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Editor: Mitchell H. Rubinstein
New York Law School

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Thursday, March 31, 2011

EEOC publishes final GINA regulations

The EEOC’s final regulations implementing Title II of GINA were published in the November 9 Federal Register. Congress enacted Title II of GINA to protect job applicants, current and former employees, labor union members, and apprentices and trainees from discrimination based on their genetic information. 

Mitchell H. Rubinstein

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

Wednesday, March 30, 2011

Texas school district is entitled to attorneys fees under IDEA as prevailing party where student’s attorney continued to litigate frivolous, unreasonable claims

5thCir

El Paso Indep. Sch. Dist. v. Berry, ___F.3d___ (5th Cir. Nov. 8, 2010), is an interesting case. The 5th Circuit ruled that a school district, which had offered a student all requested relief under the Individuals with Disabilities Education Act (IDEA), was a prevailing party for purposes of recovering attorneys fees under IDEA from the student’s attorney, and was entitled to such fees because the attorney “continued to litigate claims after they clearly became frivolous, unreasonable, and without foundation.” 

Mitchell H. Rubinstein

March 30, 2011 in Special Education Law | Permalink | Comments (0)

Tuesday, March 29, 2011

Corporal Punishment Is Still Alive and Well In 20 States

Believe it or not, in 21st Century America, corporal punishment is still legal. It is also practiced by several school districts. A March 29, 2011 New York Times article documents this and states in part:

According to estimates by the federal Department of Education, 223,190 children were subject to corporal punishment in schools in the 2005-6 school year. That was nearly a 20 percent drop from data gathered a few years earlier, Ms. Block said.

In Texas, at least 27 out of about 1,000 school districts still use corporal punishment, said Jimmy Dunne, founder and president of another group that is against the practice, People Opposed to Paddling Students.

That is enough to prompt advocates like Mr. Dunne to push to end the practice there. One bill being considered would permit corporal punishment only if parents specifically consent to it for their children. Another would ban corporal punishment in schools outright.

“Hitting children in our schools with boards is child abuse, and it promotes child abuse at home,” said Mr. Dunne, a former math teacher in Houston. “Parents see it’s legal in schools and think it’s O.K. to do at home.”

In New Mexico, where more than a third of the state’s school districts permit corporal punishment, according to a local children’s legal services group, legislators approved a paddling ban this month. Gov. Susana Martinez has not indicated whether she will sign the bill.

Mitchell H. Rubinstein

 

March 29, 2011 in Education Law | Permalink | Comments (0)

Employee may be terminated on the grounds that he or she make a material false statement of his or her application for employment

 

Matter of Walsh v Kelly, 2010 NY Slip Op 09346, Decided on December 16, 2010,* Appellate Division, First Department

New York City Civil Service Commission, after a hearing, affirmed the determination of the New York City Department of Citywide Administrative Services to disqualify and terminate Gary Walsh as a New York City police officer.

The basis for the Department’s action, Walsh had omitted and falsified pertinent facts about his background in his application for employment.

The Appellate Division said that the determination to terminate Walsh’s employment was “rationally supported by testimony and documents adduced at the hearing” showing that Walsh had concealed that he had been a suspect in a criminal homicide while in the army and had associated with members of a gang that had committed a homicide.

Civil Service Law §50.4 provides, in pertinent part, the “The state civil service department and municipal commissions may refuse to examine an applicant, or after examination to certify an eligible:

(f) who has intentionally made a false statement of any material fact in his application; or

(g) who has practiced, or attempted to practice, any deception or fraud in his application, in his examination, or in securing his eligibility or appointment ….”

* The hearing before the Civil Service Commission was not mandated by law and, therefore, the proceeding was improperly transferred to the Appellate Division which, nevertheless, elected to decide the matter on the merits.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09346.htm
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

 

March 29, 2011 in Employment Law | Permalink | Comments (0)

Breaking News-Wisconsin Union Busting Law Enjoined Again

The Washington Post just reported that a Wisconsin Judge again enjoined Wisconsin from putting into law a state statute which dramatically curtails the rights of public employees to organize and bargain collectively, here.

Mitchell H. Rubinstein

March 29, 2011 in Law Review Ideas, Unions | Permalink | Comments (0)

Monday, March 28, 2011

Student with ADHD, bipolar disorder, and conduct disorder is “a child with a disability” under IDEA

8thseal

Hansen v. Republic R-III Sch. Dist., ____F.3d____(8th Cir. Jan. 21, 2011), is an interesting case. The Eighth Circuit held that a student suffering from ADHD, bipolar disorder, and conduct disorder is “a child with a disability” within the meaning of the Individuals with Disabilities Education Act (IDEA) and, therefore, eligible for special education services under the statute. The panel concluded that the student satisfied the eligibility requirements for “emotional disturbance” and “other health impairment” under IDEA.

