Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Sunday, October 31, 2010

NLRB About To Again Flip On Issue Of Graduate Students Employee Status


In New York University, 356 NLRB N0. 7 (Oct. 25, 2010), the Board, divided along party lines granted the union's petition for review of a case which dismissed a representation petition because the petitioned for employees, graduate students, were not employees under the Brown University. 

The Bush Board reversed precedent in its 2004 Brown decision and held that graduate students were not employees under the Act. This decision was very controversial. I have absolutely no doubt that the Obama Board will now overrule Brown and Wilma Liebman's dissent will become the majority view. 

Mitchell H. Rubinstein



October 31, 2010 in NLRB | Permalink | Comments (0)

Saturday, October 30, 2010

Interesting Article on Defense of Marriage Act

Prof. Joanna Grossman of Hofstra Law School recent wrote an interesting article on the Defense of Marriage Act for Findlaw, here. It is about  Gill v. Office of Personnel Management and Commonwealth v. U.S. Department of Health and Human Services which is about the constitutionality of this statute. In both of these lower court decisions, the Act was found unconstitutional.

Law review commentary on this important issue would be most welcome.

Mitchell H. Rubinstein

October 30, 2010 in Articles, Law Review Ideas | Permalink | Comments (0)

Friday, October 29, 2010

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
School Law Attorney Brannan Legal Search Chicago, Illinois


October 29, 2010 in Lawyer Employment | Permalink | Comments (0)

Thursday, October 28, 2010

Yikes. The Cost of College In 2010

The cost of college is becoming prohibitively expensive. Even public colleges are not cheap. The average cost at a state school is $7,605, but that is without room and board. With room and board, that figure rises to $16,140. At private schools, don't ask what the cost is. Private school tuition rose 4.5 percent to an average of $27,293, or $36,993 with room and board.

Additional details can be found in this New York Times article.

Mitchell H. Rubinstein 

October 28, 2010 in Colleges | Permalink | Comments (0)

Filing Documents Under Seal

Occasionally, it is necessary to protect a party by filing a lawsuit under seal. Both federal and NYS courts have specific procedures governing such matters. An excellent July 19, 2010 New York Law Journal article describing this process under state and federal law is available here

Mitchell H. Rubinstein

October 28, 2010 in Litigation | Permalink | Comments (0)

Wednesday, October 27, 2010

Low Cost Legal Research Alternatives

Our sister blog, Legal Skills Prof Blog, which is edited by Adjunct Law Prof Blog contributing editor Jim Levy, recently posted a list of alternatives to Lexis and Westlaw which found courtesy of the Wisconsin Law Journal. They are  Fastcase, Loislaw, VersusLaw and The 

I have only used Loislaw. I do not think much of it. I found it to be slow and the interface to be rather cumbersome. Note that the above are not free. On the left side of this blog, I have a list of free legal research cites. None of the free cites do as comprehensive job as westlaw or lexis. 

Readers should bookmark and regularly Legal Skills Prof blog as it is full of useful information for lawyers and law students.

Mitchell H. Rubinstein


October 27, 2010 in Legal Research | Permalink | Comments (0)

An administrative determination will be sustained by the court unless it is shown to be arbitrary or capricious and without a rational basis

Pereira v Nassau County Civ. Serv. Commn., 2010 NY Slip Op 51209(U), Decided on June 14, 2010, Supreme Court, Nassau County, Judge Thomas Feinman, [Not selected for publications in the Official Reports]

The Nassau County Civil Service Commission disqualified Victor Pereira for appointment as a Police Officer after he had passed the written test for the position. Claiming that the Commission’s decision “was made in violation of lawful procedure, was arbitrary and capricious, as abuse of discretion, and effected by law, and not supported by substantial evidence, Pereira as the court to vacated the Commission’s action.

The basis for the Commission’s action was that Pereira failed to meet the physical agility examination for the position.

Pereira was in an age group of applicants that were required to complete 35 sit-ups in one minute in order to avoid disqualification and move on to the final test, a1.5 mile run.

However, Pereira examiner determined that he only completed 28 sit-ups in the necessary and correct form, and therefore, he was disqualified from further evaluation for the appointment as a police officer. Pereira, on the other hand that he had completed 44 sit-ups and that the monitor failed to give him the appropriate credit for his performance.

Judge Feinman said that the Commission’s determination is subject to review under the "arbitrary and capricious" standard of CPLR §7803(3). In applying this standard, said Judge Feinman, an administrative determination will not be disturbed unless the record shows that the agency's action was "arbitrary, unreasonable, irrational or indicative of bad faith."

"Arbitrary action is without sound basis in reason and is generally taken without regard to the facts" and the court's inquiry is limited strictly to a determination of whether a rational basis exists for the agency's actions.

