Tuesday, December 31, 2013
Sunday, December 22, 2013
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
Sunday, December 15, 2013
Monday, December 9, 2013
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
Sunday, December 8, 2013
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
Friday, December 6, 2013
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
Thursday, December 5, 2013
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
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
Sunday, December 1, 2013
SR Education Group recently launched http://www.onlineu.org/, 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 (http://www.onlineu.org/college-rankings/most-affordable),
Mitchell H. Rubinstein