Mitchell H. Rubinstein

March 28, 2011 in Special Education Law | Permalink | Comments (1)

Sunday, March 27, 2011

Autism and the Law Cases, Statutes, and Materials

2147

Carolina Academic Press just came out with the first law school case book on Autism and the LawCases, Statutes, and Materials (2011). The authors, two lawyers, Lorri and Daniel Unumb, freely acknowledge that Autism and the Law is only taught in one class in one law school (interestingly, they do not name the law school) and their hope is that this will change given how wide spread a problme Autism has become. They are probably correct. 

As you might expect, the book contains a detailed medical review of autism and the history of this diagnosis. Part One of the book focuses on health insurance, part two focuses on Medicaid issues, part 3 examines special education issues, and part 4 concludes with an examination of "other" issues such as those that arise under the ADA and mandatory vaccine issues. 

The authors are definitely on to something here and I suspect that the book, which is clearly well written, will take off. 

However, I am a bit curious as to why the authors chose to write the first law school book on this topic as a case book. I would have thought that a hornbook might have been a better first choice because such a text would also appeal to the larger legal community. 

In any event, nice job-very nice job.

Mitchell H. Rubinstein

March 27, 2011 in Book Reviews | Permalink | Comments (1)

Court annuls penalty imposed after finding appointing authority failed to investigate before taking disciplinary action against individual

Matter of Titone v Rocky Point Fire Dept., 2010 NY Slip Op 33037(U), October 25, 2010, Supreme Court, Suffolk County, Judge Jeffrey Arlen Spinner [Not selected for publication in the Official Reports]

Joseph A Titone filed a petition “in the nature of mandamus” pursuant to Article 78 of the CPLR challenging his suspension from his position as Captain of Company One of the Rocky Point Volunteer Fire Department and asked the court to direct the Board of Commissioners of the Fire Department to annul its action and to expunge the suspension from his record.

The genesis of Titone’s suspension was a letter he wrote to John Celentano, Chief of Rocky Point Fire Department, in which Titone indicated that a department rescue boat was out of service for “work that should have been performed off season” and a Company One fire truck was allowed to remain in service without operational mechanical or electrical sirens.

Celentano summarily suspended Titone from the Department without notice or hearing, for “for improper conduct.” Twenty-seven days later the Chair of the Board of Fire Commissioners reinstated Titone to active duty as Captain of Company One, but warned him that any further “infractions would result in his dismissal from the Department.”

Titone contending that the Chair’s letter failed to specify the reason for his suspension; failed to state any final determination regarding the suspension; failed to indicate what conduct would be considered “a further infraction;” and failed to address the effects of the suspension, such as possibly preventing him from seeking any Department elective office for the following three years, sued.

Judge Spinner granted Titone’s petition “in all respects,” and denied the Department’s application seeking dismissal of his complaint “in all respects”.

Indicating that it is “indisputable that the standard of review for determinations of Board of Fire Commissioners and Celentano is whether the decision rendered is arbitrary, capricious and, or, unlawful, Judge Spinner said that “Nowhere do Respondents demonstrate that they made any inquiry whatsoever into the facts before rendering their decision to suspend [Titone], making their actions indisputably arbitrary and capricious.”

The court noted that, as Titone’s Counsel “adeptly points out that, rather than investigating the fact that rescue equipment was in need of repair, they rushed to punish [Titone] for abiding by his oath to protect and serve the public.” The opinion then states:“This Court is most perplexed by how legitimate concern for the safety of the firefighters volunteering to respond to emergencies and the taxpayers the Respondents serve comes to be characterized as defamation.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_33037.pdf

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

March 27, 2011 in Public Sector Labor Law | Permalink | Comments (0)

Friday, March 25, 2011

School Law Jobs

Director of the Education and Legal Alliance/Assoc. General Counsel California School Boards Association Sacramento, California
Education Law Associate Fagen Friedman & Fulfrost LLP San Diego, California
School/Employment Law Attorney Carter Mathis San Francisco, California
Chief Legal Officer Illinois School District U-46 Elgin, Illinois
School Law Attorney Brannan Legal Search Chicago, Illinois
School Attorney Drummond Woodsum Portsmouth, New Hampshire
Education Law Associate Reed Smith LLP Richmond, Virginia
School Board Attorney Chesterfield County Public Schools Chesterfield, Virginia
General Counsel Vancouver Public Schools Vancouver, Washington

 

March 25, 2011 in Lawyer Employment | Permalink | Comments (0)

Thursday, March 24, 2011

Employer not be liable for damages resulting from employee’s off duty misconduct absent notice of the employee's proclivity for such misconduct

Acosta-Rodriguez v City of New York, 2010 NY Slip Op 07470, Decided on October 21, 2010, Appellate Division, First Department

An employee of the New York City Board of Education [BOE] was alleged to have sexually abused two students. When the parents of the children sued, the School Board argued that its was not liable because the abuse by its employee “was not committed in furtherance of school business and was done for [the employee’s] personal reasons.”

