Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Thursday, September 30, 2010

Provisional employee has no right to continued employment as a provisional appointee

Singletarly v NYC Dept. of Homeless Services, Supreme Court IA PART 27, Justice Gammerman, [Not selected for publication in the Official Reports]

In the Singletarly case Judge Gammerman sets out the basic rules concerning the rights of a provisional employee to continued employment as a provisional employee. In a nutshell, the court held that provisional appointments cannot, “with one rare exception inapplicable here,* ripen into a permanent appointment” and provisional employees have no civil service status and acquire no vested rights by virtue of their temporary or provisional service.

Singletarly was serving as a permanent Fraud Investigator, a position in the noncompetitive class. The New York City Department of Homeless Service provisionally appointed him to a vacant Associate Fraud Investigator position, a competitive class position, effective February 20, 1998.

On June 8, 1998 the Department reinstated him to his permanent title, Fraud Investigator. Claiming that this change constituted a “demotion,” thus entitling him to notice and a hearing within the meaning of Section 75 of the Civil Service Law, Singletarly sued.

Justice Gammerman dismissed Singletarly petition, noting that as his “appointment was a provisional appointment from the non-competitive class” and as he never took or passed a civil service examination** for any position or title, nor was he on or selected from an eligibility list” ... Singletarly “has no entitlement to any position or to any particular title.”

Describing Singletarly’s status as a provisional employee as that of “an employee at will” Justice Gammerman concluded that Singletarly “could be terminated from any position without good cause.”***

The court also briefly analyzed the status of a provisional employee, commenting that when there is no appropriate eligibility list available for filling a [wholly] vacancy in the competitive class the position may be filled on a provisional basis.

A provisional employee, however, has no expectation of tenure rights, including the right to notice or hearing prior to termination, or being given the reason for his or her termination. Thus, said the court, “a provisional employee may be terminated at any time without charges proffered, a statement of reasons given or a hearing held.”

* The “rare exception” referred to by the Justice Gammerman is probably the one leading to the decision in Roulett v Town of Hempstead Civil Service Commission, 40 AD2d 611. In Roulett the court held that the continued provisional employment of a person eligible for permanent appointment to the position when the individual is qualified for permanent appointment from a nonmandatory eligible list results in that individual being deemed permanent in the position upon the completion of the period of probation otherwise required [Section 64.5, Civil Service Law].

** Section 52 of the Civil Service Law authorizes the State Department of Civil Service to allow noncompetitive and labor class employees in the service of the State to compete in promotion examinations when such examinations are held in conjunction with open competitive examinations for the same title.

*** This, however, may not be entirely accurate with respect to Singletarly insofar as termination from his noncompetitive class position is concerned if he (1) is a veteran who served in time of war or is an exempt volunteer firefighter or (2) satisfies the requirements set out in Section 75.1(c) of the Civil Service Law. Further, a collective bargaining agreement negotiated pursuant to the Taylor Law may give persons not otherwise protected by Section 75 certain pre-termination due process rights.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

September 30, 2010 in Public Sector Employment Law | Permalink | Comments (1)

Adjuncting Benefits

The Wall Street Journal ran an interesting story on September 30, 2010 called the Ultimate Power Hobby. It is basically about why adjuncts, well adjunct. Interestingly, the article focuses on a New York atty who teaches one night a week at the Univ. of Penn. Law School.  The article describes adjuncting is part as follows:

Generally, adjuncts fall into one of two classes: The so-called professional or practitioner adjunct brings the experience of a successful career and isn't in it for the money. Academic adjuncts, many of whom have doctorates, teach in hopes of landing a tenure-track job, and for most of them the salary and lack of benefits are a hardship. Reliance on adjuncts is increasing. In 2007, part-time teachers made up 50% of faculty at degree-granting institutions, according to the association of professors, up from 41% in 1995.

A university has much to gain from well-chosen professional adjuncts, including cachet and credibility. And adjuncts also form a potential donor pool. Like many schools, the University of Michigan Law School has a number of donors on its adjunct faculty roster, says Todd Baily, the law school's assistant dean for development and alumni relations. The development office may pass a donor's resume to the dean and faculty members who vet applicants, or fund-raisers may approach professional adjuncts about donations. Adjuncts "get to know an institution from a different perspective and are invested in it," says Mr. Baily. "It's one resource for us, but it's not our primary resource."

