Adjunct Law Prof Blog

2012 "Hot" Areas Of The Law

Now that 2012 is about to be here, I thought an appropriate posting would be about what is expected to be a "hot" area of the law. According the National Jurist, these are the hot areas:

White Collar Crime, Regulatory work, Financial Services, Cyber Crime, Labor & Employment law, and Immigration. Commercial Real Estate is also starting to get hot. 

Mitchell H. Rubinstein

Obama considering recess appointments to NLRB

Details here. 

Bloggers Held Not To Be Journalists

Obisdian Finance Group v. Fox, ____F.Supp.2d____ (D. Or. Nov. 30, 2011), is an important case for us bloggers. Oregon has a statute which limits defamation damages unless a plaintiff first requests a retraction. The court held, however, that a internet blogger, was not protected under that statute and therefore, could not rely on that defense. The court also held that a blogger was not protected under that state's shield law which privileged journalists from revealing their sources. 

It is hard to find fault with the court's decision. It was based purely on statutory interpretation. Though blogging is similar to other journalist type activities, it is different. The medium is different (internet) and you do not have to sell your story; rather you just put it out there. There are no professional organizations, educational degrees or regulations which govern blogging. In short, it is different. Perhaps this case will trigger legislation throughout the several states.

Mitchell H. Rubinstein

IDEA's Exhaustion Requirement Is Not Jurisdictional

Payne v. Peninsula Sch. Dist., ___F.3d___ (9th Cir. Jul. 29, 2011), is an interesting special education case. The 9th Circuit, sitting en banc held that the Individuals with Disabilities Education Act’s (IDEA) exhaustion of administrative remedies requirement is not jurisdictional and, instead, is an affirmative defense that must raised by a school district or is waived.

The majority also ruled that IDEA’s exhaustion requirement only applies when the relief sought by a plaintiff is available under IDEA. It concluded that non-IDEA claims that are not seeking relief under IDEA are not subject to the exhaustion requirement.  Therefore, the court held, “although the district court properly dismissed Payne’s IDEA-based § 1983 claim, it should not have dismissed her non-IDEA claims on exhaustion grounds.”

Mitchell H. Rubinstein

 

Rare Civil Service Law Section 75 Overturned

 

Matter of Licciardi v City of Rochester, 2011 NY Slip Op 06781, Appellate Division, Fourth Department

The Appellate Division modified a portion of decision that found Mark A. Licciardi guilty of a number of act of alleged misconduct and remanded the matter to the City for “new findings” concerning one of the charges and for its reconsideration of penalty initially imposed, termination.

The court agreed with Licciardi contention that “several of the findings of misconduct rendered following a hearing are not supported by substantial evidence.”

In particular, the Appellate Division ruled that four of the charges of misconduct involved Licciardi's part-time outside employment while on sick leave from his employment as a firefighter. However, said the court, there was no relevant proof as a reasonable mind may accept as adequate to support [the] conclusion that working an additional part-time job while employed by respondent's Fire Department was not permitted or that the part-time job itself was improper or illegal.

The Department had alleged that Licciardi's conduct violated certain Department rules. The court ruled that there was no substantial evidence that Licciardi has conducted himself “in a manner unbecoming[] or prejudicial to the good reputation, the order, or discipline of the . . . Department” nor that he failed to conduct himself “at all times … to the credit of the Department.”

Further, the Appellate Division overturned the Department’s finding that Licciardi had violated the Department's rule that a member shall not " knowingly or intentionally make or cause to be made a false report in connection with the . . . Department or other employees thereof'” when he submitted a letter from his treating physician that stated without qualification that he was unable to work during the time that he was out on sick leave. The court noted that at the hearing Licciardi’s physician testified that Licciardi’s disability was causally related to a work incident at the Department and that, although he was prevented from working as a firefighter, the part-time job outside of the Department was therapeutic.

The court’s conclusion regarding this allegation was that it was not supported by substantial evidence.

