Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Tuesday, December 31, 2013

Happy New Year to all our readers. Thank you for your support.

December 31, 2013 | Permalink | Comments (0)

Sunday, December 22, 2013

Catering Surcharge Not ‘Tip' Under FLSA or New York Law Before 2011

A mandatory 11 percent surcharge added to certain customer invoices by a New York catering business was not a tip owed to food delivery workers under the Fair Labor Standards Act, nor was it a gratuity within the meaning of the New York Labor Law prior to January 2011. Maldonado v. BTB Events & Celebrations, Inc., ___F.Supp. 2d__ (S.D.N.Y. 11/22/13).

However, the court stated that revised state law regulations effective Jan. 1, 2011, require employers to show by “clear and convincing evidence” that they provided sufficient notice to customers that a specific charge was not a gratuity, and the company failed to meet that standard

December 22, 2013 in Employment Law | Permalink | Comments (0)

Sunday, December 15, 2013

Pregnant Worker's Severe Morning Sickness Not Disability, but Retaliation Claim Survives

Plaintiff failed to prove disability discrimination because she didn't show that her pregnancy and morning sickness constituted a “disability” under federal or state law, a federal judge ruledNov. 22 (Wonasue v. Univ. of Md. Alumni Ass'n, 2013 BL 326278, D. Md., No. 8:11-cv-03657-DKC, 11/22/13).
The court reasoned that pregnancy alone isn't a disability under the Americans with Disabilities Act, the Rehabilitation Act or the Maryland Employment Discrimination Law. It added that pregnancy-based medical complications may rise to the level of disability but felt contrained by 4th Circuit precedent which found that a similar plaintiff did not establish that this condition  substantially limited a worker in the performance of a major life activity, as required to prove a disability.
But she may go forward with a retaliation claim under the Rehabilitation Act, the court decided.
Denying an employee experiencing pregnancy-related complications permission to work from home may constitute an adverse employment action for purposes of federal disability rights law.

December 15, 2013 in Employment Discrimination | Permalink | Comments (0)

Monday, December 9, 2013

Sullivan and Glynn: The FAA Triumphal: A Modest Opinion

Seton Hall Law School Professors Tim Gynn and Charlie Sullivan, both giants in this field, just posted a very unusual article on arbitration that readers may find of interest. It can be downloaded at no charge here. Professor Gynn blogged about it here

The article is unusual because it is not really an article. It is written in the form of U.S. Supreme Court decision by Justice Scalia. The article/case addresses whether the failure of a contract to mention the word "arbitration" prevents a court from finding that the parties intended disputes under that agreement to be arbitrated. The article/case concludes that this would not prevent arbitration because there is a strong presumption in favor of arbitration. 

Interestingly, the article/case, however failed to cite the Steelworkers Trilogy line of cases which squarely held that there was a presumption in favor of arbitrability. Now, those cases were decided under Section 301, not the FAA. But is there a difference? I do not think so, particularly after Pyett.

The article only cited one law review article. Many Supreme Court decisions do not even cite one. Hopefully, the Court will recognize the value of good legal scholarship.

Mitchell H .Rubinstein

Hat Tip: Tim Gynn 

December 9, 2013 in Law Review Articles | Permalink | Comments (2)

Sunday, December 8, 2013

2d Circuit Issues Important Decision Arbitration Case Involving Age Discrimination

Beljakovic v. MeLohn Properties, ____F.3d___( 2d Cir. Nov. 20, 2013), is an important case. The court upholds an arbitration agreement involving allegations of age discrimination. In up holding the award, the 2d Circuit again stressed the amount of judicial defererence which is given to arbitration awards. As the court stated:

"The showing required to avoid summary confirmation of an
arbitration award is high." Willemijn Houdstermaatschappij, BV v. Standard
Microsys. Corp., 103 F.3d 9, 12 (2d Cir. 1997). When we review a district
court judgment confirming an arbitration award, we review legal conclusions
de novo, and findings of fact for clear error. See Pike v. Freeman,
266 F.3d 78, 86 (2d Cir. 2001).