The Appellate Division agreed, holding that the BOE cannot be held liable under the theory of respondeat superior.*

The parents also contended that the employee was negligently hired, supervised or retained by BOE. However, said the Appellate Division, the parents “failed to raise a factual issue as to whether, at the time of the employee's hiring, BOE was on notice of facts triggering a duty to inquire further, or to contradict BOE's claim that it conducted its standard pre-employment investigation of the employee.”

As to the parents’ evidence that the BOE was on notice, either actual or constructive, of the employee's propensity for sexual abuse of minors because he “bought pizza for the students and observed them at play,” the court held that such activities “does not constitute notice of the employee's proclivity for sexual abuse.”

The Appellate Division also commented that the incident had occurred off school grounds and that there was nothing in the record indicating that BOE released the students to the employee or even knew that the three were together.

Accordingly, the court concluded that “there are no triable issues as to whether [the students’] injuries were caused by a failure of adequate supervision or a disregard on premises that should have alerted [the BOE] to a hazardous situation.

* The common-law doctrine that holds that an employer is liable for the actions of an employee when the employee's actions are within the scope of the individual's duties.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07470.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

 

March 24, 2011 in New York Law | Permalink | Comments (0)

Wednesday, March 23, 2011

Seventh Circuit holds that Illinois moment of silence law passes Establishment Clause and vagueness challenge

7thCir

In a 2-1 split, the 7th Circuit held that Illinois’ moment of silence law, allowing teachers to observe a period of silence at the beginning of the school day, does not violate the First Amendment’s Establishment Clause, nor is the law unconstitutionally vague. The panel’s majority concluded that the law serves a secular purpose and does not have the principal or primary effect of promoting religion. The dissent, on the other hand, concluded that the purpose and effect of the law encourages prayer in public schools in violation of the first two prongs of the Lemon test.

Sherman v. Koch, ___F.3d___ (7th Cir. Oct. 15, 2010)

Mitchell H. Rubinstein

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

Tuesday, March 22, 2011

Federal Contractor Violations

The GAO in Sept. 2010 issued a report on federal contractor violations, here. Many corporations rely on governmental contractors and if they loose their contract because they violated a law, such as the National Labor Relations Act, perhaps less contractors will violate the law. My guess is that is where the Obama Administration is heading.

Mitchell H. Rubinstein

March 22, 2011 in Legal Research | Permalink | Comments (1)

Monday, March 21, 2011

New York Lower Court Effectively Rejects Labor Union Privilege

As readers to this blog know, I wrote a law review article on whether a labor union privilege is developing ,here.  This is an area of law where there is relatively little authority and which is still developing. That is why each case is significant. As I pointed out in the article, New York has recognized a labor union privilege which protects confidential communications between a union member and a union officer concerning labor relations matters. 

Matter of Suffolk Co. Ethics Commission, ___Misc. 3d____, 2010 NY Slip Op 20418 (Suffolk Co. Oct. 9, 2010), effectively rejected this privilege at least with respect to an EMPLOYEE of the union and union members. Why? The court reasoned that the leading case in this area, Seelig v. Shepard, 152 Misc. 2d 699 (N.Y. Co. 1991), dealt with communications between members.

The courts logic is difficult to comprehend. A labor relations privilege is designed to protect confidential labor relations information and it should make no difference whether the discussion with the union is being held with other union members or union employees. The policy reasons behind this privilege (to encourage open and frank debate and to not chill union activity) remain the same. The court also confused the notion of a privilege (which prevents a union member from having to disclose conversations via a subpoena) with the notion of a Improper Practice under the Taylor Law which makes it unlawful for the employer to pry into internal labor relations strategy that a union may have formulated.

I hope this decision is appealed.

