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Editor: Mitchell H. Rubinstein
New York Law School

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Monday, January 31, 2011

Second Circuit Court of Appeals explains why ADEA, Title VII, Equal Protection, LMRA and ERISA claims against the City had to be dismissed

Vandermark v City of N.Y., 09-4746-cv (2nd Cir. 9-7-2010)[Summary Order*]

Marshall Vandermark was the lead plaintiff when a number of Environmental Police Officers (EPOs) employed by the City of New York sued the City alleging hat the City had violated various state and federal laws with respect to their compensation and fringe benefits.

The district court dismissed the federal claims for failure to state a cause of action and declined to exercise supplemental jurisdiction over Vandermark's State Law claims.

Vandermark had filed the lawsuit claiming violations of the Fair Labor Standards Act (FLSA), the Age Discrimination in Employment Act (ADEA), the Labor Management Relations Act (LMRA), the Employee Retirement Income Security Act (ERISA), and Title VII of the Civil Rights Act as well as alleged violations of42 U.S.C. §§ 1983 and 1985 [equal protection].

The Circuit Court affirmed the district court’s dismissal of Vandermark’s ADEA, Title VII, Equal Protection, and LMRA and ERISA claims.

The court explained that:

1. To establish their Title VII claim, a plaintiff would need to show employment discrimination on the basis of "race, color, religion, sex, or national origin" [see 42 U.S.C. § 2000e-2(a)(1)] but Vandermark alleged no such nexus.

2. To establish their ADEA claim, a plaintiff would need to show employment discrimination on the basis of age [see 29 U.S.C. § 623(a)(1)]. However, Vandermark complained of “unequal retirement benefits.” Such allegations do not encompass allegations of age discrimination said the court.

3. To establish §§ 1983 and 1985 equal protection claims, a plaintiff would need to show that there is no "reasonably conceivable state of facts that could provide a rational basis for the classification." The Circuit Court agreed with the district court's observation that "[t]here are numerous reasonable bases on which the City of New York might decide that NYPD officers and EPOs should receive different compensation and benefits, including the danger associated with the positions, the physical strain of the job, and the cost of living in the areas in which NYPD officers and EPOs work."

In addition, the court noted that neither the LMRA nor ERISA applies to political subdivisions of a State [see 29 U.S.C. § 152(2) (LMRA) and 29 U.S.C. §§ 1002(32), 1003(b) (ERISA)] and said that “It is clear to us . . . that the New York City Department of Health and Mental Hygiene is a `political subdivision' of New York that is exempt under [the statutes relied upon by Vandermark] ….”

As to Vandermark’s FLSA claim, the Circuit Court said that the district court “correctly applied the §207(k) exemption, [see 29 U.S.C. § 207(k)] as it was undisputed that EPOs [1] are "empowered . . .to enforce laws . . ., and to prevent and detect crimes"; [2] "ha[ve] the power to arrest"; and [3] "undergo on-the-job training and/or a course of instruction and study which typically includes physical training, self-defense, firearm proficiency, criminal and civil law principles, investigative and law enforcement techniques, community relations, medical aid and ethics," citing 29 C.F.R. § 553.211(a).

Finding no merit in Vandermark remaining arguments, the Circuit Court affirmed the district court's decision and dismissed his appeal.

* N.B. - Rulings by summary order do not have precedential effect.

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/4fc3c6a5-efbc-477d-b73e-8f0379076b75/27/doc/09-4746_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/4fc3c6a5-efbc-477d-b73e-8f0379076b75/27/hilite/

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

 

 

 

January 31, 2011 in Employment Discrimination | Permalink | Comments (0)

Sunday, January 30, 2011

Estreicher on Preclusive Effects Of Arbitration

Estreicher

Samuel Estreicher and Steven Bennett, Preclusive Effects Of Arbitration, NYLJ Sept. 15, 2010 Download Arbitration resjudicatais an interesting article which outlines New York law with respect to res judicata and collateral estoppel in connection with arbitration. It also addresses the thorny issue of whether unconfirmed arbitration awards should be treated the same as awards that had been confirmed. The article states in part:

The doctrines of claim and issue preclusion (also called res judicata and collateral estoppel, respectively) bar reexamination of claims and issues once litigated. Although these doctrines generally apply to arbitration awards "with the same force and effect as [they apply] to judgments of the courts,"1 several special preclusion issues may arise in the arbitration context.

