Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Tuesday, May 31, 2011

Cause of Action For Reverse Discrimination Stated Against NYC Department of Education

United States v. New York City Dep’t of Educ., ____F.3d____ (2d Cir. May 5, 2011), is an interesting case. The Second Circuit held, with one judge concurring in the judgment, that a group of primarily white male custodial employees has stated a valid  “reverse discrimination” claim under Title VII, § 703, based on a voluntary settlement agreement entered into by the New York City Department of Education and the federal government.  The agreement awarded retroactive seniority to a group of minority custodial employees who are African-American, Hispanic, Asian and female. The decision is the first to apply Ricci v. DeStefano, 129 S. Ct. 2658 (2009), to a reverse-discrimination challenge to a Title VII settlement agreement.

The case dealt with hiring employees based upon the results of a test. Miniorities had not done as well on this test as white applicants and eventually a settlement agreement was entered into which awarded retroactive seniority to minority applicants. The court stated that  the agreement’s retroactive seniority provisions would violate Title VII’s disparate treatment prohibition unless NYCDE could mount an affirmative defense showing that the settlement agreement: (1) amounted to a valid affirmative action plan; or (2) was justified in order to remedy a disparate impact violation. It rejected the affirmative action defense because NYCDE was providing a prospective benefit to specific individuals rather than a defined group.

As to the second defense, the court noted that Ricci controlled. ”[W]e hold that, under Ricci, a  ’strong basis in evidence’ of non-job-relatedness or of a less discriminatory alternative requires more than speculation, more than a few scattered statements in the record, and more than a mere fear of litigation, but less than the preponderance of the evidence that would be  necessary for actual liability.”

The court added, “This is what it means when courts say that the employer must have an objectively reasonable fear of disparate-impact liability.” It cautioned that as part of the test the employer must demonstrate its action is “necessary” to avoid disparate impact liability.

Mitchell H. Rubinstein

May 31, 2011 in Employment Discrimination, Law Review Ideas | Permalink | Comments (0)

Monday, May 30, 2011

FERPA decision out of Arizona, arising from the Loughner case

 A trial court in Arizona held that documents scattered throughout a database, and only located by a keyword search, are not “maintained” by the institution for purposes of the Family Educational Rights and Privacy Act (FERPA). Therefore, a community college was required to disclose email messages to, from, or about a designated student. The student happend to be the one that shot Congresswoman Gifford and killed several others. The decision is reproduced below.

