Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, January 29, 2014

Several States Raised Minimum Wage

According to Findlaw which picked up an article from US Today, several states raised their minimum wage effective January 1, 2014. As they explain:

Workers in 13 states will see the minimum wage increase in 2014, including New Jersey, Connecticut, California, New York, and Rhode Island, reports USA Today.

Californians will eventually see the state minimum wage rise to $10 by 2016, but will have to wait until July 2014 to see it rise to $9 per hour. (In cities such as San Jose and San Francisco, however, the local minimum wage already exceeds $10 an hour.)

Mitchell H. Rubinstein

January 29, 2014 in Employment Law | Permalink | Comments (0)

Sunday, January 26, 2014

Consider Donating For Organ Donation Which Saves Lifes

As many of you know, my daughter had a Kidney Transplant. Each year we support and participate in a 5 K run. Please consider a donation or joining our team called Linda's Home Team. 
Help us spread the news! Consider posting your registration for NJ Sharing Network's 4th Annual 5K Walk and USATF Certified Race on you favorite social media outlet.
 Mitchell Rubinstein Personal Image
© NJ Sharing Network Foundation NJ Sharing Network Foundation is committed to supporting the work of NJ Sharing Network and to increasing the number of lives 

January 26, 2014 in Misc., Non-Legal | Permalink | Comments (0)

Friday, January 24, 2014

Breaking News: BLS Releases 2013 Data on Union Membership

The BLS just released their annual survey of union membership. As ususal, the report is quite comprehensive and is available here.  Some of the highlights include:

    --Public-sector workers had a union membership rate (35.3 percent) more 
     than five times higher than that of private-sector workers (6.7 percent). 

   --Workers in education, training, and library occupations and in protective 
     service occupations had the highest unionization rate, at 35.3 percent for 
     each occupation group. 

   --Men had a higher union membership rate (11.9 percent) than women (10.5 
     percent). (See table 1.)

   --Black workers were more likely to be union members than white, Asian, or 
     Hispanic workers. 
--Among states, New York continued to have the highest union membership rate (24.4 percent), and North Carolina had the lowest rate (3.0 percent).

Mitchell H. Rubinstein


January 24, 2014 in Unions | Permalink | Comments (0)

Thursday, January 23, 2014

Employment Agency Is Not Employer

Matter of John Lack Associates (Commissioner of Labor), ___A.D. 3d___ (3rd Dep't. Dec. 5, 2013), is an interesting decision. In applying the Right to Control test, the court concludes that an agency that hired waitresses is not their employer, reasoning:

John Lack provides its clients with individuals fitting the client's requirements for each particular event. The agency neither interviews nor screens the workers, other than to ensure that they have the necessary uniform and equipment. However, the workers generally provide their own uniform and equipment. Although the client may provide a uniform on occasion, John Lack does not. After being retained by a client, John Lack contacts individuals from its lists and explains the details and requirements of the available job. The individual is free to refuse a job and may do so, for example, if the pay rate offered is unacceptable. Notably, most of the waiters and bartenders accept work from other placement agencies. If the worker accepts the job offered by John Lack, the agency directs him or her to report to a representative of the client at the event. However, it is the client that instructs, controls and supervises the worker at the event. In this regard, the client explains the rules of conduct to the worker and, if a worker's performance is not satisfactory, the client will instruct the individual to leave or fire him or her from the job. There is no indication in the record that John Lack provides workers with any training.

With regard to payment, the client is responsible for tracking the number of hours worked by the waiter or bartender and then completes an event report and submits it to John Lack so that payment can be tendered to the worker. Although workers are paid by John Lack, their remuneration is based upon the rate of pay offered by the client to John Lack for each particular job. Additionally, on at least one occasion, when a worker was injured on a job, the client paid the worker's hospital bills. Under these circumstances, we are unable to conclude that substantial evidence exists in the record to support the Board's decision that John Lack exercises sufficient control over the workers to establish an employer-employee relationship (see Matter of Richins [Quick Change Artistry, LLC—Commissioner of Labor, 107 AD3d at 1344; Matter of Holleran [Jez Enters., Inc.—Commissioner of Labor], 98 AD3d at 757; Matter of Mulholland [Motherly Love Care—Commissioner of Labor], 258 AD2d 855, 758 

