Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Friday, September 17, 2010

School Law Jobs

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 17, 2010 in Lawyer Employment | Permalink | Comments (0)

Thursday, September 16, 2010

Teachers have standing under Michigan Constitution to sue school board for failure to comply with statutory duty to expel students who have assaulted a teacher

Lansing Sch. Educ. Ass’n v. Lansing Bd. of Educ., No. 138401 (Mich. Jul. 31, 2010), is an interesting case. The Michigan Supreme Court  ruled 4-3 that teachers who were allegedly physically assaulted by students have standing to bring suit against the school board for failure to comply with its statutory duty to expel those students. The court overruled its previous precedent in Lee v Macomb Co Bd of Comm’rs , 464 Mich 726; 629 NW2d 900 (2001). 

The court determined that the plaintiff teachers in this case had standing to sue the school board because they have a significant interest distinct from that of the general public in the enforcement of the statute, as the statute’s purpose is to protect their safety and their ability to effectively teach.

Mitchell H. Rubinstein

September 16, 2010 in Education Law | Permalink | Comments (0)

Wednesday, September 15, 2010

Massachusetts Anti-Bullying Law

The Boston Globe recently reported that the Massachusetts Department of Education released a model anti-bullying plan. The plan is intended to serve as a template for school districts as they implement policies that will comply with the state’s new anti-bullying law.  

The new state anti-bullying legislation requires school employees to report all instances of bullying, both in person and online,  and requires principals to investigate them. Parents can report bullying, and reports can be anonymous, although no disciplinary action will be taken against a student based solely on an anonymous report. 

Boston Globe, 8/25/10, By Peter Schworm

Mitchell H. Rubinstein

September 15, 2010 in Legislation | Permalink | Comments (1)

Tuesday, September 14, 2010

Using e-mail as evidence in disciplinary actions

Strauss v Microsoft, USDC SDNY, Lexis 7433

Employers and employees are discovering that with the increased use of electronic mail [e-mail], records thought not to exist may be hidden in computer files. Accordingly, employers are now reviewing computer backup tapes to find evidence of employee misconduct for use in disciplinary actions while employees are using the same sources to discover incriminating evidence of employer wrongdoing such as unlawful discrimination or sexual harassment.

The Strauss case illustrates this trend. Strauss, an employee of Microsoft, alleging she was not promoted because of gender discrimination. Microsoft’s efforts to have her charges summarily dismissed failed when Strauss introduced “explicit e-mail messages from her supervisor” that she found on backup tapes during the discovery phase of litigation.

Courts are usually disposed to granting motions that “appear reasonably calculated to lead to the discovery of admissible evidence.” The fact that the material sought is in electronic rather than a traditional paper form has not been a barrier to approvals. 

In another case, Davidian v O’Mara, [USDC TN, 2-97-0020] a newspaper asked a federal district court to allow it to obtain information stored on City of Cooksville [Tennessee] employee’s computer hard drives under the state’s Freedom of Information Law. The newspaper wanted to find out the “web sites” that may have accessed through the City’s computers by its employees by reviewing the “cookie files” stored on the drives.

Originally the city said the newspaper had to pay for the information -- over $300 -- but later decided to refuse to produce the information, claiming the computer files were not public records. However, “cookie files” are like “telephone logs” according to some attorneys involved in First Amendment litigation and therefore must be produced under “Freedom of Information.”

What about employee claims that “personal e-mail” is private and not subject to scrutiny by the employer. As this is still an issue unsettled by the courts, many employers are advising employees that:

1. Workers should not have any “expectation of privacy” with respect to any information, official or personal, prepared using the organization’s computer equipment; and

2. The employer may periodically monitor or review computer files prepared using company equipment.

In some case, unions have attempted to include “employee privacy” provisions in collective bargaining agreements.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

September 14, 2010 in Employment Discrimination, Employment Law, Litigation | Permalink | Comments (0)

St. John's Center For Labor and Employment Events

SJU Labor Center

The Center for Labor and Employment Law is pleased to invite you to these engaging and informative September events:

A Reception and Discussion on the Future of Labor Unions in honor of labor law expert Julius G. ("Jack") Getman's new book, Restoring the Power of Unions: It Takes a Movement.

