Adjunct Law Prof Blog

MySpace or other social networking sites as a new source of impeaching evidence

Goldman's Observations ran an interesting story about a lawyer using Myspace postings to impeach a witness. The case is Embry v. State, 2010 WL 768755 (Ind. App. Ct. March 8, 2010). This is just another reason why individuals should be very careful about what they put in cyberspace.

Mitchell H. Rubinstein

Bar Mitzvah At Yankee Stadium

Well, today is Memorial Day. I thought it would be nice to find a story with a summer theme.  The closest I could find was Box Mitzvah. It is a June 1, 2010 ABA News Now story about a lawyer who booked his son's Bar Mitzvah at Yankee Stadium, yes Yankee Stadium. Only problem was that a boxing promoted booked the stadium on the same date. You guessed it, Yankee Stadium was large enough to accommodate both parties.

Enjoy Memorial Day!

Mitchell H. Rubinstein

Well Known Management Lawyer Sues His Former Firm For Age Discrimination

The Wall Street Journal Law Blog reported on April 6, 2010 about a well known management labor lawyer who is suing his former firm, Kelly Drye, for age discrimination. Predicitably, the firm is claiming that the partner is not an employee and therefore, not protected under the ADEA. The firm also is questioning the partner's billable hours. As the article states:

D’Ablemont (who’s still at the firm) claimed that after he hit age 70, his compensation was slashed by the firm, which has a policy of de-equitizing partners upon their 70th birthday. (Click here for a copy of the complaint.)

Yesterday, Kelley Drye filed its answer, claiming that because D’Ablemont is a partner, he is an “employer,” not an “employee” entitled to protection under the federal age-discrimination statute.

Sidley Austin famously asserted this defense, to no avail, in an age discrimination suit filed by 32 former partners that was settled in 2007 for $27.5 million. (Here’s a New York Law Journal piece on the Sidley settlement and click here for an NYLJ article on Kelley Drye’s answer in the D’Ablemont matter.)

But Kelley Drye did not simply rest on a legal defense; it came out swinging, questioning D’Ablemont’s work ethic.

Over the last five years, according to the answer, the attorney’s billable hours have ranged from 195.4 to 324.2 ─ “7 to 10 times less, annually, than the hours he billed prior to becoming a life partner.” According to the answer, Kelley Drye also alleges D’Ablemont has a “history of objectionable behavior inconsistent with the expectations for a Kelley Drye partner.”

Mitchell H. Rubinstein

Lawyer Found In Criminal Contempt And Gets 6 Months In Jail For Contacting Juror

Sometimes you just cannot make these stories up. The ABA Journal Now covered this story here. The court opinion from Florida is available from that link.

Mitchell H. Rubinstein

NLRB Issues Nice Primer Decision On Appropriateness of Multi-location Employer

I bring Sleepy's Inc., 355 NLRB No. 21 (March 26, 2010), to your attention because it is a well written decision which nicely summarizes appropriate unit principles. A union petitioned to represent 32 stores in Southwestern Conn. The employer contended that the unit should encompass all 156 stores in New England.

In reversing the Regional Director, the Board found that the petitioned for unit was inappropriate and remanded the case back to the Regional Director to determine the appropriate unit. As the Board explained:

When a union petitions for a multilocation bargaining
unit, the presumption in favor of a single facility unit has
no applicability. See NLRB v. Carson Cable TV, 795
F.2d 879, 887 (9th Cir. 1986); Capital Coors Co., 309
NLRB 322, 322 fn. 1 (1992). Instead, the Board applies
its traditional community-of-interest analysis. Thus,
where, as here, a union petitions for a unit that is greater
than a single location, but less than chain-wide in scope,
the Board considers a variety of factors to determine
whether the employees in the petitioned-for unit share a
community of interest distinct from the employees at the
excluded facilities. We consider similarity of employee
skills, duties and working conditions; functional integration
of business operations, including employee interchange;
centralized control of management, supervision
and labor relations; whether the petitioned-for unit conforms
to an administrative function or organizational
grouping of the employer’s operations; geographic cohesiveness
and proximity; and collective-bargaining history.
Bashas’, Inc., 337 NLRB 710, 711 (2002); Alamo
Rent-A-Car, 330 NLRB 897, 897 (2000); NLRB v. Carson
Cable TV, supra at 884–885.8
Applying the foregoing factors, we find that a unit limited
to the sales employees at the 32 stores currently assigned
to RM Edmunds is not appropriate. While we
recognize that the employees who work at the 32 stores
perform the same work, use the same skills, and enjoy
identical terms and conditions of employment, the Regional
Director acknowledged that employees at the Employer’s
stores outside the proposed unit also perform the
same work, use the same skills, and enjoy the same terms
and conditions of employment. See Alamo Rent-A-Car,
supra at 897–899 (unit that consists of only two of the
employer’s four San Francisco facilities is not appropriate
in part because employees at the excluded facilities
perform the same work under the same terms and conditions
as employees who work at the included facilities).
Thus, the factor of similarity of employee skills, duties,
and working conditions does not support a finding that
the unit may be limited to the 32 stores at issue. Nor is
there any history of collective bargaining at just those 32
stores.
The 32 stores in the petitioned-for unit are functionally
integrated with other stores outside the proposed unit and
there is significant employee interchange with employees
at stores outside the proposed unit. Thus, during the period
from January 2009 to the date of the hearing, an
employee who worked at a store assigned to an RM other
than Edmunds also worked at one of the stores assigned
to Edmunds approximately 52 percent of the time. Such
frequent interchange is not de minimis.
Further, there is centralized control of management
and labor relations in the New England Market, and RM
Edmunds does not have substantial autonomy over the
stores currently assigned to him. Rather, it is Pergolizzi,
the RVP for the New England Market, not RM Edmunds,
who makes the decisions regarding hiring, firing, promotions,
and discipline at the 32 stores in question. . . .

Mitchell H. Rubinstein

Interesting Story About Former DA Robert Morgenthau

The ABA Journal ran an interesting story about Robert Morgenthau which readers may find of interest, here. Morgenthau was the Manhattan DA for 35 years and at age 91is of counsel at Wachtell, Lipton, Rosen & Katz in New York City. He also served in the Kennedy Administration. The DA portrayed on the TV Show Law and Order loosely is modeled after him.

I never met Mr. Morgenthau. However, at age 91 I hope that I am not working in a law firm! But then again, maybe I will be lucky to be working at all!

Mitchell H. Rubinstein

NLRB Issues Advisory Opinion Asserting Jurisdiction Over a Combined Race Track Casino

Yonkers Raceway, 355 NLRB No. 35 (May 24, 2010), is a rare advisory opinion issued by the NLRB. It is also one of the first cases that Craig Becker was on. In a nutshell because Yonkers Raceway is not just a raceway, but also a casino, the advisory states that the Board would assert jurisdiction. As the Advisory states:

We agree with the Employer that, as a result of the
changes resulting from the addition of its casino gambling
operations, the enterprise is no longer primarily a
racetrack, and that the Board’s policy of declining jurisdiction
over racetracks no longer applies to it.7 In two
recent published cases, the Board considered combined
casino and racetrack operations with histories similar to
that of the Employer’s enterprise. In each case, the
Board found that although the enterprise began life as a
racetrack and added casino operations later, the revenue
and employment generated by the casino so overshadowed
those generated by the horseracing operations the
enterprise was no longer “essentially a racetrack,” Prairie
Meadows Racetrack & Casino, 324 NLRB 550, 551
(1997), and “the racetrack was dependent on the casino,
not the other way around.” Delaware Park, 325 NLRB
156, 156 (1997).

Mitchell H. Rubinstein

2010 Law School Commencement Speakers

Tax Prof Blog, aka Paul Caron, recently posted a large list of commencement speakers at law schools. You can find the list here. The first twelve on the list are as follows:

          Albany: Richard Wesley (Judge, U.S. Court of Appeals for the Second Circuit)

• American: Eric Holder (Attorney General, United States)
• Arizona: Raul Castro (Former Arizona Governor and U.S. Ambassador to Argentina, Bolivia, and El Salvador)
• Arizona State: Rebecca White Berch (Chief Justice, Arizona Supreme Court)
• Arkansas-Fayetteville: Annabelle Imber Tuck (Justice, Arkansas Supreme Court)
• Baltimore: Frank Kratovil (Member, U.S. House of Representatives)
• Baylor: John Hancock (Director, The Blind Side)
• Boston College: Scott Brown (Member, U.S. Senate)
• Boston University: Eric Holder (Attorney General, United States)
• Brooklyn: Michael Bloomberg (Mayor, New York City)
• Campbell: Erwin Chemerinsky (Dean, UC-Irvine)
• Capital: Dennis McCarthy (U.S. Assistant Secretary of Defense for Reserve Affairs)
• Cardozo: Cyrus Vance, Jr. (District Attorney, Manhattan)