Hat Tip: Castagnera's Education and Employment Watch

Mitchell H. Rubinstein

C20111954 May 17, 2011
Procedural Background
Plaintiff, Phoenix Newspapers Inc., (“PNI” or “Plaintiff”) pursuant to A.R.S. § 39-121.02(A) and Ariz. R. P. Spec. Act. 4, applied for an Order directing Defendant, Pima Community College, (“PCC” or “Defendant”) to show cause why Plaintiff should not be promptly granted the relief sought in its Complaint for Statutory Special Action under A.R.S. § 39-121 et seq. (the “Arizona Public Records Law”). This matter arises out of the alleged shooting of a number of persons by Jared Lee Loughner in Tucson, Arizona on January 8, 2011. Loughner had been a student at PCC until approximately October of 2010. Plaintiff, PNI, publisher of the Arizona Republic, filed the within Complaint seeking certain documents from PCC. Specifically, by Special Action, PNI seeks access to the following documents:
a. Any and all written communications, including but not limited to email records, between or among PCC officials, staff or employees regarding Loughner, from January 1, 2009 to October 10, 2010; b. Any and all written communications, including but not limited to email records, between or among
PCC officials, staff or employees and any outside agency, public or private (e.g., law enforcement or
mental health organizations) regarding Loughner, from January 1, 2009 to October 10, 2010; and c. Documents sent or received by PCC or its employees relating to Loughner or his parents on or after September 29, 2010 to October 10, 2010 (including, without limitation, correspondence with
Loughner or his parents regarding Loughner’s suspension and terms upon which he could return).
Victoria Robertson Law Clerk
Page 2 Date: May 17, 2011 Case No.: C20111954
[Comp. ¶ 7(a-c)]. PCC asserted the email documents are student records under the Family Education and Rights Protection
Act (“FERPA”) and, therefore, refused to disclose them. PNI argued that the emails are not FERPA records and should be disclosed pursuant to this Special Action.
The Court has received and reviewed Plaintiff’s Complaint, Plaintiff’s Application for Order to Show Cause and Memorandum in Support, Defendant’s Answer to Plaintiff’s Complaint, Defendant’s Response to Plaintiff’s Application for Order to Show Cause, and Plaintiff’s Reply in Support of Application for Order to Show Cause. The Court heard arguments on this issue on April 29, 2011. Additionally, the Court received Defendant’s Notice of Submission of Documents for In Camera Review, Plaintiff’s Response to Defendant’s Notice of Submission of Documents for In Camera Review, and Defendant’s Reply to Plaintiff’s Response to Notice of Submission of Documents for In Camera Review. Finally, the Court reviewed all of the documents submitted for in camera review.
The documents submitted to the Court were divided into three groups. “Group A” documents are the result of a search of PCC’s employee email database for documents containing the word “Loughner” between the dates of January 1, 2009 and October 10, 2010. “Group N” documents are redacted law enforcement reports regarding Loughner which PCC previously released to the media. “Group N” documents are not at issue in this litigation. “Group L” documents are a compilation of documents, including email and other communications between PCC employees, which PCC provided to the United States Department of Justice in response to a grand jury subpoena. These items were also provided to Loughner’s criminal defense attorney.
FERPA was enacted to protect the privacy rights of parents and students through preventing the disclosure of students’ education records. Under FERPA “education records” are “records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C. §1232g(a)(4)(A). FERPA’s range is broad, including “records, files, documents, and other materials”. If records are not protected by FERPA, and not subject to any other privilege, then they must be disclosed under the Arizona Public Records Law which creates a broad presumptive right of access to the records of government institutions.
Victoria Robertson Law Clerk
Page 3 Date: May 17, 2011 Case No.: C20111954
“The ordinary meaning of the word ‘maintain’ is ‘to keep in existence or continuance; preserve; retain.’” Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426, 433 (2002) (citing Random House Dictionary). FERPA records “will be kept in a filing cabinet ... or on a permanent secure database .... in the same way the registrar maintains a student’s folder in a permanent file.” Id. at 433. Documents in an employee’s or another individual’s possession, such as email in an individual email account, but never seen or preserved by the educational institution are not maintained under FERPA and therefore not education records. S.A. v. Tulare County Office of Educ., No. CV F 08-1215, 2009 WL 3126322, at *7 (E.D. Cal. Sept. 24, 2009). Emails, like assignments, are fleeting and pass through many hands and are maintained once they are placed in the student’s permanent file. Id.
Documents are not “maintained” by an educational institution under FERPA unless the institution has control over the access and retention of the record. Simply because emails exist on a central server and in inboxes at some point does not classify those documents as education records. Id. If emails can be removed from the database in question simply by the account holder deleting the email from their inbox then emails that happen to remain on the server by no action of the educational institution are not maintained by the school. Id.; See Owasso, 534 U.S. at 433. “FERPA implies that education records are institutional records kept by a single central custodian, such as a registrar,” not individual assignments or emails. Owasso, 534 U.S. at 435.
In this case, to locate the documents in question, at least regarding Group A, PCC searched all electronic files for the word “Loughner”. This search returned several duplicate documents and documents which were purely personal or subject to other exemptions. The fact that PCC conducted a system wide database search for a word or name indicates these documents were not saved in a central location on a permanent database which could be easily accessed after a request. Instead these documents were in individual inboxes or other locations and were simply stored on the database as a necessary component of providing email, which does not generate FERPA protection. See Tulare, 2009 WL 3126322 at *7 (finding the argument that educational institution “maintains” emails in inboxes and institution’s server fails). A key-word search that returns an unknown quantity and quality of documents, does not comport with the idea of records kept by a central custodian or records kept in a central location or database, and does not conform to the idea of records kept in a filing cabinet in the records room. See Owasso, 534 U.S. at 433, 435.
Accordingly, this Court finds that documents scattered throughout a database, only located via a key- word search, are not “maintained” under FERPA. The Court concludes, therefore, that the emails contained in Group A and the emails contained in Group L are not FERPA protected records. This Court further finds that
Victoria Robertson Law Clerk
Page 4 Date: May 17, 2011 Case No.: C20111954
the GROUP N documents are not at issue in these proceedings. The Court declines to address these documents as they are outside the purview of this litigation.
Conclusion IT IS ORDERED that PNI’s Complaint for Special Action Relief is hereby GRANTED.
IT IS FURTHER ORDERED that PCC must disclose to PNI all documents submitted for in camera review as GROUP A.
IT IS FURTHER ORDERED that, as to the documents submitted for in camera review as GROUP L, PCC must only disclose email documents to PNI at this time.
IT IS FURTHER ORDERED that PCC provide this Court further clarification regarding whether the non-email documents submitted for in camera review as GROUP L are privileged under FERPA. PCC is directed to resubmit only Group L non-email documents together with a privilege log providing clarification as to the classification and origin of the documents, how the documents were stored, and specifically what, if any, privilege PCC is asserting to the documents. PCC should remove transcripts, grades, and other conventionally protected personal information from Group L documents prior to resubmission to the Court, as PNI expressly exempted such documents from this litigation. Additionally, any documents created after Loughner was no longer a student at PCC, after October 10, 2010, should be removed from Group L as those documents are also outside the scope of this litigation.
IT IS FURTHER ORDERED that PCC shall file the above pleading and resubmit Group L non-email documents for further in camera review no later than ten [10] business days from the date of this ruling. PNI shall file their response to PCC’s pleading within ten [10] business days. PCC may reply to PNI’s response no later than five [5] business days thereafter. Parties are directed to email or fax their pleadings to opposing counsel to ensure their timely receipt. The Court will review the requested pleadings and documents and, if possible, rule upon the privilege or confidentiality issues without a hearing. The Court may, however, set the matter for a hearing thereafter if the Court deems it necessary.
Victoria Robertson Law Clerk
(ID: d87f1db3-7ae7-43ab-8dba-60033f2a216a)
Page 5 Date: May 17, 2011 Case No.: C20111954
cc: David J. Bodney, Esq. John C. Richardson, Esq.
Peter S. Kozinets, Esq. Sesaly Ona Stamps, Esq. Clerk of Court - Under Advisement Clerk

