Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Monday, February 28, 2011

Workplace Bullying In New York

On Jan. 21, 2011, the New York Law Journal published an interesting article on Workplace Bullying.  Download Workplace bullying Workplace Bullying involves situations not covered by exisiting laws such as Title VII. The article discusses Legislation pending in New York which would make Workplace Bullying actionable. A. 5414. 

This is one of the most controversial issues in labor and employment law today. Much has been written about it and legislation has been proposed in several states. 

Mitchell H. Rubinstein

February 28, 2011 in Articles, Law Review Ideas, New York Law | Permalink | Comments (2)

Sunday, February 27, 2011

Union Busting In Wisconsin And In Other Parts of the Country

There is an assault on public sector workers throughout many parts of this country. Most of it is centered on the fact that public sector workers often contribute less for health insurance and pensions than their private sector counter parts. 

What they leave out is that these same public sector workers are paid between 3% and 11% than there private sector counterparts. The nonpartisan Center on Budget and Policy Priorities (CBPP) just published an important report which documents this. 

Public sector workers also do not have the opportunity to make real money as their private sector counterparts do. So, part of the deal is that public sector workers will make less, but have better benefits. 

In any event, this should not be about public vs. private sector workers or union vs. non-union workers. If their is a budget problem, and I believe there is one, then the focus should be on fixing it. A smart Governor or Mayor would look to unions as economic partners. It is not in the governments interest or the unions interest to have to lay off workers or cut services. 

Some simple things that could be done might be to agree to a wage freeze. Perhaps, some workers would agree to work longer hours for less pay-eliminating the need to hire others or pay OT. Perhaps, some workers might agree to forgo using a certain amount of vacation or sick leave for a temporary period of time. 

Most importantly, perhaps the workers can work with the government to make sure that government operates faster, cheaper and better. Increased productivity benefits us all. 

Forcing unions to give up the right of dues check off and severely limiting the right of unions to collectively bargain has nothing to do with a budget crisis and is just plain union busting plain and simple. 

Mitchell H. Rubinstein

February 27, 2011 in Articles, Current Events | Permalink | Comments (1)

Compelling Reason For Absence Does Not Excuse Misconduct

Matter of Rivers v. Commissioner of Labor, ___A.D3d___(3d Dept. Oct. 7, 2010), is a tough unemployment decision. The law is settled that an employee who is terminated for misconduct is not eligible for unemployment. The law is also settled that being absent without leave is misconduct. What if it was for one day to visit your son who just returned from Iraq? That is still misconduct. As the court stated:

 An unauthorized absence from work has been held to constitute misconduct which can disqualify a claimant from receiving unemployment insurance benefits (see Matter of Roe [Commissioner of Labor], 62 AD3d 1105, 1106 [2009]; Matter of Britter [Commissioner of [*2]Labor], 54 AD3d 461 [2008]). Inasmuch as claimant admitted that he had requested leave and been denied, however compelling his reason for the request, we are constrained to find that the Board's decision is supported by substantial evidence (see Matter of Roe [Commissioner of Labor], 62 AD3d at 1106). We have examined claimant's other contentions and find them to be unpersuasive.

Mitchell H. Rubinstein

February 27, 2011 in Employment Law | Permalink | Comments (0)

Saturday, February 26, 2011

Parents’ suit says school district’s failure to address bullying led to student’s suicide

Details below

Source: Courthouse News Service, 1/28/11, By Jamie Ross

Legal complaint

February 26, 2011 in Education Law | Permalink | Comments (0)

Federal court orders Chicago Board of Education to rescind reduction in force of tenured teachers

Chicago Teachers Union v. Bd. of Education of the City of Chicago, ___F.Supp. 2d___(N.D. Ill. Oct.4, 2010), is an interesting case. A federal district court granted the Chicago Teachers Union’s  (CTU) motion for preliminary and permanent injunctions, ordering the Chicago Board of Education (CBOE) to rescind its recent economic layoff of tenured teachers and to promulgate, in negotiation with CTU, layoff and recall rules for tenured teachers. The court held that CBOE’s resolution authorizing the “honorable termination” of tenured teachers as part of an economic layoff of nearly 1,300 teachers violated the tenured teachers’ Fourteenth Amendment rights because it deprived them of property without due process. It found that the Illinois School Code imposed a mandatory obligation on the CBOE to establish procedures on layoff and recall of tenured teachers.

