Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Sunday, March 31, 2013

Locked Out Employees Are Entitled To Unemployment

The North Dakota Supreme Court recently  ruled that American Crystal Sugar workers locked out of their jobs in a labor dispute are eligible for unemployment benefits(Olson v. Job Serv., N.D, No. 2013-ND-24, 2/26/13).

March 31, 2013 in Employment Law | Permalink | Comments (0)

Friday, March 29, 2013

Northwestern: 100 Years Under the Income Tax

Northwestern Law Review and the Northwestern tax program have combined to host a symposium titled "100 Years Under the Income Tax" on April 5, 2013, at the Chicago campus.  Here is the program and a registration link.

Craig Estlinbaum

March 29, 2013 in Conferences, CLE, Conferences, Faculty, Tax Law Information | Permalink | Comments (0)

Thursday, March 28, 2013

Unemployment For Family Members

In a major decision, the Minnesota Court of Appeals held that a state law prohibiting family-member personal care assistants from obtaining unemployment insurance benefits is unconstitutional (Weir v. ACCRA Care, Minn. Ct. App., No. A12-0764, 2/25/13).

Judge Jill Flaskamp Halbrooks reasoned that the law that defined family-member PCAs as “noncovered employees’’ for unemployment insurance purposes violates the Minnesota Constitution's equal protection clause. 

March 28, 2013 in Employment Law | Permalink | Comments (0)

Wednesday, March 27, 2013

2d Circuit Issues Major Decision On Indefensbile Conduct

NLRB v. Special Touch, ___F.3d___(2d Cir. Feb. 27, 2013), is a major decision which outlines when striker could loose protection for striking by engaging "indefensible conduct."  Here, although the union gave the required 8(g) 10 days notice of striking a health care institution, 48 strikers mislead the employer into thinking that they were going to show up. As the court explained:

Despite the fact that forty-eight aides never started
work on June 7, 2004, it can still be said that foreseeable
imminent danger resulted from their “sudden cessation of
work.” Until approximately twenty minutes after each of the
forty-eight aides’ shifts began, Special Touch believed that
it had these patients covered.

Mitchell H. Rubinstein

March 27, 2013 in NLRB | Permalink | Comments (0)

Tuesday, March 26, 2013

Important NLRB Excelisor Decision

International Brotherhood of Teamsters, 359 NLRB No. 67 (Feb. 14, 2013), is an important case concerning Excelsior lists. The Board reaffirmed the principle that there is no ULP if the employer substantially complied, reasoning:

We disagree with the hearing officer’s conclusion.
Under Woodman’s Food Markets, 332 NLRB 503
(2000), the Board considers several factors in determining
whether an employer has substantially complied with
the Excelsior requirements, including the percentage of
voters omitted from the Excelsior list, the employer’s
reasons for omitting the voters’ names, and whether the
number of voters omitted constitute a determinative
number of votes. In the present case, we find that the
relevant Woodman’s factors support a finding that the
Employer substantially complied with the Excelsior requirements:
the percentage of voters omitted from the list
is relatively small (15.4 percent), there is no showing of
bad faith on the part of the Employer, and, perhaps most
importantly, the number of voters omitted from the list
does not constitute a determinative number. In reaching
a contrary conclusion, the hearing officer relied in part
on the Board’s decision in Automatic Fire Systems, 357
NLRB No. 190 (2012), but we find that case distinguishable
in two significant respects. First, the present case
involves a two-union election in which all employees
indicated their preference for representation and in which
both unions were equally affected by the Excelsior list
omissions. Second, there is no showing here that the
Employer intentionally omitted an entire segment of its
work force.