Also, said the court, it agreed with Licciardi's contention that he had been found guilty of a charge “based on conduct that was not alleged in the single specification supporting the charge” and thus must be annulled “as outside the scope of the charge.”

The decision is posted on the Internet at:

 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_06781.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

California enacts anti-bullying law education law

The Lodi News-Sentinel reports that California Governor Jerry Brown has signed an anti-bullying bill  into law that will create an anti-bullying system at all California schools.  The bill, known as “Seth’s Law,” requires school districts to institute anti-harassment policies and an online complaint procedure, with shorter timelines for investigating claims of bullying. 

Source: Lodi News-Sentinel, 10/14/11, By Steven Mayer

 

6th Circuit Issues Major Decision Addressing Volunteer Coverage Under Title VII

Bryson v. Middlefield Volunteer Fire Department, ____F.3d____(6th Cir. Sep't. 2, 2011), is a major employment law case. Normally, Title VII as well as other employment laws only covers employees. Thus, volunteers would not be protected under most employment laws because they are not employees. But who is a volunteer? Does it may if they receive some type of remunication? I wrote a law review article on this in 2006. Our Nation's Forgotten Workers: The Unprotected Volunteers  
Journal of Labor and Employment Law, Vol. 9, p. 147. Notice how I use the term "most." There are several circumstances where an employment relationship could be found where there is no traditional employment relationship. I will have more to say on this topic when my forthcoming law review article in the Univ of Penn Journal of Business Law is published early next year. For now, I wish to stick to the issue of the status of volunteers. 

In Bryson, the 6th Circuit rejected the Second Circuit's two step test which first examines whether the putative employee receives significant remuneration and then analyzes the common law right to control test. The 6th Circuit held that the issue of remuneration should not be part of a separate step, but rather it is an issue which can be included within the common law factors. Thus, the court drew a very fine line. It explained its reasoning as follows:

We believe that the district court erred, however, in its conclusion that remuneration must be an independent antecedent inquiry. The district court adopted the Second Circuit's two-step test for determining whether an individual is an employee under Title VII, which requires a plaintiff to establish first that she is a "hired party" by showing that she received "substantial benefits not merely incidental to the activity performed," before the district court may consider the common-law agency test from Darden and Reid. City of New York, 359 F.3d at 91-92 (internal quotation marks omitted); see R.25 (Dec. 14, 2009 Dist. Ct. Op. at 3 & n.4) (citing O'Connor v. Davis,126 F.3d 112, 115-16 (2d Cir. 1997), cert. denied, 522 U.S. 1114 (1998)). In this case, each individual firefighter-member is a "hired party" in that each has a contractual relationship with the Department—the firefighter-member provides firefighting services to the Department in exchange for benefits from the Department, including worker's compensation coverage, insurance coverage, gift cards, personal use of the Department's facilities and assets, training, and access to an emergency fund. See Demski v. U.S. Dep't of Labor, 419 F.3d 488, 492 (6th Cir. 2005) (concluding that petitioner—the sole shareholder of a company that had contracts with the purported "employer" company—was not an "employee" of the latter company under the Energy Reorganization Act, 42 U.S.C. § 5851, because "[i]t is undisputed that no contractual relationship of any sort existed between [the purported "employer" company] and [the petitioner]"). But we decline to adopt the Second Circuit's view that, to be a "hired party," a plaintiff must demonstrate that she received significant remuneration. See City of New York,359 F.3d at 91-92; York v. Ass'n of the Bar of N.Y., 286 F.3d 122, 125-26 (2d Cir.), cert. denied, 537 U.S. 1089 (2002); O'Connor, 126 F.3d at 115-16.