Mitchell H. Rubinstein

February 26, 2011 in Education Law | Permalink | Comments (0)

Friday, February 25, 2011

10 Most Historic College Campuses in the World

Symposium on Technology in the Workplace April 27-29

Bill Herbert writes to tell us about the ABA National Symposium on Technology in Labor and Employment Law scheduled for April 27-29, 2011 at New York Unversity School of Law.  Below is a link to the announcement:
The event is presented by the ABA Labor and Employment Section's Technology in the Practice and Workplace Committee, and it is co-sponsored by the Center for Labor and Employment Law at New York University School of Law.

It looks like an interesting event.

Mitchell H. Rubinstein

February 25, 2011 in Conferences, CLE, Conferences, Faculty | Permalink | Comments (0)

Thursday, February 24, 2011

Ledbetter Act did not save untimely failure-to-promote claim


The 3rd Circuit recently held, in a case of first impression in the circuit, that under the Lilly Ledbetter Fair Pay Act of 2009 (FPA), an employee’s failure-to-promote claim did not constitute “discrimination in compensation.” Noel v The Boeing Co, ___F.3d____(3rd. Cir, October 1, 2010).  “Throughout this litigation, [the employee] never argued that he was denied equal pay for equal work. At best he attempts to connect his lack of promotion with the resulting lower salary for the first time on appeal.” On the issue of whether the FPA covered the failure-to-promote claim, “We note, as did the D.C. Circuit, that the FPA was enacted with the specific intent to overrule the Supreme Court’s Ledbetter decision, and the issue in that case was confined to pay discrimination.” Moreover, this intention was evidenced by Congress’ use of the term “compensation” repeated five times throughout the text of the FPA, indicating that the driving force behind the statute was remedying wage discrimination. 

Mitchell H. Rubinstein

February 24, 2011 in Employment Discrimination | Permalink | Comments (0)

Wednesday, February 23, 2011

Employer Has No Obligation To Accommodate Employee With Respect To His Commute

Commuting is a fact of life for millions of employees-particularly those that work in major cities such as New York and LA. Does an employer have an obligation to accommodate an employee by allowing him to work at home? No says and appellate court in New York. Dinatale v. NYSDHR, ____A.D.3d___(4th Dep't. Oct. 1, 2010). As the court explained:


Petitioner requested that she be allowed to work from home,but she conceded at the hearing before the ALJ that nothing in her work environment caused the symptoms from which she suffered. Rather, according to petitioner, the symptoms were aggravated by her drive to and from work. Petitioner admitted that she did not know if she would experience the same symptoms if she were merely riding in a car rather than driving the car, or if she were allowed to work from home.

Petitioner lived 22 miles from her place of employment and, for personal reasons, would not consider moving closer in order to reduce the length of her commute. She had tried carpooling with one person, but the carpooling was not convenient for that person. Petitioner had not asked anyone else, including family members or friends, to drive her to and from work. Although there was public transportation near her home, petitioner had not attempted to use it and did not think that it would alleviate her symptoms.

We conclude that NYSIF, as petitioner's employer, was not required to accommodate petitioner's difficulties in commuting to and from work (see e.g. Metz v County of Suffolk, 4 Misc 3d 914, 916; Laresca v American Tel. & Tel., 161 F Supp 2d 323, 333-334; Salmon v Dade County School Bd., 4 F Supp 2d 1157, 1163). An employee's commute "is an activity that is unrelated to and outside of [the] job[, and] an employer is required to provide reasonable accommodations that eliminate barriers in the work environment" (Salmon, 4 F Supp 2d at 1163).

