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Editor: Mitchell H. Rubinstein
New York Law School

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Sunday, July 31, 2011

Bus Driver Fired For Displaying Confederate Flag Looses Case

Webber v. First Student, Inc.,____F. Supp. 2d_____(D. Or. Jul. 12, 2011), is an interesting case that attracted media attention.  A federal district court magistrate in Oregon held that a bus driver who was employed by a private contractor that provides transportation services for a school district failed to state a valid retaliation claim under the federal constitution’s Equal Protection Clause based his discharge after refusing to remove to a Confederate flag from display on his personal vehicle while parked in the contractor’s lot. 

The magistrate also recommended that the former employee’s claim based on the state constitution’s equal protection clause be dismissed with prejudice. Significantly, however, he held that the driver’s retaliation claim based on the state constitution’s free speech provision was valid and granted leave to amend. Interestingly, plaintiff did not plead a First Amendment claim under the First Amendment, probably because it may not pass the public concern standard. A media clip about this case is available below.

   

 

July 31, 2011 in Education Law, First Amendment | Permalink | Comments (0)

Saturday, July 30, 2011

Arbitration Award Which Did Not Give Preclusive Effect To Criminal Conviction Vacated

Matter of Social Servs. Employees v. New York City, ____A.D.3d____(1st Dep't. March 29, 2011), is an interesting case. The court vacates the decision of an arbitrator as irrational because he did not give preclusive effect to a criminal conviction. As the court explained:

The arbitrator's failure to give preclusive effect to Robinson's guilty plea of petit larceny was irrational (see Matter of State of N.Y. Off. of Mental Health [New York State Correctional Officers & Police Benevolent Assn., Inc.], 46 AD3d 1269, 1271 [2007], lv dismissed 10 NY3d 826 [2008]). The arbitrator's award places Robinson back into a position where he has the responsibility to voucher property of individuals being brought into a juvenile facility (see City School Dist. of City of N.Y. v Campbell, 20 AD3d 313[2005]).

Mitchell H. Rubinstein

July 30, 2011 in Arbitration Law | Permalink | Comments (0)

Friday, July 29, 2011

School Law Jobs

School Law Jobs
Job Title Employer Job Location
Education Litigation Associate Fagen Friedman & Fulfrost LLP Southern California
Special Education Attorney Harbottle Law Group Orange County, California
Chief Officer for Legal Services and Labor Relations Joliet Public Schools District 86 Joliet, Illinois
In-house Staff Attorney Montgomery County Public Schools Rockville, Maryland
School Board Attorney Chesterfield County Public Schools Chesterfield, Virginia

 

July 29, 2011 in Lawyer Employment | Permalink | Comments (1)

ICE Raids University of Northern VA

The University of Northern Virginia is an unaccredited for-profit private university that is apparently very popular with foreign students from the country of India. ICE recently raided them. An NBC news report is here. As of 8:12 am EST today, the school's web site is down or at leat I cannot access it.

Mitchell H. Rubinstein 

July 29, 2011 in Colleges, News | Permalink | Comments (0)

Thursday, July 28, 2011

Google Map of Law Schools in the U.S.

Readers might find this map of law schools of interest, here.

Mitchell H. Rubinstein

Hat Tip: Legal Writing Prof Blog

July 28, 2011 in Law Schools | Permalink | Comments (0)

NLRB Video, transcripts of July 18-19 open meeting on election rules now available

From the NLRB Press Release:

 

July 28, 2011 in NLRB | Permalink | Comments (0)

Wednesday, July 27, 2011

All Correction Law §753 factors must be considered before disqualifying an applicant because of his or her conviction of a crime

Matter of Acosta v New York City Dept. of Educ., 2011 NY Slip Op 02073, Court of Appeals

In this decision the Court of Appeals explains that where a prospective employer rejects an applicant for employment because of that individual’s conviction of a crime, Correction Law §753 requires that the employer must determine that the conviction is relevant to the duties of the position or poses an unreasonable danger to clients, co-workers or the public.*

In affirming the Appellate Division’s ruling, the Court of Appeals said that it concluded that “the New York City Department of Education (DOE) failed to comply with the requirements of the Correction Law and thus acted arbitrarily in denying [Acosta’s] application for security clearance.”

