Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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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

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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

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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

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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)