Thursday, September 16, 2010
5:30- 7 p.m.
St. John's Manhattan Campus
101 Murray Street
New York, NY 10007
Cocktail Reception

Michael A. Simons
Dean and
John V. Brennan Professor of Law and Ethics
St. John's School of Law

David L. Gregory
Executive Director
The Center for Labor and Employment Law
Dorothy Day Professor of Law
St. John's School of Law

Featured Speaker
Julius G. Getman
Earl E. Sheffield Regents Chair Professor of Law
University of Texas School of Law

Frederick D. Braid ‘71
Partner, Holland & Knight, LLP

Cynthia L. Estlund
Catherine A. Rein Professor of Law
New York University School of Law

Q & A

Book Signing

Please RSVP online by Wednesday, September 15, 2010.

14th Annual Management Lawyers' Colloquium jointly presented with the Law School's Labor Relations and Employment Law Society

Wednesday, September 22, 2010
5:30 p.m.
The Mattone Family Atrium
St. John's School of Law, Fourth Floor
8000 Utopia Parkway
Queens, NY 11439

Michael A. Simons
Dean and
John V. Brennan Professor of Law and Ethics
St. John's School of Law

David L. Gregory
Executive Director
The Center for Labor and Employment Law
Dorothy Day Professor of Law
St. John's School of Law

Panel Discussion
Frederick Braid '71 (Holland & Knight)
James Clark '94 (Cullen and Dykman)
Philip Davidoff '91 (Ford & Harrison)
Frances Green '87 (Epstein, Becker & Green)
Raymon Mak '83 (Epstein, Becker & Green)
Craig S. Roberts '97 (Jackson Lewis)
Anna Shields '04 (Jackson Lewis)
Evan J. Spelfogel (Epstein, Becker & Green)
Ernest Stolzer '79 (Bond, Schoeneck & King)
Christopher Valentino '00 (Jackson Lewis)

Scholarship for Excellence in Labor and Employment Law 
The fifth annual academic merit scholarship award offered by the Jackson Lewis law firm in memory of former partner Alan C. Becker, Esq.

Please RSVP online by Friday, September 17, 2010.

September 14, 2010 in Conferences, CLE, Conferences, Faculty, Current Events | Permalink | Comments (0)

Monday, September 13, 2010

NLRB Refuses To Decide Issue When It Is Split


The NLRB is back down to 4 Members. What happens if they are split 2-2? Answer, they do not decide the issue. Hacienda Hotel, 355 NLRB No. 154  (Aug. 27, 2010), an important case which a complex procedural issue demonstrates this point.  As the Board explained:

The four members of the Board eligible to participate

in the decision of this case have carefully considered the

court’s remand and have reached opposing views, as

reflected in their separate opinions. In view of this

deadlock, we have determined to follow existing precedent

and affirm the administrative law judge’s recommended

Order dismissing the complaint.

Actually, this case had nothing to do with the fact that there is a vacancy in the Board. Here, Member Craig Becker recused himself. 

Mitchell H. Rubinstein

September 13, 2010 | Permalink | Comments (0)

Sunday, September 12, 2010

Law Professor Bloggers

The National Law Journal ran an interesting Sept. 6, 2010 story about law professors that blog. Though Adjunct Law Prof Blog was not mentioned, two bloggers on the law professor blog network were profiled. 

Mitchell H. Rubinstein

September 12, 2010 in Blogs, Faculty | Permalink | Comments (1)

On Remand From Supremes Board Summarily Reaffirms New Process Steel

In New Process Steel v. NLRB, 13 S. Ct. 2635 (2010), the Supremes invalidated all two Member Board decisions. So what does the Board do on remand? It assigns the same two Members and simply adds a third. In a footnote, on remand from the Supremes, the Board explains:

 Consistent with the Board’s general practice in cases remanded

from the courts of appeals, and for reasons of administrative economy,

the panel includes the members who participated in the original decision.

Furthermore, under the Board’s standard procedures applicable to

all cases assigned to a panel, the Board Members not assigned to the

panel had the opportunity to participate in the adjudication of this case

at any time up to the issuance of this decision.

Mitchell H. Rubinstein

September 12, 2010 in NLRB | Permalink | Comments (0)

Saturday, September 11, 2010

New York Enacts Anti-Bullying Legislation

Governor Paterson has signed the Dignity for All Students Act, a new law requiring New York school districts to [adopt policies to] protect children against bullying based on [a number of listed categories including] sexual orientation and weight.  It says schools should guard against those and other forms of discrimination and harassment, including ethnicity and disability.  

The law requires school districts to revise their codes of conduct,  to adopt guidelines for employee sensitivity programs, and to assign at least one staff member in each school to be taught special instructional and counseling methods.  The new measure does not override existing laws or state regulations against discrimination.

