Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Friday, December 31, 2010

Happy New Year and Happy Holidays!

Adjunct Law Prof Blog would like to take this opportunity to wish our readers a happy New Year Year. Thank you for your continued support.

MItchell H. Rubinstein

December 31, 2010 | Permalink | Comments (0)

Thursday, December 30, 2010

Who is the employer?

Who was the employer who fired Floral Park Public Library part-time library clerk Barbara Beers: the Village of Floral Park or the Floral Park Public Library? Such a simple question is not as easy to answer as one might expect.

Barbara Beers was terminated from her position as a part-time clerk by the Floral Park Public Library. She sued both the village and the library, claiming that she had been unlawfully removed from her position without a hearing.

Actually Beers filed a “hybrid proceeding” consisting of an Article 78 to compel the library to reinstate her to her former position and a complaint contending the library violated 42 USC 1983, a federal civil rights statute, when it deprived her of a property right -- her job -- without a due process hearing. She also named the village as a defendant based on representations by its attorney that she had been an employee of the village.

In response, both the village and the library filed motions seeking to have Beers’ petition dismissed. The village said it should be severed from the action on the grounds that (notwithstanding the village attorney’s statements to Beers) it was not Beers’ former employer. The village argued that the library was not an agency or department of the village.

The library contended that Beers’ Article 78 action was untimely, having been filed more than four months after she had been terminated. A Supreme Court judge granted both motions and Beers appealed.

The Appellate Division commenced its analysis by noting that a public library is an educational corporation chartered by the New York State Board of Regents with the authority to hire, fire, and pay its employees and that the Education Law provides that a public library is an entity that is “separate and distinct from the municipality that created it.” It then noted that the relationship between the municipality and the public library may be varied by contract, either express or implied.

Was there an implied contract? Based on the record of the municipality’s behavior, the Appellate Division said that there was a triable issue of fact to be resolved as to which entity was Beers’ employer.

The court noted that the village had offered Beers a comparable clerk’s job and sent her a notice directing her to appear on a date certain for employment. In addition, the court said that the village, in its original answer, admitted “that it employed her”. Accordingly, said the court, it was not clear if the village assumed responsibility for the library’s employees, and thereby responsibility for her termination.

As to Beers’ claims against the library, the Appellate Division said that her Article 78 action was untimely because it was filed more than four months after her termination. It commented that Beers “knew that she worked in the library and that the library functioned separately through a board of trustees.”

However, the Appellate Division ruled that Beers’ complaint contending that the library had violated her civil rights under 42 USC 1983 because it terminated her without a hearing was timely.

The question of who is Beers’ employer and whether she was denied her rights to due process will now have to be considered by a state Supreme Court judge.

The decision, Beers v Village of Floral Park, 262 AD2d 315 , is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

December 30, 2010 in Employment Law | Permalink | Comments (1)

Wednesday, December 29, 2010

Gmail Tune-Up (Free)

Our sister blog, Legal Skills Prof Blog, suggests that you give your computer a free Gmail tune up by going to Gmail Security Checklist 

As Professor Jim Levy notes, most of the suggestions offerred are common sense and do not only apply to gmail. 

Mitchell H. Rubinstein

December 29, 2010 in Misc., Non-Legal | Permalink | Comments (0)

Special Ed Cases Year in Review

Professor Zirkel wrote an excellent article summarizing special education cases for 2010 as well as related 504 and other cases. That article is a must for anyone who practices in this area and is available here.

Mitchell H. Rubinstein

December 29, 2010 in Articles, Special Education Law | Permalink | Comments (0)

Break Time for Nursing Mothers under the FLSA

The U.S. Department of Labor issued a fact sheet in July 2010 concerning the right of nursing mothers to have break time.It  provides general information about the Patient Protection and Affordable Care Act (“PPACA”), which took effect when the PPACA was signed into law on March 23, 2010 (P.L. 111-148).  This law amended Section 7 of the Fair Labor Standards Act (FLSA). 

That fact sheet is available here

Mitchell H. Rubinstein


December 29, 2010 in Employment Law | Permalink | Comments (0)

Tuesday, December 28, 2010

NLRB invites briefs regarding appropriate bargaining units in longterm care facilitie

On December 22, 2010, the NLRB invited the submission of briefs concerning the make up of bargaining units in long term care health facilities, see, Press release, Speciality Care Healthcare, 356 NLRB No. 56 (Dec. 22, 2010). 