Mitchell H. Rubinstein



February 23, 2011 in Employment Discrimination, Law Review Ideas | Permalink | Comments (0)

Tuesday, February 22, 2011

Proposed New Jersey legislation would require school districts to provide middle and high school students with dating violence education

The Philadelphia Inquirer reported that the New Jersey Assembly’s Education Committee has sent a bill to the full legislature that would require that faculty and certain staff members be trained to recognize and handle dating violence among students.  The bill also requires the state Department of Education (NJDE) to establish a task force to develop a policy to prevent and address dating violence at schools. NJDE’s  policy would state that dating violence will not be tolerated. It also would include details on reporting procedures, guidelines for responding to at-school incidents, and specific discipline procedures. An identical measure has been introduced in the state Senate.

Source: Philadephia Inquirer, 9/27/10, By Bruce Shipkowski

New Jersey Assembly bill A2920

New Jersey Senate bill S2114


Mitchell H. Rubinstein

February 22, 2011 in Education Law | Permalink | Comments (1)

Monday, February 21, 2011

Male oil rig employee failed to make out claims of male-on-male sexual harassment, couldn’t show treatment was based on gender

Plaintiff, a male oil rig employee was unable to pursue his Title VII and state law claims that he was subjected to sexual harassment by a male coworker and retaliated against for complaining, because he failed to show that the harassment was due to his gender. Wasek v Arrow Energy Servs, Inc, ___F. Supp. 2d____( E. D. Mich. September 29, 2010).  The plaintiff asserted that a male coworker frequently subjected him to verbal abuse and made comments that he believed to be inappropriate and sexual in nature, including stating that he had a pretty mouth and pretty lips. The court noted that in male-on-male harassment situations, it is often more difficult to determine whether the claimant was targeted because he is a man. Here, the employee’s only effort to connect the coworker’s conduct to the employee’s sex was his suggestion that the coworker was “possibly bi-sexual” and therefore acted out of sexual desire. However, this did not constitute credible evidence that his harasser was gay, concluded the court. Moreover, the record indicated that the coworker was a bully: “a man who enjoyed mentally and physically tormenting weaker people around him.” Thus, while the record indicated that the coworker quickly realized that the employee was sensitive to suggestions that he was gay, and that he enjoyed exploiting that sensitivity, it did not indicate that his enjoyment was sexual in nature or that he targeted the employee because of his gender.

Mitchell H. Rubinstein

February 21, 2011 in Employment Discrimination | Permalink | Comments (0)

Sunday, February 20, 2011

School district’s denial of non-custodial parent’s access to children while in school does not violate her rights under either U.S. or Iowa Constitutions

Schmidt v. Des Moines Pub. Sch., ____F.Supp. 2d___(S.D. Iowa Sept. 23, 2010), is an interesting case. A federal district court in Iowa held that a school district did not violate a non-custodial parent’s substantive due process, procedural due process, and equal protection rights under either the federal or state constitutions by refusing to allow her access to her children during school hours. 

Divorce always presents tricky issues and this case demonstrates how such issues can spill over into Education Law.

Mitchell H. Rubinstein

February 20, 2011 in Education Law | Permalink | Comments (0)

Saturday, February 19, 2011

Failing To Include Parents In IEP Meeting Denies Student FAPE-But No Relief Ordered As No Harm

A federal court recently held that an Ohio school district denied FAPE to a student with multiple disabilities by failing to make adequate efforts to include her parents at an IEP team meeting. However, the court declined to award relief, noting that no harm occurred because the placement proposed during the meeting was not implemented. Board of Educ. of the Toledo City Sch. Dist. v. Horen, ____F.Supp.2d___, 110 LRP 53265 (N.D. Ohio Sept. 8, 2010).

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

Hawaii Set To Recognize Civil Unions

Hawaii’s legislature joined six other states Wednesday, approving same- sex civil unions. Governor Neil Abercrombie is expected to signS.B. 232, “Relating to Civil Unions” by February 26, 2011. Five other states, plus the District of Columbia, permit same-sex marriage. Once the legislation becomes law, same-sex couples in Hawaii will be afforded the same rights, benefits and protections provided to married couples under state law.