The Court of Appeals explained:

The Legislature has determined that, as a general rule, it is unlawful for a public or private employer to deny an application for a license or employment on the ground that the applicant was previously convicted of a crime. This general prohibition advances the rehabilitation and reintegration goals of the Penal Law. Furthermore, barring discrimination against those who have paid their debt to society and facilitating their efforts to obtain gainful employment benefits the community as a whole. The "direct relationship" exception and the "unreasonable risk" exception to this general rule may be resorted to only upon a consideration of each of the eight factors enumerated in Correction Law §753 (see Arrocha, 93 NY2d at 364).

As to the “direct relationship” exception, here there must be “a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual" in order to deny the applicant the employment or a license.

The second exception, “unreasonable risk” permits the denial of employment or a license to an individual where "the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public."

The following eight criteria must each be considered by the appointing authority:

1. The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.

2. The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.

3. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.

4. The time which has elapsed since the occurrence of the criminal offense or offenses.

5. The age of the person at the time of occurrence of the criminal offense or offenses.

6. The seriousness of the offense or offenses.

7. Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.

8. The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public."

In the words of the Court of Appeals, A failure to take into consideration each of these factors results in a failure to comply with the Correction Law's mandatory directive.

NYPPL’s summary of the Appellate Division’s ruling, 62 AD3d 455, is posted on the Internet athttp://publicpersonnellaw.blogspot.com/2010/02/rejection-of-applicant-for-employment.html ] 

The Court of Appeal's decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02073.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

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

Tuesday, July 26, 2011

Rare Direct Case of Employment Discrimination

We do not see many direct cases of discrimination anymore, but this case demonstrates that they are still out there. In Hickman v Sloan Fluid Accessories, Inc, ____F.Supp. ___ (E.D.Tenn. June 7, 2011), the court relied on statements that the vice president of sales and marketing allegedly made concerning plaintiffs termination. For instance, plaintiff asserted that the vice president told a regional sales manager at a client company that he had terminated the product specialist because he was "looking for someone younger with more spunk.” There was also testimony that the vice president told another regional sales manager at different client company that plaintiff was terminated because of concerns that older salespeople wouldn't make the transition very well toward newer technologies. 

Mitchell H. Rubinstein

July 26, 2011 in Employment Discrimination | Permalink | Comments (0)

Monday, July 25, 2011

Lawyer Up. Get A Lawyer In 15 Minutes

You can get a Pizza in 15 minutes, so why can't you get a lawyer in 15 minutes. Well now you can. A June 16, 2011 NY Times article discusses how a company called "Lawyer Up" promises to find you a lawyer in 15 minutes. There is even an app for that. As the article states:

The service’s personal plan, aimed at young people, costs $4.95 a month. Those who do not have a subscription can pay a flat fee of $100 for the first call, which the company calls its “pay-in-a-pinch plan.” For all clients, an operator checks contact information and processes the lawyer’s initial fee of $250 on a credit card for the first hour of service.

Perhaps inevitably, there is an app for that, already available on Android phones and under development for the iPhone. It is basically a panic button, speed-dialing the service.

Lawyers do not pay to sign on to the roster, or for the client calls. Legal ethics rules frown on arrangements in which lawyers split fees with nonlawyers, and especially when lawyers pay people to round up clients — a practice known as using runners. A Connecticut lawyer who signed on, Patrick Tomasiewicz, said that when he got the call from the company, his main question was whether he would need to pay LawyerUp. The company satisfied him that its structure avoided runner issues.

Sorry, but I for one would not trust this service.

Mitchell H. Rubinstein

 

July 25, 2011 in Lawyer Employment, Lawyers, Legal News | Permalink | Comments (5)

Sunday, July 24, 2011

Principal in Corporation Not Entitled To Unemployment Compensation

3ddept.
 

