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Editor: Mitchell H. Rubinstein
New York Law School

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Wednesday, October 31, 2012

School district may be held liable for the negligent hiring and retention of its employees

In an action alleging that a school employee sexually abused a student, Supreme Court denied the school’s and the school district’s motions for summary judgment dismissing the complaint.
The Appellate Division affirmed the lower court’s ruling, explaining that::
1. The school and the school district failed to make a prima facieshowing that they were not negligent with respect to the hiring and retention of the school district employee who allegedly sexually abused the student; and
2. The school and the school district failed “to establish, prima facie, that they discharged their duty to provide adequate supervision of the infant plaintiff.”
The Appellate Division noted that although “an employer cannot be held vicariously liable ‘for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business,’ the employer may be held liable for the negligent hiring and retention of the employee.”
Further, said the court, “a school district has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision,” citing Mirand v City of New York84 NY2d 44
The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06289.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

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

Tuesday, October 30, 2012

11th Circuit Issues Major NLRA Supervisor Decision

11thcir

The Eleventh Circuit  held that the National Labor Relations Board lacked substantial evidence to support its conclusion that licensed practical nurses at a Florida nursing and long-term care facility were employees rather than supervisors. Lakeland Health Care Assocs. v. NLRB, ___F.3d___( 11th Cir., No. 11-12000, 10/2/12).

Finding NLRB improperly certified a United Food and Commercial Workers Union as the bargaining representative for a unit of LPN team leaders, the majority stated that the board “meticulously excluded or disregarded” evidence indicating the LPNs were supervisors outside the protection of the NLRA.

Dissenting, Judge William H. Pryor said the court's own precedents precluded it from “reweighing the evidence” relied on by the board. 

Mitchell H. Rubinstein

October 30, 2012 in NLRB | Permalink | Comments (1)

Monday, October 29, 2012

Bankruptcy Does Not Distinguish Money Owed To Unemployment

Matter of DeGregorio v. Commissioner of Labor, ____A.D.3d ___(3d Dep't. Oct. 10, 2012). As the court stated:

Contrary to the petitioner's argument, her discharge in bankruptcy did not affect her liability for underpaid or unpaid unemployment insurance contributions (see 11 USC §§ 507[a][8][D], [E]; 523[a][1][A]; Matter of Pierce, 935 F2d 709, 711 [5th Cir]; In re The Albert Lindley Lee Mem. Hosp., 428 BR 283 [ND NY]; In re McAdam, 402 BR 473, 478-482 [D NH]; In re Cottage Grove Hosp., 265 BR 241, 244-247 [D Or]; In re Mueller, 243 BR 346, 349 [WD Wis]; Matter of Ward, 119 Misc 2d 930, 930; Matter of Parisi, 8 Misc 2d 260, 260-261; 4 Collier on Bankruptcy ¶ 507.11[5], [6], [8][b] and n 96 [16th ed 2012]; Andrew M. Campbell, Annotation, Exception from Discharge of Taxes under § 523[a][1] of Bankruptcy Code [11 USC § 523(a)(1)], 145 ALR Fed 1, § 16[d]).

 

Mitchell H. Rubinstein

October 29, 2012 in Employment Law | Permalink | Comments (1)

Sunday, October 28, 2012

Vacating a finding of being guilty of two of five disciplinary charges requires remanding the matter for reconsideration of the appropriate penalty to be imposed

The appointing authority adopted the findings and recommendation of a hearing officer that the employee was guilty of five charges of misconduct and terminated the individual’s employment.
Supreme Court dismissed the former employee’s petition challenging the appointing authority’s action.
The Appellate Division disagreed with this result, explaining that upon its review of the record it found that  the hearing officer's finding the individual guilty of two of the five charges had to be annulled and those two charges dismissed. In the opinion of the court, there was a lack of substantial evidence to support a finding that the employee was guilty of these two charges.
As the appointing authority had imposed a penalty based on the hearing officer’s finding that the individual was guilty of all five charges, the court said that the penalty imposed had to be vacated and the matter remit to the appointing authority to permit it to consider the appropriate penalty to be imposed upon the individual based on the individual having been found guilty of the three surviving charges
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

October 28, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Saturday, October 27, 2012

The Problem With Billable Hours

They Work Long Hours, but What About Results? is an interesting Oct. 6, 2012 article from the New York Times. It points out two important facts. First, many corporations, including law firms do not evaluate based upon efficiency. Second, when an employee is billed out per hour, efficiency is in conflict with the real world. Nothing new here, but the article is an interesting read.