Mitchell H. Rubinstein

December 8, 2013 in Arbitration Law | Permalink | Comments (0)

Friday, December 6, 2013

41st Conference -National Center For Study of Collective Bargaining in Higher Ed

The 41st Annual Conference by the National Center For The Study of Collective Bargaining in Higher Education will be held April 6 to 8th at Hunter College. 

I have gone to this conference and it is run well. This year's program features former NLRB Chair Wilma Liebman as well as a host of other experts. The program will be held in CUNY's graduate center. 

Other important topics which may be of interest to readers include  

 Research Panel: The Impact of the Use of Contingent Faculty on Higher Education Results
Michelle Kiss, Executive Assistant, Office of the Associate Vice Chancellor, Academic Affairs, California State University System 
Dan Maxey, Dean's Fellow in Urban Education Policy, Pullias Center for Higher Education, Rossier School of Education, University of Southern California 
Hongwei Yu, Research Assistant, University of Illinois, Champaign, Office of Community College Research 
Jeffrey Frumkin, Associate Vice Provost and Senior Director, Academic Human Resources, University of Michigan, Moderator

 Collective Bargaining Results Regarding Contingent Faculty 

Ken Hawkinson, Provost and Academic Vice President, Western Illinois University 
Rudy Fichtenbaum, President, American Association of University Professors 
Karen L. Roberts, President, Long Beach Certificated Hourly Instructors-LBCC-CHI/NEA
Holly Lawrence, Secretary, Clerk, Massachusetts Society of Professors/MTA/NEA, University of Massachusetts, Amherst 
Pamela Silverblatt, Vice Chancellor, Labor Relations, City University of New York, Moderator 

Views from Our Community: Labor Strategies in Organizing Contingent Faculty 
Phil Kugler, Special Assistant to the President for Organizing, American Federation of Teachers
Michelle Gallagher, Esq., Consultant for Higher Education, Massachusetts Teachers Association
Harris Freeman, Professor of Legal Research and Writing, Western New England University, Moderator
Panel in Formation

 Views from Our Community: Administrators' Perspectives on the Organizing of Contingent Faculty

Theodore Curry, Associate Provost and Associate Vice President for Academic Human Resources; Professor, School of Human Resources and Labor Relations, Michigan State University
Susan Pearson, Associate Chancellor, University of Massachusetts, Amherst, Moderator 
Panel in Formation

 International Perspectives on Non-Tenure Track Faculty

Robyn May, Griffith University, Melbourne, Australia
Helen Fairfoul, Chief Executive, Universities and Colleges Employers Association, United Kingdom
Laurence Hopkins, Head of Research, Universities and Colleges Employers Association, United Kingdom
Cindy Oliver, President, Federation of Post-Secondary Educators, British Columbia, Canada
Michael Zweig, Professor and Director, Center for Study of Working Class Life, Stony Brook University, State University of New York, UUP, Moderator

 Legal Issues in Higher Education: Year in Review

Richard Griffin, NLRB General Counsel 
Nicholas DiGiovanni, Esq., Morgan, Brown & Joy 
Aaron Nisenson, Esq., Senior Legal Counsel, American Association of University Professors

 Additional information can be found  by downloading  Download 41st Annual National Conference--Updated Preliminary Program (1)

Mitchell H. Rubinstein

December 6, 2013 in College Professors, Conferences, CLE, Information | Permalink | Comments (0)

Thursday, December 5, 2013

Weber, IDEA Class Actions

Professor Mark Weber just published on SSRN another excellent article. This one addresses IDEA class actions. The abstract provides:

Wal-Mart v. Dukes overturned the certification of a class of a million and a half female employees alleging sex discrimination in Wal-Mart’s salary and promotion decisions. The Supreme Court ruled that the case did not satisfy the requirement that a class have a common question of law or fact, and said that the remedy sought was not the type of relief available under the portion of the class action rule permitting mandatory class actions. Over the last two years, courts have struggled with how to apply the ruling, especially how to apply it beyond its immediate context of employment discrimination litigation. 