Claim vs. Issue

Under the doctrine of claim preclusion, a valid final judgment generally bars future claims that were or could have been raised in a prior action between the same parties on the same cause of action.2 Claim preclusion requires: (1) an adjudication on the merits in the earlier action, (2) presence of the same parties or their privies in both actions, and (3) the same cause of action in both proceedings. In the context of arbitration, if a party brings a claim in arbitration, and the arbitrator rejects the claim, the party generally cannot initiate a lawsuit on that same claim in court.

Mitchell H. Rubinstein

January 30, 2011 | Permalink | Comments (0)

Saturday, January 29, 2011

California’s Supreme Court confirms longstanding California rule concerning employee layoffs

IAFF, Local 188 vs. Public Employment Relations Board [City of Richmond (Real Party in Interest),] California Supreme Court No. S172377

Source: Meyers Nave PLC. -- The Public Blog, posted athttp://www.publiclawnews.com/public_law_news/2011/01/ -- Reproduced with permission. Copyright © 2011, Meyers Nave. All rights reserved 

"On Monday, January 24, 2011, the California Supreme Court issued an opinion regarding an employer's duty to bargain under the Meyers-Milias-Brown Act ("MMBA") in connection with layoffs. The opinion was authored by Acting Chief Justice Kennard, with a concurring and dissenting opinion filed by Justice Baxter.

"The Bottom Line: The Supreme Court simply affirmed a longstanding rule - that there is no duty to bargain over an employer's decision to layoff, but there is a duty to bargain over the implementation and effects of the decision. This has been the ongoing advice of labor attorneys for years. There is no new law in this decision that should cause public employers to change their practices.

"Discussion: Since approximately 1974, it has been the rule in California that public employers need not negotiate with labor unions about the decision to initiate layoffs. However, public employers must negotiate concerning the effects or impacts of the layoffs. The City of Richmond observed this advice in connection with firefighter layoffs, and the Fire Union claimed that the failure to negotiate constituted an unfair practice under the MMBA.

"This case affirms the rule. The Court expressly states: "We now reaffirm this rule. Under the MMBA, a local public entity that is faced with a decline in revenues or other financial adversity may unilaterally decide to lay off some of its employees to reduce its labor costs. In this situation, a public employer must, however, give its employees an opportunity to bargain over the implementation of the decision, including the number of employees to be laid off, and the timing of the layoffs, as well as the effects of the layoffs on the workload and safety of the remaining employees." (Op. at 19.)

"One additional aspect of the opinion is to define the criteria for permitting review of a decision by the [California] Public Employment Relations Board ("PERB"). The Court agreed with the court of appeal that when PERB refuses to issue a complaint under the MMBA, a superior court may review the decision by mandamus. The review is limited to determining "whether PERB's decision violates a constitutional right, exceeds a specific grant of authority, or is based on an erroneous statutory construction." 

"Justice Baxter dissented from this portion of the opinion.

Reprinted with permission New York Public Personnel Law.

Mitchell H. Rubinstein 

January 29, 2011 in Public Sector Labor Law | Permalink | Comments (0)

Confessing To A Crime, But Innocent

As hard as it is to believe, defendants sometimes confess to crimes that they did not commit. This occurs in labor law as well when someone admits to misconduct. A recent New York Times article documents this and cites to a law review article where several defendants were later released (despite their confession) based upon DNA evidence. That article is available here.

Mitchell H. Rubinstein

January 29, 2011 in Criminal Law | Permalink | Comments (0)

Friday, January 28, 2011

School Law Jobs

School Law Jobs
Job Title Employer Job Location
Education Law Associate Fagen Friedman & Fulfrost LLP San Diego, California
General Counsel San Diego Unified School District San Diego, California
Labor & Employment Attorney Lozano Smith Fresno, California
School/Employment Law Attorney Carter Mathis San Francisco, 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
Attorney Oregon School Boards Association Salem, Oregon
Division Counsel Prince William County Schools Manassas, Virginia
Staff Attorney Virginia School Boards Association Charlottesvillle, Virginia

 

January 28, 2011 in Lawyer Employment | Permalink | Comments (0)

Thursday, January 27, 2011

President Obama Vetoed National Notary Legislation

The President  recently vetoed HR 3808 which would have allowed state and federal courts to recognize notary signatures from other states. I cannot imagine why the President did this. It makes perfect sense to recognize notaries from the several states.