Matter of Ingrao-Woods v. Commissioner of Labor, ___A.D.3d___(3d Dep't. March 17, 2011), is illustrative of an important point in unemployment insurance law. If your a principal in a corporation your not totally unemployed under the statute and therefore, you are not eligible for unemployment. As the court explained:

It is well settled that "[a] claimant who is a principal in an ongoing corporation will not be considered totally unemployed if he or she stands to benefit financially from its continued operation, no matter how minimal the activities performed on its behalf" (Matter of Bernstein [Commissioner of Labor], 67 AD3d 1287, 1287-1288 [2009]; see Matter of Thomas [Commissioner of Labor], 58 AD3d 1099, 1099-1100 [2009]). Here, claimant established a Web site, opened a business checking account, paid routine business expenses, distributed business cards, advertised products, actively sold products and deducted business expenses and losses on her partnership tax returns during the relevant period. Although the business did not make a profit, claimant clearly stood to gain a monetary benefit as a result of her [*2]activities. Therefore, substantial evidence supports the Board's decision that she was not totally unemployed (see Matter of Gazzara [Commissioner of Labor], 60 AD3d 1226, 1227 [2009]; Matter of Germanow [Commissioner of Labor], 56 AD3d 923, 924 [2008]; Mater of Siegel [Commissioner of Labor], 43 AD3d 1224, 1225 [2007]).

Mitchell H. Rubinstein

July 24, 2011 in Employment Law | Permalink | Comments (0)

Saturday, July 23, 2011

The failure to properly and timely serve the agency issuing an adverse decision results in the court lacking “personal jurisdiction” to hear the case

Matter of Greenburgh Cent. School Dist. No. 7 v Westchester County Human Rights Commn., 2011 NY Slip Op 02009, Appellate Division, Second Department

Public agencies are not immune to the almost always fatal procedural omission of failing properly serve the necessary parties in an appeal of an adverse administrative ruling as is demonstrated in this Article 78 action.

Greenburgh Central Schools District #7 had filed CPLR Article 78 action to review the Westchester County Human Rights Commission finding that District had engaged in unlawful age discrimination in violation of the Westchester County Human Rights Law. The Commission had also imposed a monetary penalty on the District.

Supreme Court, Westchester County, after declining to extend the statute of limitations to file such an action, dismissed the proceeding for lack of personal jurisdiction.

The Appellate Division affirmed the lower court’s ruling, pointing out that it was undisputed that the school district had failed to properly serve Westchester Human Rights with the notice of petition and petition in accordance with CPLR 312.

Further, said the court, Greenburgh “failed to demonstrate good cause for an extension of time to serve, and failed to show that such an extension is warranted in the interest of justice.”

In particular, the court noted that Greenburgh had failed to demonstrate diligence in its attempt at service, and failed to demonstrate a potentially meritorious argument in support of the petition.

The decision is posted on the Internet at: 
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02009.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

 

July 23, 2011 in Litigation | Permalink | Comments (0)

Friday, July 22, 2011

School Law Jobs

School Law Jobs
Job Title Employer Job Location
Education Litigation Associate Fagen Friedman & Fulfrost LLP Southern California
Special Education Attorney Harbottle Law Group Orange County, California
Chief Officer for Legal Services and Labor Relations Joliet Public Schools District 86 Joliet, Illinois
In-house Staff Attorney Montgomery County Public Schools Rockville, Maryland
School Board Attorney Chesterfield County Public Schools Chesterfield, Virginia

 

July 22, 2011 in Lawyer Employment | Permalink | Comments (0)

Gov. Walker To Now Use Prison Labor

Remember Gov. Walker and Wisconsin. Whatever your views on the so called "Budget Repair Bill," you must admit that this guy is radical. He now wants to use prison labor to replace union labor with prison labor. The Cap Times reports:

Gov. Scott Walker ran for election on a promise to create 250,000 jobs during his first term in office. Now it seems some of that job growth has found its way to at least one county jail in Wisconsin.

Racine County Executive Jim Ladwig told several media outlets earlier this week he plans to add shoveling, landscaping and painting to the to-do lists of county inmates. Until recently, inmates were only allowed to cut the grass along highways.

That changed Wednesday when the state's controversial collective bargaining law took effect.

Read more: http://host.madison.com/ct/news/local/govt-and-politics/capitol-report/article_abc24a50-a362-11e0-bef3-001cc4c002e0.html#ixzz1Sqwooa8h

Mitchell H. Rubinstein

 

July 22, 2011 in Public Sector Labor Law, Recent Developments, Unions | Permalink | Comments (3)

Basketball Career Backup Plan-Law School!!

