Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Thursday, February 28, 2013

2d Circuit Decision On Effects Bargaining


Everything you wanted to know about decision and effects bargaining as well as waiver. 

IBEW v. Rochester Gas & Electric, ____F.3d___(2d Cir. Jan. 17, 2013).

February 28, 2013 in NLRB | Permalink | Comments (0)

Wednesday, February 27, 2013

Even Harvard Students Cheat

Did you hear about this one?? Harvard University recently asked several students to leave after being found to have cheated on a take home exam in a government place. Details in the Feb. 1, 2013, NY Times, here

Mitchell H. RUbinstein


February 27, 2013 in Colleges | Permalink | Comments (0)

Tuesday, February 26, 2013

Certain issues that the Commissioner of Education will decline to consider "for lack of jurisdiction"

Appeal of C.Z. from actions of the Board of Education of the Jordan-Elbridge Central School District, et. al.
Decisions of the Commissioner of Education, Decision No. 16,450
In this appeal to the Commissioner of Education C.Z. contended that certain alleged actions by school board members were “inappropriate and/or in violation of the Education Law and theEducational Rights and Privacy Act [FERPA].”  C.Z asked the Commissioner to issue an order admonishing the board members.
The Commissioner, stating that he lacked jurisdiction to consider FERPA claims, dismissed this branch of C.Z.’s appeal. The Commissioner explained that “The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 U.S.C. §1232[g]).

The Commissioner also dismissed that portion of C.Z. appeal that, in the words of the Commissioner, “attempts to allege violations of the Open Meetings Law through her claims that [the school board] declined to allow her to attend and to discuss certain issues at an executive session." The Commissioner noted that the §107 of the Public Officer Law “vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner.”
As to the redress sought, admonition of certain members of the school board, The Commissioner noted that it is “well established” that the Commissioner of Education does not have  members any authority to censure or reprimand a board member.
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

February 26, 2013 in Education Law | Permalink | Comments (0)

Monday, February 25, 2013

20 Day Suspension For Tieing A Noose Does Not Violate Public Policy

An arbitrator's decision to reinstate with a 20-day suspension a Port of Seattle employee who was fired for hanging a noose in the workplace did not violate Washington public policy against employment discrimination, a unanimous state supreme court holds. Int'l Union of Operating Eng'rs Local 286 v. Port of Seattle, (Wash., No. 86739-9, 2/21/13).

February 25, 2013 in Arbitration Law | Permalink | Comments (0)

Chamber Urges Employers to Appeal Prior Adverse Board Rulings

The U.S. Chamber of Commerce published a reprint of a Wall Street Journal Article and is urging its members to appeal any adverse NLRB decision under the D.C. Circuit's recent decision in Noel Cannning holding that the NLRB was powerless to act because it did not have a quorum, here

Hat Tip: Workplace Prof Blog

Mitchell H. Rubinstein


February 25, 2013 in NLRB | Permalink | Comments (0)

Sunday, February 24, 2013

Airline Employee Fired After 40 Years Does Not Make Out An ADEA Case

An Air India employee who left the company at age 65 after almost 40 years lacks triable age bias and constructive discharge claim. Vazifdar v. Air India,  ___F.Supp.2d___, No. 4:11-cv-03117,(S.D. Tx. 1/29/13).

February 24, 2013 in Employment Discrimination | Permalink | Comments (0)

Court Holds Nurse Not Qualified Because She Applied For Disability

An RN suffering from fibromyalgia who was fired for poor performance failed to show she was a “qualified individual” under the Americans with Disabilities Act Amendments Act because she sought disability benefits and applied for only one job following her termination according to the court which so ruled on Jan. 28, 2013. (Bell v. Methodist Healthcare Memphis Hosps., W.D. Tenn., No. 2:11-cv-02756, 1/28/13).