After considering the evidence presented by the Commission concerning the administration and rating of Pereira's sit-ups during the physical agility test, the court ruled that the Commission’s determination was neither arbitrary nor capricious and had a rational basis for its determination and dismissed Pereira’s petition.

The decision is posted on the Internet at:



Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

October 27, 2010 in Public Sector Employment Law | Permalink | Comments (0)

Tuesday, October 26, 2010

Evidence of a valid reason for taking disciplinary action against an employee trumps a finding that there was an improper reason for such action

Batyreva v New York City Dept. of Education, 57 AD3d 322, Motion to appeal denied, Slip Opinion No: 2009 NYSlipOp 67524

Olga Batyreva alleged that she was assigned to grade a Regents examination and while doing so, observed other teachers improperly grading the exam with No. 2 pencils instead of red pencils or red pens. She reported this violation to “to the appropriate officials.” As a result of her action, Batyreva claimed the New York City Department of Education gave her an unsatisfactory rating and instituted disciplinary action against her.

Batyreva filed an Article 78 action, challenging the unsatisfactory rating. Her action was dismissed on a finding that the ratings were not arbitrary and capricious (Batyreva v New York City Dept. of Educ., 50 AD3d 283).

Batyreva then filed a second lawsuit against DOE contending that it had retaliated against her for her exercise of free speech by giving her unsatisfactory evaluations ratings and instituting disciplinary proceedings falsely alleging incompetence in violation of 42 USC 1983, the Civil Right Act.

Supreme Court decided that Batyreva’s complaint “sufficiently alleges that the grading procedures are a matter of public concern,” and because it did not allege that she was “in a supervisory position or that it [was] part of her official responsibilities to report any suspected or real diversions from proper grading procedures," Batyreva was "speaking as a citizen and not in her official capacity as a public employee."

The Appellate Division held that the lower court’s ruling was incorrect. Rather, said the court, the holding in Batyreva’s prior Article 78 proceeding estops her from asserting that the unsatisfactory ratings and disciplinary proceeding were retaliatory violations of her right to free speech.

The court said that “proof that the [retaliatory] action was independently justified on grounds other than the improper one defeats [her 42 USC 1983] claim.”

The full text of the decision is posted on the Internet at:

Reprinted by Permission New York Public Personnel Law

Mitchell H. Rubinstein

October 26, 2010 in Public Sector Employment Law | Permalink | Comments (0)

NLRB Issues Major Decision Requiring Electronic Postings of ULP Notices


The NLRB is finally in the 21st Century. In J. Picini Flooring, 356 NLRB No. 9 (Oct. 22, 2010), the Board ruled 3-1 that ULP notices must be posted electronically when employees communicate in that manner.  Brian Hayes, the lone Republican on the Board dissented.

Mitchell H. Rubinstein

October 26, 2010 | Permalink | Comments (0)

Monday, October 25, 2010

NLRB Issues Major Decision Requiring Back Pay Interest Be On A Daily Basis


In Jackson Hospital, 356 NLRB No. 8 (Oct. 22, 2010), the Board held that interest on backpay awards will now be complied on a daily basis. What is most interesting about the decision is that is was 4-0 with Republican Brian Hayes voting with the Democratic majority. 

Mitchell H. Rubinstein

October 25, 2010 | Permalink | Comments (0)

School district’s policy requiring teachers to obtain permission before distributing written materials in internal mailboxes did not violate teacher’s free speech rights

Policastro v. Tenafly Bd. of Educ., ___F.Supp. 2d____ (D. N.J. May 7, 2010), is an interesting case. A district court in New Jersey has ruled that school district officials did not violate a teacher’s First Amendment right to freedom of speech when they disciplined him for placing personal correspondence in teachers’ internal mailboxes in contravention of the district’s materials distribution policy requiring teachers to obtain prior permission. The court concluded that the policy constituted a reasonable content-neutral time, place and manner restriction.

 The  court rejected Policastro’s contention that based on the free speech principles enunciated in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1968), that he had the right “to use the teacher mailboxes without administrative permission.” The court explained that when the speaker is a government employee, the public employer may restrict speech that “does not relate to matters of public concern as long as the employee‟s interest in speaking does not outweigh the government’s interest in prohibiting him or her from doing so” under Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 (1968), as refined in Garcetti v. Ceballos, 547 U.S. 410 (2006). Like Tinker, however, the Pickering /Garcettistandard involves content-based restrictions, and is not applicable to content-neutral limitations on government employee speech like the regulation at issue here.

