Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, August 28, 2013

Harassment Claims Based on Explicit Emails Revived by California Court

A former secretary at a California law firm raised triable sexual harassment claims by alleging that an attorney sent her a number of lewd and pornographic emails despite her continued complaints, a state appellate court rules (Elster v. Fishman, Cal. Ct. App., No. B239651, 7/22/13).

August 28, 2013 | Permalink | Comments (0)

Tuesday, August 27, 2013

Facebook Page About Moonglow Inn

I started a Facebook Page about a bungalow colony I stayed at with my family in the 1970's

This has nothing to do with law, but I am posting this here with the hope that someone might see it.

Mitchell H. Rubinstein


August 27, 2013 | Permalink | Comments (0)

Monday, August 26, 2013

The Unemployment Insurance Appeal Board may apply the doctrine of collateral estoppel in denying a claimant UI benefits based on a disciplinary arbitration that led to the claimant’s dismissal

2013 NY Slip Op 05280, Appellate Division, Third Department
A claimant for unemployment insurance benefits challenged his dismissal from his position by the employer but an arbitrator concluded that there was just cause for his termination.
Subsequently the Unemployment Insurance Appeal Board denied the claimant’s application for unemployment insurance benefits, ruling that he was disqualified from receiving such benefits because he was terminated for disqualifying misconduct. The claimant then appealed the Board’s ruling.
The Appellate Division affirmed the Board’s decision explaining that "as there was a full and fair opportunity to litigate the issue in the prior [arbitration] proceeding, collateral estoppel effect must be given to the arbitrator's factual findings regarding claimant's misconduct."
As the Board had appropriately taken into account the arbitrator's factual findings and made "an independent evaluation as to whether that conduct constitutes 'misconduct' for the purposes of unemployment insurance" the Appellate Division found no basis to overturn the Board's ruling.
Although the individual contended that “at worst, the alleged conduct constituted an excusable error in judgment,” the Board disagreed.
The decision notes that the individual had been counseled by the employer prior to this incident "for various safety violations" and where the misconduct is potentially detrimental to the employer's best interest may, “as in this instance, be sufficient to constitute disqualifying misconduct.”
The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law


Mitchell H. Rubinstein

August 26, 2013 in Employment Law | Permalink | Comments (2)

Thursday, August 22, 2013

New York State’s Student Internship Program Offers Hundreds Of Internships

Source: New York State Department of Civil Service
Civil Service Commissioner Jerry Boone recently announced that New York State has hundreds of internships available, and reminded college students to apply for Fall semester internships before the application deadline on September 3, 2013.
New York State created a one-stop website at that allows students to view and apply for internship opportunities across an array of state agencies both downstate and upstate.
The website is one component of Governor Andrew M. Cuomo’sNew New York Leaders initiative, which is focused on attracting new talent to state government through both a fellowship program and an internship program.  With the internship website, applicants can view job descriptions, create profiles, specify interests, and upload resumes, writing samples and letters of recommendation.  Students can apply for multiple internships at the same time.
“The internship program is designed to attract and mentor a new generation of talented leaders for New York State,” said Governor Andrew M. Cuomo.  “I continue to encourage talented college students to consider devoting time to public service while acquiring valuable skills and marketable work experience.”
“New York State continues to offer a wide variety of opportunities across numerous professional occupations,” said Civil Service Commissioner Jerry Boone.  “Governor Cuomo’s internship program offers opportunities for hands on experience in finance, engineering, public relations, information technology and health care, as well as a host of other professional disciplines.”
The program is open to resident graduate and undergraduate students as well as students who attend schools in other states, but reside in New York.  Opportunities include both paid and unpaid positions.  Internships may include academic credit depending on the policy of the educational institution.
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

August 22, 2013 in Colleges, Law Schools, Law Students | Permalink | Comments (1)

Wednesday, August 21, 2013

Governor Cuomo announces estate tax refunds available to qualified spouses of same-sex couples

Source: Office of the Governor

On July 23, 2013, Governor Andrew M. Cuomo announced that Estate Tax refunds are available to qualified spouses of same-sex couples. Refunds may be available as a result of the recent United States Supreme Court decision, United States v. Windsor, in which the Court held that §3 of the Defense of Marriage Act (DOMA) is unconstitutional. 
Edie Windsor, a New Yorker, sued the federal government after the Internal Revenue Service denied her refund request for the $363,000 in federal estate taxes she paid after her spouse, Thea Spyer, died in 2009. She also had filed a protective claim with the New York State Tax Department asking for a similar Estate Tax refund from New York. Generally, a claim for credit or refund of an over-payment of estate tax must be filed by a taxpayer within three years from the date the original return was filed or two years from the date the tax was paid. 
Taxpayers believing that they may affected by the Windsor ruling should contact the New York State Taxpayer Information Center at 518-457-5387. 

