Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Tuesday, January 31, 2012

Punitive damages awarded for failure to act to prevent sexual abuse of students


G.G. v Grindle, U.S. 7th Circuit Court of Appeals, Docket 10-3506 

The Seventh Circuit Court of Appeals affirmed an award of compensatory and punitive damages based on a jury finding a school administrator failed to prevent the sexual abuse of several female students by their teacher.
The teacher had pled guilty to multiple counts of aggravated kidnapping and aggravated criminal sexual abuse.
The award for damages, said the court, was justified in view of the administrator’s failure to act, noting that the administrator advanced “no basis for invalidating the jury’s determination that her conduct justified the imposition of punitive damages.”
The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein


January 31, 2012 in Education Law | Permalink | Comments (0)

Monday, January 30, 2012

Parent's Obstructionist Tactics Excuse DOE Procedural IDEA Violations


French v. Board of Education, ___F.3d___(2d Cir. Nov. 3, 2011), is an interesting IDEA case. The issue was whether the student was entitled to compensatory education. Compensatory education involves services past age 21 and it requires a gross IDEA violation. Because of the parent's obstructionist tactics in refusing to cooperate, the procedural violations by the DOE were found to have not been "gross." As the court explained:

In our view, the District Court did not err in finding that the primary fault for the gap in Amy’s education lies with her father and not with the District.  As discussed above, French repeatedly rescheduled meetings and refused to allow special education teachers sent by the District to meet with Amy, thereby delaying the development and implementation of the District’s IEPs.  He refused to participate in CSE meetings or to recognize IEPs drafted throughout 1998 and 1999 because he insisted that the District conduct a comprehensive evaluation of Amy—an evaluation French repeatedly obstructed when the District later sought to conduct it.  Further, although the June 23, 1999 IEP wasdeclared invalid by the DoE, it was only one of several IEPs developed by the CSE that were in effectduring the period between 1996 and 2003.6  If French had availed himself of those IEPs, Amy would not have been deprived of the opportunity for a FAPE.  It is clear from the record that French, by engaging in the obstructionist tactics discussed above,substantially prevented the District from implementing properly-developed IEPs that it was ready and willing to implement, and from developing revised IEPs that could have assuaged his concerns

Mitchell H. Rubinstein


January 30, 2012 in Special Education Law | Permalink | Comments (2)

Sunday, January 29, 2012

Court Upholds Warrantless Placement of GPS Device In Employee's Car

Matter of Cunningham v. NYS Dep't of Labor, ___A.D.3d___(3d Dep't. Nov. 23, 2011), is an important case. The issue in the case was whether the data from a GPS device placed in a public employer's private car was admissible in a Civil Service Law Sec. 75 hearing without a warrent. A divided court held that it was, reasoning:

Petitioner argues that the GPS devices placed on his car without a warrant [FN2] constituted [*3]an illegal search and seizure under the NY Constitution and that all data related thereto should have been excluded from evidence at the administrative hearing. In a case decided after OIG had concluded its investigation of petitioner, the majority in the Court of Appeals held that, within the context of a criminal investigation, "[u]nder our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause" (People v Weaver, 12 NY3d 433, 447 [2009]). Although the GPS evidence gathered in this proceeding would have likely been excluded from a criminal trial under Weaver, the standard for using or excluding evidence at administrative proceedings is not controlled by criminal law (see Matter of Boyd v Constantine, 81 NY2d 189, 195 [1993]; Matter of Stedronsky v Sobol, 175 AD2d 373, 375 [1991], lv denied 78 NY2d 864 [1991]; Gibson v Koehler, 165 AD2d 768, 769 [1990]; see also Immigration & Naturalization Serv. v Lopez-Mendoza, 468 US 1032, 1041-1042 [1984]; McCormick, Evidence § 173 [6th ed] [supp] [observing that most courts do not apply the exclusionary rule to various administrative proceedings including employee disciplinary matters]).