Mitchell H. Rubinstein

2d Circuit Issues Nice Summary of Motion To Dismiss Standards Under Iqbal

I bring Sanders v. Grenadier Realty, Inc, ____Fed. Appx. _____, 2010 WL 605715 (2d Cir. Feb. 22, 2010), because it contains a nice concise summary of the new motion to dismiss standards under Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). As the court explained:

To survive a motion to dismiss, plaintiffs must “‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In considering whether a claim is facially plausible, we do not accept legal conclusions as true. See Ashcroft v. Iqbal, 129 S. Ct. at 1949-50 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”). Thus, the conclusion that defendants discriminated against plaintiffs on account of their race and national origin in violation of . . . section[] 1982” does
not state a plausible claim to relief. While paragraph 17 does allege facts consistent with a discrimination claim, i.e., that non-black residents were granted subsidies, it nevertheless
“stops short of the line between possibility and plausibility of entitlement to relief,” id. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 557 (internal quotation marks
omitted)), because plaintiffs do not allege any facts supporting an inference of racial animus. Accordingly, we conclude that the district court properly dismissed the § 1982 claim.

Mitchell H. Rubinstein

The Importance of thank you letters

Contributing Editor James Levy who also writes for our sister blog, Legal Writing Prof Blog, wrote an interesting April 5, 2010 story about the thank you letters and law students. He is following up on this column from lawjobs.com called "Interview Strategies:  A Flawless Follow-up."

Frankly, when I was a student, I use to think that thank you letters were complete waste of time and could do more harm than good. Having sit on the other side of the table for some years now, my views have changed. The thank you letter gives the applicant the opportunity to remind the interviewer of his or her interest and to bring to the firms attention some issue that may have been unclear. Therefore, I now believe in them.

Mitchell H. Rubinstein

Witness Named, But Not Called Protected From Retaliation

Noho Star, Inc. v. NYS Division of Human Rights, ___A.D3d___(1st Dep't. April 6, 2010), is an interesting case. The case involves the discharge of cook. However, I bring it to your attention to highlight that a witness who was named, but not called to testify, was protected under the anti-retaliation provisions of the New York Human Rights Law. Additionally, defendant claimed that the plaintiffs damages should be reduced by the amount of unemployment. That claim was rejected because no evidence about unemployment was admitted at trial.

Mitchell H. Rubinstein

Ankle bracelet and breathalyzer technology

Lohan's ankle bracelet has breathalyzer technology is an interesting May 25, 2010 AP article that was picked up by Yahoo News. What attracted me to this article was the fact that ankle bracelets now can detect if a person has been drinking (No, I am not a Lohan fan and  I am not even sure who Lohan is). As the article explains:

The bracelet uses the same technology as a breathalyzer, but instead of checking the breath for alcohol, it samples the perspiration on the skin. After alcohol is consumed, it eventually enters the bloodstream and a small amount is expelled through the skin.

The bracelet tests the skin every half hour. If there's alcohol, it causes a chemical reaction in the device's fuel cell. Usually once a day, the information is sent over phone lines to the company, which alerts the courts or probation officer if alcohol is detected at a blood-alcohol level of 0.02 or higher.

Mitchell H. Rubinstein

Recruiting Gay College Students

Finding a Gay-Friendly Campus is an interesting April 8, 2010 New York Times article that I just noticed. It is about how several colleges are openly and expressly recruiting for gay students. Of course, finding a school that a student will feel comfortable in is critically important and this seems like a great idea. This article is certainly worth a read.

Mitchell H. Rubinstein

Part-time service may affect eligibility for Jarema credit for the purposes of determining satisfying probationary service requirements

Decisions of the Commissioner of Education, 14,557, MacDonald and the North Tonawanda City School District, Decisions of the Commissioner of Education, 14,557

Arthur G. McDonald served as a tenured music teacher with the Kenmore-Tonawanda Union Free School District until June 1990.

In September 1991 North Tonawanda was appointed him as a part-time [.6 full-time equivalent] music teacher. He served in this capacity until February 1992, when the district appointed MacDonald as a full-time long-term substitute music teacher.

In September 1997, MacDonald's employment status underwent another change: the district appointed MacDonald as a part-time [.8 full-time equivalent] music teacher through June 1998.