Individuals interested in adjuncting may find this article of particular interest.

Mitchell H. Rubinstein

September 30, 2010 in Adjunct Information in General | Permalink | Comments (0)

Wednesday, September 29, 2010

Sovereign immunity

Alston v State of New York, Ct. of Appeals, 97 N.Y.2d 159

The doctrine of sovereign immunity generally shields a state from suit absent its consent. In Alden v Maine, 527 US 706, the Supreme Court of the United States found that State sovereign immunity is "implicit in the constitutional design." States have claimed sover­eign immunity with respect to their being sued in federal court for alleged violation of various acts of Congress including the Fair Labor Standards Act. New York's claim of sovereign immunity was a critical element in resolving the Alston case.

In 1991, Benjamin Alston and 102 other State parole officers sued the State, claiming that it had failed to pay them overtime in violation of the Fair Labor Standards Act. In 1997, the United States District Court, Northern District of New York, dismissed the action based on the US Supreme Court's ruling in Seminole Tribe of Florida v Florida, 517 US 44. In Seminole the high court said that Article I of the Constitution did not give Congress the power to defeat a states' Eleventh Amendment sovereign immunity from suits commenced or prosecuted in Federal courts.

Alston appealed to the Second Circuit United States Court of Appeals, but the parties agreed to a voluntary dismissal of the action in view of the fact that the Second Circuit had ruled against other claimants in a similar case.

In 1998, Alston filed the same lawsuit in the New York's State Court of Claims. The Court of Claims dismissed the complaint holding that it lacked subject matter jurisdiction because Alston's petition was untimely.

The Appellate Division affirmed the Court of Claims' ruling. It said that "when New York waived its immunity subject to a six-month Statute of Limitations for FLSA claims brought against it as provided by the Court of Claims Act Section 10 ..., such limitation could not be overridden by the Article I powers delegated to Congress, whereby a two or three-year Statute of Limitations was created for FLSA claims." In other words, Alston should have filed his petition with the Court of Claims within six months of the "accrual of his cause of action." The Court of Appeals sustained the Appellate Division's determination.

In the words of the Court of Appeals:

"The issue before us is whether, under the terms of the waiver of sovereign immunity found in Court of Claims Act Section 8, the State retained its immunity as to these claims because claimants failed to comply with the time limitations set forth in Court of Claims Act Section 10(4), upon which the [State's] waiver was conditioned."

The court's conclusion: the State retained its immunity. Why? Because, explained the court, although Section 8 of the Court of Claims Act provides that "the state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to ac­tions in the supreme court against individuals or corporations, provided the claimant complies with the limitations of this article."

Accordingly, the State's waiver of sovereign immunity was not absolute, but was condi­tioned upon a claimant's compliance with the limitations on the waiver, including the relevant filing deadlines.

The Court of Appeals ruled that "because claimants failed to file their claims in the Court of Claims within six months after their accrual ... and did not timely seek relief from the court under Court of Claims Act 10(6), the State was entitled to dismissal of this claim on sovereign immunity grounds.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

September 29, 2010 in Procedure, Public Sector Employment Law, Public Sector Labor Law | Permalink | Comments (0)

Tuesday, September 28, 2010

Having a residence in the jurisdiction not always the same as having a domicile in the jurisdiction

Matter of Johnson v Town of Amherst, 2010 NY Slip Op 05447, Decided on June 18, 2010, Appellate Division, Fourth Department

The Town of Amherst’s Town Code required its employees to be “domiciliaries of the Town.”

James I. Johnson’s family’s home, however, was in Elba, New York and the evidence in the action showed that he “listed the Elba address on his New York State income tax forms, that he had no intention of moving his family to [Amherst] and that he established residency in [Amherst] solely to comply with the original residency requirements of his employment.”
As a result Johnson was terminated from his position with Amherst for failing to comply with the Code’s requirement that he be a domiciliary of the Town.