A search conducted by a public employer investigating work-related misconduct of one of its employees is judged by the standard of reasonableness under all the circumstances, both as to the inception and scope of the intrusion (see Matter of Caruso v Ward, 72 NY2d 432, 437 [1988]; see also O'Connor v Ortega, 480 US 709, 725-726 [1987]). Closely related, but typically applied when the search was conducted by an entity other than the administrative body seeking to use the evidence in a disciplinary proceeding, is the exclusionary rule in the noncriminal context; such rule is applied by "balancing the deterrent effect of exclusion against its detrimental impact on the process of determining the truth" (Matter of Moro v Mills, 70 AD3d 1269, 1270 [2010]; see Matter of Boyd v Constantine, 81 NY2d at 195). In noncriminal proceedings, the clarity of the law at the time the governmental official acts can be pertinent to the reasonableness of the action and the deterrent effect (see Burka v New York City Tr. Auth., 747 F Supp 214, 220 [SD NY 1990]; see also Immigration & Naturalization Serv. v Lopez-Mendoza, 468 US at 1060 [White, J., dissenting] [urging that exclusionary rule be applied in deportation proceedings "when evidence has been obtained by deliberate violations of the Fourth Amendment or by conduct a reasonably competent officer would know is contrary to the Constitution"] [emphasis added]).

Here, respondent did not conduct the investigation in which the GPS was used, but it did refer the matter to OIG for the purpose of an investigation. Under such facts, the reasonableness test appears applicable [FN3]. It is undisputed that respondent had reasonable grounds at the inception of the use of the GPS to support individual misconduct by petitioner. At the time of the current investigation by OIG, an earlier disciplinary action involving petitioner was pending regarding false time records, and respondent's investigation had revealed reasonable suspicion of a continuation of such conduct. Respondent clearly had a responsibility to curtail the suspected ongoing abuse of work time not only to preserve its integrity, but also to protect taxpayers' monies.

With regard to the scope of use of GPS devices, the most serious charges against [*4]petitioner involved an ongoing pattern of abuse of work time, and traditional methods — such as tailing petitioner — had been tried and had been thwarted. Petitioner used his personal vehicle during working hours for some of the suspected abuse of his state job. He could hardly have been surprised to be under investigation in light of his recent past, as well as his ongoing problems at work. The GPS devices were not constantly monitored and, in fact, there is no indication that such a capability existed for the devices that were used [FN4]. They were retrieved and information relevant to petitioner's location during work hours was extracted. To establish a pattern of serious misconduct (i.e., repeatedly submitting false time records and not a mere isolated incident), it was necessary to obtain pertinent and credible information over a period of time. Obtaining such information for one month was not unreasonable in the context of a noncriminal proceeding involving a high-level state employee with a history of discipline problems who had recently thwarted efforts to follow him in his nonwork-related ventures during work hours. Given the facts and circumstances at the time of the investigation, we are unpersuaded that OIG or respondent acted unreasonably.[FN5

Mitchell H. Rubinstein


January 29, 2012 in Education Law, Public Sector Employment Law | Permalink | Comments (0)

Cost of Private Education In NYC

Ever wonder what the cost of First Grade is at a private school in NYC? Its pushing $40,000. Details are discussed in this Jan. 27, 2012 New York Times article. Now, does anyone seriously think this is reasonable?

Mitchell H. Rubinstein 

January 29, 2012 in Education Law | Permalink | Comments (2)

Saturday, January 28, 2012

Union Membership In Private Sector Declines To Below 7%

On Jan. 27, 2012, the BLS released its annual set of statistics on unions. For those of us supportive of unions the news continues to not be good. Overall union membership declined to 11.8% from 11.9%. Public sector union membership is at 37% and private sector union membership is down to 6.9%. Among States, New York continues to have the highest union membership rate (24.1%) and North Carolina again had the lowest (2.9%). 7.6 million workers belong to unions in the public sector as opposed to 7.2 million in the private sector. 

Mitchell H. Rubinstein

January 28, 2012 in Unions | Permalink | Comments (0)

Friday, January 27, 2012

School 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


January 27, 2012 | Permalink | Comments (0)

Thursday, January 26, 2012

7th Will Consider Whether Holding Graduation In A Church Violates Establishment Clause

Reportedly, the 7th Circuit will rehearen banc arguments on whether a Wisconsin high school violated the First Amendment by holding graduation ceremonies in a church. 