October 25, 2010 | Permalink | Comments (0)

Sunday, October 24, 2010

Interesting Massachusetts State Evergreen Clause Case

Boston Housing Authority v. Local 3, ____Mass. ____, N.W. 2d___(Oct. 22, 2010), Download BHA v SEIU Local 3 is an interesting Massachusetts State Public Sector Labor Law case involving a so called "evergreen clause" which provides that the existing contract continues during any hiatus. Reversing the lower court's, the state Supreme Court vacated an arbitration decision which relied on this evergreen clause because, according to the majority, this clause conflicted with state law that limited the term of CBA's to 3 years. As the court explained:

The unambiguous language of G.L. c. 150E, § 7 (a ), reveals a clear legislative intent to limit the term of a CBA to not more than three years. This limitation serves several important and beneficial purposes, including giving employees the opportunity to reevaluate their choice of a bargaining representative at regular intervals; compelling the parties to reassess the terms of their CBA at least once every three years; preventing public employers from unduly tying the hands of their successors in dealing with changing and challenging circumstances; and protecting the public interest in the proper management of limited public resources and the efficient provision of government services. See, e.g., Town of Burlington, 3 M.L.C. 1440, 1441 (1977).

While evergreen clauses are common in the private sector, I have not seen much litigation in the public sector. New York's Taylor Law has a type of evergreen clause built into the statute. It is known as the Triborough doctrine which prevents public employers from making a unilateral change at the end of the contract's expiration date. In effect, CBA's never expire until a new agreement is reached. The rationale for this is that public sector unions in New York cannot strike at the end of the term of a contract.

Getting back to the Boston Authority case, I must say that I thought the dissent had a stronger argument. I do not see anything inconsistent with the evergreen clause and public policy. If anything, public policy should support such clauses because they are likely to make a strike in the public sector less likely. 

Hat Tip: Maydad Cohen

October 24, 2010 in Public Sector Labor Law | Permalink | Comments (0)

Parents sue school officials for defamation, alleging guidance counselor falsely completed recommendation form

According to Courthouse News Service, the parents of a graduated high school student have filed a suit against Rockwood School District (RSD), a guidance counselor and the principal alleging defamation, negligence, and intentional infliction of emotional distress, after their daughter’s college scholarship was rescinded because of an allegedly false and defamatory recommendation letter sent by her high school guidance department.

I cannot immagine that the defendants actions would not be covered by at least a qualified privilege.

Courthouse News Service, 7/7/10, By Joe Harris

Mitchell H. Rubinstein

October 24, 2010 in Education Law | Permalink | Comments (1)

Saturday, October 23, 2010

Does Juan Williams Have A First Amendment Case?

NPR appears to be a public employer because it is funded, at least in part, by the federal government. Query whether Mr. Williams has a First Amendment case to challenge his discharge? He was speaking on his own time not as an employee, but as a citizen. He also was discussing a matter of public concern. Under Garcetti and Pickering it appears to me that he may have been terminated for engaging protected speech.

But, and this is a big BUT, he may have been covered by an employment contract that may have limited what he could say or otherwise defined his terms and conditions of employment. An interesting legal issue would be whether such a contract could be found void as violative of the First Amendment. 

Of course, Juan Williams, who is one of my favorite journalists (even though I often disagree with his politics) is likely to make out like a bandit. Meaning, he may actually make more money with an increased role at Fox News as well as at other networks. Therefore, he probably does not have any damages. This makes a lawsuit unlikely. 

However, it would make a nice law school hypo on an exam!

Mitchell H. Rubinstein

October 23, 2010 in Employment Law, First Amendment | Permalink | Comments (0)

Friday, October 22, 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
School Law Attorney Brannan Legal Search Chicago, Illinois


October 22, 2010 in Lawyer Employment | Permalink | Comments (0)

Thursday, October 21, 2010

4th Department Decision Re; Narrow Standard of Arbitral Judicial Review May Be Head To NYS Court of Appeals

Matter of Buffalo Council of Supervisors v. Board of Education, ____A.D.3d____(4th Dep't. July 1, 2010) is an interesting case. The court summarizes the applicable standard of review as follows:

We agree with petitioner that Supreme Court erred in denying in its entirety the petition [*2]to confirm the arbitration award. The role of the courts with respect to disputes submitted to binding arbitration pursuant to a CBA is limited, and a court should not substitute its judgment for that of the arbitrator (see Matter of Windsor Cent. School Dist. [Windsor Teachers Assn.], 306 AD2d 669, 670, lv denied 100 NY2d 510). Unless the arbitration award "is clearly violative of a strong public policy, . . . is totally or completely irrational, or . . . manifestly exceeds a specific, enumerated limitation on the arbitrator['s] power," the award must be confirmed (Matter of NFB Inv. Servs. Corp. v Fitzgerald, 49 AD3d 747, 748; see CPLR 7510; Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, 79). "An award is irrational if there is no proof whatever to justify the award' " (NFB Inv. Servs. Corp., 49 AD3d at 748).