In two prominent cases under the Individuals with Disabilities Education Act (IDEA), the federal courts of appeals have displayed remarkably different attitudes about class actions after Wal-Mart. This article will discuss these two leading cases, describe additional post-Wal-Mart class action decisions in IDEA and analogous contexts, then consider how Wal-Mart will affect the litigation decisions of advocates trying to address systemic violations of IDEA, and the courts’ likely reactions. 

Analysis of Wal-Mart and the cases decided in its wake suggests that group litigation to enforce IDEA will continue to be viable, but also that the litigation will change. Plaintiffs bringing IDEA class actions will likely attempt to distinguish Wal-Mart as a case preoccupied with interpreting underlying employment discrimination law. They will frame their cases as challenges to specifically defined policies and practices, and they will probably propose smaller, more tightly circumscribed classes or subclasses. They will also be likely to pursue non-class action approaches to addressing systemic violations of the law, bringing individual actions for broad relief, asking for group administrative remedies, and seeking action by governmental entities with the power to sue to enforce the IDEA rights. 

Much has been written about the Wal-Mart and its impact on class action procedure and the enforcement of substantive law. This Article seeks to contribute to the discussion by analyzing the case’s application to a field in which class action litigation has been a prominent means of enforcing important statutory rights, and by determining how litigants and courts are likely to respond.

This important paper can be downloaded  without charge here. 

Mitchell H. Rubinstein

December 5, 2013 in Special Education Law | Permalink | Comments (0)

Wednesday, December 4, 2013

Police Department's policy of requiring a police officer who discharges a firearm causing death or personal injury to submit to a Breathalyzer test sustained

Patrolmen's Benevolent Association of the City of New York, Inc., v New York City Police Department, Raymond W. Kelly, Police Commissioner, US Circuit Court of Appeals, 2nd Circuit, Docket No. 12-3089
The Patrolmen's Benevolent Association of the City of New York, Inc., appealed the District Court’s granting summary judgment dismissing its petition challenging the New York City Police Department’s [NYPD] administration of a Breathalyzer test to any officer whose discharge of his firearm within New York City results in death or injury to any person.
The Circuit Court of Appeals denied the PBA’s appeal, holding that such testing “is reasonable under the special needs doctrine" and that [the PBA’s] Fourth Amendment challenge "fails as a matter of law.”
The “Special Needs” Doctrine is an exception to the Fourth Amendment's protection against unreasonable searches and seizures. Typically when law enforcement seek to discover evidence of criminal wrongdoing, “reasonableness” generally requires the officer first obtaining of a judicial warrant supported by probable cause.
The court said that “neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance” and “[w]arrantless, even suspicionless, searches can be constitutionally reasonable where 'special needs, beyond the normal need for law enforcement' are present." However, warrantless, suspicionless searches is “closely guarded” and a court must conduct a “close review of the scheme at issue” in light of “all the available evidence” to determine its “primary purpose.”
The tests applied by the Circuit Court in holding that the “Special Needs Doctrine” applied in this instance were:
1. Sobriety is a fitness-for-duty condition of employment with the NYPD and a sobriety determination serves special needs distinct from criminal law enforcement, specifically, personnel management of, and maintaining public confidence in, the NYPD;
2. NYPD's interest in these special needs is not compatible with the warrant requirement applicable to criminal investigations; and
3. NYPD's interest in these special needs sufficiently outweighs the privacy interests of tested police officers as to render warrantless, suspicionless testing constitutionally reasonable.
The court’s conclusion: these special needs “greatly outweigh officers' reduced expectation of privacy with respect to alcohol testing at the time of any firearms discharge causing death or personal injury,” thereby rendering warrantless, suspicionless testing constitutionally reasonable as a matter of law.
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

December 4, 2013 | Permalink | Comments (0)

Sunday, December 1, 2013

New Ranking-Most Affordable Online Colleges

SR Education Group recently launched, a free online guide enabling students to compare all available U.S. online degrees on quality and affordability in 12 disciplines. The new site also releases its 2014 Most Affordable U.S. Online College Rankings (,


Mitchell H. Rubinstein

December 1, 2013 in Colleges | Permalink | Comments (0)