Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, September 8, 2012

DOL Publishes FMLA Guide

This guide is available for free and is not written in legalease. It can be found here.

MItchell H. Rubinstein

September 8, 2012 in FMLA | Permalink | Comments (0)

Arizona: Tattoo Artists Enjoy Free Speech Protections

In an important free speech case yesterday, the Arizona Supreme Court held that tattooing is protected free speech under the First Amendment and Arizona's state constitution.  The case is Coleman v. City of Mesa, No. CV-11-0351 (September 7, 2012).

Plaintiffs in the case sued the City after being denied a permit to open a tattoo parlor.  The city's controlling ordinance effectively bans certain specified uses, including tattoo parlors, unless the city council grants a permit for the use.  The Supreme Court, after finding tattooing to be constitutionally protected expression, held the city's permitting scheme vested unbridled discretion in city officials and failed the First Amendment's time, place and manner test.  The Court reversed the trial court's dismissal for failure to state a claim and returned the case to that court for further proceedings.

The Arizona Court considered three approaches to the issue:  (1) tattooing is purely expressive activity fully protected by the First Amendment; (2) tattooing is non-expressive activity not First Amendment protected; and (3) categorization on a case-by-case basis.  Notably, the Court cited a student comment, Ryan J. Walsh, Comment, Painting on a Canvass of Skin: Tattooing and the First Amendment, 78 U. Chi. L. Rev. 1063 (2011), for the third approach.

Craig Estlinbaum

September 8, 2012 in Civil Procedure, Constitutional Law, First Amendment, Interesting Cases, Law Students, Recent Developments | Permalink | Comments (0)

Wednesday, September 5, 2012

Visit To Doctor To Pick Up Prescription Refill Not Considered Treatment Under FMLA

The 7th Circuit recently held that an employee who did not receive actual medical treatment during a specific absence could not support an FMLA interference claim for his termination. Jones v. C&D Technologies, Inc., 7th Cir, No. 11-3400, June 28, 2012.

A vist to the doctor to get a prescription refill was not considered treatment. What about a visit to the doctor to take blood? Or a visit to get an X-Ray? I cannot imagine that this case will be adopted by a majority of courts.

Mitchell H. Rubinstein


September 5, 2012 in FMLA | Permalink | Comments (1)

Tuesday, September 4, 2012

Cat's Paw and Personal Liability

The Proactive Employer ran an interesting blog post on July 17, 2012 which reported on a case where a supervisor had personal liability under a Cat Paw type of case. As you will recall, the Supremes in Staub v. Proctor Hospital, held that employers can be liable for discrimination based on the bias of an employee’s supervisors, even though the supervisor in question did not make the actual decision to terminate the employee. Combine that holding with a 1981 case which permits personal liability and you get a case involving the Cat's Paw and personal liability. The case is Smith v. Brady from the 7th Circuit.

Mitchell H. Rubinstein

September 4, 2012 in Employment Discrimination | Permalink | Comments (0)

Monday, September 3, 2012

Does The ADA Require Accommodation By Use Of Segways??

This is the question posted by Law Office Space. Reportedly, a plaintiff is suing Disneyland. Plaintiff does not appear to be an employee, but a patron. I cannot imagine that the normal accommodation standards would not apply and I do not see how a Segway can be treated differently from an electronic wheelchair. 

We will have to wait and see how the court rules. But, something tells me that this case is going to be settled.

Mitchell H. Rubinstein 

September 3, 2012 in ADA | Permalink | Comments (0)

Sunday, September 2, 2012

Happy Labor Day 2012

I always have mixed emotions on labor day. It marks the end of the summer, but it also highlights the important contributions labor has made to this country. A detailed explanation of labor day can be found of the DOL website.  A Wikipedia description of Labor Day is available here. As the article states:

Labor Day is a United States federal holiday observed on the first Monday in September (S

The first Labor Day in the United States was celebrated on September 5, 1882 in New York City.In the aftermath of the deaths of a number of workers at the hands of the U.S. military and U.S. Marshals during the 1894 Pullman Strike, President Grover Cleveland put reconciliation with Labor as a top political priority. Fearing further conflict, legislation making Labor Day a national holiday was rushed through Congress unanimously and signed into law a mere six days after the end of the strike.Cleveland was also concerned that aligning an American labor holiday with existing international May Day celebrations would stir up negative emotions linked to theHaymarket Affair. All 50 U.S. states have made Labor Day a state holiday.


Mitchell H. Rubinstein


September 2, 2012 | Permalink | Comments (0)