Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Friday, September 30, 2011

School Law Jobs

School Law Jobs
Job Title Employer Job Location
Special Education Attorney Harbottle Law Group Orange County, California
Legislative Counsel Americans United for Separation of Church and State Washington, D.C.
Staff Counsel Anne Arundel County Public Schools Annapolis, Maryland
General Counsel Clark County School District Las Vegas, Nevada
Assistant General Counsel Tacoma Public Schools


September 30, 2011 in Lawyer Employment | Permalink | Comments (0)

Thursday, September 29, 2011

Reportedly, Washington state court rules school district not liable for student newspaper report that local businessman is “slumlord”

Courthouse News Service reports that a lower court Judge ruled that Seattle School District No. 1 is not “vicariously liable” for allegedly defamatory statements in an article published in a student newspaper. In dismissing the suit, Judge Prochnau said, “As a matter of law, plaintiffs are unable to prove that, consistent with the First Amendment, the defendant Seattle School District should have censored the student’s speech.” The statement was also protected as opinion. The court's brief order can be found here.

Source: Courthouse News Service, 8/2/11, By June Williams


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

Missouri May Repeal Teacher Facebook Ban Law

A local newspaper, St. Louis newspaper,St. Louis Post-Dispatch, 9/14/11, By Jason Hancock ,  reports that the Missouri state legislature may repeal key provisions of the law.  In August, 2011 [two days before the law was to take effect], the Missouri State Teachers Association (MSTA) obtained a preliminary injunction. As the article states:

 The bill removes provisions from a law passed this year prohibiting teachers from having private online conversations with students. Instead, local school districts must now develop their own social media policy by March 1, 2012. Those policies must include "the use of electronic media and other mechanisms to prevent improper communications between staff members and students."

The changes come in response to a judge’s order issued last month blocking the law from taking effect because of concerns that it infringes on free-speech rights. Critics of the law believe it could cut off even the most innocent online exchanges on social networking sites like Facebook.

Mitchell H. Rubinstein


September 29, 2011 | Permalink | Comments (1)

Tuesday, September 27, 2011

The administrative tribunal, not the court, weighs the evidence and determines the credibility of witnesses in an administrative hearing


The administrative tribunal, not the court, weighs the evidence and determines the credibility of witnesses in an administrative hearing
Matter of Martin v Board of Trustees of the Vil. of Pelham Manor, 2011 NY Slip Op 06106, Appellate Division, Second Department
The Village of Pelham Manor found Robert Manor, a Village police officer guilty of a number disciplinary charges filed against him including excessive use of paid sick leave and insubordination. The penalty imposed, termination.
Manor appealed, contending that the Village’s determination was not supported by substantial evidence in the record. The Appellate Division disagreed, sustaining the Village’s findings and the penalty it imposed.
The court explained that the standard of review in an administrative determination made after a hearing is limited to considering whether the determination was supported by substantial evidence. In contrast, the Appellate Division said that “it is the function of the administrative agency, not the reviewing court, to weigh the evidence, assess the credibility of witnesses, and determine which evidence to accept or reject.”
Accordingly, where there is conflicting evidence and, or, testimony, it is the administrative tribunal, not the court, that weights the evidence and the determines credibility of the witnesses testifying at the hearing.
As to the penalty imposed, dismissal from his position, the Appellate Division, applying the so-called Pell test {[Pell v Board of Education, 34 NY2d 222], held that “the penalty of termination of employment was not so disproportionate to the offenses as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law” 


Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

September 27, 2011 | Permalink | Comments (0)

Monday, September 26, 2011

What is a Supreme Court Justice Worth and Does Justice Sotomayor Need A Second Job?



Min. Net Worth

Average Net Worth

Max. Net Worth

Ruth Bader Ginsburg




Stephen G. Breyer




John G. Roberts




Antonin Scalia




Elena Kagan




Samuel A. Alito




Anthony M. Kennedy




Clarence Thomas




Sonia Sotomayor



$49,999 has additional information. Looks like Justice Sotomayor needs a second job!

Hat Tip: Legal Skills Prof Blog

Mitchell H. Rubinstein 

September 26, 2011 | Permalink | Comments (3)

Saturday, September 24, 2011

Eighth Circuit Holds Replacement Workers Not Covered by WARN Act


In a recent decision, the U.S. Court of Appeals for the Eighth Circuit held that workers hired as replacements during a strike are not covered by the notice requirements of the Worker Adjustment and Retraining Notification Act [WARN Act, 29 U.S.C.A. § 2101].Sanders v. Kohler Co., 641 F.3d 290, 32 I.E.R. Cas. (BNA) 493 (8th Cir. 2011).