We do not believe that the term "hired party" from Darden and Reid supports an independent antecedent remuneration requirement. The Supreme Court included the term "hired party" inDarden only in a direct quote from its decision in Reid, and the Reid Court's use of "hired party" was in the context of the "work for hire" provision from the Copyright Act. Although the Court did not define "hired party" in Reid, it did define "hiring party": "By `hiring party,' we mean to refer to the party who claims ownership of the copyright by virtue of the work for hire doctrine."490 U.S. at 739. We doubt that the Court would define "hiring party" as such while at the same time considering "hired party" to carry much more substantive weight in requiring that it be an individual who received significant remuneration for his services. Moreover, the Court's instruction to apply the common law of agency is not limited to when the individual receives significant remuneration but rather "when Congress has used the term `employee' without defining it." Reid, 490 U.S. at 739-40 (emphasis added); accord id. at 741 ("[T]he term `employee' should be understood in light of the general common law of agency."); see also Darden, 503 U.S. at 323 ("[W]e adopt a commonlaw test for determining who qualifies as an `employee' under ERISA.").

Our decision to consider remuneration as a factor when determining whether a employment relationship exists comports with Darden's instruction that, when evaluating a particular relationship, "`all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.'" Darden, 503 U.S. at 324 (quoting UnitedIns. Co., 390 U.S. at 258);accord Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 450-51 (2003);Johnson, 151 F.3d at 568; Ware, 67 F.3d at 578. "`[T]he extent of control . . . is not dispositive,'" and several of the factors listed in Darden and Reid relate to financial matters.Ware, 67 F.3d at 577-78 (quoting Reid, 490 U.S. at 752). To be sure, "[t]he degree of importance of each factor [will vary] depending on the occupation and the factual context in which the services are performed." Rev. Rul. 87-41; accord Ware, 67 F.3d at 578. But no one factor, including remuneration, is decisive, and therefore no one factor is an independent antecedent requirement.

Mitchell H. Rubinstein

 

Education Law Jobs

School Law Jobs
Job Title	Employer	Job Location
Legislative Counsel	Americans United for Separation of Church and State	Washington, D.C.
Associate	Scheuer, Yost & Patterson	Santa Fe, New Mexico
General Counsel	Victory Education Partners	New York, New York
Senior Staff Attorney	National School Boards Association	Alexandria, VA

 

New York Chief Judge Lippman; The Next Great Dissenter??

Dissenting Often is an interesting Oct. 9, 2011 article from the New York Times. It brings attention to NYS Court of Appeals Chief Judge Jon Lippman who is drawing attention the Court by the number of dissents he has written. This article is certainly worth a read for those interested in New York law.

Mitchell H. Rubinstein

25 Tips For Staying Sane During Law School

Online Colleges, a commercial site, just published 25 common sense tips for staying sane during law school, here. The first 5 are reproduced below:

1. Keep your goals achievable

   It’s great to set big dreams and work toward making them a reality, but be careful not to overdo it. Think about how you’re going to get there, and set achievable goals that you know you can reach along the way. Checking off goals that are realistic for you to achieve can really build your self confidence, and give you momentum to keep going for the big stuff.

2. Give your mind a break after lectures

   After going through lectures and briefing, your mind needs a break. Although it’s tempting to go straight to the books, spending a little time vegging out is important to your mental health and energy. For an hour after your lectures are over, just take some time to do something else, like playing with your pets or watching TV. Anything that can temporarily get your mind off of law school and let you be yourself for a while.

3. Practice time management

   It’s tempting to just jump in and do all you can without thinking about how it’s actually going to get done, but by budgeting your time, you can accomplish more and have less anxiety about it all. Manage your time by reviewing your weekly goals and tasks, then organize your time into daily task lists. You may not meet your goals perfectly every week, but by managing your time, you will likely get closer to perfect and have less worry about how it’s all going to get done.

4. Eat a balanced diet

   Junk food is convenient and easy to mindlessly shove down your throat while you’re trying to focus on studying, but it’s terrible for your energy and health. Take the time to eat food that’s actually good for you, because junk food will catch up with you eventually. Healthy food including fruits and vegetables can be made accessible, and they will help keep your mind going when you need it the most.