May 30, 2011 in Current Affairs, Education Law, Misc., Legal | Permalink | Comments (0)

Sunday, May 29, 2011

Employer’s claim that a provision in the expired CBA was subject to a sunset provision in the absence of a successor agreement to go to arbitration

Matter of Schuyler County v Schuyler County Highway Unit, Local 849, Unit 8600, AFSCME, CSEA Local 1000, 2011 NY Slip Op 00479, Appellate Division, Third Department

The parties entered into a collective bargaining agreement (CBA) for the years 2006-2009 that provided for a four-step grievance process, the third being advisory arbitration.

The CBA's compensation provisions included a clause specifying that employees would receive wage step increases every year, with the steps defined in a wage schedule showing the effect that annual base wage increases from 2006-2009 would have on them.

When a successor agreement negotiated in a timely fashion, Schuyler County declined to grant employees step increases in 2010. The County contended that the increases at issue “were not intended to continue beyond the term of the CBA”

Local 849 filed a grievance which was denied by the County. When the Local demanded that the grievance be submitted to arbitration the County filed an Article 75 petition seeking a court order staying arbitration.

Although Supreme Court granted the County’s petition, the Appellate Division reversed the lower court’s ruling.

The Appellate Division explained that the issue was whether the step increase provision of the CBA continued upon that agreement's expiration and, in that regard, Civil Service Law §209-a (1)(e) provides that an expired CBA's provisions will continue until a new agreement is negotiated unless those provisions create "rights which by their very terms were intended to expire with the agreement."*

The court said that there was neither law nor policy barring either party from submitting a question of contract interpretation regarding wages to arbitration, including the central issue in this action: "whether the CBA's language evinces an intent to an intent to 'sunset' the step increase provision."

