Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, December 22, 2012

D.C. Circuit Backs NLRB on Request for Data on Competitive Pressure

From the December 4, 2012 Daily Labor Report:

The District of Columbia Circuit enforces 2-1 a National Labor Relations Board order that required an Ohio manufacturer to give the United Auto Workers information about customers and pricing to support the company's claim it was experiencing competitive pressures that required it to seek substantial wage reductions from its employees (KLB Indus. Inc. v. NLRB, D.C. Cir., No. 11-1280, 12/4/12)

Mitchell H. Rubinstein

December 22, 2012 in NLRB | Permalink | Comments (1)

NY Law School Wins Round 2 In Fraud Case

Gomez-Jimenez v. New York Law School, ____A.D.3d____(1st Dept. Dec. 20, 2012), is an important case which we reported on earlier. It is one in a  series of cases challenging reporting practices of law schools across the cournty with respect to employment data. Plaintiff's theory was basically that New York Law School's published statistics were fraudlent and misleading. While the court affirmed the motion to dismiss against New York Law School, it did say some things which greatly trouble me as a member of the adjunct faculty at this school. Specifically, the court stated:

While we are troubled by the unquestionably less than candid and incomplete nature of defendant's disclosures, a party does not violate GBL 349 by simply publishing truthful information and allowing consumers to make their own assumptions about the nature of the information (see Andre Strishak & Assoc. v Hewlett Packard Co. 300 AD2d 608, 609-610 [2nd Dept 2002]; St. Patrick's Home for Aged & Infirm v Laticrete Intl., 264 AD2d 652, 655-656 [1st Dept 1999]; see also Corcino v Filstein, 32 AD3d 201, 202 [1st Dept 2006]). Accordingly, we find that defendant's disclosures were not materially deceptive or misleading (id.). . . .

We are not unsympathetic to plaintiffs' concerns. We recognize that students may be susceptible to misrepresentations by law school. As such, "[t]his Court does not necessarily agree [with Supreme Court] that [all] college graduates are particularly sophisticated in making career or business decisions" (MacDonald, 2012 WL 2994107, at *10). As a result, they sometimes make decisions to yoke themselves and their spouses and/or their children to a crushing burden because the schools have made misleading representations that give the impression that a full time job is easily obtainable when in fact it is not.

Given this reality, it is important to remember that the practice of law is a noble profession that takes pride in its high ethical standards. Indeed, in order to join and continue to enjoy the privilege of being an active member of the legal profession, every prospective and active member of the profession is called upon to demonstrate candor and honesty. This requirement is not a trivial one. For the profession to continue to ensure that its members remain candid and honest public servants, all segments of the profession must work in concert to instill the importance of those values. "In the last analysis, the law is what the lawyers are. And the law and the lawyers are what the law schools make them."[FN3] Defendant and its peers owe prospective students more than just barebones compliance with their legal obligations. Defendant and its peers are educational not-for-profit institutions [FN4]. They should be dedicated to advancing the public welfare [FN5]. In that vein, defendant and its peers have at least an ethical [*6]obligation of absolute candor to their prospective students.

I am not involved in this case and I only know what I read. I have  been at New York Law School for about 8 years and everyone has gone out of their way to serve and help students. I do not believe that anyone would intentionally mislead a student. Perhaps, this is why I find the court's language troubling-deeply troubling. As adjunct professors, we do not get to go to faculty meetings and we are not kept informed about the governance of the school, and that is very unfortunate. I would hope that New York Law School puts out some communication explaining its position.

Mitchell H. Rubinstein


December 22, 2012 in Law Schools | Permalink | Comments (1)

Thursday, December 20, 2012

Unambiguous contract of employment language that is inconsistent with the employer’s policy nevertheless controls