Mitchell H. Rubinstein 

January 27, 2011 in Legislation | Permalink | Comments (2)

Labor Disputes In Cyberspace

In N.F.L. Labor Fight, Battlefield Moves Online  is an interesting NY Times article from Jan. 26, 2011. Apparently, the parties are responding to each and the public online. As the article states:

The Goodell-Smith volley was the latest in a dispute that is the first in sports history to be played out extensively on digital turf. With the current labor agreement between the league and the union expiring March 3, the two sides are jabbing, countering and needling each other on Twitter,Facebook and on Web sites devoted entirely to the possible lockout. Their online dueling is designed, in part, to woo fans to their corners.

“Fans buy the tickets, fans buy the products, fans fill the stadiums and can have influence on politicians,” Paul Hicks, the league’s executive vice president of communications and government relations, said in an interview. “I think owners and players are highly sensitive to fan opinion.”

Though the law is the same, bargaining in professional sports is a bit different. Public opinion counts-really counts and therefore, both sides will try to win the battle of public opinion.

Mitchell H. Rubinstein


 

January 27, 2011 | Permalink | Comments (1)

Appealing an administrative determination by the State Department of Education

Appeal of Dean F. Goewey, Decisions of the Commissioner of Education, Decision #16,135

The State Education Department’s Office of School Personnel Review and Accountability denied Dean F. Goewey’s request for a change in venue with respect to a hearing to be held pursuant to Part 83* of the Commissioner’s Regulations [8 NYCRR 83]. Goewey filed an appeal with the Commissioner of Education in an effort to overturn the Department’s decision not to change the venue of the hearing.

The Commissioner dismissed Goewey’s appeal, explaining that a §310 appeal is not the appropriate forum to review either the determination of the hearing officer or the determinations of OSPRA staff. The Commissioner also noted that he had appointed the hearing officer “to conduct a Part 83 moral character hearing” on his behalf."

The Commissioner said that the proper forum to challenge such administrative actions is via “a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules.”

As to the administrative proceeding itself, the Commissioner said that Goewey could appeal the administrative determination as provided by §83.5 of the Commissioner’s Regulations [8 NYCRR 83.5] within 30 days after receipt of notification of the findings and recommendations of the hearing panel.**

* Part 83 of the Commissioner's Regulations addresses “Determination of Good Moral Character” and, as a first step, requires that any information “indicating that an individual holding a teaching certificate has been convicted of a crime, or has committed an act which raises a reasonable question as to the individual's moral character, shall be referred by the chief school administrator having knowledge thereof to the professional conduct officer of the [Education] department.”

**
 8 NYCRR 83.5 (a) addresses, in pertinent part, the right to appeal. It provides that “The certified individual or applicant may commence an appeal of the findings and recommendations of the hearing officer by filing the original appeal papers with the commissioner, with proof of service by regular mail upon the executive director of the Office of Teaching Initiatives. The executive director of the Office of Teaching Initiatives may file a written response with the commissioner within 30 days of being served with such appeal papers, with proof of service by regular mail on the certified individual or applicant or the attorney of record of such certified individual or applicant.”

The Commissioner’s decision is posted on the Internet at: 
http://www.counsel.nysed.gov/Decisions/volume50/d16135.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

January 27, 2011 in Education Law | Permalink | Comments (0)

Wednesday, January 26, 2011

School district ordered to reimburse Medicare-eligible retirees enrolled in Medicare the cost of Medicare premiums

Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., Supreme Court, Broome County, 2010 NY Slip Op 20360, Decided on September 3, 2010, Supreme Court, Broome County, Judge Philip R. Rumsey

The Chenango Forks Central School District discontinued reimbursing its Medicare-eligible retirees and their dependents participating in its health insurance plan the premiums they were required to pay for participating in Medicare.