Turning to the County’s argument that an arbitration award interpreting the CBA in such a way as to require post-expiration step increases would be violative of public policy, the Appellate Division said that "such a potential does not mandate a stay of arbitration.” The court said that should the County’s claim prove correct, the remedy is vacatur," citing Matter of County of Sullivan,** rather than a court order staying the arbitration.

* Section 209-a(1)(e) is the codification the Triboro Doctrine earlier promulgated by PERB.

** Sullivan County Empls. Assn., 235 AD2d at 750].

The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

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

Sunday, May 22, 2011

My 13 Year Old Daughter Needs A Kidney. Can you help?

My 13 year old daughter (seen here in the blue with her sister Mollie (in pink) with my wife Lisa) has a genetic Kidney disease and now needs a Kidney transplant.

In the process of being evaluated to be a donor, it was discovered that I have Kidney disease (polycystic Kidneys) and cannot donate. My wife's blood type does not match. Our other daughter is too young to donate.

Linda's blood type is "O." We are looking for a doner with "O" blood type. If your type "O," other blood tests need to be performed to see if your a match.   

If you think you can help out, please contact me at 

If your unable to be a donor, but know someone that might be, I would appreciate if you could pass this information along.

Linda's sister Mollie created a Facebook page entitled My Little Sister Needs A Kidney which provides additional information about Linda. Mollie also created a You Tube Video which is wonderful.

Thank you very much for caring.

Mitchell Rubinstein  


May 22, 2011 in Information, Misc., Non-Legal | Permalink | Comments (0) | TrackBack (0)

Saturday, May 21, 2011

Vacating or modifying an arbitrator’s award

Matter of Westchester County Correction Officers Benevolent Assn., Inc. v County of Westchester, 2011 NY Slip Op 01482, Appellate Division, Second Department

Article 75 of the Civil Practice Rules provides that an arbitration award may be vacated by the courts upon a finding of:

a. Corruption, fraud or misconduct in obtaining the award; or

b. Partiality of the arbitrator, unless the award was by "confession;" or

c. The arbitrator exceed his or her authority or so imperfectly executed his or her power that no award as to the subject matter submitted was made; or

d. There was a failure to follow the procedures set out in Article 75.

An arbitrator's award may be modified only if there was a miscalculation of numbers or a mistake in the description of a person or thing; an award was made regarding some matter not submitted to the arbitrator for arbitration; or the award was "imperfect as to form" but not involving the merits of the controversy.

The Westchester case involved a proceeding pursuant to CPLR article 75 to vacate an arbitration award. The Appellate Division set out the following guidelines with respect to judicial review of an arbitration award:

1. Judicial review of arbitration awards is extremely limited.

2. An arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached.

3. An arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator.

4. Courts should not assume the role of overseers to mold the award to conform to their sense of justice.

In this instance the court held that party seeking to vacate the arbitrator’s award “failed to meet its burden of proving by clear and convincing evidence that the arbitrator committed misconduct, and that such misconduct prejudiced its rights or the integrity of the arbitration process.”

Further, said the Appellate Division, an arbitrator exceeds his or her power within the meaning of CPLR §7511(b)(1)(iii) "only where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

May 21, 2011 in Arbitration Law | Permalink | Comments (0)

Thursday, May 19, 2011

Wyoming teacher evaluation bills contain provisions for video cameras in classrooms

According to the Casper Star-Tribune, two bills introduced in the Wyoming Legislature would require videotaped class periods to be part of every teacher’s evaluation. All teachers are evaluated annually by law. Initial-contract teachers are evaluated twice each year. However, House Bill (HB) 166 would also require all teachers on initial and continuing contracts to be evaluated in writing every month. One of HB 166’s sponsors, Rep. Steve Harshman, believes the cameras would allow principals and teachers to view and improve instruction. Source: Casper Star-Tribune, 1/20/11, By Jackie Borchardt

Mitchell H. Rubinstein

May 19, 2011 in Education Law | Permalink | Comments (1)