Source:, 9/8/10, By AP

Mitchell H. Rubinstein

September 11, 2010 in Education Law | Permalink | Comments (0)

Friday, September 10, 2010

School Law Jobs

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 10, 2010 in Lawyer Employment | Permalink | Comments (0)

Thursday, September 9, 2010

Withholding payment for accrued leave credits upon separation ruled permitted under the faithless servant doctrine

Bolin v Nassau County Bd. of Coop. Educ. Servs., 2010 NY Slip Op 31420(U), May 27, 2010, Supreme Court, Nassau County, Judge: Michele M. Woodard [Not selected for publication in the Official Reports]

Is an employee entitled to payment of his or her accrued, but unused, vacation credit upon his or her resignation? Typically the answer is yes.*

This was one of the issued presented by Mary Jane Bolin in her Article 78 petition seeking, among other things, a court order directing Nassau County Board of Cooperative Education Services to pay her for certain accrued leave credits.

Bolin had earlier resigned after she entered a plea of guilty to the crime of attempted grand larceny in the second degree** When Bolin asked BOCES to pay her $14,252.80 for her “banked vacation credit,”*** BOCES, in effect, deemed her resignation the equivalent of “termination for cause” and refused to pay her the cash value of such credit.

Judge Woodward, referring to the Appellate Division’s decision in Bolin v Nassau County Board of Cooperative Education Services 52 AD3d 704, said that in that case the Appellate Division distinguished between unused vacation leave and “vested banked vacation leave,” and found that Bolin failed to state a claim that BOCES was required to pay her the cash value of her 34-day vested banked vacation balance.

The court said that under the relevant collective bargaining agreement, BOCES had the discretion to deny such payment where an employee is separated is for cause. Citing Matter of William Floyd UFSD, 61 AD3 856, Judge Woodward commented that “In such instances the courts have found forfeiture of compensation, deferred or otherwise, warranted under the faithless servant doctrine.”

Authority to refuse to pay an individual for their accrued leave credits under similar circumstances is found in the Rules of the New York State Civil Service Commission, which Rules apply to employees of the State as an employer. 4 NYCRR 23.1, “Payment for accruals upon separation,” provides, in pertinent part, that “No employee who is removed from State service as a result of disciplinary action or who resigns after charges of incompetency or misconduct have been served upon him shall be entitled to compensation for vacation credits under the provisions of this Part.”

* Among exceptions to the general rule: 4 NYCRR 23.1 of Rules of the New York State Civil Service Commission, which apply to employees of the State as an employer, provides, in pertinent part, that the appointing authority may require, as a condition for such payment, that written notice of such resignation be given to the appointing authority at least two weeks prior to the last day of work.

** Bolin was sentenced to five years' probation and required to make restitution in the amount of $62,674.

*** Under the collective bargaining agreement, "Unit members who maintain a vacation day account consisting of more than forty (40) days (regular vacation leave days) will be granted a 'vested bank' of vacation days pursuant to the formula hereinafter set forth. . . Such members will be credited with two (2) days of “vested' vacation leave for every full year of Nassau BOCES service …. Upon resignation for purposes of retirement or resignation for purposes of separation other than a separation for cause, the unit member will be paid a cash sum equal to the number of days remaining in the unit member’s vested bank of vacation leave days.”

Judge Woodard’s decision is posted on the Internet at:

The decision is Bolin v Nassau County Board of Cooperative Education Services 52 AD3d 704 is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

September 9, 2010 in Employment Law | Permalink | Comments (0)

Wednesday, September 8, 2010

Article on Atty's Fees After Perdue Supreme Court Decision

U.S. Supreme Court Decision On Enhancing Civil Rights Fees is an interesting June 16, 2010 New York Law Journal article about Perdue v. Kenny A ___U.S.___(April 10, 2010). The article summarized the Court's holding in part as follows:

Supreme Court precedent thus established that although there is a "strong presumption" that the lodestar amount is a reasonable fee, the "presumption may be overcome in "rare circumstances in which the lodestar does not adequately take into account a relevant factor for determining a reasonable fee. An attorney's performance and results obtained justifies a lodestar enhancement only in "rare" and "exceptional" cases in which there is "specific evidence" that the lodestar is not adequate to attract competent counsel.

Because the Court treated superior performance and results obtained "as one," the pertinent question for the district court is whether superior attorney performance was adequately taken into account in the lodestar. The Court recognized three possible circumstances in which such enhancement may be appropriate:

1. Where the method used in determining the hourly rate "does not adequately measure the attorney's true market value[,]"for example, because the hourly rate is based only on a single factor such as experience. In the author's view, this reasoning is puzzling because in these circumstances it would seem that the solution would be to determine an appropriate hourly rate rather than determine whether an enhancement is warranted.