The District’s Health Insurance Plan was underwritten by “Blue Cross/Blue Shield” [Plan] that did not require that eligible individuals enroll in Medicare. However, the Plan would not cover services that would be provided to a Medicare recipient by Medicare even if an eligible individual or his or her covered dependent failed to enroll in Part B.*

Theodora Q. Bryant and a number of other school district retirees or the survivors of such retirees brought an Article 78 action in an effort to annul the School District’s failure to reimburse them for the Medicare premiums that were required to pay for their Medicare coverage. Bryant contended that the District’s action violated the statutory moratorium against reducing the health insurance benefits of school district retirees, or the contributions made to obtain such benefits, in the absence of a similar decrease in benefits or contributions for active employees.**

All petitioners are 65 years of age, or older, and are eligible to receive Medicare benefits, including Part B, which provides coverage for physician and outpatient services. A monthly premium for Part B coverage is deducted from the Social Security benefits payable to an enrolled individual. In 1987 and 1988, in accordance with a collective bargaining agreement, respondent provided health insurance to teachers and eligible retirees through NYSHIP, New York’s health insurance plan for State officers and employees and the officers and employees of political subdivisions of the State electing to become “participating employers.”

NYSHIP required Medicare-eligible individuals to enroll in Medicare as NYSHIP but reimburse the Medicare premiums that they were required to pay in accordance with the provisions of Civil Service Law §167-a.

In 1988, the collective bargaining agreement between the District and the Chenango Forks Teachers Association replaced NYSHIP with a Blue Cross/Blue Shield Plan (Plan), which does not require that eligible individuals enroll in Medicare. However the Plan did not provide benefits services that would be provided to a Medicare recipient in the event a Medicare-eligible participant failed to enroll in Medicare. Although the new collective bargaining agreement was silent with respect to the District reimbursing Medicare premiums to the Medicare-eligible participants, the District reimbursed such retirees for their Medicare premiums continuously since at least 1980.

The District discontinued making such reimbursements effective July 1, 2003.

Bryant, however, contended that the Moratorium precluded any diminution in health insurance benefits provided to retirees or their dependents, or contributions made toward the payment of retiree health benefits, "unless a corresponding diminution of benefits or contributions is effected from the present level during this period by such district or board from the corresponding group of active employees for such retirees, [emphasis Judge Rumsey's]. Judge Rumsey agreed and, annulling the District’s discontinuing it practice of reimbursing Medicare-eligible retirees their Medicare premiums and directed it to pay Bryant and her co-litigants “the amounts of such premiums that would have been so reimbursed, in the absence of the challenged determination.”

* The State’s NYSHIP health insurance plan incorporates a similar limitation in that its health insurance plan does not pay for those services that would be otherwise paid by Medicare on behalf of a Medicare-eligible individual thereby requiring such an individual and his or her dependents to enroll in Medicare and pay the premiums required for such Medicare coverages in order to have such coverages.

** Initially enacted in 2003 (see Chapter 48 of the Laws of 2003), the prohibition was periodically extended and made permanent in 2009 [Chapter 504, Laws of 2009, §14(b)].

The Byrant decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20360.htm

For additional information concerning the issues concerning reimbursing Medicare-eligible retirees for their Medicare premiums, please go to:
http://publicpersonnellaw.blogspot.com/2010/05/reduction-of-medicare-premiums.html

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein
.

January 26, 2011 in Education Law | Permalink | Comments (1)

Tuesday, January 25, 2011

2d Circuit Issues Important NLRB Decision Concerning Forum Shopping

2dcircseal

IBEW v. NLRB, ___F.3d___(2d Cir. Nov. 12, 2010), is an important case.  An appeal can be filed in the circuit where the ULP occurred or the D.C. Circuit. What if requests for review were filed in two different circuits? The first one is the one that counts, even if it is electronically filed. As the court stated:

Respondent National Labor Relations Board moves to transfer this case to the32 District of Columbia Circuit. It argues that, because it did not receive from either party a33 petition for review “stamped by the court with the date of filing,” 28 U.S.C. § 2112(a)(2),34 the case should be heard in that Circuit, where proceedings in this matter were first35 instituted pursuant to 28 U.S.C. § 2112(a). We conclude that, where a party files a21 petition for review in the Second Circuit and then serves the agency with the petition2 accompanied by the email, bearing the date and time of filing, by which the petition was3 filed, the party has satisfied the requirements of 28 U.S.C. § 2112(a)(2).