Wednesday, May 18, 2011

Surprise Surprise New College Grads Not Doing Well In This Economy

Many With New College Degree Find Job Market Humbling is an interesting May 18, 2011 New York Times article. It documents something we all know. The job market is bleak for new college grads with about only 50% of them finding employment in jobs that require a college degree. The article includes the following chart:


May 18, 2011 in Colleges, Current Events | Permalink | Comments (1)

Taking Early Retirement Incentive Disqualifies Claimant From Unemployment

If an employee takes his or her employer up on an early retirment incentive is he or she eligible for unemployment/ Of course not. Why? As Matter of Powell v. Commissioner of Labor,___A.D. 3d___(3rd Dep't. Dec. 23, 2010), explains:

Leaving a job in order to take advantage of an early retirement incentive has been found not to constitute good cause for leaving one's employment where continuing work is available (see Matter of Cuomo-Perez [Commissioner of Labor], 3 AD3d 777, 778 [2004]; Matter of Salerno [Commissioner of Labor], 279 AD2d 935 [2001]). Claimant here voluntarily decided to participate in a retirement incentive program that, following the cessation of her employment, would pay her a weekly amount to continue until she accumulated 30 years of[*2]service at which time she would collect her pension. Although claimant stated that she elected to participate in the program because she was told that her department was going to be disbanded, it was still operational at the time she resigned, and the employer's representative denied making any such representations. In view of the foregoing, substantial evidence supports the Board's finding that claimant voluntarily left her employment without good cause. Likewise, inasmuch as claimant inaccurately represented when applying for benefits that she left her job due to a lack of work, we find no reason to disturb the Board's imposition of a recoverable overpayment (see Labor Law § 597 [4]; Matter of LoRusso [Commissioner of Labor], 68 AD3d 1317, 1318 [2009]; Matter of Goldberg [Commissioner of Labor], 55 AD3d 1120, 1121 [2008]).

Mitchell H. Rubinstein

May 18, 2011 in Employment Law | Permalink | Comments (0)

Tuesday, May 17, 2011

Judge Can Remove Correction Officer Notwithstanding CBA

Matter of County of Broom v. Dist. Council 82, ____A.D.3d____(3rd Dep't Jan. 20, 2011), is an important case. A judge directed that a correction officer never set foot in his courthouse again. But what about the CBA? Can he arbitrate that? No, holds the 3rd Department, explaining:

"Under the two-prong inquiry governing arbitrability of disputes, courts must ascertain [first] whether the parties may arbitrate their dispute and, if so, whether they agreed to do so" (Matter of New York State Correctional Officers & Police Benevolent Assn., Inc. [New York Dept. of Civ. Serv.], 70 AD3d 240, 243 [2009]; see Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, 78-79 [2003]). The subject matter of the dispute controls the analysis under the first prong, and the court must determine "whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance" (Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273, 278 [2002]; see Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273, 280 [2000]; Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 327 [1999]). If such a prohibition is found, the claim may not be arbitrated, regardless of whether the parties agreed to do so (see Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513, 519 [2007]; Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d at 280-281). We are mindful that "judicial intervention on public policy grounds constitutes a narrow exception to the otherwise broad power of parties to agree to arbitrate all of the disputes arising out of their juridical relationships" (Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1, 6-7 [2002]). Nevertheless, we conclude that public policy prohibits arbitration of respondent's grievance.

The public policy implicated here derives from the courts' inherent authority to maintain the integrity of the judicial process, manage their judicial functions, and guard their independence (see Wehringer v Brannigan, 232 AD2d 206, 207 [1996], appeal dismissed 89 NY2d 980 [1997]; Matter of Spike, 99 Misc 2d 178, 181-182 [1979]). That inherent authority is reflected in the responsibility of the administrative judges to ensure "the orderly administration of the courts within the area of their administrative responsibility" (22 NYCRR 80.2 [d]). The Administrative Judge was acting within his responsibility when he directed that Harder, an officer of the court (see County Law § 650), permanently reassign Mooney from duties that would require him to enter a Broome County courthouse. Respondent contests the assignment on the ground that it constituted a disciplinary action taken without resort to the bargained-for disciplinary procedure, and seeks Mooney's immediate reinstatement to his bid assignment of court holding officer. We agree with Supreme Court, however, that Mooney's reinstatement to his former court officer duties by an arbitrator would encroach upon the authority of judges to manage their courtrooms. While respondent argues that the inherent authority of judges to control their courtrooms does not implicate a public policy interest, such an encroachment upon the court's authority is, in our view, contrary to strong public policy and would frustrate the orderly administration of justice (see Matter of Crosson v New York State Supreme Ct. Officers Assn., ILA, Local 2013, AFL-CIO, 157 Misc 2d 390, 394-395 [1993]). [*3]