We all know that the chances of making it professional sports are remote. A career may even be cut short because of a labor dispute. So, it is of course, wise to have a back up plan. But how many professional players have a back up plan. Well, here is a story about one who does.  Ben Wallace of the Detroit Pistons back-up plan is to attend law school. An ABA Journal Blog article is available here. A copy of a Detroit News article which provides further details is available here.

Mitchell H. Rubinstein

July 22, 2011 in Law Students | Permalink | Comments (0)

Thursday, July 21, 2011

Seasonal employees not entitled to a §75 hearing having access to an Article 78 hearing satisfies constitutional due process requirements

Edward Carter, et al v Incorporated Village Of Ocean Beach, USCA, Second Circuit 10-0740-cv*

Carter and his co-plaintiffs [hereinafter "Carter"] sued the Village and certain of its officials, alleging that they were unlawfully terminated from their respective seasonal police officer positions. They also alleged that their termination was in retaliation for reporting misconduct within the department in violation of the First, Fifth, and Fourteenth Amendments and that certain of the defendants made “derogatory statements” about them.

The federal district court ruled that Carter’s claims failed as a matter of law, concluding that Carter did not engage in “constitutionally protected speech” and thus could not establish First Amendment claims. The court said that “even if [Carter's] factual claims were credited in full, they established only that [Carter] spoke “pursuant to their official duties” and thus “not . . . as citizens for First Amendment purposes.”

The district court also ruled that Carter had not suffered a deprivation of either a protected liberty or property interest.

The Court of Appeals affirmed the lower court’s decision, holding that Carter’s allegations establish no more than that [the plaintiffs] reported what they believed to be misconduct by a supervisor up the chain of command—misconduct they knew of only by virtue of their jobs as police officers and which they reported as “part-and-parcel of [their] concerns about [their] ability to properly execute [their] duties.”

Speech, said the court, “that owes its existence to a public employee’s professional responsibilities” is made “pursuant to” that employee’s “official duties.” Accordingly, the Circuit Court concluded, Carter was not engaging in constitutionally protected speech at any relevant time and cannot make out a First Amendment claim.

As to Carter’s claim that he was deprived of a protected property interest without due process of law, the Circuit Court of Appeals said that “To state a claim for deprivation of property without due process of law, a plaintiff must, as a preliminary matter, ‘identify a property interest protected by the Due Process Clause,’” citing Harrington v County of Suffolk, 607 F.3d 31.

However, to demonstrate a property interest in public employment, the plaintiff must have “more than a unilateral expectation of” continued or future employment but instead “a legitimate claim of entitlement to it.”

Carter, said the court, established no such “claim of entitlement” in that the record establishes that all of the plaintiffs in this action were all at-will, part-time, seasonal employees who had no contractual or other basis for asserting any “entitlement” to continued or future employment.

Carter had also contended that he was entitled to a preterminationhearing in accordance with Civil Service Law §75(1)(c). However, said the court, only certain individuals who have “completed at least five years of continuous service” are entitled to such administrative due process by operation of law. In this instance, said the Circuit Court, the district court had determined that no plaintiff was employed “continuously” for a five year period, and, accordingly, that §75(1)(c) provides no support for plaintiffs’ claims.”

Finally, as to Carter’s allegations of a so-called “stigma plus” deprivation of constitutionally protected right, stigma plus’ refers to a claim brought for injury to one’s reputation (the stigma) coupled with the "deprivation of some ‘tangible interest’ or property right (the plus), without adequate process."

The Circuit Court of Appeals agreed with the district court’ holding that even assuming a “deprivation” occurred in this instance – "that is, assuming plaintiffs could establish the 'stigma' and the 'plus' – the claims would nonetheless fail because plaintiffs were afforded 'adequate process' in the form of a post-deprivation Article 78 hearing in state court."

The Circuit Court explained that “where, as here, plaintiffs are ‘at will’ government employees raising stigma-plus claims, our law makes clear that 'due process does not require a pre-termination hearing,' and access to post-termination process, such as an Article 78 hearing, is sufficient to satisfy constitutional requirements."

* N.B. This ruling is a Summary Order. Rulings by summary order do not have precedential effect.