Mitchell H. Rubinstein

January 25, 2011 in NLRB | Permalink | Comments (0)

Monday, January 24, 2011

Conference on Law and the Brain

On March 15, 16 2011 there is a conference on Law and the Brain. A summary of this conference which will be held in New York is as follows:

Advances in neuroscience are providing insight to the inner workings of the human brain and these discoveries are increasingly being used in criminal and civil courts. Learn how these findings are impacting criminality, guilt, deception, mental health, memory, addiction, and other issues. Discover the pitfalls and potential implications of applying neuroscience in the courtroom. 

Join us for this interdisciplinary conference which brings neuroscientists and legal scholars together to discuss how new neuroscientific discoveries are affecting law both now and in the future.

There are several distinguished speakers. Additional information can be found here.

Mitchell H. Rubinstein

January 24, 2011 in Conferences, CLE, Conferences, Faculty | Permalink | Comments (0)

Appealing an administrative determination by the State Department of Education

Appeal of Dean F. Goewey, Decisions of the Commissioner of Education, Decision #16,135

The State Education Department’s Office of School Personnel Review and Accountability denied Dean F. Goewey’s request for a change in venue with respect to a hearing to be held pursuant to Part 83* of the Commissioner’s Regulations [8 NYCRR 83]. Goewey filed an appeal with the Commissioner of Education in an effort to overturn the Department’s decision not to change the venue of the hearing.

The Commissioner dismissed Goewey’s appeal, explaining that a §310 appeal is not the appropriate forum to review either the determination of the hearing officer or the determinations of OSPRA staff. The Commissioner also noted that he had appointed the hearing officer “to conduct a Part 83 moral character hearing” on his behalf."

The Commissioner said that the proper forum to challenge such administrative actions is via “a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules.”

As to the administrative proceeding itself, the Commissioner said that Goewey could appeal the administrative determination as provided by §83.5 of the Commissioner’s Regulations [8 NYCRR 83.5] within 30 days after receipt of notification of the findings and recommendations of the hearing panel.**

* Part 83 of the Commissioner's Regulations addresses “Determination of Good Moral Character” and, as a first step, requires that any information “indicating that an individual holding a teaching certificate has been convicted of a crime, or has committed an act which raises a reasonable question as to the individual's moral character, shall be referred by the chief school administrator having knowledge thereof to the professional conduct officer of the [Education] department.”

**
 8 NYCRR 83.5 (a) addresses, in pertinent part, the right to appeal. It provides that “The certified individual or applicant may commence an appeal of the findings and recommendations of the hearing officer by filing the original appeal papers with the commissioner, with proof of service by regular mail upon the executive director of the Office of Teaching Initiatives. The executive director of the Office of Teaching Initiatives may file a written response with the commissioner within 30 days of being served with such appeal papers, with proof of service by regular mail on the certified individual or applicant or the attorney of record of such certified individual or applicant.”

The Commissioner’s decision is posted on the Internet at: 
http://www.counsel.nysed.gov/Decisions/volume50/d16135.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

January 24, 2011 in Education Law | Permalink | Comments (0)

Sunday, January 23, 2011

Union Membership Continues To Decline

The BLS just released its annual satistics on unionization rates in this country and if you believe in unions the numbers are not good in the private sector. 6.9% of the private sector workforce is unionized while 36.2% of the public sector is unionized. Never-the-less, these stats also show that unionized workers continue to earn more than non-union workers. An analysis of union stats can be found here.  

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

January 23, 2011 in Unions | Permalink | Comments (0)

California appellate court upholds premliminary injunction barring school district from enforcing mandatory, random student drug testing policy

Brown v. Shasta Union High Sch. Dist.No. C061972 (Cal. App. Ct. Sept. 2, 2010), is an interesting case. There, a California appellate court, in a unanimous unpublished decision, upheld the issuance of an preliminary injunction prohibiting Shasta Union High School District (SUHSD) from enforcing its mandatory random drug testing of non-athlete high school students who participate in competitive extracurricular activities. 

The appellate court found, as the trial court had, that the students’ protected privacy interests were implicated "by testing the urine sample and by requiring the student’s parent to disclose any medications the student is taking." It likewise agreed with the trial court that while students’ expectation of privacy is reduced, it is not extinguished. 