We further reject respondent's contention that the application to stay arbitration is premature because the arbitrator could fashion relief that would not violate public policy (cf. Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d at 11 n). There is no dispute that Mooney was reassigned to a position with the same schedule and pay rate that he had in his court holding officer position. Indeed, respondent does not allege on appeal that Mooney was aggrieved in any manner beyond his reassignment from his duties at the Broome County Courthouse. Rather, the only relief sought is Mooney's return to his position in the courthouse. Under these circumstances, the granting of any relief would violate public policy and, accordingly, Supreme Court properly stayed arbitration of this matter (see Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d at 284; Matter of New York State Correctional Officers & Police Benevolent Assn., Inc. [New York Dept. of Civ. Serv.], 70 AD3d at 245). In light of our conclusion that arbitration is prohibited by public policy, we need not address whether the parties agreed in the CBA to arbitrate their dispute.

Mitchell H. Rubinstein

May 17, 2011 in Arbitration Law | Permalink | Comments (0)

Monday, May 16, 2011

Rare Case Where Litigant Criminally Prosecuted For Unemployment Claims

Matter of Fierro v. Commissioner of Labor, ___A.D.3d___(3d Dep't. Jan. 13, 2011), is an important-very important decision to be aware of. It carrys significance far beyond unemployment or even employment law.  

The claimant here appears to have engaged in some type of larcency to obtain unemployment which resulted in a criminal conviction. Claimant was sentenced to probation and ordered to pay restitution. However, some what remarkably, he elected to spend a few months in jail-rather than pay restitution. That deal however, did not prevent unemployment from excercising its right to seek civil reimbursement for the claim.

This is a tough case.  But the moral of the story is that the court system and administrative agencies are not playgrounds for litigants. Be careful waht you assert and review everything before it is filed.

Mitchell H. Rubinstein

May 16, 2011 in Employment Law | Permalink | Comments (1)

Sunday, May 15, 2011

Termination Letter Stating That Employee Was Terminated For "Severe Dereliction Of Duty"


DiLacio v. Carpenters,_____A.D.3d____ (2d Dep't Jan. 11, 2011), is an important, but brief case. The court holds that a letter accusing that a temination stating that an employee was terminated for "severe dereliction of duty " was not defamatory. First, their was no publication in that the letter was only sent to the individual in question. Though the court also implies that there are other grounds why the letter is not defamatory, it does not explain itself. The letter is probably protected by a qualified privilege.

Mitchell H. Rubinstein

May 15, 2011 | Permalink | Comments (1)

Saturday, May 14, 2011

Former teacher did not enjoy constitutionally protected right of privacy from public disclosure of fibromyalgia


Matson v. Board of Educ. of the City of New York, ____F.3d____ (2d Cir, Jan. 11, 2011), is an interesting case. The Second Circuit held that a former teacher failed to state a valid cause of action under § 1983 for violation of her right to privacy based on the school district publicly disclosing that she suffers from fibromyalgia. The court concluded that the teacher does not enjoy a constitutionally protected privacy right with respect to that particular medical condition, which, though serious, was not equivalent to HIV/AIDS or transsexualism, which would carry a social stigma if disclosed. The teacher also did not allege sufficient facts to suggest that disclosure of her fibromyalgia had exposed her to discrimination or intolerance.

The dividing line between what is and ehat is not actionable is a fluid one and I do not believe that there is alot of case law on point. Law review commentary would be most welcome. 