On January 31, 2011, Illinois Governor Pat Quinn signed S.B. 1716, the “Illinois Religious Freedom Protection and Civil Union Act.” Under that new law, both heterosexual and same-sex couples will be allowed to enter into a civil union. In Washington State, two legislators introduced legislation on Valentines Day to expand the domestic partnership rights already present in the state to allow for same-sex marriage.

Mitchell H. Rubinstein

February 19, 2011 in Constitutional Law | Permalink | Comments (0)

Friday, February 18, 2011

School Law Jobs

Job Title Employer Job Location
Education Law Associate Fagen Friedman & Fulfrost LLP 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
School Law Attorney Brannan Legal Search Chicago, Illinois
School Attorney Drummond Woodsum Portsmouth, New Hampshire
School Board Attorney Chesterfield County Public Schools Chesterfield, Virginia


February 18, 2011 in Lawyer Employment | Permalink | Comments (0)

Thursday, February 17, 2011

School district is not liable for negligent failure to supervise two students who murdered another student off-campus after school hours

Stoddart v. Pocatello Sch. Dist. #25, No. 36434 (Idaho Sept. 20, 2010) is an interesting case. The Supreme Court of Idaho held that a school district was not responsible for negligent failure to supervise two students who murdered another student in her home after school hours. The court concluded that, under the circumstances of the case, the school district did not have a legal duty to take steps to prevent the murder, which is one of the four required elements necessary to succeed in a cause of action for negligence.

Mitchell H. Rubinstein

February 17, 2011 in Education Law | Permalink | Comments (0)

Wednesday, February 16, 2011

Using Social Media Sites To Organize Woman and Younger Workers

Readers may find that a recent report, by the Labor Project for Working Families, Cornell ILR Programs and University of California Berkeley Labor Center interesting. This report  includes highlights of interviews with 23 organizers about how they use new social media tools and work-and-family issues in organizing campaigns. It also includes recommendations that may help unions strengthen their relationships with women and young workers.  The  Executive Summary is available as is the Full Report.

Mitchell H. Rubinstein

February 16, 2011 in Articles, Unions | Permalink | Comments (0)

Tuesday, February 15, 2011

Decision of Unemployment Board Not Given Preclusive Effect In Subsequent Action

What happens if an Unemployment determines that the employee did not commit misconduct. Is that finding binding on a court proceeding challenging the same termination. The answer in New York is clearly no. 

See, Silberzweig v. Doherty, 2010 NY Slip Op. 06709 (1st Dep't Sept. 28, 2010).

Mitchell H. Rubinstein

February 15, 2011 in Employment Law | Permalink | Comments (0)

Monday, February 14, 2011

Law Review Submission Guide

UMKC Professors Nancy Levit & Allen Rostron just updated their incredibly useful document, which is a law review submission guide. This document, which is published on SSRN, contains two charts for the Spring 2011 submission season. s.

The first chart (pp. 1-72) contains information gathered from the journals’ websites on:

  • Methods for submitting an article (such as by e-mail, ExpressO, or regular mail)
  • Any special formatting requirements
  • How to request an expedited review
  • How to withdraw an article after it has been accepted for publication elsewhere

The second chart (pp. 73-79) contains the ranking of the law reviews and their schools under six measures:

  • U.S. News: Overall Rank
  • U.S. News: Peer Reputation Rating
  • U.S. News: Judge/Lawyer Reputation Rating
  • Washington & Lee Citation Ranking
  • Washington & Lee Impact Factor
  • Washington & Lee Combined Rating

Mitchell H. Rubinstein

Hat Tip: TaxProf Blog


February 14, 2011 in Law Review Articles | Permalink | Comments (0)

California school district suspends student for insulting teacher on Facebook

Details here 

Source: International Business Times, 2/2/11, By Staff

Mitchell H. Rubinstein

February 14, 2011 in Education Law, Law Review Ideas | Permalink | Comments (1)