Johnson sued and asked the court to annul his termination by the Town of Amherst based on its “residency requirement” that Town employees to be domiciliaries of the Town. Supreme Court sustained the Town’s decision and the Appellate Division affirmed the lower court’s ruling.
The Appellate Division explained that "[D]omicile means living in [a] locality with intent to make it a fixed and permanent home."*

Noting that "[j]udicial review of an administrative determination following a hearing required by law is limited to whether the determination is supported by substantial evidence," the Appellate Division said that the evidence presented at the hearing established that Johnson’s family lived in a home in Elba, and that he established a residency in the Town “solely to comply with the original residency requirements of his employment.”

The court concluded that the determination that Johnson is a domiciliary of Elba rather than the Town is supported by substantial evidence and dismissed his appeal.

The Appellate Division also commented that Johnson was fully apprised of the evidence that the Town would consider in making its determination and that he was given "numerous opportunities to respond and to present his own evidence" to establish that he, in fact, was domiciled in Amherst but that he failed to come forward with such evidence.

* Although an individual may have, and maintain, a number of different residences simultaneously, he or she can have, and maintain, only one domicile at a given time.

The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

September 28, 2010 in Constitutional Law, Public Sector Employment Law | Permalink | Comments (0)

Monday, September 27, 2010

Employee Fired For Misconduct Not Eligible For Unemployment


Matter of Peters v. Commissioner of Labor, ___A.D.3d____(3rd Dep't. June 24, 2010), is a tough case. In finding that an employee committed misconduct by failing to document his inability to report to work, the court explained:

The failure to return to work following an authorized absence has been found to constitute misconduct disqualifying a claimant from receiving unemployment insurance benefits (see Matter of Conescu [Commissioner of Labor], 67 AD3d 1234, 1235 [2009]; Matter of McCullough [Publisher's Clearing House — Commissioner of Labor], 307 AD2d 567, 568 [*2][2003]). Here, it is undisputed that claimant did not report to work as scheduled at the end of his authorized vacation. Although he maintained that he experienced problems with customs that delayed his return for several days, he admittedly did not provide the employer with requested documentation to substantiate his claim. In addition, the employer's representative testified that claimant left a message advising that he could not return to work on the date scheduled, but failed to indicate when he could return to work. Although claimant maintained that he advised the employer's representative of his return date, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Alvarado [Commissioner of Labor], 273 AD2d 563, 564 [2000]). Given that claimant was absent from work without authorization and did not take the steps necessary to protect his employment, substantial evidence supports the Board's finding that claimant engaged in disqualifying misconduct (see Matter of Jimenez [A & L Pen Mfg. Corp. — Commissioner of Labor], 27 AD3d 941, 942 [2006]).

Mitchell H. Rubinstein

September 27, 2010 in Employment Law | Permalink | Comments (0)

Therapist can't hold district, parents responsible for student's violent outburst


A occupational therapist who was injured by a student with autism could not pursue negligence claims against the district or the student's parents. The court held that neither had a duty to warn the therapist of the student's aggressive tendencies. Johnson v. Cantie, ____A.D. 3d____(N.Y. App. Div. 3rd Dep't.06/11/10). The court reasoned in part:

With respect to the claim for failure to warn of the aggressive tendencies of the Canties' daughter, it is well established that there is no duty to warn an individual about a condition of which he or she is actually aware or that may be readily observed by a reasonable use of his or her senses (see Faery v City of Lockport, 70 AD3d 1375; Baggott v Corcoran, 48 AD3d 1182; Jones v W + M Automation, Inc., 31 AD3d 1099, 1101-1102, lv denied 8 NY3d 802). The Canties and the District met their burden of establishing their entitlement to judgment as a matter of law by submitting the deposition testimony of plaintiff in which she admitted that, prior to the incident, she was aware that the Canties' daughter had a tendency to use physical contact to express herself (see generally Zuckerman v City of New York, 49 NY2d 557, 562). Indeed, plaintiff admitted that the behavior of the Canties' daughter on the date of the incident was the type of behavior that plaintiff expected from her and had observed on previous occasions. The bare assertion by plaintiff that she would have liked "more information" about the Canties' daughter from the Canties or the District was insufficient to defeat the motions for summary judgment (see generally id.).