Mitchell H. Rubinstein

January 23, 2014 in Employment Law | Permalink | Comments (0)

Sunday, January 19, 2014

Feeling Overwhelmed Is Not Sufficient Reason For Quitting Job For Unemployment Purposes

Matter of Basciano (Commissioner of Labor), ___A.D.3d__ (3rd Dep't. Dec. 5, 2013), is an interesting unemployment case. As the court explains:

Claimant, a credit manager, notified the employer that he was overwhelmed and was going to look for other work. He further agreed to leave when his replacement was hired, even if he had not yet secured a new job. Claimant's replacement began working approximately two weeks later, marking the end of his employment. Inasmuch as claimant agreed to leave his position even if he lacked a definite plan for future employment, substantial evidence supports the determination of the Unemployment Insurance Appeal Board disqualifying him from receiving unemployment insurance benefits (see Matter of Solano [Commissioner of Labor], 50 AD3d 1425, 1426 [2008]; Matter of Kennedy [Commissioner of Labor], 294 AD2d 700, 700 [2002]).

Mitchell H. Rubinstein


January 19, 2014 in Employment Law | Permalink | Comments (0)

Wednesday, January 15, 2014

If a disinterested party could concluded the appointing authority had adjudged the matter in advance of hearing it, remanding the matter to a qualified and impartial individual is required

2013 NY Slip Op 08575, Appellate Division, Third Department
A fire inspector [Inspector] employed by the Village also served as the president of its firefighters union. Inspector was served with disciplinary charges and specifications Civil Service Law §75 alleging misconduct. The charges alleged that Inspector had engaged in an oral altercation with the Fire Chief concerning a directive issued by the Chief, during which he made two statements that resulted in disciplinary charges being filed.
Inspector filed an improper practice charge with the Public Employment Relations Board (PERB) shortly after being served with the disciplinary charges alleging that the Village’s decision to discipline him amounted to anti-union animus.
At the hearing on the disciplinary charges Inspector acknowledged that he had made the one statement but denied making the second statement alleged in the charges filed against him. Crediting the testimony of witnesses to the encounter to the effect that Inspector had, in fact, made the second statement, the Hearing Officer found Inspector guilty of the charges and recommended a period of unpaid suspension. The Village’s Mayor sustained the findings of guilt but modified the penalty to be imposed on Inspector.*
During the PERB hearing, held shortly after the Mayor had sustained the findings in the disciplinary hearing, Inspector again testified that he did not make the second statement.
This resulted in Inspector being served with new disciplinary charges alleging misconduct amounting to perjury and making a false official statement, as well as incompetence for failure to be truthful based on his testimony at the PERB hearing and his testimony at the disciplinary hearing.
This second §75 disciplinary hearing resulted in Inspector being found guilty of the charges and the Hearing Officer recommending that his employment be terminated. The Mayor adopted the findings and penalty of the Hearing Officer, whereupon Inspector filed an Article 78 petition seeking an order vacating the Mayor’s action. Supreme Court dismissed the petition and Inspector appealed.
The Appellate Division first noted that “Where a witness testifies falsely under oath, he or she may properly be subject to additional proceedings and sanctions, noting that the United States Supreme Court has held “…under circumstances indistinguishable from those present here … that ‘a [g]overnment agency may take adverse action against an employee because the employee made false statements in response to an underlying charge of misconduct’,” citing Lachance v Erickson, 522 US 262.
Notwithstanding this, the Appellate Division said that “Reversal is required,” explaining that the Mayor was disqualified from reviewing the Hearing Officer's recommendations. Although an administrative decision maker is not deemed biased or disqualified merely on the basis that he or she reviewed a previous administrative determination and ruled against the same employee, or presided over a prior proceeding involving a similar defense or similar charges, in this instance the Appellate Division found that there was evidence indicating that the administrative decision maker may have prejudged the matter at issue. Thus, the court concluded, “disqualification is required.”
The Appellate Division noted that in his decision in the first disciplinary proceeding, the Mayor not only agreed with the Hearing Officer's report, but also stated his own opinion that "I do not believe [Inspector 's] account of what was said."
Further, said the court, his affidavit submitted in Inspector's CPLR article 78 proceeding challenging the first disciplinary determination, “the Mayor went one step further.” In explaining the portion of his decision addressing Inspector's version of the second statement, the Mayor said that he found that version "incredible."
Although the falsity of Inspector 's account of the second statement was not at issue in the second disciplinary proceeding, as that issue was conclusively determined in the first disciplinary proceeding, the central issue in the second disciplinary proceeding was whether Inspector's false testimony was given knowingly and willingly. Thus, after concluding that he did not believe Inspector's account of what was said and that Inspector’s version was "incredible," the Mayor put himself in the position of determining whether the statement that Inspector did in fact make was made knowingly and willfully.
The problem, said the court, was that these questions were inextricably intertwined, and the Mayor's statements regarding Inspector's testimony in the first proceeding were such that "a disinterested observer may conclude that [the Mayor] ha[d] in some measure adjudged the facts" surrounding the knowing and willful question "in advance of hearing it."
Accordingly, the Appellate Division ruled that the Mayor should have recused himself and because he did not, his determination was affected by an error of law.
The proper remedy, said the court, Judge Egan dissenting in part, was to remit the matter for a de novo review of the present record and the Hearing Officer's recommendations by a qualified and impartial individual
* Inspector commenced a CPLR article 78 proceeding challenging the determination, and Supreme Court dismissed the petition. Inspector did not appeal.