May 14, 2011 in Education Law, Employment Discrimination, Law Review Ideas | Permalink | Comments (1)

Friday, May 13, 2011

School Law Jobs

School Law Jobs Job Title Employer Job Location

Director of the Education and Legal Alliance/Assoc. General Counsel California School Boards Association Sacramento, California

Special Education Attorney Harbottle Law Group Orange County, California

Chief Counsel to the School Board School District of Palm Beach County West Palm Beach, Florida

Chief Legal Officer Illinois School District U-46 Elgin, Illinois

School Law Attorney Brannan Legal Search Chicago, Illinois

Labor & Employment Law Attorney Thrun Law Firm, P.C. East Lansing, Michigan

School Attorney Drummond Woodsum Portsmouth, New Hampshire

Education Law Associate Walter & Haverfield LLP Cleveland, Ohio

School Board Attorney Chesterfield County Public Schools Chesterfield, Virginia

May 13, 2011 in Lawyer Employment | Permalink | Comments (0)

Thursday, May 12, 2011

Employee terminated after being found guilty of excessive absence from work

Matter of Wallis v Sandy Cr. Cent. School Dist. Bd. of Educ., 2010 NY Slip Op 09814, Appellate Division, Fourth Department

The Sandy Creek Central School District served disciplinary charges against school bus driver Mary W. Wallis pursuant to §75 of the Civil Service Law charging Wallis with incompetency or misconduct because of her excessive absenteeism.

Found guilty, Sandy Creek terminated her employment with the school district. Wallis appealed, contending that Sandy Creek’s determination “must be annulled because all of her absences were for legitimate reasons, including a period of time during which she was absent due to a work-related injury.”

The Appellate Division rejected Wallis’ argument, holding that as she had been found guilty of incompetency or misconduct based on excessive absenteeism the school district was “entitled to terminate her on those grounds even in the event that her ‘excessive absences [were] caused by physical incapacity.’"

Accordingly, said the court, it was irrelevant that Wallis had legitimate reasons for missing work.
The issue with respect to the charge against Wallis, said the Appellate Division, was whether her excessive absences "and [their] disruptive and burdensome effect on the employer rendered [her] incompetent to continue [her] employment."

The decision reports that:

[1] There was substantial evidence in the record establishing that Wallis was insubordinate and

[2] That her absences had a disruptive and burdensome effect on the school district. Although the record indicated that Wallis had received several warnings about her excessive absenteeism, she had an absentee rate of over 60% for a period of approximately 1½ years.

Under the circumstances of this case the Appellate Division decided that the penalty of termination of employment is not " so disproportionate to the offense as to be shocking to one's sense of fairness' " and thus does not constitute an abuse of discretion as a matter of law.

The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Blog

Mitchell H. Rubinstein

May 12, 2011 in Public Sector Employment Law | Permalink | Comments (1)

Wednesday, May 11, 2011

DOL App For Wages

You heard it right. The U.S. Department of Labor has developed an app for the Iphone, Ipad and Itouch where employees can keep track of their time. A DOL Press Release states:

 The U.S. Department of Labor today announced the launch of its first application for smartphones, a timesheet to help employees independently track the hours they work and determine the wages they are owed. Available in English and Spanish, users conveniently can track regular work hours, break time and any overtime hours for one or more employers. Glossary, contact information and materials about wage laws are easily accessible through links to the Web pages of the department's Wage and Hour Division.

Additionally, through the app, users will be able to add comments on any information related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment.

This new technology is significant because, instead of relying on their employers' records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.

"I am pleased that my department is able to leverage increasingly popular and available technology to ensure that workers receive the wages to which they are entitled," said Secretary of Labor Hilda L. Solis. "This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay."

The free app is currently compatible with the iPhone and iPod Touch. The Labor Department will explore updates that could enable similar versions for other smartphone platforms, such as Android and BlackBerry, and other pay features not currently provided for, such as tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest.

The App can be downloaded here. But what about us Android users???? 