The NLRB needs to be more careful in writing decision because a 15.4 percent error rate is no 
small error. I am sure that employer's are going to to argue that errors less than 15.4 percent are
not material and that is clearly not what the Board meant.
Mitchell H. Rubinstein

March 26, 2013 in NLRB | Permalink | Comments (0)

Thurgood Marshall Conference: The Constitutionalization of Immigration Law

The Thurgood Marshall School of Law in Houston will host a two-day conference April 4-5 titled "The Constitutionalization of Immigration Law" (brochure here).  I am honored to be included among the speakers at this conference.  I will be on the panel for "Sixth Amendment Right to Counsel in Texas Court Proceedings - Padilla and 11.07 Habeas Corpus," which will be presented Thursday afternoon.  I will be joining Naomi Jiyoung Bang, Senior Attorney at FosterQuan LLP in Houston (and also a Clinical and Adjunct Professor of Law at South Texas College of Law) and Franklin Bynum, from the Harris County Public Defender's Office, on this particular panel.  Topics covered in the conference are:

  • Pleanary  Power - Supreme Court Deference to the Executive and Legislative Branches:  Brief History of the Chinese Exclusion Cases;
  • Fifth Circuit Practice Pointers - A View from the Bench;
  • Washington Insiders View on Immigration Reform, DACA, Stateside Waivers, and Path to Citizenship;
  • Fifth Amendment - Due Process Rights to Counsel in Immigration Proceedings: Matter of Lazada, Compean I & II, MAM and Circuit Court Decisions;
  • Sixth Amendment Right to Counsel in Texas Court Proceedings - Padilla and 11.07 Habeas Corpus;
  • Sixth Amendment Right to Effective Assistance of Counsel;
  • Fourth Amendment Search and Seizure in Immigration Proceedings;
  • Restitution and Compensation for Victims of Human Trafficking in the United States; and
  • Round Table Clinicians Luncheon - Infusing Best Practices in Immigration Law School Clinics.

Thank you to Professor Fernando Colon-Navarro, Director of LLM and Immigration Development at Thurgood Marshall for this invitation.  I am honored to participate in the comprehensive and timely conference.

Craig Estlinbaum

March 26, 2013 in Conferences, CLE, Conferences, Faculty, Constitutional Law, Criminal Law, Federal Law | Permalink | Comments (0)

Monday, March 25, 2013

Interesting Same Sex Harassment Case Decided By 2d Circuit

A male food industry worker in New York presented sufficient evidence to prove he was sexually harassed by a male supervisor, the U.S. Court of Appeals for the Second Circuit held Feb. 25, reviving his sex discrimination claims under Title VII of the 1964 Civil Rights Act and state law  Barrows v. Seneca Foods Corp., ____F.3d____(2d Cir. 2/25/13 ).
A reasonable jury could conclude that plaintiff was subjected to same-sex sexual harassment by one of his supervisors at Seneca Foods Corp. The 2d Circuit held that  a lower court erred in deciding that the s alleged harassment, which purportedly included requesting a “blowjob” and touching the genitals of Barrows and other male employees, was not based on sex.

March 25, 2013 in Employment Discrimination | Permalink | Comments (0)

Sunday, March 24, 2013

Rare 2d Circuit Decision Holding Individual Shareholder Liable for ULP's

Salm v. NLRB,____F.Appx. ____(2d Cir. Jan. 30,2013), is an important case. The 2d Circuit in an unreported decision affirmed the NLRB's remedial order which pierced the corporate veil and found individual shareholders personally liable for unfair labor practices. As the court explained:

In the context of federal labor law and enforcement of orders of the NLRB, it remains the
case that the “insulation of a stockholder from the debts and obligations of his corporation is the
norm, not the exception.” NLRB v. Deena Artware, Inc., 361 U.S. 398, 402-03 (1960). This
general norm, however, is not inviolate. To pierce the corporate veil, the NLRB applies the twoprong test laid out in White Oak Coal Co., 318 N.L.R.B 732, 734-35 (1995), enforced, 81 F.3d
150 (4th Cir. 1996). Under this test, the NLRB may pierce the corporate veil and impose
personal liability on a shareholder or owner if “(1) there is such unity of interest, and lack of
respect given to the separate identity of the corporation by its shareholders, that the personalities
and assets of the corporation and the individuals are indistinct, and (2) adherence to the
corporate form would sanction a fraud, promote injustice, or lead to an evasion of legal
obligations.” White Oak Coal, 318 N.L.R.B. at 735.
In analyzing the first prong, the NLRB examines a host of specific factors, including:
(1) whether the corporation is operated as a separate entity; (2) the commingling of funds
and other assets; (3) the failure to maintain adequate corporate records; (4) the nature of
the corporation’s ownership and control; (5) the availability and use of corporate assets,
the absence of same, or under capitalization; (6) the use of the corporate form as a mere
shell, instrumentality or conduit of an individual or another corporation; (7) disregard of
corporate legal formalities and the failure to maintain an arm’s-length relationship among
related entities; (8) diversion of the corporate funds or assets to noncorporate purposes;
and, in addition, (9) transfer or disposal of corporate assets without fair consideration.
Id. Of these, “[n]o one factor is determinative, and not all of these factors must be present.”
NLRB v. Bolivar-Tees, Inc., 551 F.3d 722, 728-29 (8th Cir. 2008). While based on one major
transaction, the Board rightly concluded that an analysis of these factors showed that Salm had
indeed abused the corporate form to such a degree—by drawing down virtually all of the assets
of the Domsey Trading Corporation for his personal use—that the first prong of the White Oak
had been met.
Mitchell H. Rubinstein


March 24, 2013 in Labor Law, NLRB | Permalink | Comments (0)

Friday, March 22, 2013

Interesting article on law schools prestige

Joel Kupfermid just posted on SSRN What Works to Increase a Law Schools’ Prestige and Their Graduates’ Passing the Bar: Better Students or Better Faculty? The abstract provides:

This study asked two questions about the relative influence of student capability (as measured by LSAT scores) and faculty expertise (as measured by citations in law journals for faculty publications) for increasing a law school’s prestige (as measured by ranking in U.S. News) and passage rates on the bar examination for their graduates.
Likewise, several shortcomings in the previous literature were addressed: (1) researchers have either investigated the relationship of student understanding of the law to prestige or examined faculty expertise to this outcome, but none explored the effects of one of these
predictors with the effects of the other removed (partial correlation), (2) researchers have correlated various student measures to bar passing rates for law schools across the country but this presents interpretative difficulties because the types of tests given for each bar examination, and the scores needed to pass, have considerable variation across
jurisdictions, and (3) several studies have assessed the influence of faculty scholarship to prestige, but no study has assessed the influence of scholarship to bar passage rates. The results of this study indicate that prestige is likely a function of the reciprocal relationship between student capability and faculty expertise. To determine which came
first, better students attracting more well-known professors or well-known professors attracting better students, is a chicken and egg problem. With respect to passing the bar, the analysis indicates faculty expertise is more influential than student capability in promoting higher passing percentages, at least in California and New York. Based on these findings, increasing the number of faculty with recognized expertise in an area of law will raise a school’s prestige at least as much as encouraging students with high LSAT scores to enroll, and will have the added benefit of increasing the percentage of graduates passing the bar. This recommendation does not apply to law schools where bar passage rates are very high or where a high percentage of professors eminent in law are already in the department.

Readers may want to check this article out.

Mitchell H. Rubinstein

March 22, 2013 in Law Schools, Law Schools, Rankings | Permalink | Comments (0)

Thursday, March 21, 2013

College Degree Becoming New High School Diploma

There is nothing new about college graduates having to take unskilled jobs. However, the New York Times recently published an interesting article outlining this problem, here

Mitchell H. Rubinstein

March 21, 2013 in Colleges | Permalink | Comments (1)

Wednesday, March 20, 2013

Intermittent Status Is Adverse Action Under Title VII

A federal district court recently held that a partnership data services coordinator with the Commerce Department can advance her retaliation claim, finding that her conversion to intermittent employment status constituted an adverse action. Ryan-White v. Blank,____F.Supp. 2d___ (D.D.C., No. 1:12-cv-00177, 2/13/13).

