Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, September 22, 2012

FMLA Widget

Employment Law Advisors developed an interesting FMLA widget which is free. It is designed to determine FMLA eligiblity and you can check it out here. This widget has its place, but I would not recommend that anyone rely on it. It certainly is no substitute for legal advise.

Mitchell H. Rubinstein


September 22, 2012 | Permalink | Comments (0)

FMLA Widget

Employment Law Advisors developed an interesting FMLA widget which is free. It is designed to determine FMLA eligiblity and you can check it out here. This widget has its place, but I would not recommend that anyone rely on it. It certainly is no substitute for legal advise.

Mitchell H. Rubinstein


September 22, 2012 | Permalink | Comments (0)

Friday, September 21, 2012

Just Released!

Boston University Law Review has a symposium titled, "Originalism and Living Constitutionalism: A Symposium on Jack Balkin's Living Originalism and David Strauss's The Living Constitution" in Volume 92, No. 4.  Fordam Urban Law Journal has its Cooper-Walsh Colloquium titled, "Big Problems, Small Government: Assessing the Recent Financial Crisis' Impact on Municipalities" in Volume XXXIX, No. 3.  The University of Toledo Law Review's "Public Sector Labor Law at the Crossroads Symposium" in its Volume 43, No. 3

DePaul Law Review's 17th Annual Clifford Symposium on Tort Law and Soclal Policy, titled "Festschrift for Robert Rabin" appears in its Volume 61, No. 2.  Hastings Law Journal has "Symposium on Law & Policy of the Developing Brain: Neuroscience from Womb to Death" in Volume 63, No 6.  Emory Law Journal's 2011 Randolph W. Thrower Symposium, "Judging Politics: Judges as Political Actors, Candidates and Arbiters of the Political" is included in its Volume 61, No. 4.

Stanford Law & Policy Review has "Symposium: Adult Entertainment" in Volume 23, No. 1.  Texas Tech Law Review has "Symposium: Environmental Impacts of Oil and Gas" in its Volume 44, No. 4.  University of Illinois Law Review has "Symposium: Jack Balkin's Constitutional Text and Principle" in Volume 2012, No. 3.

Craig Estlinbaum

September 21, 2012 in Law Review Articles | Permalink | Comments (0)

Florida: Facebook Friendship Leads to Judicial Disqualification

Earlier this month, a Florida appellate court held that a defendant's motion to disqualify a trial judge was legally sufficient to require disqualification where the trial judge was a Facebook friend with the prosecutor assigned to the case.

In Domville v. State of Florida, No. 4D12-556, 2012 WL 3826764 (Fla.Dist.Ct.App. Sep. 5, 2012), the defendant filed the motion to disqualify the judge alleging that the judge and prosecutor assigned to the case were Facebook friends.  The trial judge denied to motion as legally insufficient.

The appellate court relied upon a 2009 Florida Judicial Ethics Advisory Committee opinion that concluded that the Florida Code of Judicial Conduct precluded a judge from both adding attorneys that appeared in their courts as friends, and allowing attorneys so appearing to add the judge as a friend.  The Committee opined that such conduct violated Florida Code of Judicial Conduct, Canon 2B which prohibits judges from conveying or permitting others to convey, "the impression that they are in a special position to influence the judge."  The Committee also concluded that a judge that Facebook friends an attorney "reasonably conveys to others" the impression that the attorney is in fact in a special position to influence the judge.

The appeals court quashed the trial court's order denying disqualification as a matter of law and returned the case to the trial court for further proceedings.

To date, Massachusetts and Oklahoma judicial ethics committees have joined Florida in taking a restrictive approach to judges using social media.  The Massachusetts Committee's opinion on the subject goes so far as to state that a judge may friend an attorney on social media only when that judge would recuse herself if and when the friended attorney appeared before her.

Even in states where judicial ethics committees have taken a permissive approach to judicial use of social media, judges may face disqualification or recusal motions in similar circumstances.  The law in this area is very new and uncertain as judges, attorneys and ethics committees develop policies and implement guidelines for judicial use of social media.

Craig Estlinbaum

September 21, 2012 in Ethics, Interesting Cases, Judges | Permalink | Comments (1)

Thursday, September 20, 2012

2d Circuit Narrowly Construes First Amendment


Kiehle v. County of Courtland, ____F.3d____(2d Cir. July 2, 2012), Download Kiehle (2) is an important case and I am amazed that the court chose not to offically publish the decision. In this case, the Second Circuit affirmed the dismissal of a case where a Department of Social Services social worker was--by the employer's admission--fired for truthfully testifying in family court. The court reasoned that this was part of his job even though he was not testifying at the request of his employer. In fact, his testimony was opposite of the employer's position.  I understand that the attorney handling is petitioning for reargument/en banc consideration.  This is just another example how Garcetti has all but gutted First Amendment protections.