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

May 11, 2011 | Permalink | Comments (0)

Self-employed Claimant Not Eligible For Unemployment

If you get laid off and start a web business are you eligible for unemployment insurance? Does it matter if you business looses money. No, your not eligible. Matter of Dupey v. Commissioner of Labor, ___A.D.3d ___(3rd Dep't. Dec. 23, 2010) explains:

Whether a claimant is totally unemployed is an issue of fact to be resolved by the Board and its determination will not be disturbed when it is supported by substantial evidence, despite the existence of evidence that would have supported a contrary result (see Matter of Bernstein [Commissioner of Labor], 67 AD3d 1287, 1287 [2009]; Matter of Bernard [Commissioner of Labor], 53 AD3d 1006, 1006 [2008]). Furthermore, a claimant who is a principal in an ongoing business may not be considered totally unemployed, despite the fact that the business may not be profitable or fully operational, if he or she stands to benefit financially from its continued operation (see Matter of Bernstein [Commissioner of Labor], 67 AD3d at 1287-1288; Matter of Thomas [Commissioner of Labor], 58 AD3d 1099, 1099-1100 [2009]). [*2]Here, it was undisputed that claimant's Web site was still operational, and he testified that he would accept any work offered to him through the site and deduct the expenses of the business on his income tax return. Accordingly, we find that substantial evidence supports the Board's decision.

Mitchell H. Rubinstein

May 11, 2011 in Employment Law | Permalink | Comments (2)

Double Breasted Operations ULP Complaint Against Boeing

An NLRB complaint filed against Boeing for moving work in retaliation for workers in Puget Sound exercising their rights under the NLRA has received alot of press attention of late.  

Chris Corson, the General Counsel  of IAM, wrote an interesting article in the Huffington Post which readers may find of interest:

 Additionally, Acting General Counsel Lafe Solomon put out a statement and responded to an inquiry from Capital Hill.

 Moreover, the Governor of South Carolina appeared at a press conference at the Chamber of Commerce to denounce the Board and to demand that the complaint be withdrawn.

Mitchell H. Rubinstein


May 11, 2011 | Permalink | Comments (0)

Tuesday, May 10, 2011

Federal Fifth Circuit Court of Appeals grants full rehearing in Texas candy cane distribution case

Reportedly, the Fifth Circuit has granted en banc review in a case involving the question of whether the principal violated the U.S. Constitution by barring students from swapping religious gifts, including Christian-themed pens shaped like candy canes, reports Courthouse News Service.

Source: Courthouse News Service, 1/3/11

Mitchell H. Rubinstein

May 10, 2011 in Education Law | Permalink | Comments (0)

Monday, May 9, 2011

Washington school district not liable under Title IX or section 1983 for peer sexual harassment of student with autism

J.B. v. Mead Sch. Dist. No. 354, ___F.Supp.2d____ (D. Wash. Dec. 10, 2010), is an interesting case. The court held that a student alleging peer sexual harassment has failed to state a valid Title IX claim or a § 1983 claim based on deprivation of his substantive due process rights. The court concluded that the student had failed to allege sufficient facts to show that school officials had actual knowledge of the sexual abuse that occurred. Regarding the due process claim, it concluded that the student had failed to allege facts sufficient to overcome the general rule that the state (school district) is not required to “protect the life, liberty, and property of its citizens [students] against invasion by private actors.” Specifically, it found that neither the “special relationship” nor the “state-created danger” exception applied.


May 9, 2011 in Education Law | Permalink | Comments (0)

Friday, May 6, 2011

School Law Jobs

School Law Jobs
Job Title Employer Job Location
Director of the Education and Legal Alliance/Assoc. General Counsel California School Boards Association Sacramento, California
Chief Counsel to the School Board School District of Palm Beach County West Palm Beach, Florida
Chief Legal Officer Illinois School District U-46 Elgin, Illinois
School Law Attorney Brannan Legal Search Chicago, Illinois
Labor & Employment Law Attorney Thrun Law Firm, P.C. East Lansing, Michigan
School Attorney Drummond Woodsum Portsmouth, New Hampshire
Education Law Associate Walter & Haverfield LLP Cleveland, Ohio
School Board Attorney Chesterfield County Public Schools Chesterfield, Virginia

May 6, 2011 in Lawyer Employment | Permalink | Comments (0)