2. "Second, an enhancement may be appropriate if the attorney's performance includes an extraordinary outlay of expenses and the litigation is exceptionally protracted."

3. Compensation for delay in payment may be made "'either by basing the award on current rates or by adjusting the fee based on historical rates to reflect its present value;'" however, it is also possible that an enhancement may be appropriate for costs caused by unanticipated delay, especially if unexpectedly caused by the defense.

The Court stressed that any enhancement must be calculated using a method that is reasonable, objective, and capable of meaningful appellate review. The Court reversed the district court's 75 percent lodestar enhancement because the district court failed to provide adequate justification for it. The Supreme Court questioned why a 75 percent enhancement was granted instead of, say 50 percent, or 25 percent, or 10 percent?

Mitchell H. Rubinstein

September 8, 2010 in Articles, Employment Discrimination, Lawyers, Litigation | Permalink | Comments (0)

Tuesday, September 7, 2010

University librarian’s recommendation of controversial book for required reading list was not protected speech in First Amendment retaliation, constructive discharge suit

Savage v Gee, ___F.Supp.2d____(S.D.Ohio, June 7, 2010), is an interesting case. A “conservative” Quaker head reference librarian at a university, who was part of a committee charged with selecting a book for required freshman reading, was unable to pursue his First Amendment retaliation claim against because he did not engage in protected speech when he recommended the controversial book.  Because the chapter of the book concerning homosexuality raised issues of public concern, and since the record demonstrated that the controversy expanded beyond the committee, and became public, the librarian’s suggestion to require the book met the public concern prerequisite to First Amendment claims, held the court. To determine whether the librarian was “speaking as a citizen,” the court followed the analysis of Garcetti v Ceballos to find the librarian made his recommendation for the reading list pursuant to his official duties and that his speech was not protected. Recognizing that some circuits have recognized an “academic freedom” exception to the Garcetti doctrine, but that the Sixth Circuit had not yet ruled on this issue, the district court ruled that, even if such an exception exists, it did not apply in this case because the librarian’s recommendation of a book for a book list did not concern “scholarship or teaching,” as it was made pursuant to an assignment to a faculty committee.

Law review commentary of the scope of the academic freedom exemption would be welcome.

Mitchell H. Rubinstein

September 7, 2010 in First Amendment, Law Review Ideas | Permalink | Comments (0)

Monday, September 6, 2010

NLRB Issues Major Decision Holding That N.Y.S. Neutrality Statute Does Not Invalidate The Election


Independence Residences, Inc., 355 NLRB No. 153 (August 27, 2010), is an important, but unusual case. An employer filed election objections after it lost the election because it claims that it was chilled by NYS Labor Law Sec. 211-a which prevents employers from using public funds to oppose unionization. The Supreme Court invalidated a similar California statute and the Board here assumed that the New York law was preempted. In a 3-2 decision along party lines (with Chairman Liebman writing a separate concurrence), the Board overruled the objections because the New York statute did not prevent the employer from conducting its election campaign with its own funds. As the Board explained:

 In the circumstances presented here, the Employer

has failed to demonstrate that Section 211-a had a

sufficient impact on eligible employees to warrant setting

aside the election results. In particular, Section 211-a

does not prohibit campaign activity of any kind, but

merely limits the use of state funds to support certain

specified activities; it does not affect campaign activity

funded from other sources in any way. Moreover, the

record establishes that the Employer did engage in vigorous

campaign activity in opposition to the Petitioner and

that the election results were not close. Under these circumstances,

and for the reasons explained below, we

conclude that the Employer has failed to sustain its objections.

      Law review commentary on this case would be most welcome. 

Mitchell H. Rubinstein

September 6, 2010 in NLRB | Permalink | Comments (0)

Sunday, September 5, 2010

Happy Labor Day

I always have mixed emotions on labor day. It marks the end of the summer, but it also highlights the important contributions labor has made to this country. A Wikipedia description of Labor Day is available here. As the article states:

Labor Day is a United States federal holiday observed on the first Monday in September (September 6 in 2010).

The first Labor Day in the United States was celebrated on September 5, 1882 in New York City.In the aftermath of the deaths of a number of workers at the hands of the U.S. military and U.S. Marshals during the 1894 Pullman Strike, President Grover Cleveland put reconciliation with Labor as a top political priority. Fearing further conflict, legislation making Labor Day a national holiday was rushed through Congress unanimously and signed into law a mere six days after the end of the strike. Cleveland was also concerned that aligning an American labor holiday with existing international May Day celebrations would stir up negative emotions linked to the Haymarket Affair. All 50 U.S. states have made Labor Day a state holiday.