Mitchell H. Rubinstein

September 20, 2012 in Employment Law, First Amendment | Permalink | Comments (0)

Wednesday, September 19, 2012

4th Circuit Holds That Awarding Off Campus Religious Instruction Credit Is Constitutional


The case is Moss v. Spartanburg Cnty. Sch. Dist. Seven, ___F.3d____ (4th Cir. Jun. 28, 2012). The court held that a South Carolina school district policy allowing students to earn academic credit for off-campus religious instruction does not violate the First Amendment’s Establishment Clause. After concluding that only one of the three plaintiffs had standing, the panel determined the school district’s policy survived the three-part test laid out in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).. The circuit court held that there was no religious entanglement problem as the school district’s policy relied exclusively on the provision of off-campus religious instruction by nongovernmental educators and passively accommodated the genuine and independent choices of parents and students to pursue such instruction.

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

Mitchell H. Rubinstein

September 19, 2012 in Constitutional Law, Law Review Ideas | Permalink | Comments (0)

Tuesday, September 18, 2012

So You Want To Be An Adjunct Professor

Best Colleges Online, a commercial site, recently published 25 facts about college adjunct professors, here. The most startling statistic is that adjuncts make up 73%, yest 73% of the instructional workforce in colleges today. I know it is high, but it is hard for me to believe that the number is that high. In any event, for those interested in adjuncting, you may want to take a look at this article.

Mitchell H. Rubinstein

September 18, 2012 in Adjunct Information in General | Permalink | Comments (0)

Monday, September 17, 2012

Right To Control Test Is Applicable In Unemployment Cases

Matter of Holleran v. Commissioner of Labor, ___A.D 3d___ (3d Dept. Aug. 2, 2012), is an interesting case. The court applies the right to control test and concludes that the individuals in question were independent contractors. A finding that someone is an independent contractor is relatively rare. The court described the applicable standard as follows:

            It is well settled that the existence of an employment relationship turns upon the control             exercised by the employer over the results produced or the means used to obtain those results,             with control over the latter being the more important factor to consider (see Matter of             Interlandi [Cremosa Food Co., LLC.—Commissioner of Labor], 70 AD3d 1150, 1150             [2010]; Matter of Rodriquez [2020 Video Voice Data, Ltd.—Commissioner of Labor], 58 AD3d             929, 929 [2009], lv denied 13 NY3d 702 [2009]; Matter of Kelly v Frank Gallo,  Inc.   —        Commissioner of Labor], 28 AD3d 1044, 1045 [2006], lv dismissed 7 NY3d 844 [2006]). Upon             reviewing the record here, we find that the requisite control is lacking. Significantly, it was             claimant's responsibility to contact the customer directly to schedule the work after receiving             an e-mailed work order from Jez, the only requirement being that he do so within 48 hours.             Moreover, claimant was free to decline a work assignment, in which case Jez would contact             another installer, and the rate of pay was a negotiated amount which varied among installers.             Although Jez provided claimant with limited training during the first week, it did not do so             thereafter, and claimant performed the work based upon instructions contained in the manual             that came with the equipment.

            Notably, Jez did not inspect claimant's work or require him to work a particular schedule or a             specified number of hours. If there was a problem with claimant's work that necessitated             correction by another installer, claimant was responsible for reimbursing Jez for that installer's             services. In addition, Jez did not withhold taxes from claimant's paycheck, reimburse him for             expenses, or provide him with tools, transportation or any type of fringe benefits. Furthermore,             in accordance with the terms of the agreement designating him an independent contractor,             claimant was permitted to work for competing companies. In view of the foregoing, we conclude             that Jez did not exercise control over important aspects of claimant's work so as to establish             the existence of an employment relationship (see Matter of Best [Lusignan—Commissioner of             Labor], 95 AD3d 1536, 1537-1538 [2012]; Matter of Rosen [Vidicom, Inc.—Commissioner of             Labor], 73 AD3d 1352, 1353 [2010], lv denied 15 NY3d 706 [2010]; compare Matter of Jimenez             [C & I Assocs., Inc.—Commissioner of Labor], 74 AD3d 1587, 1589 [2010]). Consequently, the             Board's decisions must be reversed.


September 17, 2012 in Employment Law | Permalink | Comments (0)

Sunday, September 16, 2012

Employee Wellness Programs

More and more employers are adopting Employee Wellness Programs. In my book, that is a win win for all. An interesting wellness infographic that was we just published, is titled 'The State of Corporate Wellness Programs in America" and is full of interesting statistics that researchers may find helpful. It is available here.

Mitchell H. Rubinstein

September 16, 2012 in Current Events, Misc., Non-Legal | Permalink | Comments (0)

Call For Papers Central States Law Schools Association

The Central States Law Schools Association 2012 Scholarship Conference will be held October 19 and 20, 2012 at the Cleveland-Marshall College of Law, in Cleveland, Ohio.  We invite law faculty from across the country to submit proposals to present papers or works in progress.

 The purpose of CSLSA is to foster scholarly exchanges among law faculty across legal disciplines.  The annual CSLSA conference is a forum for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment.  More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work.  

        Additional details about this important conference can be found by downloading  Download CSLSA 2012 Conference Announcement Blog Posting

Mitchell H. Rubinstein

September 16, 2012 in Law Professors, Law Review Articles | Permalink | Comments (0)