Mitchell H. Rubinstein

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

Sunday, September 26, 2010

Secunda and Hirsch-Mastering Employment Discrimination


Mastering Employment Discrimination Law

by Paul M. SecundaJeffrey M. Hirsch

2010  $25.00  250 pp  paper  ISBN: 978-1-59460-717-2 LCCN 2010023558

Professors Paul Secunda and Jeffrey Hirsch (Editors of Workplace Prof Blog) just published Mastering Employment Discrimination which is part of 

which is part of Carolina Press's Mastering series. The book is like much less inclusive than a hornbook, but 

more inclusive than West's Nutshell series. I think this book will work for students for several reasons. 

First, the cost is reasonable. Second, the book is readable and spans but 209 pages. Third, and most importantly,

the book covers all of the leading Supreme Court cases and discusses them in a clear and straight forward manner. 

While this book is clearly being marketed for law students, junior lawyers practicing employment discrimination,

particularly those without any background in this area of law, will find this book just as useful.

Nice job Paul and Jeff. 

Mitchell H. Rubinstein


September 26, 2010 | Permalink | Comments (0)

NYU Did Not Breach Implied Contract By Withholding MBA from Convicted Felon

Rosenthal v. NYU, ___F.Supp.2d____(S.D.N.Y. Sep't. 13, 2010), is an interesting case. The court holds that NYU did not breach an implied contract by withholding MBA from a confessed inside trader. As the court stated:

The University Bylaws (the "Bylaws") expressly confer upon the faculty of each school the authority to determine "the standards of academic achievement to be attained for each degree offered" and "to certify to the President, for recommendation to the Board, qualified candidates for degrees and certificates."39While the Stern faculty's decision to withhold Rosenthal's degree followed the form of a disciplinary proceeding, it determined pursuant to its duly-conferred authority that Rosenthal was not fit to receive a degree on the basis of his admitted felonious conspiracy to commit securities fraud. That decision was fully within the faculty's power and discretion.40 It was neither arbitrary nor capricious. Thus, Rosenthal's contentions are entirely without merit on that ground alone. While his procedural arguments are beside the point, the Court nevertheless turns to them in an abundance of caution.

Mitchell H. Rubinstein

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

Saturday, September 25, 2010

Does It Pay To Get An LL.M?

The Wall Street Law Journal Blog ran an interesting story on September 20, 2010, here, questioning whether an LL.M degree was worth it. The article seemed to concluded that it generally was not worth it unless the student was interested in a highly specialized field such as tax.  

I tend to agree. Also, the academic job market has become so competitive that I am sorry to report that an LL.M is not enough to land a law school or even a college teaching job in most competitive markets (where everyone wants to work). If your interested in a full time academic appointment, your looking at a J.S.D. or P.hd degree. That is the reality of todays world.

Mitchell H. Rubinstein

September 25, 2010 in Law Schools, Law Students | Permalink | Comments (0)

N.Y. Passes Domestic Worker Bill of Rights

On September 2, 2010, Gov. Paterson signed into law the Domestic Worker Bill of Rights. Daily News coverage here, The Bill Summary from the state Senate describes this new statute as follows:  

SUMMARY OF SPECIFIC PROVISIONS: The Labor law is amended by adding a new article 19-C setting out labor standards for domestic workers. 

Section 696(1) of the new article 19-C would provide that a domestic worker's work day is eight hours and that overtime hours

  • as performed by agreement between the employee and employer
  • will be paid at one and a half times the worker's normal hourly rate. 

    Section 696(2) would provide for one day of rest every calendar week. The day off may be voluntarily waived by the worker, but the pay for that day would be at the overtime rate. 

    Section 696(3) would provide for the following days as paid holidays: New Year's Day, Martin Luther King Jr.'s Birthday, Independence Day, Thanksgiving, Labor Day and Christmas Day. Holiday days off may be voluntarily waived by the worker, but the pay for that day would be at the overtime rate. 

    Section 696(3) would also provide that full time workers (working at least forty hours per week) are entitled to at least seven paid sick days and five paid vacation days (with thirty days notice) each year. Workers working between twenty and forty hours a week are entitled to at least four paid sick days and three paid vacation days (again with thirty days notice). 

    Section 696(4) would provide for fourteen days written notice of termination. If the employer fails to give such adequate notice, the worker can receive back pay and the value of the cost of any benefits to which the employee would have been entitled. However, employers would not face any liability if 1) the employee was convicted of theft or destruction of property; or 2) if the employer acted upon a good faith and reasonable belief that the employee had committed assault, neglect or abuse in the workplace. 

