Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, February 23, 2013

Senator Rand Paul Introduces Anti-Union Amendment To NLRA

Tea Party favorite Sen. Rand Paul (R-Ky.) introduced a bill (S. 204) that would amend the National Labor Relations Act to bar the inclusion of union security clauses in collective bargaining agreements, which require the payment of union dues or fees as a condition of employment. The proposed National Right-to-Work Act also would amend the Railway Labor Act. The bill currently has 10 co-sponsors, all Republicans.
Expect it to go nowhere, but it demonstrates that there are a number of anti-union Senators in the Congress.
Mitchell H. Rubinstein

February 23, 2013 in Legislation, NLRB | Permalink | Comments (0)

Thursday, February 21, 2013

K-9 Dog Handler Can Advance FLSA Claim For Time Caring For Dog Off-Duty

A former canine handler can advance his claim for unpaid compensation and overtime pay for hours he spent caring for a dog outside of work according to the Northern District of Alabama which so ruled.(Manning v. Scottsboro, N.D. Ala., No. 5:12-cv-04108, 1/30/13).
This appears to be an interesting case to watch.
Mitchell H. Rubinstein

February 21, 2013 in Employment Law | Permalink | Comments (0)

Wednesday, February 20, 2013

Employee terminated following his falsely reporting he was unable to work and engaging in unauthorized outside employment

The Appellate Division sustained the termination of a deputy sheriff’s employment as a deputy sheriff, holding that substantial evidence supports the findings that the deputy sheriff:
[1] Falsely reported that he was unable to work from October through the following June;
[2] Engaged in unauthorized outside employment: and
[3] Lied under oath when he denied engaging in such outside employment at his workers' compensation hearing.
The court ruled that there was no basis to disturb the credibility determinations of the Administrative Law Judge and that the penalty of termination “does not shock our sense of fairness,” citing Cherry v Horn, 66 AD2d 556
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

February 20, 2013 | Permalink | Comments (0)

Tuesday, February 19, 2013

Hubert, Can't Escape from the Memory: Social Media and Public Sector Labor Law

Bill Hubert, Deputy Chair PERB just published on SSRN Can't Escape from the Memory: Social Media and Public Sector Labor Law. The abstract provides:

The Web 2.0 communicative revolution is impacting many fields of law including labor and employment law. This article focuses upon the application and impact of statutory and constitutional doctrines on the use of social media in public employment in the United States. It examines social media under public sector labor law through a cross-sectoral analysis of two primary issues: the scope of protected social networking activities, and the contours of employer policies. The article compares and contrasts developments under the National Labor Relations Act with developments under collective bargaining laws and due process statutes in three states, and under the First Amendment. Through this comparative analysis, the article highlights the distinctions and similarities of public sector labor law and their implications for the future.

I look forward to reading this important work. Congrats. 

Mitch Rubinstein

Hat Tip: Workplace Prof Blog

February 19, 2013 | Permalink | Comments (0)

Monday, February 18, 2013

NLRB Overrules Anheuser-Busch Precedent, Favors Balancing Test on Witness Statements

The Labor Board on December 14, 2012 overruled a 36-year-old “bright-line rule” that denied labor organization representatives access to witness statements obtained by unionized employers, finding NLRB should balance the interests of unions and employers in assessing union requests for the names or statements of witnesses interviewed during a company investigation (Am. Baptist Homes of the W. d/b/a Piedmont Gardens,359 N.L.R.B. No. 46, 12/15/12 [released 12/21/12]).
NLRB Chairman Mark Gaston Pearce and Members Richard F. Griffin and Sharon Block said the U.S. Supreme Court has approved the board's balancing a union's need for relevant information against legitimate and substantial employer interests in keeping information. The board held in Anheuser-Busch Inc., 237 N.L.R.B. 982, 99 LRRM 1174 (1978), that witness statements were distinguishable from other information, but Pearce, Griffin, and Block found that witness statements relevant and necessary to a union's representation of employees are “fundamentally the same” as other information an employer must provide to a bargaining agent.
Member Brian E. Hayes dissented from the overruling of Anheuser-Busch, arguing that exempting witness statements from disclosure supported employer efforts to secure the participation of workers in investigations, and protected participating employees from retaliation or harassment by unions or co-workers.
Hat Tip: Daily Labor Report
Mitchell H. Rubinstein

February 18, 2013 in NLRB | Permalink | Comments (0)

Sunday, February 17, 2013

Court Boosts Claims by Fired Pharmacist Unable to Give Flu Shots Because of Arthritis

A grocery store chain that fired a pharmacist whose rheumatoid arthritis left her unable to give flu shots to customers failed to prove that the former employee could not perform her job's essential functions. (Scavetta v. King Soopers Inc., D. Colo., No. 1:10-cv-02986, 1/28/13).
Significantly, plaintiff's supervisors did not force her to give the shots until more than a year after they became aware of her medical restrictions and that King Soopers allowed at least 10 other pharmacists to avoid administering immunizations because of similar conditions.
Mitchell H. Rubinstein

February 17, 2013 in Employment Discrimination | Permalink | Comments (0)