. Readers will recall that the NLRB currently has 2 Members. It is questionable whether the NLRB has the authority to act with only 2 members as that issue is currently before the Supremes. Becker was unable to muster the 60 votes necessary to defeat Republican opposition. For years, the NLRB Members have been appointed as part of a package deal. Presumably, that is why the other nominees have not been appointed.

Workplace Prof Blog raises the issue that the President may give Becker a recess appointment. It cites to the Blog of the Legal Times on the current situation as authority. 

I have worked with Mr. Becker and believe he would make an excellent choice. However, I think it is a bit of a stretch to believe that the President will make a recess appointment-particularly just after he used so much political capital in the Obama Care debate. I can be wrong of course. Time will tell.

Mitchell H. Rubinstein

March 26, 2010 in NLRB | Permalink | Comments (0)