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