Mitchell H. Rubinstein

October 27, 2012 in Law Firms | Permalink | Comments (1)

Blogs, Photographs and Copyright

Travis Crabtree, writing at eMedia Law Insider has a very informative post regarding copyright and the use of found photographs in blog posts. 

Craig Estlinbaum

October 27, 2012 | Permalink | Comments (1)

Friday, October 26, 2012

Kentucky High Court Limits Grandparent Visitation Rights

In a major family law decision, the Supreme Court of Kentucky yesterday, relying on Troxel v. Granville, 530 U.S. 57 (2000), held that a fit parent is presumed to act in the best interest of the child and that a grandparent seeking child visitation against the parent's wishes must overcome the presumption by clear and convicing evidence that allowing the grandparent visitation is in the child's best interest.  Walker v. Blair, No. 2012-SC-000004-DGE (Ky., Oct. 25, 2012).

In this case, paternal grandparent filed for visitation of her grandchild after her son, the grandchild's father, committed suicide under a pre-Troxel state law.  Mother opposed the visitation.  The Supreme Court held the pre-Troxel grandparent visition statute to be constitutional and interpreted the law to comply with Troxel's requirement that fit parents be presumed to act in the child's best interest.  Because the trial and appellate courts in this case placed the parent and grandparent on equal footing and did not give the parent's decision to deny visition the special weight required by Troxel, the Supreme Court reversed and remanded for further proceedings.

See also:  Louisville Courier-Journal story here.

Craig Estlinbaum

October 26, 2012 in Constitutional Law, Interesting Cases, Recent Developments, State Law | Permalink | Comments (0)

Thursday, October 25, 2012

Supreme Court To Address Affirmative Action In College Admissions

View this photo
Colleges Value Diversity, but will the Court is an interesting Oct. 6, 2012 article from the New York Times. It previews the Fischer case pending before the Supreme Court. This will be the Court's 4th affirmative action decision in the context of higher education. The plaintiff, a white applicant, claims that race should not have been used as a factor in admissions. As the article states:

To further its aim of having a student body that is “meritorious and diverse in a variety of educationally relevant ways,” the university admits the rest of its students through individual assessments, with race being one in a long list of factors, including grades and activities. Many worry that the court will use this case, Fisher v. University of Texas, to overturn a 2003 decision, Grutter v. Bollinger, which allowed colleges and universities to advance “racial diversity” as a valid goal for their institutions and for society, as long as they did not make race the determining factor in admissions. Justice Sandra Day O’Connor wrote in Grutter, “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”

In the years since that ruling, there has been widespread, ambitious and valuable experimentation to ensure that all racial, ethnic and socioeconomic groups have equal access to higher education and that colleges and universities serve broader public goals. Many of these experiments could be threatened by a ruling in Ms. Fisher’s case that prohibited using race in any manner.

This program seems to be designed as suggested by Justice Powell's decision in Bakee which was not supported by a majority of the Court. 

Mitchell H. Rubinstein

 

October 25, 2012 in Supreme Court | Permalink | Comments (0)