Mitchell H. Rubinstein

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

Please Identify Yourself

I have no way of knowing who is actually reading this blog. It would be helpful to me if you can take a moment to fill out the below poll and identify yourself. Thank you, Mitchell H. Rubinstein
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September 24, 2011 | Permalink | Comments (4)

Thursday, September 22, 2011

2d Circuit Issues Important Decision Involving Attorneys Fees Applications


MILLEA v. METRO NORTH RAILROAD COMPANY, ____F.3d____(2d Cir. August 8, 2011), is a critically important attorneys fees case that arose under the the Family Medical Leave Act (FMLA), which has an attorney fee provision similar to many statutes. The district court reduced the fee award reasoning that the claim upon which the plaintiff prevailed “had no public policy significance.” The 2nd Cir. held that that was error reasoning that “[b]y enacting a fee-shifting provision for FMLA claims, Congress has already made the policy determination that FMLA claims serve an important public purpose disproportionate to their cash value. We cannot second-guess this legislative policy decision.” 

        The Second Circuit found that “the district court impermissibly reduced its initial fee award based on an incorrect conclusion that Millea's victory was “de minimis.” Millea, 2010 WL 126186, at *6. The $612.50 award was not de minimis; to the contrary, the award was more than 100% of the damages Millea sought on that claim. The district court conflated a small damages award with a de minimis victory.”

        The Second Circuit found that “calculating attorneys' fees as a proportion of damages runs directly contrary to the purpose of fee-shifting statutes: assuring that civil rights claims of modest cash value can attract competent counsel. 

Mitchell H. Rubinstein

September 22, 2011 in Lawyers | Permalink | Comments (0)

Wednesday, September 21, 2011

Pennsylvania state court preliminarily enjoins school district from enforcing random student drug testing policy

M.K. v. Delaware Valley Sch. Dist., No. 11-434 (Pa. Ct. Comm. Pl. Jul. 21, 2011), is an interesting case. There, a Pennsylvania lower court issued a preliminary injunction barring Delaware Valley School District (DVSD) from enforcing its random drug testing policy for students participating in extracurricular activities, including athletics, and students driving vehicles to and from school. Based on the Pennsylvania Supreme Court’s decision inTheodore v. Delaware Valley Sch. Dist., 836 A.2d 75 (Pa. 2003), which held that the school district must show a specific need for a random drug testing policy in order for it to pass constitutional muster, the Court of Common Pleas concluded the students were likely to succeed on the merits of their claim.

The court found that the evidence presented by the school district failed to support its contention of widespread drug use in the school district. It also found no evidence that the drug testing policy is an effective method of deterring drug use within the district.

Mitchell H. Rubinstein


September 21, 2011 in Education Law | Permalink | Comments (1)

Tuesday, September 20, 2011

New York Labor Law 211-a (Labor Neutrality Statute) Preempted by NLRA

In Healthcare Association v. Cuomo, ___F. Supp. 2d___(N.D.N.Y. Sept. 7, 2011), the court in a 14 page decision held that New York's Labor Neutrality statute (Labor Law Sec. 211-a) was preempted by the NLRA. The court basically held that Congress intended to occupy the field and applied so called Machinists preemption principles relying heavly on the Supreme Court's 2008 decision in Chamber of Commerce v. Brown. 

What I found most interesting about the decision was that no union appeared as an amicus or sought to intervene. Undoubtedly, this decision will be appealed.

Mitchell H. Rubinstein

September 20, 2011 in Labor Law, New York Law | Permalink | Comments (0)

Sunday, September 18, 2011

District court erred in denying backpay to successful Title VII litigant based on finding that $300,000 compensatory damages award was enough to make her whole


The 2d Circuit recently held that the lower court erroneously held that an employee who was awarded $580,000 in compensatory damages on her Title VII claims of gender bias, hostile work environment, and reprisal (which was reduced to the federal statutory cap of $300,000) was not entitled to consideration of backpay because the compensatory damages award would make her whole Bergerson v New York State Office of Mental Health, ___F.3d____( 2d Cir. July 21, 2011).  

Mitchell H. Rubinstein

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

Saturday, September 17, 2011

FMLA retaliation claim proceeds based on single comment; employee with chronic back problem not regarded as disabled

A nursing assistant’s FMLA retaliation claim survived summary judgment based on a single comment that she was not really terminated for altering a doctor’s note. Quinn v Mercy Fitzgerald Hosp, ___F.Supp. 2d (D. Pa. July 22, 2011).  However, her ADA and Pennsylvania Human Relations Act (PHRA) claims failed under a pre-ADAAA analysis because she could not show that she was regarded as unable to perform a wide variety of jobs due to her chronic back condition.