The Board, of course promuglated health care bargaining unit rules. In non-acute care hospitals the Board applied those rules together with the traditional community of interests factors. This test is called “empirical” community-of-interests test and was first adopted by the Board in  Park Manor Care Center, 305 NLRB 872 (1991). The issue is whether that test is still valid and whether some other test should be established. The Board majority stated that it was examining this issue because of the dramatic changes in long term health care in the the last 20 years. As the Board stated:

The long-term care industry  in the United States, indeed around the world, has undergone a radical transformation in the past 20 years in the face of an aging population, changing consumer preferences relating to the form and location of long-term care, and a more general restructuring of the provision of health care, most importantly, a drastic reduction in the average length of stays in acute care hospital.  .  .

In issuing this order the Board divided along party lines with the lone Republican, Member Hayes dissenting.

Mitchell H. Rubinstein

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

Failure To Include A Special Education Teacher In The IEP Does Not Entitle Student To Private Placement


A.H. v. NYC Department of Education, ___Fed. Appx. ____(2d Cir. August 16, 2010), highlights the fact that all procedural violations do not result in a denial of FAPE. Here, the violation, however, was fairly substantial-a special education teacher did not participate in the IEP. That was not enough to entitle the parent to make a private placement. As the court explained:

 Assuming without deciding that J.H.’s special education teacher was, in fact, absent

from both committee meetings – a point on which the record is ambiguous1 – we conclude

that this procedural error did not render the IEP inadequate. See Grim v. Rhinebeck Cent.

Sch. Dist, 346 F.3d 377, 381-82 (2d Cir. 2003) (holding that not every procedural error in

development of IEP renders that plan legally inadequate). Relief is warranted only if we

conclude, based on our independent review of the record, that the error denied J.H. a free

appropriate public education. See J.D. ex rel. J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d

Cir. 2000). IDEA instructs that such a conclusion is warranted only where the procedural

deficiencies (1) “impeded the child’s right to a free appropriate public education,” (2)

“significantly impeded the parents’ opportunity to participate in the decisionmaking process

regarding the provision of a free appropriate public education,” or (3) “caused a deprivation

of educational benefits.” 20 U.S.C. § 1415(f)(3)(E)(ii). None of these criteria is met here.

Mitchell H. Rubinstein

December 28, 2010 in Special Education Law | Permalink | Comments (0)

Monday, December 27, 2010

Top 20 Web Sites in US According To


December 27, 2010 in Misc., Non-Legal | Permalink | Comments (0)

Independent Contractor Agreements Are Not Not Controlling

Today's Workplace reported on SG Borello & Sons v. Dept. of Industrial Relations ___F.3d___(9th Cir. 2010), which held that independent contractor agreements are not controlling. Though the blog posting is based upon California law, it discusses how courts apply a multi factor test to determine if someone is an independent contractor-the fact that someone signed an independent contractor agreement is but one factor.

Mitchell H. Rubinstein

December 27, 2010 in Employment Law | Permalink | Comments (1)

Sunday, December 26, 2010

Male nurse who was a former stripper failed to make out claims that he was subjected to a sexually hostile work environment

Dreshman v Henry Clay Villa, ___F.Supp. 2d___( W.D. Pa. August 11, 2010), is an interesting case. Plaintiff, a male nurse who had previously been an exotic dancer, and who was discharged from his employment at a nursing home, was unable to proceed with his claims that he was subjected to a sexually hostile work environment because the conduct alleged was not sufficiently severe and pervasive. Although plaintiff was employed for approximately 10-1/2 years, he only identified a relatively small number of incidents of harassing conduct which occurred at a frequency that was sporadic, at best. The majority of the incidents happened years before he was terminated, and there were times when years passed between occurrences of alleged incidents. Moreover, his complaints to management were few and far between. Finally, while the touching incidents certainly invaded his personal space and were undoubtedly offensive, the court concluded that the four or five incidents, which occurred over a seven-year period and involved such a minimal touching of his person, could not be found to constitute actionable harassment.

Mitchell H. Rubinstein

December 26, 2010 in Employment Discrimination | Permalink | Comments (2)

Saturday, December 25, 2010

Christian nurse who was ordered to stop discussing her beliefs with coworkers failed to make out religious bias and accommodation claims

A devout Christian nurse, who resigned after being ordered not to discuss with coworkers her religious views about the coming of the end of the world, was unable to pursue her Kentucky law claims that the hospital failed to reasonably accommodate her religion or that it unlawfully discriminated against her based on her religious beliefs. Mitchell v University Med Ctr, Inc, ____F.Supp.2d____( W.D.Ky. August 9, 2010, Heyburn, J). The nurse’s First Amendment claim that the hospital violated her right to free speech was also dismissed because the hospital was not a government actor.