    Section 697 would set out potential remedies. 697 (1) would provide that an employer who violates this article is subject to the criminal penalties set out in Labor Law sections 198-a and 663. (2) would provide for civil actions; workers can sue for the underpayment of any wages and the value of benefits as well as reasonable attorney's fees. If the violation is determined to be willful, liquidated damages of 25% of the amount owed are assessed. Also, 697(2) (b) would give the Labor commissioner or the Attorney General the ability to bring such an action on behalf of a worker. 

    Section 3 of the bill would include domestic workers and their employers under the coverage of the New York state Human Rights Law. 

    Section 4 would include domestic workers under Labor Law 

    Section 160's definition of a day's work as eight hours. 

    Section 5 would include employers who violate this article under Labor Law 

    Section 218. Labor Law 218 provides that the Labor Commissioner may issue an order to violating employers and may direct payment of wages, benefits or wage supplements; if the employer acted willfully or egregiously, or if the employer had a prior violation, the commissioner's order can include a civil penalty of double the amount due. Relatedly, 

    Section 6 would include this article under the interest and filing of an order as judgment provisions applicable to Labor Law 218. 

    Section 7 would include domestic workers under the definition of employee for purposes of the New York State minimum wage law (though domestic workers are already covered under the Federal minimum wage law).

    ection 8 would include domestic workers in the provisions of the New York State Labor Relations Act. 

    Section 9 would include employers of domestic workers under the Toxic substances article of the Labor Law. 

    Section 10 would include domestic workers (including part-time workers) and their employers in the Disability Benefits Law. Finally, section 11 of the bill would direct the Labor commissioner to report to the Legislature by 12/01/11 on the feasibility and practicality of domestic workers obtaining "common employment benefits." This would allow for the subsequent consideration of other potential benefits, including health insurance, severance pay, personal leave, collective bargaining and cost of living adjustments. 
  • Mitchell H. Rubinstein
  • Hat Tip: Workplace Prof Blog

    September 25, 2010 in New York Law | Permalink | Comments (0)

    Friday, September 24, 2010

    School Law Jobs

    Job TitleEmployerJob Location
    Labor & Employment AttorneyLozano SmithFresno, California
    Mid-Level/Senior Special Education AttorneyHarbottle Law GroupOrange County, California
    Special Education AttorneyLozano SmithFresno, California
    School Law AttorneyBrannan Legal SearchChicago, Illinois

    September 24, 2010 in Lawyer Employment | Permalink | Comments (0)

    Thursday, September 23, 2010

    Teacher failed to state valid First Amendment retaliation claim based on filing a lawsuit on behalf of daughter against school district


    Vereecke v. Huron Valley Sch. Dist., ___F.3d___ (6th Cir. Jun. 18, 2010), is an interesting case. The 6th held a teacher failed to state a valid claim under the First Amendment for retaliation based on his filing of a lawsuit on behalf of his daughter against the school district. The teacher failed to establish a causal connection between filing the suit and his removal as athletic coordinator. The court concluded that the temporary proximity of filing the lawsuit to the adverse employment action of removal from the athletic coordinator position alone was insufficient to create the inference of causation.

    Mitchell H. Rubinstein

    September 23, 2010 in Education Law, First Amendment | Permalink | Comments (0)

    Wednesday, September 22, 2010

    California law does not permit trained volunteer school personnel who are not lincensed nurses to administer insulin injections to diabetic students

    In American Nurses Ass’n v. O’Connell, No. C061150 (Cal. App. Ct. Jun. 8, 201, a California intermediate court held that state law does not permit trained school personnel who are not licensed nurses to administer insulin injections to diabetic students pursuant to a § 504 plan under the federal Rehabilitation Act or an individualized educational program (IEP) under the federal Individuals with Disabilities Education Act (IDEA). The court reasoned that federal law did not preempt state law restricting the giving of insulin shots by licensed nurses, but suggested that state law should be changed.

    Mitchell H. Rubinstein

    September 22, 2010 in Education Law | Permalink | Comments (0)

    Tuesday, September 21, 2010

    4G Now Live In NYC and NJ

    In case you have been living under a bus and have not noticed, most professionals utilize smart phones. These phones allow owners to browse the web, type memo's, send email, text and yes, make telephone calls. 