Mitchell H. Rubinstein

January 23, 2011 in Education Law | Permalink | Comments (0)

Saturday, January 22, 2011

Kansas high school ends ban on disabled students being nominated for homecoming court

A Kansas High School  repealed its policy prohibiting students with disabilities from being nominated for homecoming  court, reports the Associated Press (AP) in Education Week.  Students apparently  launched a petition drive that gathered about 800 signatures and prompted administrators to change the policy and allow a second vote.

No one was sure who started the policy at the school, which opened in 1997. 

Source: Education Week, 9/8/10, By AP

Mitchell H. Rubinstein

January 22, 2011 in Education Law | Permalink | Comments (0)

Thursday, January 20, 2011

2d Circuit Dismisses DFR Suit Against Employer Because Union Did Not Breach Its Duty

2dcircseal

Jones v. Local 1199, ___F.3d____(2d Cir. Sep't. 6, 2010), is an interesting case which summarizes applicable DFR standards one of which is that to prevail a plaintiff must establish BOTH a breach of duty by the union and a breach of contract by the employer. As the court explained:

 Because the district court properly concluded that

SEIU was entitled to summary judgment, it follows that the University was also entitled to

summary judgment. See Sanozky v. Int’l Ass’n of Machinists & Aerospace Workers, 415

F.3d at 282 (noting that to prevail on hybrid § 301/duty of fair representation claim, plaintiff

must demonstrate both that employer breached collective bargaining agreement and that

union breached duty of fair representation).

Mitchell H. Rubinstein

January 20, 2011 in Duty of Fair Representation | Permalink | Comments (0)

Wednesday, January 19, 2011

Special Education Developments

Professor Mark Weber, who is a friend to this blog and the author of the leading treatise on Special Education writes to inform of important developments. First, Oct. 5, the IDEA uses the term, "intellectual disabilities" instead of mental retardation.  

Another item of possible interest is that American
U.'s Washington College of Law is sponsoring a conference on Current
Issues in Special Education Advocacy on Feb. 25, 2011.  Here's a link:

http://www.wcl.american.edu/secle/founders/2011/20110225.cfm

And, as if that were not enough, the National Federation of the Blind
has just announced its 2011 Jacobus tenBroek Disability Law Symposium,
which takes place April 14-15.  Lou Ann Blake at NFB is the contact
person.  The relevant link is:

http://www.nfb.org/nfb/Law_Symposium.asp

Thank you Mark!

Mitchell H. Rubinstein

January 19, 2011 in Special Education Law | Permalink | Comments (0)

Texas school district’s policy requiring visitors to its schools to submit to a sex offender background check does not violate parents’ constitutional right to direct their children’s education

Meadows v. Lake Travis Indep. Sch. Dist., ____F.3d____,No. 09-50850 (5th Cir. Sept. 8, 2010), is an interesting case. The Fifth Circuit ruled unanimously that a school district’s policy requiring all visitors to its schools to undergo an electronic sex offender background check before obtaining access to the school does not violate parents’ Fourteenth Amendment substantive due process right to direct their children’s education. The panel alternatively concluded that even if parents have a fundamental right to access all areas of their child’s school, the policy passed constitutional muster because the school district has a compelling interest in determining if a visitor is a registered sex offender and the policy is narrowly tailored to achieve that interest.

Law review commentary on this subject would be most welcome.

Mitchell H. Rubinstein

January 19, 2011 in Education Law, Law Review Ideas | Permalink | Comments (0)

Tuesday, January 18, 2011

Employees Beware: Many Employers Google Job Candidates

More and more employers are googling job applicants before they hire them-well at least according to Attorneys At Work. I think this is a reasonable assumption. So, it makes sense for everyone to google, yahoo and bing their own names to see what comes up. At least you can prepare yourself to explain something that might not be favorable. 

The use of internet search engines before someone is hired raises employment law issues. If the statement is defamatory, does the applicant have a cause of action against the poster, against the employer or against both? Do the same defamation standards apply or does the use of the internet make this different? How does someone get something false removed from the internet? Does an internet service provider have the obligation to take something down when they have notice that the information is false. 

Law review commentary on these important issues would be most welcome.