Mitchell H. Rubinstein 

March 21, 2011 in New York Law, Unions | Permalink | Comments (1)

Sunday, March 20, 2011

Resolution Introduced In House Supporting Unions

Rep. Edwards (D. Maryland) introduced a resolution supporting unions. Rep. Eleanor Holmes Norton (D. D.C.) introduced that resolution with the following statement:

Today, I rise in advance of leading a special order this evening, to offer a resolution supporting the rights of all workers, including federal employees and other public employees, and calling for an end to attacks on their ability to organize and to collectively bargain.  There are only a few salient rights recognized by every democracy, such as freedom of religion and freedom of speech, and on that list always appears the right for workers to organize in order to bargain collectively with an employer.  It has long been recognized that individual workers have little, if any, bargaining power sitting alone with an employer who has hired or could hire her.  When unions organize workers, the ground becomes more level and economic conditions decide the outcome.

            Mr. Speaker, the American labor movement has been a major catalyst for the formation of a majority middle class in the United States by leading the way for improvements for all workers, which unions gain through collective bargaining.  I ask the House to join me in recognizing the value of one of America's union movement and those who work for a living in the public and private sectors.

Mitchell H. Rubinstein

March 20, 2011 in Unions | Permalink | Comments (0)

Resolution Introduced In House Supporting Unions

Rep. Edwards (D. Maryland) introduced a resolution supporting unions. Rep. Eleanor Holmes Norton 9D. D.C.) introduced that resolution with the following statement:

Today, I rise in advance of leading a special order this evening, to offer a resolution supporting the rights of all workers, including federal employees and other public employees, and calling for an end to attacks on their ability to organize and to collectively bargain.  There are only a few salient rights recognized by every democracy, such as freedom of religion and freedom of speech, and on that list always appears the right for workers to organize in order to bargain collectively with an employer.  It has long been recognized that individual workers have little, if any, bargaining power sitting alone with an employer who has hired or could hire her.  When unions organize workers, the ground becomes more level and economic conditions decide the outcome.

            Mr. Speaker, the American labor movement has been a major catalyst for the formation of a majority middle class in the United States by leading the way for improvements for all workers, which unions gain through collective bargaining.  I ask the House to join me in recognizing the value of one of America's union movement and those who work for a living in the public and private sectors.

Mitchell H. Rubinstein

March 20, 2011 in Unions | Permalink | Comments (0)

Triangle Shirtwaist Factory Fire

March 25, 2011 marks the 100th Anniversary of the Triangle Shirtwaist Factory fire where 146 people mostly immigrant Jews and Italians who worked in a locked sweat shop lost their lives. Additional coverage, here. The building still stands today in Washington Square, NYC. The building is currently owned by NYU. 

What is significant about this fire is that it gave birth the modern labor movement. There is an excellent HBO documentary that will be showing March 21st and cermonies all week. 

With what is going on in Wisconsin, I can not help, but to be fearful that some of us may be forgeting about history as well as the importance of unions. 

Mitchell H. Rubinstein

March 20, 2011 in Unions | Permalink | Comments (1)

Documents concerning an employee’s separation and post-termination employment benefits available under New York's Freedom of Information Law

William E. Hamilton submitted a Freedom of Information Law (FOIL) request seeking documentation concerning "the modification, amendment and/or termination of the employment agreement" between the Jordan-Elbridge Central School District and its superintendent, Marilyn Dominick, as well as any document relating to the termination of Dominick's employment with the district and any post-termination employment benefits. When the District declined to provide Hamilton with the documents he sought, he filed a petition in Supreme Court seeking a court order compelling the District to provide the documents he had sought.

Judge Greenwood stated that only one document was at issue: the agreement between Jordan-Elbridge and Dominick concerning her resignation and retirement.

Explaining that FOIL is based upon a presumption of access and all records of an agency are available except to the extent that the records or portions thereof fall within one or more grounds for denial, as set forth in Public Officer's Law §87,* the court noted that the statute is to be “liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government.”

Significantly, Judge Greenwood commented that “both case law and the Committee on Open Government Advisory Opinions have held that a contract between an administrator and a school district must be disclosed under the FOIL, and neither the characterization of the documents as personal records nor their placement in personnel files render the documents confidential or deniable under the law.”

In response to the School District’s “justification for withholding the document,” Judge Greenwood conducted an in camera inspection of the document in question** and concluded that “none of the personal information alleged is contained in the agreement as [the District] claimed. Nor does the agreement contain a confidentiality provision as alleged by [the School District].***

In addition, Judge Greenwood said that the Court “would not be not bound by a confidentiality agreement and must make its own determination regarding disclosure.”

Finally, Judge Greenwood indicated that a party is entitled to its legal fees in prosecuting a FOIL proceeding if the party establishes that:

1) it has substantially prevailed;

2) the record sought was of clearly significant interest to the general public; and

3) the agency lacked a reasonable basis in law for withholding the record.

Here, said the court, there was no confidentiality agreement upon which the School District could have reasonably relied, nor is there any confidential information contained in the document that was required to be redacted.