Mitchell H. Rubinstein


December 25, 2010 in Employment Discrimination | Permalink | Comments (0)

Friday, December 24, 2010

Merry Christmas, Happy Holidays and Happy New Year

Adjunct Prof Blog wants to take this opportunity to wish our readers a Merry Christmas, Happy New Year and Happy Holidays.

Mitchell H. Rubinstein

December 24, 2010 | Permalink | Comments (0)

School Law Jobs

Job Title Employer Job Location
General Counsel San Diego Unified School District San Diego, California
Labor & Employment Attorney Lozano Smith Fresno, California
Special Education Attorney Lozano Smith Fresno, California
General Counsel School Board of Broward County Broward County, Florida
School Law Attorney Brannan Legal Search Chicago, Illinois
Division Counsel Prince William County Schools Manassas, Virginia
Staff Attorney Virginia School Boards Association Charlottesvillle, Virginia


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

Thursday, December 23, 2010

Parking valet does not establish cause of action for sexual harassment aganist Casino


Cross v Prairie Meadows Racetrack & Casino, Inc, ___F.3d____(8th Cir, August 12, 2010), demonstrates that it is not easy to establish a cause of action for sexual harassment.  Here, the allegations did not rise to the level of a hostile work environment. Additionally, plaintiff could not establish that the casino knew or should have known about other alleged incidents of harassment that she failed to report. 

The  plaintiff worked as a parking valet. She claimed that a fellow valet, who was male, sexually harassed her via unwanted touching and sexual comments. In addition, she claimed two of her supervisors contributed to a hostile work environment by engaging in unwanted touching and making derogatory comments about women and sexual jokes. She did not report a number of these incidents to management or HR. 

The Eighth held that the reported harassment was not so severe or pervasive that it met the “high threshold” for a hostile work environment. The employee reported four discrete incidents over a period of two years, noted the court. First, she complained to a traffic supervisor that the coworker had grabbed her hair and pulled her out of the valet shack. Second, she reported that the coworker brushed the back of his hand across her breast in a purported effort to wipe something off her shirt. Third, she alleged that he responded in an angry and physically threatening manner when she rebuffed his request that they be “more than friends.” Finally, she reported that the coworker spread a rumor that she had performed oral sex on him. Taken together, these four incidents over two years were “insufficient to establish that the work environment was so permeated with discriminatory conduct that it altered a term, condition, or privilege of her employment,” the court determined. 

Even if these incidents had risen to the level of a hostile work environment, the employee failed to show that the casino did not adequately respond to the complaints. The traffic supervisor heard conflicting reports regarding the first incident, and his admonition to the valets to avoid horseplay was sufficient action under the circumstances, the court concluded. Although the traffic supervisor “would have been well advised” to take the second and third incidents more seriously, those incidents were isolated acts, rather than repeated ongoing instances of misconduct, the court explained. Moreover, because she had been given a copy of the casino’s sexual harassment policy upon hire, the employee knew there were additional avenues of relief that she could pursue if she was unsatisfied with the response to her complaints, but she failed to pursue them.

Mitchell H. Rubinstein 



December 23, 2010 in Discrimination Law | Permalink | Comments (1)

Eric Schmertz Passes

Eric Schmertz

The New York Times reported on December 22, 2010 that Eric Schmertz passed away at age 84, here. Eric was one of the most respect labor arbitrators in the country and certainly, in New York. He was involved in many major private and public sector cases. He also served as NYC Labor Commissioner, as a Member of the NYC Office of Collective Bargaining and as a Member of PERB. But public service was only a small part of his life.

I first met Eric while a student at Hofstra Law School, while he served as Dean. It was a thrill meeting him because only a few years earlier I had used his text book Personnel Administration and the Law, (2d ed 1979) in college. It is one of the only, if not my only, college textbook that I still own.  

Eric was always very helpful to me in my professional career. While I was still a student, he took me with him to an arbitration and let me draft a decision. He then spent several hours with me explaining why he saw things differently and he was, of course, right. When I graduated, Eric was responsible for me getting my first job as an associate at a big firm. I will never forget that interview when the first thing the partner who interviewed me said "Eric Schmertz thinks your hot stuff."

A few years after I graduated from law school and after I left that firm, the first arbitration that I tried was before Eric. I have since tried hundreds of arbitrations. To this day, I remember that first one exactly. Eric went out of his way to explain his rulings and after the case was over, counseled me on my mistakes (and I made many; even though I won the case). 