MItchell H. Rubinstein

February 24, 2013 in Employment Discrimination | Permalink | Comments (0)

Saturday, February 23, 2013

Senator Rand Paul Introduces Anti-Union Amendment To NLRA

Tea Party favorite Sen. Rand Paul (R-Ky.) introduced a bill (S. 204) that would amend the National Labor Relations Act to bar the inclusion of union security clauses in collective bargaining agreements, which require the payment of union dues or fees as a condition of employment. The proposed National Right-to-Work Act also would amend the Railway Labor Act. The bill currently has 10 co-sponsors, all Republicans.
Expect it to go nowhere, but it demonstrates that there are a number of anti-union Senators in the Congress.
Mitchell H. Rubinstein

February 23, 2013 in Legislation, NLRB | Permalink | Comments (0)

Thursday, February 21, 2013

K-9 Dog Handler Can Advance FLSA Claim For Time Caring For Dog Off-Duty

A former canine handler can advance his claim for unpaid compensation and overtime pay for hours he spent caring for a dog outside of work according to the Northern District of Alabama which so ruled.(Manning v. Scottsboro, N.D. Ala., No. 5:12-cv-04108, 1/30/13).
This appears to be an interesting case to watch.
Mitchell H. Rubinstein

February 21, 2013 in Employment Law | Permalink | Comments (0)

Wednesday, February 20, 2013

Employee terminated following his falsely reporting he was unable to work and engaging in unauthorized outside employment

The Appellate Division sustained the termination of a deputy sheriff’s employment as a deputy sheriff, holding that substantial evidence supports the findings that the deputy sheriff:
[1] Falsely reported that he was unable to work from October through the following June;
[2] Engaged in unauthorized outside employment: and
[3] Lied under oath when he denied engaging in such outside employment at his workers' compensation hearing.
The court ruled that there was no basis to disturb the credibility determinations of the Administrative Law Judge and that the penalty of termination “does not shock our sense of fairness,” citing Cherry v Horn, 66 AD2d 556
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

February 20, 2013 | Permalink | Comments (0)

Tuesday, February 19, 2013

Hubert, Can't Escape from the Memory: Social Media and Public Sector Labor Law

Bill Hubert, Deputy Chair PERB just published on SSRN Can't Escape from the Memory: Social Media and Public Sector Labor Law. The abstract provides:

The Web 2.0 communicative revolution is impacting many fields of law including labor and employment law. This article focuses upon the application and impact of statutory and constitutional doctrines on the use of social media in public employment in the United States. It examines social media under public sector labor law through a cross-sectoral analysis of two primary issues: the scope of protected social networking activities, and the contours of employer policies. The article compares and contrasts developments under the National Labor Relations Act with developments under collective bargaining laws and due process statutes in three states, and under the First Amendment. Through this comparative analysis, the article highlights the distinctions and similarities of public sector labor law and their implications for the future.

I look forward to reading this important work. Congrats. 

Mitch Rubinstein

Hat Tip: Workplace Prof Blog

February 19, 2013 | Permalink | Comments (0)

Monday, February 18, 2013

NLRB Overrules Anheuser-Busch Precedent, Favors Balancing Test on Witness Statements

The Labor Board on December 14, 2012 overruled a 36-year-old “bright-line rule” that denied labor organization representatives access to witness statements obtained by unionized employers, finding NLRB should balance the interests of unions and employers in assessing union requests for the names or statements of witnesses interviewed during a company investigation (Am. Baptist Homes of the W. d/b/a Piedmont Gardens,359 N.L.R.B. No. 46, 12/15/12 [released 12/21/12]).
NLRB Chairman Mark Gaston Pearce and Members Richard F. Griffin and Sharon Block said the U.S. Supreme Court has approved the board's balancing a union's need for relevant information against legitimate and substantial employer interests in keeping information. The board held in Anheuser-Busch Inc., 237 N.L.R.B. 982, 99 LRRM 1174 (1978), that witness statements were distinguishable from other information, but Pearce, Griffin, and Block found that witness statements relevant and necessary to a union's representation of employees are “fundamentally the same” as other information an employer must provide to a bargaining agent.
Member Brian E. Hayes dissented from the overruling of Anheuser-Busch, arguing that exempting witness statements from disclosure supported employer efforts to secure the participation of workers in investigations, and protected participating employees from retaliation or harassment by unions or co-workers.
Hat Tip: Daily Labor Report
Mitchell H. Rubinstein

February 18, 2013 in NLRB | Permalink | Comments (0)

Sunday, February 17, 2013

Court Boosts Claims by Fired Pharmacist Unable to Give Flu Shots Because of Arthritis