5. Spring clean your life

   Before you begin law school, tame all of the issues that might pop up as a distraction to your studies. Visit the dentist, organize your house, and take care of any nagging issues that can mess with your time management. Do whatever you can to automate your life, including paying bills, so that you can focus on what’s absolutely necessary. If you didn’t get a chance to do this before school started, be sure to take care of it during breaks.

Mitchell H. Rubinstein

Hat Tip: Jasmine Hall

Under FAA, even if error of law occurred, an arbitration will not be vacated

The Seventh Circuit held that an error of law, no matter how egregious, is not grounds for a court to vacate an arbitration award under the Federal Arbitration Act or FAA.   In Affymax, Inc. v. Ortho-McNeil-Janssen Pharmaceuticals, Inc., et al., ___F.3d____(7th Cir. Oct. 3, 2011), the Seventh Circuit reversed the lower court which vacated a portion of the award. 

The District Court found that the arbitrators “manifestly disregarded the law” because they did not discuss or provide analysis for the basis of a portion of their award.  In noting that the FAA provides an exclusive list of reasons for which an arbitration award can be vacated, the Seventh Circuit clarified that a legal error, even one rising to the level of manifest disregard, made by an arbitrator is not a basis for vacating an arbitration award. 

Mitchell H. Rubinstein

9th holds elementary school students enjoy First Amendment free speech rights, but school principals are entitled to qualified immunity for banning distribution of religious materials

Morgan v. Swanson, ____F.3d____ (9th Cir. Sept. 27, 2011) (en banc), is an interesting case. The 9th, sitting en banc, reversed a lower court’s decision denying two elementary school principals qualified immunity from a free speech suit brought by two students. A majority agreed that the law was not “clearly established” at the time the principals banned the students from distributing religious materials on school grounds. A separate majority, rejecting the principals’ argument that elementary school students do not enjoy First Amendment free speech rights, held that such rights do extend to elementary school students under Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

Mitchell H. Rubinstein

Union employee's Title VII and ADEA claims were dismissed because they were subject to mandatory arbitration under collective bargaining agreemen

Veliz v Collins Bldg Svs, Inc, ___F.Supp.2d___(S.D.N.Y., September 26, 2011) is an intersting Pyett type of case. A discharged union employee of Peruvian origin was unable to proceed with his Title VII and ADEA claims of national origin and age bias and reprisal because his claims were subject to mandatory arbitration under the applicable collective bargaining agreement. The court dismissed the employee’s Title VII and ADEA claims against several individual defendants because individuals cannot be held liable under either statute.

Mitchell H. Rubinstein

Employee discharged for refusing to provide social security number to drug-testing personnel failed to show religious discrimination

Sometimes you cannot make these cases up. In Warren v The Shaw Group, Inc, ___F.Supp. 2d___ (D. Nev., September 26, 2011) the court held that an employee failed to demonstrate a prima facie case of religious discrimination after he was terminated for refusing to provide his social security number to drug-testing personnel. The social security number for the drug test was for “employment purposes”because without the drug test he could not start his job. Moreover, his use of his social security number on job applications and to obtain a driver’s license was inconsistent with his claim that his refusal to use his social security number was based on a bona fide religious belief.

Mitchell H. Rubinstein

Morbidly obese employee was not disabled under the ADA, employer did not fail to accommodate

Michaels v Continental Reality Corp, ___F.Supp. 2d___(D.Md. September 26, 2011), is an interesting case. The court held that a morbidly obese computer network administrator failed to sufficiently allege that his employer terminated him because he was disabled within the meaning of the ADA.The court first reasoned that the administrator was not disabled under the ADA. Although he was obese, the court found no evidence that his condition substantially limited him in a major life activity. Moreover, the court noted, even if the administrator was disabled under the ADA, he had not shown that the employer failed to accommodate him. The record was devoid of any allegation that the employer even knew that the administrator allegedly suffered from an ADA-qualifying disability or that he was requesting an accommodation.

Mitchell H. Rubinstein

Commissioner of Education Does Not Have Jurisdiction Over Special Ed Cases

Appeal of Student With A Disability, No. 16, 286 (Aug. 17, 2011), is an interesting case. It stands for the proposition that in New York, the Commissioner of Education does not have jurisdiction in special education cases. Rather, an appeal must be filed before an Impartial Hearing Officer or IHO.

