Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Thursday, January 24, 2013

D.C. Circuit Remands NLRB Rulings on T-Shirt, Provocative Language Policy

From the Daily Labor Report, Dec. 14, 2012:

The District of Columbia Circuit remands an unfair labor practice case to the National Labor Relations Board, finding the board failed to explain its conclusions that Medco Health Solutions of Nevada Inc. interfered with employee rights by asking an employee to remove a union-sanctioned T-shirt and by maintaining a ban on insulting, provocative, and confrontational messages on employee clothing (Medco Health Solutions of Las Vegas Inc. v. NLRB, D.C. Cir., No. 11-1282, 12/14/12).

Writing for the court, Judge Williams says the company made a "straightforward" argument that pharmacy worker Michael Shore wore a shirt that was insulting to Medco and harmful to the company's effort to attract and retain customers, who occasionally toured the facility where Shore worked. NLRB found Medco's claim of harm to customer relations lacked evidentiary support, but Williams says the board failed to adequately explain what evidence was required.


January 24, 2013 in NLRB | Permalink | Comments (0)

Profology and Other Adjunct News


The Rochester Democrat and Chronicle reports that Bob Ertischek, an adjunct professor at Monroe Community College in Rochester, has created a social media network for people working in higher education.  The site is called Profology.  The site describes itself as "a place where faculty and other higher education professionals can meet, exchange ideas and work to improve pedagogy, research, classroom technology and assessment, and more."  The platform actually opened in beta in 2011, and went fully operational sometime last year, but I just heard about it, so it's news to me.  And now, maybe to you.

IRS and Adjuncts

The IRS has posted guidance in the Federal Register relating to compensation for adjunct faculty, according to a Huffington Post report earlier this month.  From the HuffPo story:

The IRS noted in the Federal Register that "educational organizations generally do not track the full hours of service of adjunct faculty, but instead compensate adjunct faculty on the basis of credit hours taught." In short, most colleges are only paying part-time instructors for time spent in a classroom, and nothing for time spent grading or preparing.

The Treasury Department and the IRS are considering and "invite further comment on how best to determine the full-time status of employees" like educators, who may work many hours after students leave the classroom.

Correctly classifying adjunct, part-time or non-tenured faculty has taken on increased importance as the Affordable Care Act provisions relating to employer coverage come into effect.

Adjuncts and Governance

A joint subcommittee of the Association’s Committee on Contingency and the Profession and the Committee on College and University Governance, approved a final version of a report, "The Inclusion in Governance of Faculty Members Holding Contingent Appointments."  The report includes a broad range of recommendations designed to address the fact that more and more teaching at college and universities is performed by adjunct, part-time or non-tenured faculty.  Collene Flaherty at Inside Higher Ed has a summary and commentary on the report here.

Craig Estlinbaum

January 24, 2013 in Adjuncts in the News, College Professors, Colleges, Faculty in the News, Tax Law Information | Permalink | Comments (0)

Wednesday, January 23, 2013

Breaking News. Unionization Rates Continue to Decline

On January 23, 2013, the BLS released its annual report on the rate of unionization. Overall, the rate of unionization feel from 11.8% to 11.3%. Public sector workers had a 35.8 percent membership rate while the rate on unionization in the private sector dropped to 6.6%.

Significantly, however, union members continue to earn more than there non-union counterparts. As the report states:

In 2012, among full-time wage and salary workers, union members had median usual weekly
earnings of $943, while those who were not union members had median weekly earnings
of $742. In addition to coverage by a collective bargaining agreement, this earnings
difference reflects a variety of influences, including variations in the distributions
of union members and nonunion employees by occupation, industry, firm size, or geographic

The full report can be found here.

Mitchell H. Rubinstein

January 23, 2013 in Unions | Permalink | Comments (0)

New In Print: Reviewing Law Reviews

The California Law Review has published The Brennan Center Jorde Symposium on Constitutional Law in its December 2012, issue, with articles by Judge Diane P. Wood, Judge Marsha S. Berzon and Professor Kevin M. Quinn.  The DePaul Law Review's Winter 2012 issue includes the 17th Annual Clifford Symposium on Tort Law & Social Policy: "Festschrift for Robert Rabin."  Drake Law Review has published two recent sumposia issues - a Constitutional Law Symposium titled "Constitutionalism and the Poor," and the Ninth Annual American Judicature Society Symposium: "Lawyers, Judges and Money: Evolving Legal Issues Surrounding Spending on Judicial Elections." 