Additional information can be found on the Tax Department’smemorandum on estates of same-sex couples.
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

August 21, 2013 in Current Affairs, Current Events | Permalink | Comments (0)

Sunday, August 18, 2013

Dismissal of disciplinary charges recommended because superior condoned the employee's alleged failure to follow department policy

OATH Index No. 866/13
A New York City juvenile counselor was charged with failing to conduct three inspections during a tour or duty as required. 
At the disciplinary hearing, however, the counselor proved that the ”three inspections” requirement had not been enforced by management for many years. 
OATH Administrative Law Judge Alessandra F. Zorgniotti recommended dismissal of charges.
The counselor admitted that she did not make three tours of inspection and testified that the failure to do so was a regular practice caused by an excessive work load.
Judge Zorgniotti found that the counselor had proved heraffirmative defense of condonation and waiver by showing that her not making three inspections each tour of duty was condoned by supervisors. Further, said the ALJ, the employer did not show that it placed the counselor on notice that the “three inspection” during a tour of duty policy would be enforced
The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

August 18, 2013 in Arbitration Law | Permalink | Comments (0)

Wednesday, August 14, 2013

Association Discrimination Against The Disabled

A medical supply company employee in Massachusetts fired for alleged time fraud while his wife was receiving inpatient treatment for a brain tumor may pursue a state law civil rights claim based on alleged bias for his association with a disabled family member, the Massachusetts Supreme Judicial Court unanimously rules (Flagg v. AliMed, Inc., Mass., No. SJC-11182, 7/19/13).

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

Sunday, August 11, 2013

7th Cir. Holds Claim For Same Sex Harassment Stated


A black male former concrete yard worker in Illinois provided sufficient notice of a male co-worker's alleged same-sex harassment by complaining to employees who had higher authority than he did but lacked the power to take tangible employment actions against other workers, the Seventh Circuitholds (Lambert v. Peri Formworks Sys., Inc., 7th Cir., No. 12-2502, 7/24/13).

August 11, 2013 in Employment Discrimination | Permalink | Comments (0)

Thursday, August 8, 2013

Important Post-Hoffman Plastics 2d Circuit Decision

The Second Circuit held in Palma v. NLRB (2d Cir. July 10, 2013), Download 12-1199_Documents that Hoffman Plastic's prohibition on an NLRB award of backpay to an undocumented worker applies even "to aliens who did not gain their jobs through [] fraud but who are simply present in the United States unlawfully." The Court also held that Hoffman Plastic "did not foreclose relief in the nature of an order for reinstatement conditioned upon an employee's submission of documentation as required by IRCA," i.e., a "conditional reinstatement" remedy of the sort approved by the Board and the Second Circuit in the pre-Hoffman Plastic case A.P.R.A. Fuel Oil Buyers Group.

The discriminatees refused to answer questions about their immigration status, but the General Counsel decided to proceed on the assumption that the workers were undocumented. The ALJ found that the employer knowingly hired the workers without verifying their work authorization and then fired them after they concertedly complained about abusive treatment. The ALJ concluded that because only the employer violated the immigration law, not the employees (who did not submit any fraudulent documents to obtain employment), the case was distinguishable from Hoffman Plastic (in which the fired employee used false documents to obtain employment without the employer's knowledge). The ALJ thus awarded conditional reinstatement and backpay.

The Board disagreed with the ALJ's legal conclusion, holding that Hoffman Plastic categorically forecloses an NLRB award of backpay to an undocumented worker regardless of which party violated immigration law.   The Second Circuit agreed with the Board regarding the unavailability of backpay, but remanded so that the Board could address the matter of whether the fired workers are entitled to conditional reinstatement.

August 8, 2013 in Employment Law | Permalink | Comments (0)

Tuesday, August 6, 2013

Union Stats maintains an extensive data base on union statistics. While much of this information is probably also available form the BLS, readers may find this web site useful.

Mitchell H. Rubinstein 

August 6, 2013 in Unions | Permalink | Comments (1)

Sunday, August 4, 2013

Justice Department, NLRB Enter Agreement on Collaboration in Some Employment Cases

The Justice Department announced July 8 that the Office of Special Counsel for Immigration-Related Unfair Employment Practices has entered into a memorandum of understanding with the National Labor Relations Board that will allow the agencies to share information, coordinate investigations, and refer matters to one another.

August 4, 2013 in NLRB | Permalink | Comments (2)