Source: Courthouse News Service, 11/21/11, By Joe Celentino

January 26, 2012 in Education Law | Permalink | Comments (0)

Wednesday, January 25, 2012

Defamation action based on the publication of a judicial decision fails


Panghat v New York State Div. of Human Rights, 2011 NY Slip Op 08475, Appellate Division, First Department
Lijo Panghat, alleging that he had suffered defamation as the result of the New York State Division of Human Rights’ having published of a judicial decision in a related matter on its website, sued the Division in the Court of Claims.
The Appellate Division affirmed the Court of Claims’ dismissing his complaint, commenting that Civil Rights Law §74 prohibits a civil action that alleges injury as a result of "the publication of a fair and true report of any judicial proceeding." Further, said the court, “The privilege under that statute is absolute and applies even in the face of allegations of malice or bad faith.”
Civil Rights Law §74 grants certain privileges in situations involving an action for libel. The section provides that “A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published.”


§74, however, states that it “does not apply to a libel contained in any other matter added by any person concerned in the publication; or in the report of anything said or done at the time and place of such a proceeding which was not a part thereof.”

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

January 25, 2012 in New York Law | Permalink | Comments (1)

Tuesday, January 24, 2012

Colorado district’s decision to limit transgender student to use of staff restrooms sparks debate over equal educational opportunities policy

A Colorado High School transgender student, who was born male but identifies as female, was told that she can only use the staff restrooms at the school, reports the Coloradoan. The student in question, argues she should have the same rights as any student to use the bathroom of her choice.

Source: Coloradoan, 11/16/11, By Sarah Jane Kyle

Mitchell H. Rubinstein

January 24, 2012 in Constitutional Law | Permalink | Comments (0)

Monday, January 23, 2012

Lockouts In the News

More Lockouts As Companies Battle Unions is an interesting New York Times article by Steven Greenhouse. It is about increased use of offensive lockouts by employers who then turn around and hire temporary replacement workers. As the article states:

The number of strikes has declined to just one-sixth the annual level of two decades ago. That is largely because labor unions’ ranks have declined and because many workers worry that if they strike they will lose pay and might also lose their jobs to permanent replacement workers.

Lockouts, on the other hand, have grown to represent a record percentage of the nation’s work stoppages, according to Bloomberg BNA, a Bloomberg subsidiary that provides information to lawyers and labor relations experts. Last year, at least 17 employers imposed lockouts, telling their workers not to show up until they were willing to accept management’s contract offer.

Mitchell H. Rubinstein


January 23, 2012 in Labor Law | Permalink | Comments (2)

The Discipline Book (2012 edition)

Harvey Randall, a good friend to this blog who we often cite, New York Public Personnel Law, and Eric Randall, just published a 2012 edition to their wonderful book on employee discipline. The book is available for purchase  here. We have reviewed earlier editions of this book and it is better than ever. The book now spans over 1500 pages and is full of up-to-date cases. The book is only available as an E-Book which means that you download it. This also means that it is fully searchable in MS Word. 

The book remains the only comprehensive work which examines New York public employment law and is one of those "must have" books for lawyers, union and management officials as well as professors who teach in this area. To give you an idea of the breadth of this work, the Table of Contents is reproduced below:


Table of Contents


Part One: Who is entitled to due process?
1.01 Due process rights depend on appointment status and jurisdictional classification
1.02 Who is entitled to due process?
1.03 Who has no due process rights?
1.04 Due process rights under Section 3020-a
1.05 The concept of tenure
1.06 “Permanent” appointments, probation and tenure in the competitive class
1.07 Permanent vs. probationer vs. provisional
1.08 Probationers’ due process rights
1.09 Temporary and provisional appointments
1.10 Jurisdictional misclassification
1.11 Budgetary classification irrelevant to due process rights of employees
1.12 Rights of employees of quasi-government entities
1.13 Veterans’ due process rights
Part Two: Forms of due process

1.14 Impartial tribunals
1.15 Specificity of charges
1.16 Immunity from discipline
1.17 Right to pre-determination hearing
1.18 Ambiguity of language in Taylor Law agreements
1.19 Right of appeal and timeliness
1.20 Absence from hearings
1.21 Notice of hearings
1.22 Name-clearing hearings
1.23 Due process and optional hearings
1.24 Removal by operation of law
1.25 Suspension without pay
1.26 Authority to discipline
1.27 Pending criminal matters
1.28 Double jeopardy
1.29 Civil rights
1.30 First Amendment rights
1.31 Freedom of information
1.32 Public hearings
1.33 Disciplinary action based on pre-employment misconduct