Chatelle v North Country Community Coll, 2012 NY Slip Op 08215, Appellate Division, Third Department
When North Country Community College hired Shane Chatelle as its Facilities and Special Projects Manager in 2004, the College’s President provided Chatelle with a letter setting forth his salary and enclosing a copy of the resolution of its Board of Trustees approving the appointment together with a written statement of the Board's "management confidential"* staff policy “purporting to provide,” that among other benefits, that Chatelle would be compensated for up to 180 days of accumulated sick leave upon his severance from employment.
In 2011, Chatelle resigned from his position and requested compensation for his accumulated sick leave. The College, claiming that, despite the statement provided to him upon his appointment, its actual policy authorized compensation for accrued sick leave only upon retirement.
Chatelle sued, contending breach of contract, among other things. Supreme Court granted Chatelle’s motion in part, awarding him $44,114.96 in damages for breach of contract but dismissed his remaining claims. Chatelle and the College “cross appealed” the Supreme Court’s ruling.
The Appellate Division said that the written statement provided to Chatelle upon his employment indicated that he was entitled to "the benefits afforded by the existing [m]aster [a]greements except where modified or defined by the following [benefits]."
With regard to the sick leave benefit, the statement provided that Chatelle was entitled to 30 sick days per year, cumulative to 180 days and "[a]t [the] time of severance sick leave will be compensated."
Although the College, relying on extrinsic evidence, argued that the statement given to Chatelle was in error and that the Board had intended to adopt a policy that only compensated for sick leave at retirement, the Appellate Division said that had “no reason to consider this [extrinsic] evidence because the statement's language is clear and unambiguous.”
Accordingly, said the court, the College is bound by the terms of the writing provided to Chatelle as part of his employment contract “and may not rely on its unilateral mistake to void the agreement,” explaining that the text of the statement is clear and Chatelle does not rely on past practice nor claim “estoppel to enforce his contractual right.”
The Appellate Division, however, modified Supreme Court’s judgment granting Chatelle $44,114.96 as payment for his unliquidated sick leave accruals by reducing the award to $4,770, “representing [Chatelle 's] 159 accrued sick days at $30 per day."
* Presumably Chatelle was designated "managerial" or "confidential" within the meaning of  §201.7 of the Civil Service Law [The Taylor Law] upon his appointment.
The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

December 20, 2012 in Arbitration Law | Permalink | Comments (1)

Wednesday, December 19, 2012

Newspaper reports admitted into evidence in an administrative disciplinary proceeding

2012 NY Slip Op 07479, Appellate Division, Fourth Department
A volunteer firefighter filed an Article 78 petition challenging the Volunteer Fire Company’s decision,  to expel him from membership in the Fire Company following a hearing held pursuant to General Municipal Law §207-l.
The petitioner contended that the Fire Company had violated §160.50 of the Criminal Procedure Law, which provides for the “sealing” of certain record, when the Company admitted into evidence media reports related to the petitioner's arrests or when it presented the testimony of a police investigator who was involved in the relevant criminal investigations.
As to newspaper media reports concerning petitioner's arrests, the Appellate Division, citing New York State Dept. of Mental Hygiene v State Div. of Human Rights, 103 AD2d 546, 549, affd 66 NY2d 752, said that such newspaper reports are not "official records and papers . . . relating to [the petitioner's] arrest or prosecution" within the meaning of CPL §160.50(1)(c). Further, said the court, it is " permissible to consider the independent evidence of the conduct [of the petitioner] leading to the criminal charges."
As to the testimony of the police investigator, the court explained that the police investigator was "free to testify from memory" concerning the conduct that led to the petitioner's arrests.”
The Appellate Division then stated there was substantial evidence establishing that the petitioner had exhibited a lack of "good moral character" in violation of Article II, §2 of the Fire Company's Constitution and By-laws and had committed misconduct under General Municipal Law §209-l".
N.B. §209-l provides for the removal of volunteer officers and volunteer members of fire departments charged with, and found guilty of, misconduct or incompetence after a hearing.
The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

December 19, 2012 in Arbitration Law | Permalink | Comments (0)

