Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein


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