2.01 Overview: Disciplinary investigations
2.02 Handling complaints
2.03 Anonymous allegations
2.04 Fairness in investigations
2.05 Interviewing employees
2.06 Refusal to answer questions
2.07 Free speech
2.08 Self-incrimination and immunity
2.09 Lying by employees
2.10 Statute of limitations on discipline
2.11 Legal representation during investigations
2.12 Suspension with or without pay
2.13 Affect of criminal actions on suspensions
2.14 Impact of criminal action on disciplinary action, generally
2.15 Voluntary resignations
2.16 Issuing subpoenas, recording evidence
2.17 Informants
2.18 Evidence
2.19 Recording investigation findings
2.20 Record-keeping
2.21 Defamation of employees


3.01 Forms of evidence
3.02 Hearsay evidence
3.03 Standard of proof: criminal vs. disciplinary hearing
3.04 Standard of proof, Section 75
3.05 Standard of proof, Section 3020-a
3.06 Effect of criminal conviction or dismissal on discipline
3.07 Testimony by the accused
3.08 Best evidence rule
3.09 Tainted evidence
3.10 Confessions and coercion
3.11 Competent and incompetent witnesses
3.12 Opinion evidence
3.13 Foundation for testimony
3.14 Credibility of witnesses
3.15 Conflicting evidence
3.16 Employee surveillance
3.17 Judicial notice
3.18 Disclosure of personal records
3.19 Unsealing criminal records
3.20 Standard of conduct
3.21 Admissions
3.22 Source of documentary evidence
3.23 Privileged communications
3.24 Using polygraph tests in disciplinary actions
3.25 Pitfalls for that a hearing officer must avoid


4.01 The Pell standard
4.02 Court review
4.03 Lawful penalties
4.04 Recommending penalties
4.05 Using the individual’s employment history in disciplinary action
4.06 Indemnification
4.07 Expiration of the penalty
4.08 Whistleblower protection
4.09 Determining the penalty to be imposed
4.10 Due Process and Progressive Discipline
4.11 Substantial Evidence
4.12 The Pell Standard of Fairness
4.13 Reasons Courts Reject Penalties
4.14 Violations of the Pell standard
4.15. Penalty: reprimand
4.16 Loss of leave credits and other alternative penalties
4.17 Penalty: fine
4.18 Penalty: suspension
4.19 Penalty: demotion
4.20 Time and attendance issues
4.21 Examples of penalties imposed


5.01 Notice of discipline
5.02 The “Bill of Rights” in contracts
5.03 Absence from work during disciplinary activities
5.04 Duty of fair representation
5.05 Procedures under contracts
5.06 Reassignments
5.07 Settlement
5.08 Pre-hearing suspensions


6.01 Key procedural elements
6.02 Charges must be specific
6.03 Employee must receive opportunity to respond
6.04 Right to union representation
6.05 Statute of limitations
6.06 Serving charges
6.07 Pitfalls to avoid
6.08 Criticism is not discipline
6.09 Admission of guilt difficult to retract
6.10 Pending criminal charges
6.11 Choice of law


7.01 Statute of limitations
7.02 Need for investigatory report regardless of merit of allegations
7.03 Risk of libel or slander as a result of investigatory report
7.04 Name-clearing hearings
7.05 Pitfalls to avoid
7.06 Criticism is not discipline
7.07 Procedures in filing charges
7.08 Use of school attorney
7.09 Verdict shopping
7.10 The Section 3020-a process
7.11 Informing the Commissioner
7.12 Hearing panel members
7.13 Pre-hearing conferences
7.14 Characteristics of arbitration


8.01 Suspension without pay – general considerations
8.02 Suspensions with pay, Sections 72 and 75
8.03 “Emergency” Suspensions
8.04 Suspension without pay, generally
8.05 Suspension without pay of unlicensed individual
8.06 Suspension without pay in the event of postponement of disciplinary proceeding
8.07 Suspension of a school superintendent
8.08 Unpaid suspension past 30 days: Conflict with local law
8.09 Suspension without pay, medical
8.10 Suspension without pay
8.11 Effect of criminal actions on suspensions
8.12 Mitigation of damages
8.13 Taxation of a settlement
8.14 Recoupment of cash advances
8.15 Bad faith
8.16 Employment contracts
8.17 Suspension with pay, pending criminal action
8.18 Reassignment pending discipline
8.19 Suspension without pay failure to report to work
8.20 Repayment of salary after being continued on the payroll