As the years passed, I did not see Eric very often. In 2006, we appeared on a panel on arbitration at a conference in London England sponsored by St. John's Law School. I spent a few days with Eric and got to know him on a personal level.  St. John's is sponsoring a similar conference this summer, and I was looking forward to seeing Eric again. 

 A few years ago, he retired from Hofstra Law School and joined Pace Law School on a part time basis. He joked that his title was Practitioner-in-Residence which had even less status than that of an adjunct, which I was by then.

As many of you know, I have been trying to break into the teaching profession. I talked with Eric extensively and repeatedly about this. Eric really tried to help me. He personally handed my CV to some faculty he knew. When I later told him that I never got an interview, he was sincerely sorry and explained that he really did not have very much pull left in the legal academy-even at Hofstra Law School.

Eric was a rare law professor. He deeply cared about his students, about the legal profession and about Hofstra Law School. He also understood the importance of being able to practice and apply the law. Eric did not just sit on top of an ivory tower and write law review articles as many law professors do today; in fact he did not write very many law review articles.

Eric practiced what he preached. He was a labor arbitrator and a labor mediator and ethics and the legal profession was very important to him. In fact, when I took labor arbitration in law school, we studied hundreds of Eric's opinions. Eric did not teach that class (he was serving as Dean), but it was the best class I took in law school, do in part, to the variety of experiences and learning that took place just from reading what Eric wrote.  

I last saw Eric about year and half or so ago. He was moderating a panel at Hofstra Law School on the Employee Free Choice Act. He was as sharp as ever and as gracious as ever to me. He was planning to give up teaching his labor arbitration class at Pace and was making plans to pass the buck to me. Unfortunately, that never materialized.

Eric touched the lives of hundreds, if not thousands of law students. His students also adored and admired him.  When I was in law school, Eric drove a Jaguer that many law students took notice of with the license plate "Law Dean." One day while driving to school, I saw his car on the service road of the Meadowbrook Parkway. I pulled over to see if I could help and while I was there several students also pulled over to see if they could help. By the time I got there, Eric was not in his car. He later told me that a student pulled over and picked him up less than 5 minutes after his car broke down. 

Eric will be missed greatly. 

Mitchell H. Rubinstein

December 23, 2010 in Announcements, Faculty in the News, Law Professors | Permalink | Comments (1)

Wednesday, December 22, 2010

Even Lawyers Have Employment Problems

Students who are not interested in a career in labor and employment law often ask me why they should consider taking my employment law class at New York Law School. The answer is simple. Because lawyers are employees too. They can run into employment problems, their families can have employment law problems and their clients can have employment law problems. 

One illustration of this is a August 12, 2010 New York Law Journal article about an associate suing Nixon Peabody, a large law firm over a bonus he claims that he is entitled to. 

Mitchell H. Rubinstein

December 22, 2010 in Lawyers | Permalink | Comments (0)

Tuesday, December 21, 2010

Undergrad adjunct union scores big win at East-West University

From the Chronicle of Higher Ed:

Under the terms of an agreement approved last week by a National Labor Relations Board official, the private university in Chicago has agreed to provide back pay and new job protections to five adjunct faculty members who were denied contract renewal last summer while leading an effort to unionize part-time faculty members there. The university has also agreed to publicly post notices announcing the agreement and assuring its other employees that they will not be subject to dismissal or other negative repercussions if they support a union drive.

One of the five adjunct faculty members, Curtis M. Keyes Jr., on Monday cheered the agreement as sending a 'strong message' to university administrators that they cannot interfere with unionization efforts. He said a new union drive is planned for after the university's winter quarter begins, in January, and if administrators obstruct it in ways that violate the new settlement, 'we of course are going to yell, yell, yell.'

'This was a great victory,' said Tom Suhrbur, an organizer at the Illinois Education Association, which had represented the part-time instructors in their appeal to the labor-relations board. 'You don't get a settlement like this unless the evidence is overwhelming against the employer and they had no choice.'

You can read the rest here.