In July 1998, MacDonald was appointed to a position in the Music K-12 tenure area subject to a two-year probationary term. By letter dated June 19, 2000, Superintendent John H. George informed MacDonald that he would not recommend him for retention as a tenured employee. The district terminated MacDonald's as a probationary teacher on July 12, 2000.

MacDonald objected, contending that in accordance with Education Law Sections 2509(1)(a) and 3012(1)(a), he should have received two years probationary service credit -- so-called "Jarema" credit -- for his continuous long-term substitute teaching in the district. He claimed that with such Jarema credit, his probationary period would have terminated September 8, 1999 rather than June 2000, and that he therefore acquired tenure by estoppel and acquiescence when district continued his employment beyond September 8, 1999.

The district, on the other hand, argued that by accepting the part-time (.8 FTE) position for the 1997-98 school year, MacDonald created a "gap" year in his full-time employment with the district and thus he is not entitled to receive Jarema credit for his long-term substitute service.

The Commissioner said that MacDonald "correctly asserts" that where a teacher is entitled to both probationary periods specified in Education Law Sections 2509(1)(a) and 3012(1)(a), the shorter of the two probationary periods governs. Accordingly, the issue to be resolved in this case is whether MacDonald is whether [McDonald] is entitled to Jarema credit for his full-time substitute service."

On this issue the Commissioner said that he saw no reason to deviate from the long-standing interpretation that regular substitute service must immediately precede a probationary appointment for a teacher to be eligible for Jarema credit.

Thus, said the Commissioner, because MacDonald's service was interrupted by a year of part-time service, he is not entitled to Jarema credit and dismissed his appeal.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

Hiring X Cons and Discrimination

Matter of Boatman v New York State Dept. of Educ., 2010 NY Slip Op 03523, decided on April 29, 2010, Appellate Division, Third Department

Correction Law §752 bars the denial of a license or employment application based solely upon an applicant's criminal record unless there is "a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought" (Correction Law §752 [1]), or where granting the license or employment application would "involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public."*

In August 2007, Kenneth L. Boatman was hired by the City of Syracuse School District as a temporary custodian.** Boatman later sought a permanent appointment and was told his employment was contingent upon a criminal background check and receipt of clearance from Department of Education.

The criminal background check revealed that Boatman had a 1989 felony conviction for dangerous drugs in Georgia and two New York convictions, one for criminal possession of a controlled substance in the seventh degree in 1993 and one for criminal mischief in 1997. As a result, the Department of Education advised Boatman that its clearance would be denied unless Boatman provided the Department with “satisfactory information indicating why clearance should be granted.***

Ultimately the Education Department denied Boatman clearance for employment on the ground that his employment would "involve an unreasonable risk to the safety and welfare of the students and staff of the District."

Boatman sued, contending that the Department's determination was arbitrary and capricious. Finding that the record was insufficient regarding the particulars of petitioner's convictions and that respondents failed to apply the appropriate statutory factors, When Supreme Court granted Boatman’s petition and remitted the matter to the Department for further proceedings after finding that it had not applied the “appropriate statutory factors, the Education Department appealed.

The Appellate Division said that a judicial review of the administrative decision denying Boatman clearance for employment is limited to whether the decision is arbitrary and capricious. On the other hand, if the court finds that the determination is supported by a rational basis, it "may not substitute its judgment for that of the board or body it reviews," but must sustain the determination.

In this instance, said the Appellate Division, the Department is required to apply the eight enumerated factors**** set out in §753(1) of the Correction Law together with any "certificate of relief from disabilities or a certificate of good conduct issued to the applicant, which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified therein."

The court then explained that "When all eight factors are considered and the positive factors are balanced against the negative factors, the resulting decision is neither arbitrary nor capricious nor does it constitute an abuse of discretion and reviewing courts may not reweigh the factors and substitute their judgment for that of the agency."

Finding that there was a rational basis for the Department's determination to deny Boatmen clearance, the Appellate Division reversed the Supreme Court's judgment and dismissed Boatman’s appeal.

* §50.4(d) of the Civil Service Law authorizes the state civil service department and municipal commissions to refuse to examine an applicant, or after examination to certify an eligible, who is guilty of a crime. However the first unnumbered paragraph set out in §50.4(d) provides that "No person shall be disqualified pursuant to this subdivision unless he or she has been given a written statement of the reasons therefor and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification."