Wednesday, October 24, 2012

Proving Disciplinary Charges

An employee was found guilty of some of the thirty specifications of misconduct and incompetence filed against her. The hearing officer found the employee guilty of seventeen of these thirty specifications and recommended that she be dismissed from her position.
Specifications of misconduct and incompetence filed against the employee included allegations of excessive lateness, failure to properly carry out assigned duties, and actions in contradiction of established employer procedure. The hearing officer's findings and recommendations were adopted by the appointing authority and the individual was dismissed from her position. In sustaining the determination, the Appellate Division, Third Department noted that: the findings of a Hearing Examiner will be confirmed if they are supported by substantial evidence in the record even where conflicting evidence may have supported a different determination.
What constitutes "substantial evidence" is the significant issue in such cases. The decision illustrates some of the factors that courts weigh in determining whether there is substantial evidence to support the findings of the hearing officer.
The hearing officer found the employee guilty of seven of the 12 specifications concerning her alleged failure to perform assigned clerical tasks properly. The court, however, concluded that "only six of the seven specifications should be confirmed based upon the testimony proffered by petitioner's supervisor." Why? Because, explained the court, testimony that employee had typed the incorrect labels because the witness recognized the font from the individual’s typewriter was insufficient as there was testimony establishing that there were several typewriters in that office using that particular font. As the witness could not testify that she witnessed the employee preparing these folders and the employee denied that the error was hers, the court said it could not conclude that there was sufficient evidence to support this allegation.
The hearing officer also found the employee guilty of six of thirteen specifications alleging that she improperly performing her duties by exceeding her authority or violating the employer’s policy. In this instance the court held that the record supported the hearing officer's findings, noting that the employee was advised of these problems in her performance in various performance evaluation, together with the need for her to improve in these areas.
With respect to disciplinary specifications focusing on the employee's use of the workplace to conduct personal business and engage in lengthy personal telephone calls, the Appellate Division ruled that the testimony of her superiors, confirmed by a co-worker, was sufficient to prove the allegations.
The court also said that it did not find any error in the hearing officer finding the employee guilty of 36 of the 48 allegations that she had arrived late for work on specified dates. These allegations, said the court, were supported either by the employee's time sheets or by testimony from her superior or co-workers.
The Appellate Division remanded the matter to the employer for its consideration of the appropriate penalty to be imposed in view of its finding the employee not guilty of certain charges and specifications. The court also said that it noted that the employee had been given numerous oral admonitions and counseling memoranda warning her of "further disciplinary action," but held that such actions did not constitute "punishment" such that the present disciplinary proceeding could be deemed duplicative.
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

October 24, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Tuesday, October 23, 2012

School Board Members Face Jail For Contempt

This is a first. An Iowa state court judge has reportedly found a school board in contempt and will order the members jailed if they do not comply with a court order which mandated the reinstatement of a principal. Rouse v. Durant School District, In his written ruling,

The court stated:given that “[g]iven the actions of the school board members, the Court finds that they should be individually fined the sum of $500 and shall serve 30 days in the Cedar County Jail.” Judge Smith said, however, that school board members could avoid the contempt ruling by giving Rouse “all of her duties, privileges, authority and rights that she enjoyed prior to her termination as principal of Durant High School.” It is not clear how much time the board has to comply.

Mitchell H. Rubinstein

October 23, 2012 in Education Law | Permalink | Comments (0)

Monday, October 22, 2012

Employee on Unpaid FMLA Leave Does Not Accrure Seniority

Appeal of DONNA SCARPINATI DE OLIVEIRA, No. 16,411 (Commissioner of Education Sept. 18, 2012). As the Commissioner explains:

Petitioner was granted an unpaid leave of absence effective September 1, 2009 through October 13, 2009, totaling 23 days of unpaid leave.  It is well settled that days spent on unpaid leave of absence may not be included in determining seniority (Appeal of Goldman, 43 Ed Dept Rep. 338, Decision No. 15,011; Matter of Halayko, 23 id. 384, Decision No. 11,254).  Petitioner argues that, because she took unpaid leave pursuant to the FMLA, such days must still be included in calculating her seniority.[2] However, 29 C.F.R. §825.215(d)(2) specifically provides that an employee “may, but is not entitled to, accrue any additional benefits or seniority during unpaid FMLA leave” (emphasis added).  Moreover, a guidance letter from the U.S. Department of Labor states, in pertinent part, “The FMLA does not entitle an employee to the accrual of any seniority (or employment benefits) during any period of FMLA leave[.]”  As an example, the letter further states, “[i]f the employer’s established leave policies do not permit the accrual of seniority during an unpaid leave of absence, this same policy would apply to unpaid leave covered by the FMLA leave”  (U.S. Department of Labor; Employment Standards Administration; Guidance Letter; FMLA – 109; September 8, 2000)  (emphasis added).  Petitioner, thus, has not demonstrated any entitlement to include the days she was on unpaid leave in the calculation of her seniority.