Pursuant to the provisions of the CBA, the arbitrator was empowered to make decisions regarding "application and interpretation of the provisions of [that] contract," and those decisions were to "be accepted as final by the parties." The arbitrator interpreted Article 3, § O of the CBA to require respondent to afford petitioner an opportunity to be heard on the layoff and method of layoff of 26 assistant principals. Such an interpretation is rationally based on the plain language of that section, which states that petitioner or its representative shall be consulted in "matters that affect the administration and supervision of all schools." The extent, if any, to which "the arbitrator may have misconstrued or disregarded the plain meaning of the contract" is of no moment where, as here, the arbitrator's determination is not irrational (Matter of Peckerman v D & D Assoc., 165 AD2d 289, 296).

We further conclude that the arbitrator's determination that Article 3, § V of the CBA required respondent to establish a list for each tenure area and maintain that list for the purpose of recalling laid-off employees was also rational. That section states that any employee covered by the CBA who is terminated for any reason other than evaluation "shall be assigned to the next available vacancy in the same or similar tenure area according to seniority." Here, there was evidence before the arbitrator that respondent had a past practice of distinguishing between elementary and secondary school assistant principals for the purpose of tenure (see Windsor Cent. School Dist., 306 AD2d at 670; see also Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 583). The arbitrator's determination requiring respondent "to cease and desist from using separate [tenure] lists for layoff[s] and recall[s]," as well as requiring the parties to discuss their respective positions concerning the meaning of the term "tenure area" as used in the CBA,was within the arbitrator's broad powers to fashion an appropriate remedy to resolve the dispute (see generally Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 46 NY2d 727, 729; Matter of Bridge & Tunnel Officers Benevolent Assn. v Triborough Bridge & Tunnel Auth., 57 AD3d 398, 399, lv denied 12 NY3d 711). The arbitrator properly retained jurisdiction to determine the issue if the parties failed to reach an agreement (see Bridge & Tunnel Officers Benevolent Assn., 57 AD3d at 399).

The case generated a two Judge dissent. This means that the decision can be appealed as of right to the NYS Court of Appeals. Stay tuned.

Mitchell H. Rubinstein

October 21, 2010 in Arbitration Law | Permalink | Comments (0)

Wednesday, October 20, 2010

Texas State education agency’s neutrality policy prohibiting employees from taking a position on the teaching of Creationism is constitutional


Comer v. Scott, ___F.3d____,No. 09-50401 (5th Cir. Jul. 2, 2010), is an interesting case.  The Fifth Circuit  held hat the the Texas Education Agency’s (TEA) policy of prohibiting staff from taking a position on the teaching of Creationism in public schools does not violate the First Amendment’s Establishment Clause. The panel concluded that  the primary effect of TEA’s neutrality policy neither advanced nor inhibited religion and, therefore, did not run afoul of the Establishment Clause.

Mitchell H. Rubinstein

October 20, 2010 | Permalink | Comments (0)

A Labor Union For Porn Stars?

Inside These Times reports that an apparent well known porn star named Jenna Jameson is calling for the creation of a union for porn stars. Her reasoning appears to be serious-to stop the spread of AIDS. One porn start was recently infected. The article reports that in 2004 a different porn star was infected and passed AIDS to 3 of his 14 partners. 

Jameson's logic is that with a union, porn stars would more likely report unsafe sex practices to California OSHA which has apparently imposed mandatory rules prohibiting unprotected sex. 

As readers know, I am a strong proponent of unions, but I cannot see how forming a multi-employer union will result in safer sex practices. Frankly, a lawsuit by infected porn stars against the employers for allowing this practice to continue would be more effective. If porn stars want to form a union to organize such a suit or to better their terms and conditions of employment, then unionization may be a good idea. 

Only in California!

Mitchell H. Rubinstein

October 20, 2010 in Unions | Permalink | Comments (2)

Tuesday, October 19, 2010

Pennsylvania school district settles webcam suits for $610,000

Reportedly, a Lower Merion School District’s (LMSD) ongoing litigation over the use of the webcam function on school issued laptops — allegedly to spy on students  at home — appears to be headed toward a conclusion.  LMSD’s Board of School Directors voted unanimously to pay $610,000 to settle lawsuits filed by the families of two high school students whom were unknowingly photographed scores of times at home by webcams on Apple MacBooks.  Source: Philadephia Inquirer, 10/12/10, By David Gambacorta



October 19, 2010 in Education Law | Permalink | Comments (0)

Monday, October 18, 2010

2d Circuit Issues Major FLSA Decision Defining Sales Rep Exemption


 In re Novartis Wage and Hour Litigation, ____F.3d____(2d Cir. July 6, 2010), the court held that Novartis Drug Reps were not within the exemption for outside salesperson. The decision is lengthly and contains an excellent review of the law. A New York Law Journal article about this case is available here.

Mitchell H. Rubinstein

October 18, 2010 in Employment Law | Permalink | Comments (0)