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/596b4436-f8b9-4643-82a9-59e7edb21841/3/doc/10-0740_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/596b4436-f8b9-4643-82a9-59e7edb21841/3/hilite/

reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

July 21, 2011 | Permalink | Comments (0)

Wednesday, July 20, 2011

Court Upholds Student Discipline of School Hacker

5thCir

Harris v. Pontotoc County Sch. Dist., ____F.3d____(5th Cir. Mar. 10, 2011), is an interesting case.  The Fifth Circuit held that a student who was accused of “hacking” into his school’s computer system was not denied due process when he was temporarily suspended and then reassigned to an alternative school. The panel also denied the mother’s First Amendment retaliation claim based on her termination from employment (she was a secretary) with the school district after complaining to the superintendent about the lack of due process afforded her son.

The student had also used his mother's work computer. The court concluded that the mother was not speaking about issues of public concern. 

Mitchell H. Rubinstein

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

Tuesday, July 19, 2011

School district’s refusal to provide allegric student with a nut free environment did not constitute an actionable threat of violence or harm under California law

McCue v. South Fork Union Elementary Sch., ___F.Supp.2d____ (E.D. Cal. Feb. 7, 2011), is an unusual case. . A federal district court in California has dismissed a claim brought by the parents of a student with a nut allergy alleging that the school district’s refusal to provide the student with a nut free environment at school was an actionable threat of violence or harm under the state’s civil code. The court concluded that none of the alleged statements by school officials regarding their refusal or inability to create a nut free environment in the school would be perceived by a reasonable person as threats of violence against the student.

Only in California.

Mitchell H. Rubinstein

July 19, 2011 in Education Law | Permalink | Comments (2)

Monday, July 18, 2011

Volunteer School Coach Not Protected Under The FLSA

4thseal

Readers will recall that I published a law review article on the status of volunteers under employment laws, here. Quite simply, volunteers are usually not covered by our employment laws because those statutes are designed to protect "employees." 

Purdham v. Fairfax County Sch. Bd., ____F.3d____ (4th Cir. Mar. 10, 2011), is a recent case which grapples with this issue. The Fourth Circuit held that a high school safety and security assistant, who also holds the position of varsity boys golf coach, is not an employee in his capacity as a coach under the Fair Labor Standards Act (FLSA), but rather a volunteer. Accordingly, the plaintiff is not entitled to overtime pay under the FLSA. The panel concluded that the services he performs as a coach were completely divorced from those he performs as a safety and security assistant. Although the school district at one point had paid overtime for hours spent on the coaching duties in an effort to comply with FLSA’s evolving legal standards, had allowed the employee administrative leave time for his coaching duties, and had paid a stipend for coaching, none of these actions converted his activities as a coach into activities as an employee for purposes of FLSA.

This case also illustrates that it is not always easy to tell who is a volunteer as this individual received a stipend.

Mitchell H. Rubinstein

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

Survey For Adjunct Profs

 Professor Greg Duhl was just named Director of Adjunct Faculty at the William Mitchell College of Law. He has asked me to ask my fellow adjuncts what kind of support, training, and recongition they would like to receive from their law schools. Please post your thoughts in the comment section of this blog. Post only once as posts have to be approved before they are published. I will start:

___________________

I have been an adjunct for seven years at two major law schools. My biggest complaint (aside from the terrible pay) is that I do not feel that I am part of the faculty. I teach at night and am an outsider. It would be nice to be included on faculty emails and correspondence and to solicit my input on issues. Though it would be difficult to attend faculty and scholarship meetings, it would be nice to be invited. 

One school is better then the other where I teach. Seminars were held on grading students, on teaching skills and publishing in law reviews. Those seminars were all very helpful and should be held more often. It would also be nice to formally meet once in a while with the faculty that teach in your discipline and find out what topics are covered to avoid overlap. 

 

 

 

 

July 18, 2011 in Adjunct Information in General | Permalink | Comments (1)

Sunday, July 17, 2011

2d Circuit Issues Important Student First Amendment Decision

Ro v. Ithaca City School District, ____F.3d____ (2d Cir. May 18, 2011), is an interesting case. In a well written decision, the Second Circuit holds that a school district did not violate the First Amendment rights of students by its prohibition of a sexually explicit cartoon from appearing in a school newspaper. Under Bethel v. Fraser, 478 U.S. 675 (1986), the 2d reasoned that school districts have wide discretion to restrict lewd, indecent or offensive speech.

Mitchell H. Rubinstein 

July 17, 2011 in Education Law, First Amendment | Permalink | Comments (0)