October 22, 2012 in Education Law | Permalink | Comments (0)

Sunday, October 21, 2012

School district may be held liable for the negligent hiring and retention of its employees

In an action alleging that a school employee sexually abused a student, Supreme Court denied the school’s and the school district’s motions for summary judgment dismissing the complaint.
The Appellate Division affirmed the lower court’s ruling, explaining that::
1. The school and the school district failed to make a prima facieshowing that they were not negligent with respect to the hiring and retention of the school district employee who allegedly sexually abused the student; and
2. The school and the school district failed “to establish, prima facie, that they discharged their duty to provide adequate supervision of the infant plaintiff.”
The Appellate Division noted that although “an employer cannot be held vicariously liable ‘for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business,’ the employer may be held liable for the negligent hiring and retention of the employee.”
Further, said the court, “a school district has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision,” citing Mirand v City of New York84 NY2d 44
The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06289.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

 

October 21, 2012 in Public Sector Employment Law | Permalink | Comments (0)

Saturday, October 20, 2012

ADA Cause of Action Stated For Fired Firefighter Who Attempted Suicide

From the Oct. 2, 2012 Daily Labor Report:

A new trial is warranted on a former firefighter's claim that Erie, Pa., discriminated based on her mental impairment when it terminated her after severe depression drove her to start a fire indoors as part of a suicide attempt, the U.S. District Court for the Western District of Pennsylvania ruled Sept. 28 ( Wolski v. Erie, W.D. Pa., No. 1:08-cv-00289, 9/28/12 ).

Mitchell H. Rubinstein

October 20, 2012 | Permalink | Comments (1)

Thursday, October 18, 2012

Tenth Circuit holds that ADA Amendments of 2008 do not apply retroactively to state or federal claims

10caseal
The 10th Circuit affirmed the district court’s grant of summary judgment in favor of Albuquerque Public Schools, dismissing a teacher’s discrimination claim brought under the New Mexico Human Rights Act. The panel held that the definition of “disability” under the ADA Amendments of 2008 was not applicable retroactively to the teacher’s state-law claim, rejecting the teacher’s assertion that because the state court would have applied those standards retroactively, the federal district court should have done so too. Accordingly, the teacher could not assert a discrimination claim, absent a finding that she was “disabled” under the pre-amendment ADA definition.Latham v. Bd. of Educ. of the Albuquerque Pub. Schs., No. 11-2217 (10th Cir. July 12, 2012)

October 18, 2012 in Employment Discrimination | Permalink | Comments (0)

Wednesday, October 17, 2012

A Grievance Is Arbitrable Even After An Employee Dies

8thseal


Union may continue to enforce CBA's mandatory arbitration provision on behalf of worker who died after grievance arose but before arbitration began. Sheet Metal Workers Local No. 2 v. Silgan Containers Mfg. Corp., ____F.3d___(8th Cir. 8/28/12)

October 17, 2012 in Arbitration Law | Permalink | Comments (1)

Tuesday, October 16, 2012

NY Times on Flextime

When Work-Life Scales Are Uneven is an interesting Sept. 1, 2012 article from the New York Times. It is about the pros and cons to flexible work arrangements. As the article points out, it can be of critical value to employees with young children, but it may also result in a significant amount of workplace disruption. 

Mitchell H. Rubinstein

October 16, 2012 in Employment Law, Misc., Non-Legal | Permalink | Comments (1)

Monday, October 15, 2012

Holding Graduation In Church Violates First Amendment

7thCir

Doe v. Elmbrook Sch. Dist., No. 10-2922 (7th Cir. July 23, 2012) (en banc). The Seventh Circuit held that a Wisconsin school district violated students’ rights under the Establishment Clause when it held graduation ceremonies for two of its high schools at a local Christian church.

After analyzing the facts under the test established in Lemon v. Kurtzman, 403 U.S. 602 (1971), and the endorsement and coercion tests, the majority concluded that the sheer religiosity of the church ran afoul of the “primary effect” prong of Lemon, in that it created a likelihood that high school students would perceive a link between church and state, conveying a message of religious endorsement. The majority stressed that its ruling was of limited scope, and should not be read as constitutionally condemning any government use of church-owned facilities, nor “as critical of the cases permitting governmental use, in the proper context, of certain church-owned facilities.” The decision also contains a concurring and three dissenting opinions.