A grocery store chain that fired a pharmacist whose rheumatoid arthritis left her unable to give flu shots to customers failed to prove that the former employee could not perform her job's essential functions. (Scavetta v. King Soopers Inc., D. Colo., No. 1:10-cv-02986, 1/28/13).
Significantly, plaintiff's supervisors did not force her to give the shots until more than a year after they became aware of her medical restrictions and that King Soopers allowed at least 10 other pharmacists to avoid administering immunizations because of similar conditions.
Mitchell H. Rubinstein

February 17, 2013 in Employment Discrimination | Permalink | Comments (0)

Saturday, February 16, 2013

NBA Union Executive Director Fired

The Executive Director of the NBA Players Union was recently fired. He allegedly engaged in a number of questionable practices and is subject to a criminal investigation as well as a investigation by the Department of Labor. Additional details can be found here.

Mitchell H. Rubinstein

February 16, 2013 in Unions | Permalink | Comments (0)

Thursday, February 14, 2013

Can Employer's Require That Employees Take Flu Shot

There are a host of legal issues that arise if an employer requires that its employees get a flu shot. If an employee has a religious objection because the shot is made from meat by products, she may have a case against an employer who forces an employee to take the shot. Additional discussion available here.

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

Mitchell H. Rubinstein

February 14, 2013 in Employment Law, Law Review Ideas | Permalink | Comments (0)

Wednesday, February 13, 2013

DOL May Require Employers To State Whether or Not Individuals Are Employees

Worker misclassification is a serious problem. An individual who is improperly classified as an independent contractor may not be protected under our employment laws and may not have appropriate taxes withheld which can prevent him from receiving social security or unemployment. The US DOL has recognized this and may enacted legislation requiring that employers state whether or not employees are truly employees or independent contractors. Details here.

Mitchell H. Rubinstein 

February 13, 2013 in Employment Law, Law Review Ideas | Permalink | Comments (0)

Monday, February 11, 2013

Justice Thomas Speaks


Supreme Court watchers know that Justice Thomas does not speak in Court. If he wants to say something, he asks the other Justices to ask a question. However, recently he said something in open Court. What did he say you might ask? He attempted to crack a joke! A New York Times article discussing Justice Thomas is available here

Mitchell H. Rubinstein

February 11, 2013 in Supreme Court | Permalink | Comments (0)

Sunday, February 10, 2013

Texas Federal Court Applies Hybrid Employee Status Test In Disco Case

 A former legal support service worker fired one year after ending a romantic relationship with her boss showed sufficient evidence of employee status to proceed with her sex discrimination, sexual harassment, retaliation, and wage claims. (Fontenot v. Brouillette,S.D. Tex., No. 4:10-CV-01053, 1/15/13).

Partially denying summary judgment, the court holds that plaintiff  presented enough facts to raise a question of whether she was as an “employee” under Title VII of the 1964 Civil Rights Act and the Fair Labor Standards Act, instead of an independent contractor.

The court found that plaintiff provided sufficient proof that her former manager and six energy companies had the right to control her work performance, according to the “hybrid economic realities/common law control test” adopted by the Fifth Circuit. A copy of the case can be found here.

Mitchell H. Rubinstein

February 10, 2013 in Employment Discrimination | Permalink | Comments (0)

Saturday, February 9, 2013

New Jersey appellate court upholds district’s removal of teacher who posted derogatory remarks about her students on Facebook