Tuesday, December 18, 2012

Recent rulings and recommendations by OATH Administrative Law Judges

Employee alleged to have refused to work overtime
OATH Index No 1748/12
A hospital special officer was charged with insubordination after refusing to work mandatory overtime on 42 occasions. The employee did not appear at the hearing and the matter proceeded by inquest.*
Administrative Law Judge Kara J. Miller found that on each occasion the officer was given a form ordering him to work mandatory overtime and warning him that non-compliance could result in disciplinary action.  Each form was signed and dated by special officer and a supervisor. 
ALJ Miller found that this documentation proved the insubordination.  She recommended that the special officer be suspended without pay for 45 days.
* Courts have held that the appointing authority or its designee may proceed with the disciplinary action even though the employee is not present. Where the individual is to be  tried inabsentia, a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did appear at the appointed time and place. Notwithstanding the absence of the individual, the burden is on the charging party to present and prove the disciplinary charges filed against the worker.
Supervisor charged with leave violations, failure to supervise subordinates, sleeping on duty and misuse of agency property.
OATH Index No. 760/12 
Following a 7-day hearing, ALJ Kevin F. Casey sustained some of the leave violations, the sleeping on duty charge and the misuse of property charge, but he dismissed the failure to supervise charges. 
Noting that it was undisputed that some of supervior’s absences may have been due to medical conditions that he developed after his service at Ground Zero, and that the most serious disciplinary penalty previously imposed on employee was the loss of 10 vacation days, Judge Casey found termination of employment to be an overly harsh penalty and recommended a 48-day suspension without pay, based on principles of progressive discipline. 
The decision is posted on the Internet at Dep’t of Sanitation v. Harris (in PDF),  
Employees alleged to have ignored directives to stop distributing union literature while not on duty
OATH Index Nos. 1497/12, 1499/12, 1707/12
Three New York City correction officers were charged with a number of allegations of misconduct, chief among them refusing to comply with orders to stop distributing union literature on Rikers Island while not on duty and refusing to obey orders to leave the secured island.
The individuals denied they were ever given such orders and asserted a First Amendment right to distribute union information while off-duty. They also offered videos of some of the incidents into evidence.
ALJ Alessandra F. Zorgniotti sustained the charges that correction officers refused to obey orders to stop distributing their materials and orders to leave the island, as well as charges that one officer filed a false report and another failed to turn over his parking pass promptly.
Other allegations were dismissed.
ALJ Zorgniotti noted that a correctional facility presents special circumstances under the First Amendment, and that the employees had failed to prove that their First Amendment rights outweighed the compelling interest of the Department in maintaining a secure facility. 
Judge Zorgniotti recommended that each officer be suspended for 10 days without pay. 
The decision is posted on the Internet at Dep’t of Correction v. Reuter (in PDF), OATH Index Nos. 1497/12, 1499/12, 1707/12
Motor vehicle operator alleged mentally unfit to perform her dutie
OATH Index No. 1546/12  
Administrative Law Judge John B. Spooner found that the individual had a mental disability but that the proof presented at the hearing was insufficient to sustain the allegation that she was presently unfit for her job as a driver.
The ALJ noted that [1] neither of the two incidents proven at trial established that employee was an unfit driver, [2] the individual had recently received favorable evaluations of her driving performance, and[3]  there had been no complaints about the employee since January 2011.
Judge Spooner recommended that the disciplinary charges be dismissed.

The decision is posted on the Internet at  Admin. for Children’s Services v. Anonymous (in PDF),


Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

December 18, 2012 | Permalink | Comments (0)

Monday, December 17, 2012

Virginia Recognized Public Policy Exception and Holds Supervisors Can Be Personally Liable

Virginia recently recognized a public policy exception to the employment at will doctrine and further held that individual supervisors or managers who participated in the decision at issue can face personal liability. Details here.

Hat Tip: Workplace Prof Blog

Mitchell H. Rubinstein

December 17, 2012 in Employment-At-Will & Exceptions | Permalink | Comments (1)

Sunday, December 16, 2012

Dissatisfaction with employment does not entitle former employee to unemployment

Matter of Prince v. Commissioner of Labor, ____A.D. 3d____(3d Dept. Nov. 29, 2012), is an interesting unemployment case. It addresses whether an individual is disqualified from unemployment if he leaves his job because he is dissatisfied. He or she does. As the court explained:

[G]eneral dissatisfaction with working conditions, including the employer's training procedures, does not constitute good cause for leaving employment" (Matter of Forman [Commissioner of Labor], 3 AD3d 642, 643 [2004] [internal quotation marks and citation omitted]). Although claimant did not believe that the employer's training procedure was adequate, he failed to participate in all of the training offered. Claimant left his employment [*2]without taking reasonable steps to protect his job and provide the employer an opportunity to remedy the situation. Accordingly, we find that substantial evidence supports the Board's determination that claimant left his employment without good cause (see Matter of Matuszewski [Commissioner of Labor], 24 AD3d 1153, 1154 [2005]; Matter of Forman [Commissioner of Labor], 3 AD3d at 643; Matter of Greenspan [Commissioner of Labor], 284 AD2d 715, 715-716 [2001]). We have considered claimant's contention that he was denied the opportunity to present documentary evidence and find it to be unpersuasive.

Mitchell H. Rubinstein

December 16, 2012 in Employment Law | Permalink | Comments (0)