October 15, 2012 in First Amendment | Permalink | Comments (0)

Sunday, October 14, 2012

Barring a former employee from property and Employee Does Not Have Right To Select Arbitrator

Toussaint v Local 100, TWU, CA2, U.S. App. LEXIS 16257

May an employer prohibit an individual it has dismissed from entering its property? The Second Circuit Court of Appeals ruled the employer may prohibit such an individual from entering its non-public areas.

A Transportation Workers Union representative had been dismissed from his position with the New York City Transit Authority [NYCTA]. NYCTA then banned the representative from the non-public areas of its property. The representative sued, contending that this action by NYCTA violated his First Amendment rights.

The Circuit Court affirmed a federal district court's dismissal of the Union representative’s petition. The lower court had determined that he "failed to show a likelihood of success on the merits" because:

1. He did not demonstrate that he was excluded from non-public areas because the Transit Authority's motivation was to impair the exercise of his First Amendment freedoms or;

2. The Transit Authority's rule barring discharged employees from non-public areas lacked a reasonable basis.

The representative also attempted to obtain a stay of arbitration, claiming that NYCTA and Local 100 went forward with his arbitration "without allowing him to participate in selecting a neutral arbitrator to chair the arbitration panel." The Circuit Court of Appeals rejected this representation as moot "because the arbitration [had] proceeded to conclusion."

Reprinted with permission New York Public Personnel Law

Mitchell Rubinstein

October 14, 2012 in Arbitration Law, Public Sector Labor Law | Permalink | Comments (0)

Saturday, October 13, 2012

Statute of limitations for challenging a personnel decision begins running when the individual is notified of the “determination” becomes final and binding

McCarry v Purchase Coll., State Univ. of N.Y., 2012 NY Slip Op 06026, Appellate Division, Second Department 
In a proceeding pursuant to CPLR Article 78 challenging the decision of the President of the State University of New York College at Purchase not to reappoint an assistant professor to the Purchase faculty, Supreme Court annulled the President’s determination and remitted the matter to for a de novo review and a new determination. Supreme Court also directed the retroactive reinstatement of the faculty member with full compensation and benefits pending the de novo review.
The Appellate Division reversed the lower court’s rulings “on the law."
Pointing out that the assistant professor’s challenge to the President’s decision was time-barred by the four-month statute of limitations, the court explained that the statute of limitations set forth in CPLR §217(1) began to run on the date that the challenged determination became final and binding.*
Citing Matter of Village of Westbury v Department of Transp. of State of N.Y., 75 NY2d 62, the Appellate Division said that "A determination generally becomes binding when … the agency has reached a definitive position that inflicts concrete injury to the aggrieved party that cannot be prevented or significantly ameliorated by further administrative action” and the individual has been advised of that determination.
In this instance it was undisputed that the assistant professor commenced his Article 78 action more than four months after receiving notice that he had not been reappointed to his teaching position.
Significantly, the court said that the limitations period did not run from the date upon which the assistant professor's fixed-duration employment contract automatically ended but rather commenced to run when he received notice of the “final determination” that he would not be reappointed to the college faculty.
Further, said the court, even had the faculty member Article 78 action “been timely commenced, the record demonstrates that the [College President] substantially complied with the internal rules of Purchase College, State University of New York and the determination was not arbitrary and capricious."
N.B. A request to “reconsider” a final and binding administrative determination does not toll the running of the Statute of Limitations [Lavin v Lawrence, 54 AD3d 412].
The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06026.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

October 13, 2012 in Litigation, Public Sector Employment Law | Permalink | Comments (0)

Friday, October 12, 2012

School Law Jobs

Job Title Employer Job Location
Special Education Attorneys Harbottle Law Group Orange County, California
Associate Attorney Semple, Farrington & Everall, P.C. Denver, Colorado
Public Finance Lawyer Drummond Woodsum Portland, Maine
School and Special Education Lawyer Drummond Woodsum Portland, Maine
Employment Lawyer Drummond Woodsum Portland, Maine
School Board Attorney Portsmouth Public Schools Portsmouth, Virginia

October 12, 2012 in Lawyer Employment | Permalink | Comments (0)