    I am no techie, but my understanding is that most smart phones today are utilizing 3G speeds. The speed is decent for phone use and internet use on the phone. However, it is really inadequate for internet use on a laptop. 3G speed is about the same speed as the old 56K dial up modem before the days of broadband.

    I just noticed that 4G is now live in NYC and it is also available in northern and central NJ. It has been available in Philly and in southern NJ for some time. 4 G is about 6 times faster and you see the difference-a significant difference when browsing the web from a laptop.

    So, how do you browse the web from your laptop? You have basically four options; insert or purchase a broadband card for the laptop, purchase a mifi type device which allows you to browse the web,  tether your phone via a cable or bluetooth via some free or low cost software services or use the WiFi service from your phone. 

    I have a Sprint Evo 4G and the last options really shines on this phone. I have tried to connect to the web with all the other types of connections and the phone WiFi option is the fastest. 

    So, why doesn't everyone have a 4G phone? Because it is first rolling out. Sprint is the leader here with WiMax. Currently there are only two WiMax phones to choose, the Evo 4G and the Samsung Epic 4G. The phones are very similar. The Evo has more features, but the Epic has a keyboard. 

    Verizon and AT&T promise to launch their own 4G services shortly. Until then, if your in the market for a smart phone, in my view the only provider that should be considered is Sprint and right now you should only consider the above phones. 

    No, I do not own stock in Sprint and I hated to give up my Blackberry on AT&T which I loved. However, I cannot see using yesterday's technology in today's world.

    Mitchell H. Rubinstein

    September 21, 2010 in Misc., Non-Legal | Permalink | Comments (0)

    Texas State Board of Education to consider how Islam should be portrayed

    The Dallas Morning News reported  that the Texas State Board of Education is planning to discuss what students should learn about Islam. The Board  will consider a resolution  that would warn publishers not to push a pro-Islamic, anti-Christian viewpoint in world history textbooks. The impetus for the resolution came from an unsuccessful candidate for a board seat, who called on the panel to head off any bias against Christians in new social studies books. Some contend that “Middle Easterners” are increasingly buying into companies that publish textbooks.

    Source: Dallas Morning News, 9/15/10, By Terrence Stutz

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

    Monday, September 20, 2010

    Book Review- Getman, Restoring The Power Of Unions



    I just finished reading Restoring The Power of Unions It Takes A Movement by Professor Julius G. Getman (University of Texas Law School) and I could not put it down.  The book is a must read for students of labor law, labor history and practicing labor lawyers. I suspect that it will shortly become required reading in many labor relations and labor law classes.

    The book, which spans 326 pages, is exceptionally well written, well researched and footnoted. Quite simply, the book is quite readable and a pleasure. One of the reasons why it is an easy read is because it is composed of 25 relatively short chapters. The book really is actually like two books. The first, documents the rise and success of HERE (Hotel Employees Rest. Employees) (now UNITE-HERE) and its President John Wilhelm whom I had the pleasure of recently meeting. Getman details the success of Wilhelm's labor philosophy and in particular, the 1980's Yale University organizing campaign and strike. To my amazement, Wilhelm's philosophy involves the total avoidance of NLRB conducted elections and involves the utilization of salts (called interns in the hotel industry) and corporate campaigns designed to convince the employer to agree to a neutrality and card check election agreement.

    The second "book" involves Getman's critique of the current state of labor law. Getman, who is one of the leading labor scholars in the country, is very critical of the union access decisions and the MacKay doctrine which allows strikers to be permanently replaced. To my surprise, Getman is also not a fan of the Employee Free Choice Act which organized labor has been pushing for some time. 

    Getman, however, does not call for the abolishment of the NLRA and believes that it is worth saving. Getman believes that the Labor Board decisions are often the product of partisan politics and the Board needs to be composed of nonbiased experts whose independence and neutrality has been tested. Who would these Board members be? Labor arbitrators- of course. He also calls for amending the NLRA by increasing the Board's remedial power, mandating that unions be given equal time to respond to employer campaign speeches and by essentially outlawing permanent replacements.  Finally, Getman calls for a specialized appeal tribunal that would hear appeals from NLRB decisions.

