Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, July 31, 2013

Second Circuit Finds Supermarket Owner Personally Liable as Employer Under FLSA

The owner, president, and chief executive officer of a supermarket chain in New York is personally liable for his companies' default on payment obligations under an overtime settlement with a class of store managers because he is an “employer” under the Fair Labor Standards Act. Irizarry v. Catsimatidis, ____F.3d___ (2d Cir. July 9, 2013). 

The decision is lengthly and worth a read for those interested in this area of law.

Mitchell Rubinstein

July 31, 2013 in Employment Law | Permalink | Comments (1)

Tuesday, July 30, 2013

Employee Fired For Adding Him To Benefits Claim Lacks Discrimination Claim

An unmarried, heterosexual female employee of who was fired because she listed her boyfriend as her "spouse" and "same-sex partner" on her benefit enrollment forms lacks marital status and sexual orientation discrimination claims under state law. Hanson v. Mental Health Res. Inc.,____F.Supp. 2d___( D. Minn., No. 12-00540, 6/3/13).

Mitchell H. Rubinstein

July 30, 2013 in Employment Discrimination, Law Review Ideas | Permalink | Comments (0)

Rosen on Copyright and Vanishing Books

Rebecca J. Rosen at The Atlantic has a telling story on how copyright laws have caused books from the mid-20th Century forward to "vanish."  The story is "The Hole in Our Collective Memory: How Copyright Made Mid-Century Books Vanish."  Rosen concludes:

By this calculation, the effect of copyright appears extreme. Heald says that the WorldCat research showed, for example, that there were eight times as many books published in the 1980s as in the 1880s, but there are roughly as many titles available on Amazon for the two decades. A book published during the presidency of Chester A. Arthur has a greater chance of being in print today than one published during the time of Reagan.

Craig Estlinbaum

July 30, 2013 in Articles, Federal Law | Permalink | Comments (1)

Monday, July 29, 2013

NLRB Re-affirms Pre-arbitration Deferral Standards

Sheet Metal Workers, 359 NLRB No. 121 (May 13, 2013), is an important case because the NLRB reaffirms Collyer pre-abitration deferral standards. The case involved an alleged refusal to bargain by the Union in violation of Section 8(b)(3). As the Board explained:

Under established precedent, which
the judge’s decision does not address, the Board finds
deferral appropriate when the following conditions are
met: the parties’ dispute arises within the confines of a
long and productive collective-bargaining relationship;
there is no claim of animosity to employees’ exercise of
Section 7 rights; the parties’ agreement provides for arbitration
in a broad range of disputes; the parties’ arbitration
clause clearly encompasses the dispute at issue; the
party seeking deferral has asserted its willingness to utilize
arbitration to resolve the dispute; and the dispute is
well suited to resolution by arbitration. United Technologies,
268 NLRB 557, 558 (1984); accord: Collyer
Insulated Wire, 192 NLRB 837, 842 (1971).
We find that the criteria outlined in Collyer Insulated
Wire and United Technologies are satisfied in this case.
The Respondent and Charging Party have been parties to
a long and productive collective-bargaining relationship
dating back to at least 1984. Neither party alleges that
the other has exhibited animosity to employees’ exercise
of Section 7 rights. The grievance-arbitration procedure
in the 2009 agreement provides for the resolution of contract
interpretation disputes, which can be initiated by
either party. The Respondent has expressed its willingness
to arbitrate the dispute. Finally, resolution of the
substantive question in this case—whether the 2009
agreement was automatically extended for 1 year by its
terms because no party provided sufficient and timely
written notice of an intent to modify or terminate the
agreement—is a question of contract interpretation that is
well suited for resolution through arbitration. See Tri-
Pak Machinery, Inc., 325 NLRB 671, 673 (1998) (disputes
concerning the renewal or termination of an
agreement are appropriate for arbitration).
We find no merit in any of the judge’s reasons for declining
to defer. First, we disagree with the judge’s finding
that the Respondent’s conduct amounts to a rejection
of collective-bargaining principles. To the contrary, the
Respondent is taking the position that the parties’ collectively
bargained 2009 agreement remained in effect.
Second, the Respondent’s request for deferral, 5 days
before the hearing commenced, was not untimely. Deferral
to arbitration is an affirmative defense that may be
raised in the answer or even at the hearing. See, e.g.,
Hospitality Care Center, 314 NLRB 893, 894 (1994).
Although we share the judge’s concern about potential
delay, it does not outweigh our findings that the Respondent
timely raised a deferral defense and the long established
criteria set forth in Collyer and its progeny are
satisfied here. Finally, the judge erred in deciding the
case on the merits before determining whether deferral
was appropriate—and, a fortiori, in basing his refusal to
defer in part on his decision on the merits. The Board
has long held that while a deferral defense and the merits
may be addressed in the same hearing and the same decision,
“[w]hether deferral is appropriate is a threshold
question which must be decided in the negative before
the merits of the unfair labor practice allegations can be
considered.” L.E. Myers Co., 270 NLRB 1010, 1010 fn.
2 (1984).