Also, said the court, Hamilton had shown that the document is of significant interest to the general public and the Superintendent’s desire to keep the reason for her retirement and value of her severance package secret is not a sufficient basis under the Freedom of Information Law to deny the subject FOIL request.

Accordingly, Judge Greenwood awarded Hamilton “attorney's fees in the amount of $2,500.”

*
 The custodian of the records or documents requested may elect, but is not required, to withhold those items that are otherwise within the ambit of the several exemptions permitted by FOIL otherwise consistent with law. For example, the release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality].

** The term “in camera” is used to characterize a hearing or inspection of documents that takes places in private, often in a judge's chambers.

*** Robert J. Freeman, Executive Director, Committee on Open Government, has addressed “non-disclosure agreements.” His views are set out in the “Staff Advisory Opinion” posted on the Internet at http://www.dos.state.ny.us/coog/ftext/f14114.htm Further, in LaRocca v Jericho UFSD, 220 AD2d 424, the Appellate Division said that “as a matter of public policy, the Board of Education cannot bargain away the public’s right to access to public records.” The court ruled that the settlement agreement in question, or any part of it, providing for confidentiality or purporting to deny the public access to the document “is unenforceable as against the pubic interest.”

The decision, Hamilton v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 2010 NY Slip Op 51663(U), Decided on September 23, 2010, Supreme Court, Onondaga County, Judge Donald A. Greenwood [Not selected for publication in the Official Reports], is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51663.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

 

March 20, 2011 in Litigation, New York Law | Permalink | Comments (0)

HBO Film on Triangle Shirt Waist Fire

This Monday, March 21, 2011 at 9 pm HBO is airing a movie about the Triangle Shirt Waist Factory fire which, as you know, gave birth to the modern labor movement. (It will also be aired at other times). I saw excerpts played at the NYS Bar Assoc Labor and Employment Law annual meeting and it looked excellent. I thought you might be interested in watching.

Workers United (formerly ILGWU) is also having a number of events this Friday, March 25th (the 100th anniversary) in Washington Square Park, NYC which is where the fire occurred. The building still stands and is owned by NYU. Unfortunately, I have a hearing-otherwise I would be there.

Mitchell H. Rubinstein 

March 20, 2011 in Unions | Permalink | Comments (1)

Saturday, March 19, 2011

Breaking News Copy of Decision Enjoining Wisconsin Union Busting Bill

Unless you have be living under a bus, by now you have heard that a lower court judge enjoined the enforcement of the union busting bill that was signed into law by Wisconsin Gov. Walker. The decision is Wisconsin v. Fitzgerald, (March 18, 2011) and can be downloaded here Download Wisconsin v. Fitzgerald (March 18, 2011)

The decision was based upon the following langague in the Open Meeting Law. 

“Public notice of every meeting of a governmental body shall be given at least 24 hours prior to the commencement of such meeting unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than two hours in advance of the meeting.”

There is no primary authority in Wisconsin interpreting this language. The decision by Judge Sumi is a bit disappointing to me. It is only 8 double spaced pages long and appears and reads like a speech. No doubt that this case is going to the Wisconsin Supreme Court so I am surprised that the decision was not more scholarly. 

However, this does not mean that the Judge was wrong or that the decision should be reversed. While the decision does not do a good job in documenting the facts, if less than 2 hours notice were given then the court's decision is clearly correct and ultimately the legislation will be declared void. Even if 2 hour notice were given, it seems that there is also a strong argument that 24 hours notice still should have been given. I fail to understand how it would have been "impractical" to give shorter notice.

Therefore, my view is that at the end of the day this decision will be upheld on appeal even though it could have been written in a more scholarly fashion.

More interesting to me is whether Gov. Walker will give up the fight on this Bill and simply pass another. My guess is that he will not because he does not want to admit that he was wrong-very wrong.

Mitchell H. Rubinstein 

 

March 19, 2011 in Law Review Ideas, Public Sector Labor Law, Unions | Permalink | Comments (1)

Worker Misclassification Article

As my students all know, the issue of worker misclassification is a serious problem in employment law. An interesting article which summarizes the law in this area is Bran Noonan, The Campaign Against Employee Misclassification, 82 NYS Bar Journal 42 (Oct. 2010)(not freely available on internet). What I found most interesting about this article is that there are several Bills pending in both state and federal legislatures to address the problem of misclassification. The article also quotes to one study which indicates that up to 10% of workers are misclassified as independent contractors. 

Mitchell H. Rubinstein

March 19, 2011 in Articles, Employment Law, Law Review Ideas | Permalink | Comments (0)