9.01 Simultaneous prosecution
9.02 Acquittal of criminal charges does not bar disciplinary action
9.03 Criminal conviction bars administrative acquittal of the same charge
9.04 Use of disclosures in criminal trials
9.05 Probationers and criminal charges
9.06 Reinstatement after acquittal
9.07 Settlement to avoid prosecution
9.08 Administrator’s immunity
9.09 Collateral estoppel
9.10 Disclosure of records


10.01 The settlement option
10.02 Selecting a hearing officer
10.03 Pre-hearing legwork
10.04 A pre-hearing checklist
10.05 Hearing in absentia
10.06 Leave to attend hearing
10.07 Mitigation of damages in cases of acquittal
10.08 Taxation of a settlement
10.09 Independent review of facts
10.10 Considering material in a post-hearing brief submitted by a party
10.11 Stay of arbitration


11.01 Who may appeal?
11.02 What may appeals concern?
11.03 What standards apply in appeals?
11.04 Forums for appeal
11.05 Challenging a Section 75 decision
11.06 Challenging an arbitration award
11.07 Biased hearing officers
11.08 Deadlines for appeal
11.09 Timely and untimely appeals
11.10 Outcomes of appeals
11.11 Vacating or modifying penalties: The Pell Standard
11.12 Back pay and benefits
11.13 Statute of limitations
11.14 Back salary


12.01 Termination for disability
12.02 Section 73 pre-termination due process requirements
12.03 Arbitrating Section 71 and Section 73 terminations
12.04 Other provisions of law
12.05 Considering disability claims
12.06 Termination of a probationary employee


13.01 Necessity of a license
13.02 Removal by operation of law
13.03 Disqualification for employment because of a criminal conviction
13.04 Irrelevance of criminal history
13.05 Removal after convictions
13.06 Contract violation
13.07 Denial of equal protection?
13.08 Employees-at-will
13.09 Withdrawing resignations
13.10 Name-clearing hearings
13.11 Noncompetitive class employees
13.12 Disqualification, Section 50.4 CSL
13.13 Nature of the offense
13.14 Violation of oath of office
13.15 Reversal of felony conviction


14.01 Delays in reinstatements
14.02 Back pay
14.03 Reinstatement


15.01 Reasonable suspicion
15.02 Pre-employment testing
15.03 Due process guidelines
15.04 Guidelines on employee privacy
15.05 Observer’s presence during testing
15.06 Drug testing and collective bargaining
15.07 Penalties
15.08 Refusal to participate in a drug treatment program
15.09 Libel and slander
15.10 The ADA and human rights laws


17.01 Tenure of provisionals by operation of law
17.02 Tenure
17.03 Reviewing probationary employee terminations
17.04 “Permanent probationers”
17.05 Standard of review
17.06 Bad faith determinations
17.07 Separation pay for probationary teachers
17.08 Disciplinary probation
17.09 Light duty and probationary requirements
17.10 Drug use and probation
17.11 Probation and alcoholism
17.12 Probation and stress
17.13 Extension of probation: modified duty
17.14 Traineeships
17.15 Extensions of the probationary period
17.16 Attaining permanent status
17.17 Date of permanent appointment and traineeships
17.18 Non-competitive class employees
17.19 Good faith determinations concerning probationary service
17.20 Notice of termination
17.21 Second probationary periods
17.22 Good faith probationary decisions
17.23 Name-clearing hearings
17.24 Tenure by operation of law
17.25 Transition from probationer to tenured
17.26 Suspension of a probationer
17.27 Rights under a Taylor Law agreement
17.28 Distinguishing between temporary and provisional appointment


Case Summaries

Special Supplements

The “letter of agreement” from NYC Department of Education Chancellor Klein to UFT President Michael Mulgrew concerning disciplinary actions taken against New York Department of Education personnel pursuant to §3020-a of the Education Law.
Education Law Section 3020-a - Timetable & Forms
Mitchell H. Rubinstein


January 23, 2012 in Book Reviews | Permalink | Comments (0)

Sunday, January 22, 2012

Academic Search Engines

For those of you who have missed it, Google Scholar allows you to research cases and Google Citations allows you to keep track of who is citing your publications. Now, Microsoft is getting into the Act. Microsoft Academic searches scholarship. Unfortunately, they do not search legal publications. 