This case demonstrates once again that a retaliation claim may be a more potent claim than the underlying claim on the merits.

Mitchell H. Rubinstein

September 17, 2011 in FMLA | Permalink | Comments (0)

Friday, September 16, 2011

School Law Jobs

Special Education Attorney Harbottle Law Group Orange County, California
Legislative Counsel Americans United for Separation of Church and State Washington, D.C.
General Counsel Clark County School District Las Vegas, Nevada


September 16, 2011 in Lawyer Employment | Permalink | Comments (0)

Thursday, September 15, 2011

Bill would amend FMLA to allow parents time-off to mourn the death of a child

Legislation has been introduced in the U.S. Senate that would amend the Family and Medical Leave Act to give parents grieving the death of their child as many as 12 weeks of un paid leave. The FMLA currently only provides protection to employees need "to care" for certain family members.

The Parental Bereavement Act of 2011 (S. 1358) would add grieving over the death of a child to the list of activities for which an individual may take leave under the FMLA. The leave cannot be taken intermittently or on reduced schedule unless both the employer and employee agree. 

Mitchell H. Rubinstein


September 15, 2011 in FMLA | Permalink | Comments (1)

Wednesday, September 14, 2011

Workers' Compensation Law benefits not available for “mental injury” resulting from an employer’s lawful personnel actions


Matter of Veeder v New York State Police Dept., 2011 NY Slip Op 05921, Appellate Division, Third Department
The widow of a Division of State Police forensic scientist, Donna Veeder, filed an application for workers' compensation death benefits, claiming that her husband became depressed and committed suicide as a result of actions she alleged were taken against him by the Division in the course of an investigation of her late husband’s performance of his duties.
The Workers' Compensation Law Board affirmed, concluding that Workers' Compensation Law §2(7)* barred the claim since the Division's actions were made in good faith and were the result of "a lawful personnel decision involving an investigation and potential disciplinary action."
Veeder appealed contending that that §2(7) was inapplicable because her husband had committed suicide and thus his injuries cannot be "solely mental."
The Appellate Division rejected this argument, explaining that “The unrefuted psychiatric evidence contained in the record, as well as the suicide letters, make clear that decedent's suicide was predominantly the product of the depression and stress he experienced from the employer's inquiry” into his performance of his duties. Accordingly, if work-related stress is not compensable under Workers' Compensation Law §2(7), “it necessarily follows that any physical injury that resulted therefrom cannot be compensable either.”
Considering Veeder’s argument that the Division’s actions in this case were not undertaken in the context of a "disciplinary action" within the meaning of the statute, the Appellate Division decided that Board's finding lacks substantial evidence in the record.
The court noted that there was “unequivocally” testimony that “there was no disciplinary action underway during the inquiry” and that the purpose of the meetings was to review the procedures employed by Veeder’s late husband “in conducting the testing and to look into ways for the laboratory to improve its testing methods.”
As the Board, having found the Division's actions to constitute a "disciplinary action" under Workers' Compensation Law §2(7), it did not reach the employer's alternative argument that its actions in that regard could also be deemed an evaluation of decedent's work under the statute, and that the stress experienced by decedent was no greater than that normally encountered in the work environment.
Accordingly, the Appellate Division vacated the Board’s determination and remanded the matter to it “for resolution of these issues.”
* Workers' Compensation Law §2(7) provides, in relevant part, that "[t]he terms 'injury' and 'personal injury' shall not include an injury which is solely mental and is based on workrelated stress if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer"
The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

September 14, 2011 in Employment Law | Permalink | Comments (0)

Tuesday, September 13, 2011

NLRB Issues Notice Posting Form


The NLRB recently issued its now required Notice posting, here. It is already being challenged by none other than former NLRB member Peter Kirsanow. The complaint is here 

Hat Tip: Workplace Prof Blog

Mitchell H. Rubinstein

September 13, 2011 | Permalink | Comments (0)

Missouri enacts legislation aimed at protecting students from known sexual abusers and restricting teacher online contact with students

The Associated Press (AP) reports in the Kansas City Star that Gov. Jay Nixon has signed a bill that requires schools to share information about teachers who have sexually abused students and restricting online communication among teachers and students. The purpose of the provision is to prevent school districts from unknowingly hiring someone with a history of substantiated sex abuse allegations.The other provision in  the legislation requires school districts to develop policies by 2012 for communication between teachers and students that includes text messages, social networking websites and other electronic devices. Those polices are to restrict teachers from interacting with students on websites or in ways that are not also accessible to others, including school administers and parents.