Mitchell H. Rubinstein

March 20, 2013 | Permalink | Comments (0)

Tuesday, March 19, 2013

7th Circuit Affirms Large ADA Verdict and Punitive Damages


The 7th Circuit recently held that an employer is liable under the Americans with Disabilities Act for failure to accommodate a parts sales manager who asked to be excused from mopping store floors because it aggravated his back condition and properly was assessed $200,000 in punitive damages for “reckless indifference” to his rights. EEOC v. AutoZone Inc., ___F.3d____(7th Cir., No. 12-1017, 2/15/13).

Mitchell H. Rubinstein

March 19, 2013 in Employment Discrimination | Permalink | Comments (0)

Monday, March 18, 2013


Professor Mark Weber, one of the giants in special education law, just posted on SSRN an important article on the IDEA. Mark Weber, All Areas of Suspected Disability, ____Loyla L. Rev. ___ (forthcoming)

The abstract provides:

The Individuals with Disabilities Education Act (IDEA) requires school districts to assess children “in all areas of suspected disability.” It further provides that each child’s individualized education program (IEP) must contain measurable annual goals designed to “meet each of the child’s . . . educational needs that result from the child’s disability,” and a statement of special education and related services that will be provided for the child “to advance appropriately toward attaining annual goals.” 

Courts have strictly enforced these requirements in the last several years, remedying violations of IDEA when school districts fail to assess in all areas of suspected disability or do not establish goals and services to meet each of the child’s needs resulting from the disability. This Article offers three interpretations of this recent development. First, what the courts are doing may represent an effort to enforce provisions of IDEA that stand apart from the limited reading that a 1982 Supreme Court case placed on the requirement in the statute to provide a free, appropriate public education. Second, the development may signify a different way of looking at special education obligations under the law, one well adapted to the ever-increasing importance attached to providing services in settings that are less restrictive and maintain the greatest inclusion of students with disabilities with nondisabled students. Third, the cases might simply be a reaction to cutbacks on evaluations and services that school districts have imposed because of financial strains brought about by the Great Recession. This Article will not try to declare which of these interpretations is the correct one, and in fact all three may be true. But the Article will conclude that enforcement of these provisions furthers the underlying purposes Congress had in enacting IDEA.

Mitchell H. Rubinstein

March 18, 2013 | Permalink | Comments (0)

Virginia Conference on Reparations

From Alfred Brophy, The Faculty Lounge:

This Friday the University of Virginia's Carter Woodson Institute is hosting a symposium on the question, "Does Reparations Have a Future?"  I suppose the short answer is that people are continuing to use reparations talk as a way of organizing their thoughts and actions around racial justice -- even as the case for reparations has been largely defeated in the courts and in legislatures.

Full post.

Craig Estlinbaum

March 18, 2013 in Conferences, Faculty, Law Schools, Remedies | Permalink | Comments (0)

SMU Law: Federal Circuit and Patent Law Symposium

The SMU Dedmon School of Law will host its 10th Annual Symposium on Emerging Intellectual Property Issues on March 22, 2013, with a presentation titled "The Federal Circuit and Patent Law."  The one day symposium includes four panel discussions - The Federal Circuit's Stewardship of Patent Law: A View from the Bench; Institutional Roles: The Federal Circuit and the Supreme Court; Allies or Competitors: The Federal Circuit and the U.S. Patent and Trademark Office; and Innovation, Disruptive Technologies and the Federal Circuit.  Bernard J. Knight, Jr., General Counsel, U.S. Patent and Trademark Office is scheduled to deliver the luncheon and keynote address.  A complete brochure for the symposium is here.

Craig Estlinbaum

March 18, 2013 in College Professors, Conferences, CLE, Conferences, Faculty, Federal Law, Judges, Law Professors | Permalink | Comments (0)

Sunday, March 17, 2013

Federal Court Issues Important Independent Contractor Decision

A federal district court recently held that Oil field gate attendants in Texas were independent contractors and not employees under the Fair Labor Standards Act. Gate Guard Services LP v. Solis, ____F.2d___( S.D. Tex., No. 10-00091, 2/13/13). I bring this case to your attention because the court does a nice job of analyzing this important issue. 