Duke Law Journal's December 2012, issue is a Special Symposium Issue on Custom and Law.  The December 2012, Florida Law Review includes the Dunwoody Distinguished Lecture in Law titled "Judicial Review, Constitutional Interpretation, and the Democratic Dilemma: Proposing a 'Controlled Activism' Alternative," by Martin H. Redish and Matthew B. Arnould

The November 2012, George Washington Law Review is a special issue, "Commemorating the 100th Anniversary of Farrand's Records of the Federal Convention."  Volume 100, No. 4 of the Kentucky Law Journal includes a symposium on state court funding, with a keynote address by Erwin Chemerinsky.  The Review of Litigation, Volume 31, Number 4, includes a symposium on class action lawsuits.

Volume 42, Number 4, Seton Hall Law Review includes a symposioum titled, "Implementing the Affordable Care Act: What Role fo Accountable Care Organizations?"  Volume 57, Number 3, South Dakota Law Review includes a symposium on the government speech doctrine.  Villanova Law Review's Volume 57, Number 3 includes the Norman J. Shachoy Symposium, "U.S. Taxation of Offshore Activity and Regulation of Executive Compensation."  The Summer 2012, University of Arkansas at Little Rock Law Review includes the Ben J. Altheimer Symposium, "eConflicts Resolved:  Evaluations of Legal Solutions to Information-Age Conflicts."  The November 2012, Vanderbilt Law Review includes a symposium, "Supply and Demand: Barriers to a New Energy Future."

Craig Estlinbaum

January 23, 2013 | Permalink | Comments (0)

Some Colleges Cut Adjunct Hours Over Health Care Act

Sam Baker (The Hill) reports:

Colleges and universities are reportedly cutting the hours their adjunct professors work in an effort to avoid the employer mandate in President Obama's signature healthcare law.

The Wall Street Journal noted the trend Friday, saying a handful of smaller schools in Ohio and Pennsylvania have begun to cap the number of courses adjunct professors can teach, so that they don't end up working more than 30 hours per week.

The healthcare law requires employers to offer coverage to all employees who work more than 30 hours, or pay a penalty to the IRS.

Full Story.

Craig Estlinbaum

January 23, 2013 in News, Schools | Permalink | Comments (0)

Tuesday, January 22, 2013

Members of the State's Security Guard Advisory Council are State officers or employees for the purposes of Public Officers Law §17

Opinions of the Attorney General, Formal Opinion 2012- F2

Public Officers Law §17 provides for the defense and indemnification of State officers and employees sued in a civil action or proceeding in any state or federal court for acts or omissions involving the performance of their official duties.
The Attorney General has advised Gina L. Bianchi, Esq., Deputy Commissioner and Counsel, New York State’s Division of Criminal Justice Services, that members of the Security Guard Advisory Council are State officers or employees for the purposes of Public Officers Law §17.
Presumably the same would be true with respect to the provisions of Public Officers Law §19's applicability  to such Council members. 
Public Officers Law §19 provides, in pertinent part, that it is “the duty of the state to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of an employee in his or her defense of a criminal proceeding in a state or federal court arising out of any act which occurred while such employee was acting within the scope of his* public employment or duties upon his acquittal or upon the dismissal of the criminal charges against him.”
With respect to political subdivisions of the State, Public Officers Law §18 authorizes such entities, “by the adoption of local law, by-law, resolution, rule or regulation,” to provide for the defense and indemnification of its officers and employees in the event any such persons are sued in federal or state courts in a civil matter related to the performance of their official duties.
* §22 of the General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.”
The Attorney General's Opinion 2012-F2 is posted on the Internet as a PDF file at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

January 22, 2013 in Public Sector Employment Law | Permalink | Comments (3)

Vermont Law School Cost-Cutting Continues

Vermont Law School, facing declining enrollment and a $3.3 million deficit, has layed off 2 employees and bought out 10 more in its most recent cost-cutting move, according to the Associated Press.

Last November, the Law School announced the buy-out program, which at least to date has not been extended to faculty.  At Above The Law, however, Stacey Zaretsky, in a short blurb, suggests Vermont's cost-cutting days may not entirely be over, and the faculty may not fare so well in the next round of cuts (the link is behind a paywall).

Vermont Law School, a private, unaffiliated law school, is the only law school in the State of Vermont.