** As to a temporary appointment, typically a school board may, upon the recommendation of the superintendent, conditionally appoint a prospective employee. A request for conditional clearance is to be forwarded to the Commissioner of Education, along with the prospective employee's fingerprints [see, for example, Education Law §1604.39.b.].

*** Other than the certificate of relief from disabilities from the 1993 conviction, Boatmen did not submit any information regarding his prior convictions, the underlying circumstances or evidence of rehabilitation.

**** The eight factors to be considered concerning a previous criminal conviction:

1. The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses;

2. The specific duties and responsibilities necessarily related to the license or employment sought or held by the person;

3. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities;

4. The time which has elapsed since the occurrence of the criminal offense or offenses;

5. The age of the person at the time of occurrence of the criminal offense or offenses;

6. The seriousness of the offense or offenses;

7. Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct; and

8. The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_03523.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

The New York University Center for Labor and Employment Law will present its 63rd Annual Conference on Labor on June 3-4, 2010.

Resolving Labor and Employment Disputes: A Practical Guide

Cosponsored with Cornell University School of Industrial and Labor Relations & St. John's University School of Law

• Program Details
• Registration Information

I go to this conference every year and it is wonderful. The list of speakers this year is unbelievable and CLE credit is available.

Mitchell H. Rubinstein

Soon To Be Justice Kagan Was Not A Straight A Student

A B Minus? The Sock! The Horror is an interesting May 24, 2010 New York Times article. It recounts how soon to be Justice Kagan was not a straight A student. She even got a B minus in her first year. Then again, she was not attending just any law school. She was attending Harvard. Whatever you think of the education, the fact of the matter is that Harvard opens up doors that others cannot walk into-such as clerkship on the Supreme Court. Kagan, was a law clerk to Justice Marshall.

In any event, this article is worth a read.

Mitchell H. Rubinstein

Using stipulated records in support of claims and defenses before an PERB Administrative Law Judge urged by PERB

Matter of Niagara Charter School, PERB Case U-27727
Source: PERB Staff reports

The Board remanded this case to an Administrative Law Judge for further processing aimed at clarifying the stipulated record with respect to an improper practice charge alleging that a charter school violated §209-a.1(d) of the Act when it refused requests to commence collective negotiations. The purpose of the remand was to clarify the record as to which employee organization asserts representational rights pursuant to the New York Charter Schools Act of 1998, Education Law §2854(3)(b-1).

The Board’s decision provides an important practice tip for practitioners before PERB. In remanding the case, the Board emphasized the value and importance of stipulated records as an economical and convenient means of presenting relevant evidence in support of claims and defenses before an ALJ.

At the same time, the Board reminded the parties that they retain the same level of responsibility and care for ensuring a complete record through a stipulated record or through the presentation of evidence at a hearing before an ALJ.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

Academic Study on Bullies

Bullying is one of the hotest issues in employment and education law. So who are the bullies and why do they bully people? That is the question addressed in a new academic study that was previewed in the May 21, 2010 New York Times, here. As the article states:

THAT kid who turned your son’s second grade year into a tear- and bruise-ridden ordeal. The anonymous twit who sullied your daughter’s name on Formspring. Your own fifth-grade tormentor, circa 1979, gone but never well enough forgotten. Bad seeds, all? Or perhaps just anxious? Eager to win approval and affection? Two studies out this spring look at bullies’ motivations, inner workings and, yes, feelings.

The first, “The Darker Side of Social Anxiety: When Aggressive Impulsivity Prevails Over Shy Inhibition,” finds bullies in a surprisingly sympathetic place. According to the authors, Todd Kashdan and Patrick E. McKnight, psychologists at George Mason University, contrary to the stereotype of submissive wallflower, a subset of adults diagnosed with Social Anxiety Disorder are violent and aggressive, displaying “hostile interpersonal patterns.” Out of 1,822 adults who are currently diagnosed with or have previously suffered from social anxiety disorder, one in five reported elevated aggression. According to the paper, published in Current Directions in Psychological Science, “For people with social anxiety, it may seem like a reasonable strategy to attack and reject other people before those people get a chance to do the same to them.” Bullies, it seems, are scared, too.

Mitchell H. Rubinstein

JSD Degree??

For those seriously interested in a law school career, a JSD degree is something that you might want to consider. An excellent article on SJD degrees is available on Prawfs Blawg, here. If I had to do it all over again, I would get an SJD degree, particularly considering the fact that I did not go to a top 10 law school.

Mitchell H. Rubinstein