Mitchell H. Rubinstein

September 5, 2010 | Permalink | Comments (0)

Saturday, September 4, 2010

New Jersey’s Division on Civil Rights has found probable cause for a former student’s complaint of bullying and harassment to proceed

The New Jersey Division on Civil Rights (NJDCR) has found “probable cause” that the Old Bridge Township Board of Education failed to take sufficient steps to stop the harassment and bullying of a former middle school student,  says the Star-Ledger. The complaint alleges that a student was bullied because of his perceived sexual orientation and Jewish faith. ”It appears this student went to school in an extremely hostile atmosphere … in which he was subjected to a level of bias-based harassment and torment that no young person should have to endure,” said Chinh Q. Le, director of the Division of Civil Rights.

NJDCR cited the school district for “failing to take affirmative steps to prevent the bullying and for dealing with it only via after-the-fact steps, without any prevention measures or efforts at broader outreach,” the statement said. The next step is “conciliation” where the division, the family and the board of education try to work out a settlement. If that doesn’t work, the case goes to trial before an administrative law judge.

Law review commentary on bullying in schools would be most welcome

Source: Star-Ledger, 8/31/10, By Sue Epstein

NJDCR finding

Mitchell H. Rubinstein

September 4, 2010 in Education Law, Law Review Ideas | Permalink | Comments (0)

Friday, September 3, 2010

School Law Jobs

School Law Jobs
Job Title Employer Job Location
Labor & Employment Attorney Lozano Smith Fresno, California
Mid-Level/Senior Special Education Attorney Harbottle Law Group Orange County, California
Special Education Attorney Lozano Smith Fresno, California
Chief Counsel to the School Board School District of Palm Beach County West Palm Beach, Florida
School Law Attorney Brannan Legal Search Chicago, Illinois
Employment/Labor Law Associate Attorney Thrun Law Firm East Lansing, Michigan

September 3, 2010 in Lawyer Employment | Permalink | Comments (0)

Adjunct Law Prof Blog Surpasses 400,000 Visitors!

Earlier today, we just past a milestone of sort. We just past 400,000 visitors in just over three years. Thank you for your support. Please continue to comment and bring to my attention stories that you think readers will be interested in.

This blog has been cited in several law review articles. However, we have not yet been cited by a court. That is my next goal. 

Mitchell H. Rubinstein

September 3, 2010 | Permalink | Comments (0)

Thursday, September 2, 2010

Deference In Flip Flop Cases

A well known fact of labor law is that the NLRB follows the election returns and often reverses itself when the President's party changes. But NLRB orders are not self enforcing. They must be enforced by the circuit. Circuit courts often apply deference to NLRB determinations. Should the amount of deference, however, be less if it involves an issue which the NLRB has flip floped on one or two or even three times? A recent 6th Circuit Department of Labor case suggests that the answer may be yes, Franklin v. Kellogg Co. ___F.3d___(6th Cir. 8/31/10):

[A]n agency interpretation of a relevant provision which conflicts with the agency's earlier interpretation is entitled to considerably less deference than a consistently held agency view. [cite omitted] The DOL's position on this issue has changed repeatedly in the last twelve years, indicating that we should not defer to its interpretation.

As this issue repeatedly occurs in NLRB cases. Law review commentary with respect to this important issue would be most welcome. 

Hat Tip: Workplace Prof Blog

Mitchell H. Rubinstein

September 2, 2010 in Law Review Ideas, NLRB | Permalink | Comments (1)

Female employee who was fired after witnessing CEO in a sexually compromising position could pursue harassment, bias and other state law claims

Roth v DeFeliceCare, Inc,(W. V. S.Ct, June 8, 2010, per curiam, is an interesting state Supreme Court case. The lower court erred in dismissing a female employee’s West Virginia Human Rights Act and common law claims brought against her employer and its CEO after she was discharged within one week of inadvertently witnessing the CEO in a sexually comprising position with another employee. In her lawsuit, the employee and her husband alleged that she was subjected to a hostile work environment, sex bias, and retaliatory discharge under West Virginia's anti-discrimination law; wrongful discharge in violation of public policy; and IIED. The dissent disagreed, urging that “while [the employee's] discovery of this sexual escapade was unfortunate, it does not prohibit her later termination as an at-will employee, no matter how ridiculous [the CEO’s] stated reasons for her discharge were.”

Mitchell H. Rubinstein

September 2, 2010 in Employment Discrimination | Permalink | Comments (0)