Mitchell H. Rubinstein

July 29, 2013 in NLRB | Permalink | Comments (0)

Thursday, July 25, 2013

Fourth Circuit Nixes NLRB Notice Rule, Finding It Not Authorized by Law

Ok, this is old news, but we have not reported on it before. The Fourth Circuit becomes the second appellate court to strike down the National Labor Relations Board's August 2011 regulation requiring businesses to post notices of worker rights, findingthat the National Labor Relations Act never authorized or empowered the federal agency to promulgate such a notice-posting requirement (Chamber of Commerce v. NLRB, 4th Cir., No. 12-1757, 6/14/13).

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

Blogging Judges

Robert J. Ambrogi at Law Technology News has posted "Blogging From The Bench" on blogging judges and justices.  Ambrogi himself blogs here and here.

Craig Estlinbaum

July 25, 2013 in Articles, Blogs, Legal, Judges | Permalink | Comments (0)

Monday, July 22, 2013

Targeting Union Employees For Layoffs Violates The First Amendment

State Employee Bargaining Coalitation v. Roland, ___F.3d___( 2d Cir. May 31, 2013), is an important case. I am surprised that this case has not gotten alot of national press. The 2d Circuit holds that targeting Union employees for layoff violates the First Amendment. The court applies strict scrutiny and reasoned as follows:
We ourselves have stated thatit cannot “be questioned that the First Amendment’s protection of speech and
associational rights extends to labor union activities.” Conn. State Fed’n of Teachers v.
Bd. of Educ. Members, 538 F.2d 471, 478 (2d Cir. 1976); see also Int’l Longshoremen’s
Ass’n v. Waterfront Comm’n of N.Y. Harbor, 642 F.2d 666, 670 (2d Cir. 1981) (“The
First Amendment’s protection of the right of association extends to labor union
However, we have never articulated a standard for determining whether, and under
what circumstances, a public entity’s employment decisions violate this right to associate
in unions. With respect to a public employee’s right to associate with political parties, the
Supreme Court stated in Rutan v. Republican Party of Illinois that government employers
may not “condition[] hiring decisions on political belief and association . . . unless the
government has a vital interest in doing so.” 497 U.S. 62, 78 (1990); see also Branti v.
Finkel, 445 U.S. 507, 520 (1980) (holding that termination of public defenders because
they were not affiliated with Democratic Party violated First Amendment); Elrod v.
Burns, 427 U.S. 347, 372-73 (1976) (holding that public employees who alleged they
were discharged because they were not members of sheriff’s political party stated a First
Amendment claim); Keyishian v. Bd. of Regents, 385 U.S. 589, 609-10 (1967)
(invalidating state university system’s prohibition on membership in Communist Party).
The Supreme Court was concerned that the government would “wield[] its power to
interfere with its employees’ freedom to believe and associate,” Rutan, 497 U.S. at 76,
and noted that “conditioning public employment on the provision of support for the
favored political party ‘unquestionably inhibits protected belief and association,’” id. at
69, quoting Elrod, 427 U.S. at 359. It therefore held that hiring based on political party
affiliation was subject to strict scrutiny and must be “narrowly tailored to further vital
government interests.” Rutan, 497 U.S. at 74; see also Branti, 445 U.S. at 515-16
(requiring “an overriding interest of vital importance” to fire a public employee solely for
his private beliefs (citation and internal quotation marks omitted)).
Conditioning public employment on union membership, no less than on political
association, inhibits protected association and interferes with government employees’
freedom to associate. It is therefore subject to the same strict scrutiny, and may be done
only “in the most compelling circumstances.” Rutan, 497 U.S. at 76.

Mitchell H. Rubinstein

July 22, 2013 in Constitutional Law, First Amendment, Public Sector Labor Law, Unions | Permalink | Comments (0)

Sunday, July 21, 2013

Pro Bono Reporting and Confidentiality in New York

From the New York Law Journal (story by Joel Stashenko):

The hours of pro bono work and the financial contributions to groups providing legal services to the poor that lawyers must report on their biennial registration forms will be available to anyone who requests them.

"It is our responsibility to give it out," Chief Judge Jonathan Lippman said in a recent interview. "If someone asks for the information, they can have it."

But some attorneys are troubled by the lack of confidentiality in the new mandatory reporting system.