Mitchell H. Rubinstein

Union Granted 10(j) Injunction In California

Baudler v. American Baptist Homes of the West, No. 11-2480, 2011 WL 2870464 (N.D. Cal. July 19, 2011), is an interesting case as you do not see them very often. A lower federal court in California held that the employer must rehire striking workers. 

A majority of union members went on strike, and the employer hired temporary replacements. Although the union offered to return to work unconditionally after five days, the facility made permanent job offers to the replacement employees. As a result, 38 of the 80 strikers were denied reinstatement to their original positions.

The union filed several unfair-labor-practice charges against the facility with the NLRB and obtained an an injunction for the duration of the NLRB proceedings to prohibit the employer from:

• • Barring off-duty union members from entering the facility for union activity, while allowing access for other reasons (no-access rule).
• • Refusing reinstatement to employees with union ties.
• • Interfering with employees' right to engage in organizing activities.

Mitchell H. Rubinstein

The Sad State Of Legal Scholarship Today

Professor Ian Bartrum (UNLV Law School), wrote an interesting blog post for Prawfs Blawg, here, where he raises the question whether professors should write articles with an eye towards being cited by a court. Though I applaude this professor for raising this important issue, my view is that the legal academy has materially degraded legal education today by focusing on legal theory which means virtually nothing to the students who pay their salary. These same professors often assign those law review articles as required reading, leaving many students with a distaste for legal scholarship. My complete posting is set forth below:

I am an adjunct law professor who has published 16 law review articles and a practicing attorney for more than 25 years. I would like to think that I understand this issue-but I simply don't. I do not understand the utility in writing an article that is simply going to be read by a few others interested in the topic or a tenure committee. The purpose of writing a law review article, as I see it, is not to impress your Dean. It is to influence the development of the law. For that to occur, your articles must be read by judges, clerks and yes, lawyers who might cite you in a brief. I have been told by several senior faculty that it is more important to be cited by other commentators than by courts. That is complete rubbish.The problem is that too many (almost all the recent hires at law schools these days) law professors are simply incompetent to practice law because they have very little legal experience. Sorry, clerking for two years with summer associate experience is not equal to practice. As a result professors do not write about practical issues. Chief Justice Roberts and others are spot on in their statements about legal scholarship today. This is not going to change until law schools start putting a premium on legal practice. After all unless you teach at one of those top 5 schools, most of your students, who pay your salary, are going to go into practice. From the chair that I sit in, though some law professors give lip service to the importance of practice, the ones who control law schools simply don't. Oh yes, law schools may point to the lowest paid and untenured adjuncts to teach practice. While that is a point for another posting, suffice it to say that most students would be shocked to know that the doctrinal tenured faculty do not research anything worth writing.  

Mitchell H. Rubinstein

Adjunct Professor of Law New York Law School

Senior Counsel New York State United Teachers

Mishandling of tip pools cause employers to lose benefit of “tip credit”

Under the Fair Labor Standards Act, employers may deduct from the hourly wage of tipped employees an amount known as the “tip credit.” Employers are barred from taking a tip credit if any person who does not “customarily and regularly” receives tips shares in the tip pool.  Including tip ineligible employees in a tip pool can have costly consequences for an employer. The Fifth Circuit in Roussell v Brinker Int’l, Inc, ____F.3d____(5th Cir. September 15, 2011), affirmed a $1.8 million jury verdict in favor of 55 Chili’s restaurant servers in their FLSA collective action, alleging that they were unlawfully coerced into sharing their tips with “quality assurance” workers who did not customarily and regularly receive tips. Although there was no express corporate policy mandating tip-sharing, a pattern of managerial coercion was shown. For another recent example, see, Widjaja v Kang Yue USA Corp, ___F.Supp.2d____(S.D.N.Y. September 26, 2011).