Mitchell H. Rubinstein

January 22, 2012 in Legal Research | Permalink | Comments (2)

Saturday, January 21, 2012

The Changing Face of Unions

Redefining the Union Boss is an interesting Nov. 19, 2011 New York Time article. It highlights Susan Pope, who is the first woman to ever woman to run for President of the Teamsters. So are unions changing? Unions are simply a reflection of society. Society is becomming more white collar so I would expect more female union leaders. The Teamsters are certainly not a white collar workforce. Any time leaders such as Ms. Pope want to get involved, that is a great thing.

Mitchell H. Rubinstein 

January 21, 2012 in Unions | Permalink | Comments (1)

Friday, January 20, 2012

School 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


January 20, 2012 in Lawyer Employment | Permalink | Comments (0)

Thursday, January 19, 2012

A notice of claim served on a public entity must set out the basis for the claim sufficient for it to investigate the claim


Miller v City of New York, 2011 NY Slip Op 08495, Appellate Division, First Department
In cases where the conduct complained encompasses a New York City Department of Education’s employee’s scope of his or her public employment, a notice of claim in accordance with Education Law § 3813[2] and General Municipal Law § 50-i is required as a condition precedent to commencing an action against the employee of the New York City Department of Education [DOE].
In an action that, in effect, claimed a tortious interference with contractual rights, the Appellate Division that Adam Miller did, in fact, filed a notice of claim which described in detail the time, place and manner of the conduct by DOE’s employee that allegedly interfered with his tenure rights and continued employment with the DOE, as well as his ability to enter into employment with other schools.
Citing DeLeonibus v Scognamillo, 183 AD2d 697, the Appellate Division said that although Miller had not used the words "tortious interference with contract," a notice of claim does not have to set forth a precise legal theory of recovery.
All that is required is that the notice of claim described in “sufficient detail the time, place and manner of the occurrence and a plaintiff's damages to advise the City of the basis for the claim so as to provide it with an opportunity to investigate” the allegations.
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein


January 19, 2012 in New York Law | Permalink | Comments (0)

Is Apple Taking Aim At Textbooks Next???

The Huffington Post reports that Apple is introducing a new application to read textbooks. Significantly, this appears to apply to all textbooks-not just college and graduate school. As the article states:

With that, Schiller introduced iBooks 2 and all of its new enhancements for studying. The free application comes with the ability to highlight important passages, view 3D models, videos and images, make flashcards, look up words in the dictionary within the application, search through the book and more. The application is free to download in the iTunes store

With iBooks 2, Apple announced that its first textbooks would be available immediately for $15. The high school texts will initially come from publishing partners Pearson, McGraw-Hill and Houghton Mifflin, representatives of which were all in attendance at the event.

Maybe my age is showing, but I just can't seem to concentrate as well when I read a long text on my computer even where I can highlight it. However, although I am not an Apple fan, one cannot discount anything that they do.

Mitchell H. Rubinstein


January 19, 2012 in News | Permalink | Comments (2)

Wednesday, January 18, 2012

Dissatisfaction With Employment Is Not A Sufficient Reason To Award Unemployment

Matter of Dickey v. Commissioner of Labor, ___A.D3d___ (3d Dep't. Nov. 17, 2011). As the court explained:

Claimant worked for the employer as a meeting planner for only three days. She resigned from her position because the employer insisted that she use her legal name in the performance of her duties, rather than a professional name that she preferred. The Unemployment Insurance Appeal Board ruled that claimant was disqualified from receiving unemployment insurance benefits because she voluntarily left her employment without good cause. Claimant appeals.

We affirm. General dissatisfaction with working conditions has been held to not constitute good cause for leaving one's employment (see Matter of Brookes [Commissioner of Labor], 85 AD3d 1479, 1480 [2011]; Matter of Klarfeld [Commissioner of Labor], 57 AD3d 1031, 1032 [2008]). Claimant here stated that she resigned because she found that the employer's[*2]requirement that she use her legal name was unacceptable. Notably, the employer imposed this requirement to avoid auditing problems, which claimant freely acknowledged. Under these circumstances, we find that claimant left her employment for personal and noncompelling reasons.