Hat Tip: Legal Skills Prof Blog

January 18, 2011 in Employment Law, Law Review Ideas | Permalink | Comments (3)

Claiming drug abuse as a disability under the Americans with Disabilities Act

D’Amico v Bruno, CA2, 132 F.3d 145

Vito D’Amico, a New York City firefighter, complained that the Department violated the Rehabilitation Act of 1973 (an anti-discrimination law that applies to federally-funded employers) when it dismissed him from his position with the Fire Department of the City of New York (NYFD) because of his use of illegal drugs. The U.S. Circuit Court of Appeals affirmed the federal district court’s dismissal of D’Amico charges. In so doing the Court set out a comprehensive summary of the various factors considered by the federal courts in such cases.

D’Amico joined NYFD in 1982. In April 1988, D’Amico was arrested for assault, possession of a controlled substance, and resisting arrest. Following this arrest, the NYFD referred D’Amico to counseling within the NYFD.

In September 1988, the NYFD received an anonymous letter accusing D’Amico of using and selling cocaine. NYFD ordered D’Amico to submit to a urine test on December 13, 1988. D’Amico tested positive for cocaine and NYFD suspended him without pay. The suspension was lifted in January 1989, pending the outcome of disciplinary action taken against him. D’Amico, meanwhile, had entered an inpatient drug treatment program on April 17, 1989, which it was reported that he had successfully completed on May 15, 1989.

OATH Administrative Law Judge Ray Fleischhacker presided over the disciplinary hearing held on June 23, 1989 and found D’Amico guilty of 4 of the 5 charges filed against him. The Commissioner accepted the ALJ’s findings and recommendations and terminated D’Amico effective September 5, 1989. The Commissioner said that “[i]n light of the grave responsibilities entrusted to a firefighter, [D’Amico’s] continued employment with the Fire Department presents a significant risk, both to the general public and to his fellow firefighters.”

Under the Rehabilitation Act, the plaintiff bears the initial burden of establishing a prima facie case. In a case where the employer relies on the plaintiff’s handicap as the reason for the adverse employment decision, the employer may rebut the inference that the handicap was improperly taken into account by going forward with evidence that the handicap is relevant to qualifications for the position.

The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that he or she is qualified for the position despite his or her disability.

D’Amico had to establish a prima facie case by proving that: (1) he is an individual with a disability; (2) he was otherwise qualified for a position; (3) he was denied that position on the basis of his disability, and (4) NYFD receives federal funds.

Although it was conceded that D’Amico satisfied items (3) and (4), NYFD contended that D’Amico was neither an “individual with a disability,” nor “otherwise qualified” to be a firefighter.

Substance abuse is a recognized disability for purposes of the Rehabilitation Act, and an employer may violate the Act by taking an adverse employment action against an employee who has overcome past substance abuse problems but the term “individual with a disability” does not include an individual who is currently engaging in the illegal use of drugs.

According to the Circuit Court, the critical issue was whether D’Amico was a “current substance abuser” is the time of his discharge. The court said the actual date of discharge was not critical but serves “rather as a guidepost from which to determine whether the employer acted with justification.” The Court defined a “current substance abuser” as an individual whose substance abuse problem is severe and recent enough that the employer is justified in believing that the employee is unable to perform the essential duties of his job.

The employer must therefore evaluate (1) the level of responsibility entrusted to the employee, (2) the employer’s applicable job and performance requirements, (3) the level of competence ordinarily required to perform the task in question, and (4) the employee’s past performance record. Further, it must consider both the type of position for which the plaintiff claims to be otherwise qualified and the consequences of a potential mishap.

The Circuit Court pointed out with approval that in DiPompo v West Point Military Academy, 770 F. Supp. 887, Federal District Court Judge Michael B. Mukasey said “[W]hat may be a reasonable risk for a postal worker ... whose job generally does not pose great hazards to those who perform it or to the public they serve, is not necessarily a reasonable risk for a firefighter, whose job is defined at almost every turn by the potential for disaster to himself and others.”
Concluding that D’Amico’s history of cocaine addiction, together with the NYFD’s judgment as to the possibility of, and the risks inherent in, a relapse, the Circuit Court said that NYFD was justified in terminating D’Amico’s employment as a firefighter.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein


January 18, 2011 in Employment Discrimination | Permalink | Comments (0)