Craig Estlinbaum

January 22, 2013 in Law Schools, News | Permalink | Comments (0)

Monday, January 21, 2013

California Supreme Court Upholds Peaceful Labor Picketing on Private Sidewalks

From the Los Angeles Times today, this interesting decision on peaceful labor picketing on private sidewalks by the California Supreme Court:

Signature gatherers and protesters may be ejected from privately owned walkways outside a store, but labor unions may picket there peacefully, the California Supreme Court decided Thursday. The state high court unanimously agreed that private walkways in front of stores, unlike public areas in shopping malls, are not open forums accessible to anyone who wants to assemble to express a view. But the justices split, 6 to 1, in upholding two state laws that prevent courts from issuing injunctions against peaceful labor pickets on private property. The laws protecting labor pickets are justified "by the state's interest in promoting collective bargaining to resolve labor disputes," Justice Joyce L. Kennard wrote for the court California "may single out labor-related speech for particular protection or regulation" as an exercise in the economic regulation of labor relations, Kennard wrote.

Reprinted from Workplace Prof Blog

Mitchell H. Rubinstein

January 21, 2013 in Labor Law | Permalink | Comments (0)

NLRB Issues Major Decision Imposing Bargaining Obligation Over Discipline Before Union Reaches Conract

 Alan Ritchey Inc., 359 N.L.R.B. No. 40, 12/14/12 [released 12/19/12]), is a major NLRB decision. The time after a union is certified until it reaches its first contract is often long and difficult. This decision holds, for the first time, that an employer MUST bargain with the union BEFORE imposes major discipline on unit employees notwithstanding the fact that a CBA has not been reached. As the NLRB stated:

Not every unilateral change that affects terms and conditions
of employment triggers the duty to bargain.
Rather, the Board asks “whether the changes had a material,
substantial, and significant impact on the employees’
terms and conditions of employment.” Toledo
Blade Co., 343 NLRB 385, 387 (2004) (emphasis
added). This test is a pragmatic one, designed to avoid
imposing a bargaining requirement in situations where
bargaining is unlikely to produce a different result and,
correspondingly, where unilateral action is unlikely to
suggest to employees that the union is ineffectual or to
precipitate a labor dispute. We draw on this basic principle,
adjusted to fit the present context, today. Disciplinary
actions such as suspension, demotion, and discharge
plainly have an inevitable and immediate impact on employees’
tenure, status, or earnings. Requiring bargaining
before these sanctions are imposed is appropriate, as
we will explain, because of this impact on the employee
and because of the harm caused to the union’s effectiveness
as the employees’ representative if bargaining is
postponed. Just as plainly, however, other actions that
may nevertheless be referred to as discipline and that are
rightly viewed as bargainable, such as oral and written
warnings, have a lesser impact on employees, viewed as
of the time when action is taken and assuming that they
do not themselves automatically result in additional discipline
based on an employer’s progressive disciplinary
system. Bargaining over these lesser sanctions—which
is required insofar as they have a “material, substantial,
and significant impact” on terms and conditions of employment—
may properly be deferred until after they are


January 21, 2013 in NLRB | Permalink | Comments (0)

Sunday, January 20, 2013

2d Circuit Appears Sympathetic To Employee Who Did Not Testify Because of Pending Criminal Case

Carnegie Linen v. NLRB, ___F.3d___(2d Cir. Nov. 29, 2012), is an interesting case. I bring it to your attention because it concerned a party who refused to participate because of a pending criminal matter. My understanding of the law was that if an individual refuses to testify in a civil matter, that can be used against him in that case. The 2d Circuit may have opened up a small crack to this argument, however, when it stated:

Finally, Petitioner claims that the ALJ’s denial of its request for adjournment violated
due process. Petitioner moved to adjourn until the conclusion of criminal charges filed against
Perlson, stemming from the coffee-throwing incident that the ALJ found violated Section
8(a)(1). Petitioner argues that, until the criminal charges have concluded, Perlson could not
testify without violating his Fifth Amendment right to avoid self-incrimination. Petitioner
argues that this required adjournment. However, we have held that “the granting or denial of a
continuance is a matter within the trial examiner’s discretion.” NLRB v. Interboro Contractors,
Inc., 432 F.2d 854, 860 (2d Cir. 1970). In this case, the ALJ adjourned the hearing for more than
six months to accommodate Perlson’s involvement in the criminal case; the ALJ denied a request
for a further adjournment after the criminal case itself was postponed for an additional two
months. In proceeding with the unfair labor practice hearing, the ALJ declined to draw a
negative inference against Petitioner due to Perlson’s failure to testify. Other witnesses testified
about the coffee incident on behalf of Petitioner. Accordingly, the ALJ did not abuse his

January 20, 2013 in Labor Law | Permalink | Comments (1)