    Getman's central theme is something that we often loose site of. Unions have to return to their roots. Unions are composed of workers and therefore, unions should be about the workers and run by the workers. Indeed, Getman in this wonderful work interviewed organizers and quoted from them extensively as he believes that they have the most important and difficult jobs within unions. With regard to this book, he did not merely conduct interviews with senior level union leadership.  

    Getman concludes as follows:

                  "For organized labor to play its proper role in turning the American dream into reality, the labor  movement must be not only for the people, as most unions are, but also of the people, in ways that most unions are not. . . Members must believe, on the basis of established facts, that they have the opportunity to shape the union's actions and priorities. This is what Vinnie Sirabella practiced and preached. It is what he passed on to John Wilhelm. It is at the heart of UNITE-HERE's approach to organizing and bargaining." 

    The book was released on June 21, 2010 by Yale University Press and can be purchased directly for $55.00, here, or for $39.60 from, here

    Mitchell H. Rubinstein

    September 20, 2010 in Book Reviews | Permalink | Comments (0)

    U.S. News Now Ranks Law Firms

    I thought I have seen it all. However, I just learned that U.S. News and World Reports started to rank law firms. Wow! I could not think of a more subjective and useless rating system. First of all in federal cases and in most states, individual lawyers sign pleadings and it is of course individual lawyers who provide the representation. A management side may have a significant amount of experience in the construction industry, but none in the field of public education. Even though both firms may practice labor law, their experiences may vary dramatically. 

    Oh, by the way what is labor law anyway. In firm A it might encompass labor and employment law while in firm B it might encompass an ERISA practice. Unfortunately, as with law firm rankings the general public may rely on them. And that is the problem

    For an example of who they ranked, the best management labor law firms are as follows:

    Fisher & Phillips LLP

    Fisher & Phillips LLP, a national law firm founded in 1943, was one of the first law firms to cente...

    Labor Law - Management

    1Ford & Harrison LLP

    Ford & Harrison is a national labor and employment law firm with close to 200 lawyers in 18 offices...

    Labor Law - Management

    1Gibson, Dunn & Crutcher LLP

    Gibson, Dunn & Crutcher LLP is a full-service global law firm, with over 1,000 lawyers in 17 office...

    Labor Law - Management

    1Morgan, Lewis & Bockius LLP

    Morgan Lewis provides comprehensive transactional, litigation, labor and employment, and intellectu...

    Labor Law - Management

    1Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

    Ogletree, Deakins, Nash, Smoak & Stewart, P.C. ("Ogletree Deakins") is one of the nation's largest ...

    Labor Law - Management

    1Proskauer Rose LLP

    FIRM OVERVIEW: Proskauer is a global law firm with more than 650 lawyers worldwide. Recognized for ...

    Labor Law - Management

    1Winston & Strawn LLP

    Labor Law - Management

    1Jackson Lewis LLP

    Labor Law - Management

    1Jones Day

    Labor Law - Management

    1Littler Mendelson P.C.

    Labor Law - Management

    September 20, 2010 in Law Firms | Permalink | Comments (0)

    Marijuana Workers Join Teamsters Union

    The Scramento Bee reported on September 20, 2010 via an AP story that 40 Marijuana workers voted to join the Teamsters Union. Apparently, they did more than vote to join the union as the employer has recognized the union in that it agreed to increase wages from 18 dollars per hour to almost 26 dollars per hour over a 15 month period. 

    As I recall, it is still a crime under federal law to sell Marijuana whether it is used for medical purposes or not. However, the feds are not enforcing that law, at least in California when the Marijuana is being used for medical purposes. An interesting legal issue would arise with respect to the role of federal law (NLRA) in such circumstances if these employers are subject to the NLRA. Significantly, however, these employees are probably not protected under the NLRA as the NLRA excludes agriculatural workers from its protection. 

    However, in Calfornia, such workers are protected under state law which created an administrative agency called the California Agricultural Labor Relations Board. I believe that this agency will protect these workers.  

    Only in California!