December 21, 2010 | Permalink | Comments (0)

Rare Arbitration Decision Vacated By NYS Court of Appeals


Matter of Kowaleski, ____N.Y.3d___(December 21, 2010), is a rare, very rare, NYS Court of Appeals decision vacating an arbitration. Here, the disciplinary arbitrator did not separately consider, the asserted statutory violation-Civl Service Law Sec. 75-b. CLS Section 75-b express states that an arbitrator shall adjudicate such claims. The Court states:

Here, the arbitrator clearly exceeded a "specifically enumerated limitation" on his power. As the courts below found, and DOCS concedes, the arbitrator not only had authority to consider Kowaleski's retaliation defense, but was required to do so. Civil Service Law § 75-b prohibits a public employer from taking disciplinary action to retaliate against an employee for reporting "improper governmental action" (Civil Service Law § 75-b [2] [a]). If "the employee reasonably believes dismissal or other disciplinary action would not have been taken but for" the whistleblowing, the employee "may assert such as a defense before the designated arbitrator or hearing officer" (Civil Service Law § 75-b [3] [a]). Whatever the terms of the CBA, "[t]he merits of such defense shall be considered and determined as part of the arbitration award or hearing officer decision" (id. [emphasis added]). In short, the statute requires the arbitrator to consider and determine the merits of an employee's retaliation defense where such a defense is raised (cf. Matter of Obot (New York State Dept. of Correctional Servs., 89 NY2d 883, 885-886 [1996] [award not vacated where an employee failed to raise the retaliation defense in the arbitration and the arbitrator did not consider it]). If the arbitrator or hearing officer finds that "the dismissal or other disciplinary action is based solely" on the employer's desire to retaliate, the disciplinary proceeding must be dismissed (Civil Service Law § 75-b [3] [a]). Therefore, the arbitrator's finding here that he did not have authority under the CBA to consider Kowaleski's retaliation defense was not only incorrect as a matter of law, but also in excess of an explicit limitation on his power. Because he failed to consider and determine the defense, the award must be vacated.

Contrary to DOCS position, it was not enough for the arbitrator to hear evidence of retaliation in the context of making determinations as to witness credibility and deciding Kowaleski's guilt. A disciplinary action may be retaliatory even where an employee is guilty of the alleged infraction. Under Civil Service Law § 75-b (3), an arbitrator is required to dismiss a disciplinary action based solely on retaliatory motive, regardless of the employee's guilt or innocence (see Civil Service Law § 75-b [2] [a], [3] [a]). This separate retaliation inquiry is critical. In order to be effective, whistleblower protections like those embodied in Civil Service Law § 75-b must shield employees from being retaliated against by an employer's selective application of theoretically neutral rules. Thus, a separate determination regarding the employer's motivation in bringing the action is necessary if § 75-b is to truly "establish[] a major right for employees — the right to speak out against dangerous or harmful employer practices" (Mem filed with Senate Bill, Bill Jacket, L 1984, ch 660, at 5).

My view is that the Court is simply wrong. The arbitrator was picked and his power stems from the CBA. If he failed to consider a statutory defense, which I am not even sure that he did, then at most what you have is a violation of law and that is not enough to vacate an award. 

Mitchell H. Rubinstein


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

School district employee’s dismissal for 30 year-old expunged drug trafficking conviction does not violate Ohio constitution

Doe v. Ronan, No. 10-5072 (Ohio Oct. 26, 2010), is an interesting Ohio Supreme Court case. The Court, in a divided decision, held that a 2007 statutory revision extending the state criminal background check requirement to administrative employees in school districts, which led to the termination of an administrative employee who had an expunged 30 year-old drug trafficking conviction, does not violate the Ohio state Constitution. Specifically, the court found that the revision passed muster under two clauses in the state constitution: one against impairment of contracts and one prohibiting retroactive laws. 

Mitchell H. Rubinstein

December 21, 2010 | Permalink | Comments (0)

NLRB Proposes Rules To Require Employer's To Post Notice of Employee Rights


On December 21, 2010, the NLRB issued a major press release indicating that it has submitted a Notice of Proposed Rule Making for publication in the Federal Register.  The rule would require employers to post a Notice of Employee Rights, similar to the one promulgated by DOL pursuant to the President's Executive Order for federal contractors.  Comments will be due 60 days after publication.  Republican Member Brian Hayes dissented on the basis that the Board lacks statutory authority to require a notice-posting.

The Press Release indicates that this Notice was first proposed by Professor Charles Morris in 1993 and is similar to the posting required by many other federal agencies. 

I expect and intense amount of employer opposition to any posting requirement. My only question is what took so long? Not only is the posting requirement significant for what it is (to educate employees of their rights under the law), but it is also significant because the NLRB does not conduct its business through Rule Making-even though it has the statutory authority to do so.

Mitchell H. Rubinstein


December 21, 2010 | Permalink | Comments (0)