Mitchell H. Rubinstein

March 17, 2013 in Employment Law | Permalink | Comments (0)

Saturday, March 16, 2013

Employee privacy and Internet Social Media

California’s Governor Edmund G. Brown has signed into law a bill that prohibits an employer from requiring or requesting an employee or applicant for employment to disclose a username or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media.
The law also prohibits an employer from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a request or demand by the employer that violates these provisions.
The new law provides as follows:
California Labor Code
CHAPTER  2.5. Employer Use of Social Media
 (a) As used in this chapter, “social media” means an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.
(b) An employer shall not require or request an employee or applicant for employment to do any of the following:
(1) Disclose a username or password for the purpose of accessing personal social media.
(2) Access personal social media in the presence of the employer.
(3) Divulge any personal social media, except as provided in subdivision (c).
(c) Nothing in this section shall affect an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.
(d) Nothing in this section precludes an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.

(e) An employer shall not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates this section. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law.
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

March 16, 2013 in Employment Law, Law Review Ideas | Permalink | Comments (0)

Friday, March 15, 2013

Adjunct Law Faculty Conference

Kudos to Western State College of Law which organized the first Adjunct Law Professor teaching conference, details can be found by clicking  Download Law Teaching for Adjunct Faculty

The conference will be held on April 13, 2013 at Western State College of Law in California. Registration is $100.00 and CLE credit is available for an additional $150.00. While these fees are reasonable, I question how many adjuncts are actually going to attend. While this is a wonderful first step, law schools around the country, if they are interested in training their adjuncts (and sadly, most are not), should step up and fly their adjuncts out to this conference and yes, pay the registration fee and pay them for their time.

Mitchell H. Rubinstein

March 15, 2013 in Adjunct Information in General | Permalink | Comments (0)

Thursday, March 14, 2013

2d Circuit Issues Important Sexual Harassment Decision

Desardouin v. City of Rochester, ____F.3d____(2d Cir. Feb. 19, 2013), is an important decision where the Second Circuit clarified the standards for hostile environment sexual harassment. As the court stated:

    A hostile work environment claim requires a plaintiff to
show that a workplace is “so severely permeated with discriminatory
intimidation, ridicule, and insult that the terms and conditions of
her employment were thereby altered.” Alfano v. Costello, 294 F.3d
365, 373-74 (2d Cir. 2002) (citations omitted). The plaintiff must
also show “either that a single incident was extraordinarily severe,
or that a series of incidents were sufficiently continuous and
concerted to have altered the conditions of her working environment.”
Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (internal
quotation marks omitted). If a plaintiff relies on a series of
incidents, they must be “more than episodic; they must be sufficiently
continuous and concerted in order to be deemed pervasive.” Perry v.
Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997) (internal
quotation marks omitted). In determining whether the threshold has
been met, relevant factors include “the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether
it unreasonably interferes with an employee’s work performance.”
Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). The
plaintiff must also subjectively perceive the environment to be
abusive. Id. at 22-23.

Mitchell H. Rubinstein



March 14, 2013 in Employment Discrimination | Permalink | Comments (0)

Wednesday, March 13, 2013

Fired Principal Lacks First Amendment Claim for Unprotected Speech

An Illinois middle school principal discharged after charging her predecessor and immediate supervisor with misusing public funds lacks a First Amendment retaliation claim because she spoke as an employee on matters related to her job rather than as a citizen on matters of public concern, as per the 7th Circuit's ruling on Jan. 31, 2013. ruled ( McArdle v. Peoria Sch. Dist. No. 150, 7th Cir., No. 11-2437, 1/31/13 ).
This case demonstrates how narrow First Amendment protections for public employees has become.
Mitchell H. Rubinstein

March 13, 2013 in First Amendment | Permalink | Comments (0)