I certainly am not closely familiar with the New York ethical rules, however, there are circumstances where courts have held client identity is privileged.  For example, when revealing the identity of a client under circumstances where the reveal would provide critical evidence to support indicting or convicting the client of a crime, the client's identity is often protected under the "last link" doctrine.


July 21, 2013 | Permalink | Comments (0)

Friday, July 19, 2013

ABA Committee Proposes Change To Student-to-Faculty Ratio

The National Law Journal (Karen Sloan) reports the "ABA committee reviewing the organization’s accreditation standards has voted to do away with the rule establishing a minimum student-to-faculty ratio."  Current standards require a 30-1 ratio while stating a 20-1 ratio is ideal.  The article also addresses other proposals before the committee, including proposals to change current tenure practices and to require law schools to meet higher bar passage rates.

Craig Estlinbaum

July 19, 2013 in Bar Association Matters, Law Schools | Permalink | Comments (0)

Thursday, July 18, 2013

Student Loan Debt in Bankruptcy

Karen Sloan at The National Law Journal reports on two recent failed efforts by debtors to discharge student loan debt in bankruptcy.  Sloan's story is here.

Craig Estlinbaum

July 18, 2013 in Federal Law, Law Students | Permalink | Comments (0)

Tuesday, July 16, 2013

Amending the qualifications for appointment to a position in the public service is a “Management Right” and is not a mandatory subject of collective bargaining

Uniformed Firefighters Assn. of Greater N.Y., Local 94 v City of New York, 2013 NY Slip Op 03763, Appellate Division, First Department
State Supreme Court Judge Carol E. Huff denied the Uniformed Firefighters Association petition seeking to annul the New York City Board of Collective Bargaining’s (BCB), decision dismissing the Association’s improper practice complaint.
BCB had rejected the Association’s improper practice charge challenging the New York City Fire Department’s decision to change the job requirements for the position of fire company chauffeur without first negotiating the proposed change with the Association.
Sustaining the Supreme Court’s ruling, the Appellate Division said that BCB's determination was neither arbitrary and capricious, contrary to law, nor an abuse of discretion, explaining that the “ … Fire Department's decision to alter the job requirements for the position … was within the sound exercise of its managerial discretion.”
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

July 16, 2013 in Public Sector Labor Law | Permalink | Comments (0)

Thursday, July 11, 2013

It is Objectionable To State That An Employee Would Be Toast If He Votes In Election

Bellagio, LLC, 359 NLRB No. 128 (May 31, 2013), is an interesting case. The Board, reversing the hearing officer, holds that a Union engaged in objectionable conduct when an agent stated that a unit employee "better not vote" and if the "vote went through" he would be "toast."

The issue in the case was not so much whether the above conduct is objectionable. Rather, the importance of the case is in its discussion of apparent authority. As the Board explained:

The Board applies common law principles when considering
whether an individual is an agent of the union.
“Apparent authority results from a manifestation by the
principal to a third party that creates a reasonable basis
for the latter to believe that the principal has authorized
the alleged agent to perform the acts in question.” Great
American Products, 312 NLRB 962, 963 (1993).
“[E]ither the principal must intend to cause the third person
to believe that the agent is authorized to act for him,
or the principal should realize that this conduct is likely
to create such belief.” Service Employees Local 87 (West
Bay Maintenance), 291 NLRB 82, 83 (1988) (citation
omitted). In evaluating whether an individual is vested
with apparent authority to act as the principal’s representative,
the Board also considers “whether the statements
or actions of an alleged . . . agent [are] consistent with
statements or actions of the [principal].” Pan-Oston Co.,
336 NLRB 305, 306 (2001). As stated in Section 2(13)
of the Act, when making the agency determination, “the
question of whether the specific acts performed were
actually authorized or subsequently ratified shall not be

Mitchell H. Rubinstein


July 11, 2013 in NLRB | Permalink | Comments (0)

Wednesday, July 10, 2013

Class Size Reduction at McGeorge

The Sacramento Bee (Mark Glover) reports this morning that the University of Pacific McGeorge School of Law will cut its enrollment from over 1,000 students in Fall 2010 to 600 students over the next three years in response to declines in applications.  The story is here.

Craig Estlinbaum

July 10, 2013 in Law Schools, News | Permalink | Comments (0)

Tuesday, July 9, 2013

Court Finds That Retiree's Right To Health Insurance Vested At Time of Retirement

Retirees' rights to lifetime health benefits vested on their retirement and thus were subject to benefits cap that union negotiated when retirees were still active employees. Curtis v. Alcoa Inc., ____F.3d____(6th Cir. 2013). 

This is an important issue which courts are all of the map on.