Kansas City Star, 7/14/11, By Chris Blank (AP)

September 13, 2011 in Education Law | Permalink | Comments (0)

Monday, September 12, 2011

Michigan enacts teacher tenure legislation

Michigan Gov. Rick Snyder has signed  a bill into law that will make teacher performance the key factor in awarding tenure and deciding layoffs in a district instead of seniority, says the Associated Press (AP) in the Greenwich Time.

 Greenwich Time, 7/19/11, By Kathy Barks Hoffman (AP)

September 12, 2011 in Education Law | Permalink | Comments (0)

The Downside Of Recognizing Gay Marriages

As Same-Sex Marriage Becomes Legal, Some Choices May Be Lost is an interesting July 8, 2011 article from the New York Times. It points out that there may be some negative consequences to gay individuals who live in a state that recognizes gay marriage and decide to get married. 

As the article states:

“There are certainly reasons why a couple may not wish to marry,” added Camilla Taylor, marriage project director at Lambda Legal. “People with certain immigration statuses might want to think very carefully before getting married. There are some types of visas that are meant to be temporary, and if you get married to someone who is a citizen, it could flag your renewal application and reflect your more permanent decision to stay.”

When it comes to adopting a child, couples may run into trouble if they are trying to adopt from a place that restricts same-sex married couples from adopting. Having one parent adopt while still single may be easier. “If you want to be able to answer honestly in paperwork, multiple interviews and background checks, then you won’t want to get married,” Ms. Taylor said, adding that many foreign countries ban adoptions to same-sex couples.

Marrying could also have serious implications for couples who relocate to a nonmarriage state, and ultimately decide to split up. Getting a divorce can be complicated, since one member of a couple may have to return to the gay marriage state and live there before their split can be completed.

There also certainly employment law implications of gay marriage with respect to pension and health insurance benefits as well as FMLA leave benefits. Don't get me wrong, I believe that anyone should be able to get married; but this is an interesting article non-the-less.

Mitchell H. Rubinstein


September 12, 2011 in Current Events | Permalink | Comments (0)

Sunday, September 11, 2011

Extraordinary salary increases excluded in determining the individual’s final average salary for retirement purposes.


Matter of Palandra v New York State Teachers' Retirement Sys., 011 NY Slip Op 04357, Appellate Division, Third Department
Maria Palandra was employed by the Elmont Union Free School District and eventually became its superintendent of schools. In 2000, Palandra and the school district entered into a contract setting her salary and providing that she would receive payment for her accumulated vacation and sick leave upon her retirement.
Subsequently the parties entered into a new agreement that eliminated the career increment provision and barred Palandra from receiving payment for unused leave time upon her retirement. Instead, Palandra’s was retroactively raised to $224,268, with increases in following years capped at 5%.
Ultimately the New York State Teachers’ Retirement System [TRS] excluded those increases from the calculation of Palandra's final average salary and reduced her retirement benefits accordingly. Palandra sued but Supreme Court dismissed her petition.
The Appellate Division affirmed the lower court’s ruling, noting that “In order to calculate [Palandra’s] retirement benefits, [TRS] must rely upon her final average salary, defined as "the average regular compensation earned . . . during the three years of actual service immediately preceding [her] date of retirement" as mandated by Education Law §501[11] [b]. Accordingly, the Retirement System will act to prevent the artificial inflation of that figure by excluding "any form of termination pay or compensation otherwise paid in anticipation of retirement."
The court explained that Palandra had received extraordinary salary increases in the 2001-2002 and 2002-2003 school years and, indeed, had altered the terms of prior agreements to do so. Moreover, the latter increase was accompanied by the elimination of her contractual rights to obtain payments for accumulated leave time upon her retirement and an optional one-time only increment, "items that were facially excludable from her final average salary.”
The Appellate Division, conceding that “material in the record that could support a different result,” held that the Retirement System could “rationally concluded from the above evidence that the 2001-2002 and 2002-2003 salary increases were made in anticipation of [Palandra’s] retirement and excluded them from her final average salary."
The court also rejected Palandra’s claim that the System's “otherwise rational determination” was rendered arbitrary and capricious by the delay in issuing it.
The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

September 11, 2011 in Pension Law, Public Sector Employment Law | Permalink | Comments (0)