    Mitchell H. Rubinstein 


    September 20, 2010 in Oddly Enough, Legal, Unions | Permalink | Comments (0)

    Sunday, September 19, 2010

    Former employee’s ADA retaliation claim survives the dismissal of her violation of the ADA complaint

    Ragusa v Malverne Union Free School Dist., USCA, 2nd Circuit, No. 08-5367-cv, June 21, 2010, [Unpublished]

    Malverne Union Free School District mathematics teacher Biljana Ragusa sued the District, the school board and former school superintendent Mary Ellen Freeley, alleging that she had been the victim of unlawful discrimination because of her gender, age, and disability.

    A federal district court judge granted the School Districts motion for summary judgment [Ragusa v. Malverne Union Free Sch. Dist., 582 F. Supp. 2d 326], finding that Ragusa failed to adduce sufficient evidence to permit a rational factfinder to conclude that she was disabled within the meaning of the ADA, that she had been subjected to a hostile work environment because of disability or that the district had retaliated against her because of her “engaging in ADA-protected activity.”

    The Circuit Court sustained the district court’s ruling in part, stating that agreed with its finding that “Ragusa’s discrimination claim failed because of insufficient evidence that she is a ‘qualified individual’ with a ‘disability’ within the meaning of the ADA.”*

    Ragusa had alleged that surgery to remove a benign brain tumor left her impaired in the “major life activities” of seeing, hearing, speaking, and walking.” The court, however, ruled that the evidence did not support a finding of “substantial limitation” and that the only medical evidence in the record consisted of a physician’s note clearing Ragusa to return to work following her surgery.

    Further, said the court, Ragusa failed to raise a “jury question” as to whether the school district and its officers and employees “regarded her as disabled” because of an impairment that substantially limited a major life activity.

    Although Ragusa contended that she received critical evaluations concerning her teaching performance, the Circuit Court decided that such criticisms reflected that the district considered her “ineffective” and not disabled.

    As to Ragusa’s allegations concerning “retaliation,” the court ruled that although she presented a prima facie case of retaliation, the school district rebutted this claim by providing a non-retaliatory rationale” for her dismissal, thereby shifting the burden of going forward to Ragusa to show that the explanation offered by the district was pretextual.**

    The Circuit Court concluded that Ragusa had sufficiently demonstrated the possibility of “pretext” with respect to her 2004-2005 teaching assignment and vacated the district court’s decision dismissing her claim of retaliation and remanded the matter to the federal district court for further consideration.

    * The Circuit Court noted that Congress amended the ADA in 2008 to expand its coverage but said that it had decided the case on the version of the statute in effect “during the time period at issue, which ended with Ragusa’s termination on June 30, 2005, noting that, in general, a statute “shall not be given retroactive effect unless such construction is required by explicit language or by necessary implication,” citing Bercerril v Pima County Assessor’s Office, 587 F3d 1162.

    ** Ragusa did not have to be disabled within the meaning of the ADA to pursue her retaliation claim as she demonstrated that she held a “good faith, reasonable belief that the underlying actions of the employer violated the ADA [see Sarno v Douglas Elliman-Gibbons and Ives, Inc., 183 F3d 155].

    The decision has been posted on the Internet by the NYS Bar Association at:

    Reprinted with permission New York Public Personnel Law

    Mitchell H. Rubinstein

    September 19, 2010 | Permalink | Comments (0)

    Saturday, September 18, 2010

    Teacher Fired For Comments On Facebook

    In today's world people have to be very careful what they say online, on a social networking site or on a blog. ABC reported about a Mass teacher for comments he made on Face Book. Lexology describes what happened as follows:

    ABC news reported yesterday about an employee fired for statements made on a social networking site – this time Facebook. The employee, Massachusetts high school teacher June Talvitie-Siple, was fired by her school district for statements she made about the community, her students and their parents. The 54-year-old teacher mistakenly thought her statements were being communicated only to her circle of friends on the popular site, not to the entire world. As others have found before her, such a misconception can be costly.    

    What did Talvitie-Siple say on Facebook? In one post, she referred to the students as “germ-bags,” on account of the multiple times she caught illnesses from them. She also described the community and the parents as “arrogant” and “snobby.”

    Of course, when a public institution is involved First Amendment legal issues may arise. First Amendment rights, however, are far from absolute and provide much less protection than most people think. Law review commentary on this important subject would be most welcome.

    Mitchell H. Rubinstein

    September 18, 2010 in Education Law, Employment Law, Law Review Ideas | Permalink | Comments (3)