Mitchell H. Rubinstein



January 18, 2012 in Employment Law | Permalink | Comments (0)

Tuesday, January 17, 2012

Supremes Deny Cert In Widely Watched Student Free Speech Case

On Jan. 17, 2012, here, the Supremes denied cert. in two widely watched student internet free speech cases. Education Week  provides a short summary of these cases and states:

The appeal in Blue Mountain School District v. Snyder (No. 11-502) involves a 3rd Circuit decision that said students who ridiculed their principals online could not be punished by school authorities because the speech was created off campus and did not substantially disrupt schools.

The 3rd Circuit held in the Blue Mountain case that a Pennsylvania middle school student's 2007 MySpace parody depicting her principal as a sex addict and a pedophile was so outrageous that no one could have taken it seriously.

In a companion case, Layshock v. Hermitage School District, the 3rd Circuit court overturned the discipline of a Pennsylvania high school student who in 2005 had created a fake MySpace profile of his principal on a computer at his grandmother's house. The phony profile played on the principal's purported interest in "big" things, such as smoking a "big blunt," being a "big steroid freak," having stolen a "big keg," and having been drunk a "big number of times."

The 3rd Circuit court found that the profile did not create a substantial disruption in school, and the court rejected the school district's arguments that other facts created a nexus between the parody and the school.

Hat Tip: Legal Skills Prof Blog

Mitchell H. Rubinstein


January 17, 2012 in Education Law | Permalink | Comments (0)

Monday, January 16, 2012

Obama's NLRB Recess Appointments To Be Challenged


Two pro-business groups, including the National Right To Work Foundation, are challenging President Obama's recess appointments to the NLRB. As can be expected, Obama's Justice Department issued a formal opinion which concluded that such appointments were appropriate. A copy of the Justice Department Memo is available here.  

I do not profess to be an expert here, but it seems to me that there is a tension between the advice and consent portion of the constitution with the power to issue recess appointments-particularly where there are back to back recess appointments as in the case of the NLRB. Readers will recall that Craig Becker, whose recess appointment just expired, was appointed last year under a recess appointment. 

Law review commentary on this important issue would be most welcome.

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

January 16, 2012 in Law Review Ideas, NLRB | Permalink | Comments (0)

Sunday, January 15, 2012

NLRB Issues Major Decision On Independent Contractors

Lancaster Symphony Orchestra, 357 NLRB No. 152 (Dec. 23, 2011), is an interesting case. I bring it to your attention because the Board extensively analyzes the distinction between independent contractor and employee, holding that the petitioned for musicians were indeed employees. As the Board explained:

In determining whether individuals areindependent contractors or statutory employees, theBoard applies the common-law agency test, which ultimatelydepends upon an assessment of “all of the incidentsof the relationship . . . with no one factor beingdecisive.” NLRB v. United Insurance Co., 390 U.S. 254,258 (1968), enfg. 154 NLRB 38 (1965); Roadway PackageSystem, Inc., 326 NLRB 842, 843, 850 (1998). Therelevant factors include (1) whether the putative employerhas the right to control the manner and means ofperformance of the job; (2) whether the individual is engagedin a distinct occupation or business; (3) whetherthe individual bears entrepreneurial risk of loss and enjoysentrepreneurial opportunity for gain; (4) whether theemployer or the individual supplies the instrumentalities,tools, and place of work; (5) the skill required in the particularoccupation; (6) whether the parties believe theyare creating an employment relationship; (7) whether thework is part of the employer’s regular business; (8)whether the employer is “in the business”; (9) themethod of payment, whether by time or by the job; and(10) the length of time the individual is employed. See,e.g., BKN, Inc., 333 NLRB at 144; Roadway PackageSystem, 326 NLRB at 849–850 fn. 32. This list of factorsis not exhaustive, and the same set of factors that wasdecisive in one case may be unpersuasive when balancedagainst a different set of opposing factors in another case.Arizona Republic, 349 NLRB 1040 (2007); RoadwayPackage System, 326 NLRB at 850. Moreover, the ultimateinquiry “requires more than simply tallying factorson each side and selecting the winner on the basis of apoint score.” Schwieger v. Farm Bureau Insurance Co.of NE, 207 F.3d 480, 487 (8th Cir. 2000) (making determinationbased on combined weight of all the factors“when considered together in light of common-lawagency principles”)


Mitchell H. Rubinstein

January 15, 2012 in NLRB | Permalink | Comments (0)