Source: NSBA Legal Clips; Free subscriptions available Reproduced with permission. Copyright © 2013, National School Boards Association. All rights reserved.
In re Tenure Hearing of Jennifer O’Brien,  No. A-2452-11T4 (N.J. Super. Ct., App. Div. Jan. 11, 2013)
Abstract: A two-judge panel of the Appellate Division of the New Jersey Superior Court has ruled that school district officials were justified in terminating an elementary school teacher for posting derogatory remarks on Facebook about her students, including referring to them as “future criminals.” Agreeing with the administrative law judge (ALJ) and the Acting Commissioner of Education, the panel concluded the teacher’s remarks were not protected by the U.S. Constitution’s First Amendment Free Speech Clause because the remarks were not made on a matter of public concern.
The panel also found evidence supporting the ALJ’s and Commissioner’s determination that the teacher had engaged in conduct unbecoming a tenured teacher. Finally, the panel agreed with the ALJ and Commissioner that her termination was the appropriate penalty.
Facts/Issues: At the time of her termination, Jennifer O’Brien was employed by the School District of the City of Paterson (PCSD) as a first grade teacher. In March 2011, she posted two statements on Facebook that had cast her students in a derogatory light, including referring to them as “future criminals.” The remarks gained widespread public attention, with a number of parents complaining about O’Brien’s comments.
After PCSD’s Deputy Superintendent filed charges against O’Brien for conduct unbecoming a teacher, PCSD’s Superintendent found probable cause to support the charges and O’Brien’s termination. The charges were then filed with the Acting Commissioner of Education, who referred the matter to the Office of Administrative Law for a hearing before an ALJ.
The ALJ rejected O’Brien’s argument that her remarks were entitled to First Amendment protection on grounds that she had addressed a matter of public concern, i.e., student misconduct. Instead, the ALJ found the remarks were “a personal expression” of dissatisfaction with her job. The ALJ also concluded that even if O’Brien’s speech was on a matter of public concern, her right to express her views was outweighed by PCSD’s need to operate its schools efficiently. The ALJ stated that “in a public school setting thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools.”
The ALJ also found the evidence supported the charges of conduct unbecoming a teacher because it showed O’Brien failed to maintain a safe, caring, nurturing, educational environment. Additionally, the ALJ determined that O’Brien breached her duty as a professional teacher. Lastly, the ALJ found O’Brien’s conduct justified her removal because O’Brien’s relationship with the Paterson school community had been irreparably damaged. The Acting Commissioner adopted the ALJ’s ruling.
O’Brien appealed that decision, raising three arguments: (1) the ALJ and the Commissioner erred by rejecting her constitutional claim; (2) the tenure charges were not supported by the evidence and should have been dismissed; (3) her removal was not the appropriate penalty.
Ruling/Rationale:  The Appellate Division panel rejected all of O’Brien’s arguments, finding them without merit, and affirmed the ALJ’s and Commissioner’s decisions. The panel concluded that O’Brien’s remarks did not constitute protected speech because they were personal statements motivated by her dissatisfaction with her job and the behavior of some her students. The panel also agreed that even if the remarks were on a matter of public concern, PCSD’s interest in the efficient operation of its schools outweighed her right to free speech.
The panel also found that the evidence supported the ALJ’s determination that O’Brien had engaged in conduct unbecoming a tenured teacher. It pointed out that both the ALJ and the Commissioner found that by posting the comments, O’Brien had demonstrated a lack of control “inimical to her role as a professional educator.”
Finally, the panel rejected the argument that O’Brien’s termination was not an appropriate penalty. It stated: “We are satisfied that, in determining the appropriate penalty, the ALJ and Acting Commissioner considered all relevant factors and reasonably concluded that the seriousness of O’Brien’s conduct warranted her removal from her tenured position in the district.”
In re Tenure Hearing of Jennifer O’Brien,  No. A-2452-11T4 (N.J. Super. Ct., App. Div. Jan. 11, 2013)
[NSBA’s Editor's Note: In November 2011, Legal Clips summarized an article in The Record, which reported on ALJ Ellen Bass' ruling. "O'Brien has demonstrated a complete lack of sensitivity to the world in which her students live,” Bass said. “The sentiment that a 6-year-old will not rise above the criminal element that surrounds him cuts right to the bone.” Bass also noted that O’Brien had failed to express genuine remorse during her August 2011 hearing. “I came away with the impression that O’Brien remained somewhat befuddled by the commotion she had created,” the judge wrote.]

Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

February 9, 2013 in Education Law | Permalink | Comments (0)

Thursday, February 7, 2013

10% of Workers Have Defined Benefit Plans

The last private industry pension plans: a visual essay is an interesting December 2012 article from the Monthly Labor Review, here. The article concludes, among other things, 

In 2011, only 10 percent of all private sector establishments provided defined benefit plans, covering 18 percent of private industry employees. Decades ago, broad coverage of these plans allowed the Bureau of Labor Statistics (BLS) to analyze and tabulate considerable detail about how they worked. . .

Mitchell H. Rubinstein

February 7, 2013 in Employee Benefits Law, Law Review Articles | Permalink | Comments (0)