Law review commentary would be most welcome. 

Mitchell H. Rubinstein

July 9, 2013 in Arbitration Law, Labor Law, Law Review Ideas | Permalink | Comments (0)

New Jersey Supreme Court and Just Compensation

The New Jersey Supreme Court issued an important just compensation decision yesterday in Borough of Harvey Cedars v. Karan, No. 070512 (N.J., July 8, 2013).

In this case, the borough condemned part of the Karan's beachfront residential property to construct 22-foot high dunes to serve as a barrier against storm tides.  All parties agreed that the Karans' were entitled to just compensation - the case turned on what evidence should be admitted in determining that just compensation.

At trial, the court allowed the Karans' evidence relating to lost value due to the dunes obstructing their "oceanfront vista."  The trial court denied, however, the borough's evidence relating to the enhanced value for the Karans' property attributed to the added storm protection afforded by the dunes.  In the trial court's view, the storm protection constituted a general benefit.  The issue before the court was whether or not the cost incurred by the Karans, the part taken plus damages to the remainder, should be offset to the benefit the Karans might receive from dune project.

The Supreme Court reversed the trial court.  The court rejected the 19th century general benefits/special benefits dichotomy to hold that "just compensation should be based on non-conjectural and quantifiable benefits, benefits that are capable of reasonable calculation at the time of the taking."  The trial court erred, according to the opinion, but allowing the jury to hear evidence relating to the lost value due to the dunes, but not evidence relating to increased storm protection that would potentially enhance value.  

This opinion, issued unanimously, is a lengthy and detailed one and includes some history about just compensation law and the general damages/special damages rule.  We cover this issue in my Damages course so I will be incorpating either this case or the concepts this fall semester.

Craig Estlinbaum

July 9, 2013 in Constitutional Law, Faculty in the News, Interesting Cases, State Law | Permalink | Comments (0)

Monday, July 8, 2013

EEOC's Jackson Office and Mexican Consulate Sign Historic Outreach Agreement

The U.S. Equal Employment Opportunity Commission (EEOC) recently signed a Memorandum of Understanding (MOU) with the New Orleans Consulate of Mexico at the EEOC's Jackson Area Office.  The agreement establishes an ongoing collaborative relationship between these two entities to provide Mexican nationals with information, guidance, and access to resources on the prevention of discrimination in the workplace, regardless of documentation status. A May 21, 2013 EEOC Press Release describing this Agreement is available here.

Mitchell H. Rubinstein

July 8, 2013 in Discrimination Law | Permalink | Comments (0)

Sunday, July 7, 2013

Supremes Decline to Review ADA Case on Reassignment as Reasonable Accommodation

On May 28, 2013, the U.S. Supreme Court declined to review whether an employer violates the Americans with Disabilities Act by allowing disabled employees unable to perform their current jobs to apply for reassignment to vacant jobs, but then choosing the best qualified candidate even if that means the disabled individual does not get the job (United Air Lines Inc. v. EEOC, U.S., No. 12-707, cert. denied 5/28/13).

The Seventh Circuit held that the ADA, as interpreted in US Airways Inc. v. Barnett, 535 U.S. 391, 12 AD Cases 1729 (2002), requires an employer to reassign a disabled employee to a vacant job for which he meets the minimum qualifications, absent a showing of undue hardship (693 F.3d 760(7th Cir. 2012)

The Supreme Court previously had granted review on the same issue, raised in Huber v. Wal-Mart Stores Inc., 486 F.3d 480 (8th Cir. 2007), but that case settled. 

July 7, 2013 in ADA, Law Review Ideas | Permalink | Comments (0)

Friday, July 5, 2013

Yale Law Journal Symposium on Gideon v. Wainwright

The June 2013 Yale Law Journal includes a symposium on the iconic Warren-Era case Gideon v. Wainwright.  This issue includes:

Craig Estlinbaum

July 5, 2013 in Constitutional Law, Criminal Law, Due Process, Law Review Articles | Permalink | Comments (0)

Thursday, July 4, 2013

Judge Says Paraplegic Worker Unable to Transport Herself to Work Lacks FMLA Claims

A hospital did not violate federal and local medical leave laws when it fired a paraplegic secretary who exhausted her statutory leave entitlements and was unable to transport herself to and from work because of lifting restrictions caused by a shoulder condition, the U.S. District Court for the District of Columbia held May 23 (Alford v. Providence Hosp., D.D.C., No. 11-02121, 5/23/13).

Given that attendance is a “basic necessity for all jobs,” the court ruled that Alford's inability to get herself to work meant Providence was “legally permitted to discharge” her.

July 4, 2013 in FMLA | Permalink | Comments (0)