The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein



January 15, 2014 | Permalink | Comments (0)

Sunday, January 12, 2014

Opting Out of Workers Comp??

Workplace Prof Blog has an interesting posting about Oklahoma which is considering opting out of mandatory Workers Comp. It is worth reading.

Mitchell H. Rubinstein

January 12, 2014 in Employment Law | Permalink | Comments (0)

Thursday, January 9, 2014

Canned College Lectures

Glean is a relatively new service which has several videos on many different college topics such as calculus and chemistry. Students may find these videos helpful.

Mitchell H. Rubinstein

Hat Tip: Professor Leilani Cohen, Atlantic Tech

January 9, 2014 in College Professors, Colleges | Permalink | Comments (0)

Wednesday, January 8, 2014

NLRB Recently Reaffirms DFR Standards


Local 471, 359 NLRB No. 166 (2013) is being brought to your attention not because it breaks any new ground, but because it is a recent decision which summarizes applicable case law. As the Board stated:

The Board has held that a union’s breach of its duty of
fair representation violates Section 8(b)(1)(A). Miranda
Fuel Co., 140 NLRB 181, 184–185 (1962), enf. denied
326 F.2d 172 (2d Cir. 1963). A breach occurs when a
union’s conduct toward a bargaining unit member is “arbitrary,
discriminatory, or in bad faith.” Vaca v. Sipes,
386 U.S. 171, 190 (1967). In collective bargaining, a
union’s actions are arbitrary “only if, in light of the factual
and legal landscape at the time of the union’s actions,
the union’s behavior is so far outside a ‘wide range
of reasonableness’ as to be irrational.” Air Line Pilots
Assn. v. O’Neill, 499 U.S. 65, 67 (1991) (quoting Ford
Motor Co. v. Huffman, 345 U.S. 330, 338 (1953)).
The broad deference granted to a union’s actions in
negotiations comes from an understanding that, as the
exclusive representative of bargaining unit employees
under Section 9(a) of the Act, a union is frequently required
to balance competing interests of the employees it
represents. Ford Motor Co. v. Huffman, supra, 345 U.S.
at 337–339. The negotiation of seniority provisions often
gives rise to claims that the union failed in its responsibility
toward some segment of its constituents. . . .

Mitchell H. Rubinstein

January 8, 2014 in NLRB | Permalink | Comments (1)

Tuesday, January 7, 2014

Providing the names and home addresses of employees of a private contractor to an employee organization to be determined by applying a “balancing test” to avoid an "unwarranted invasion" of privacy

Massaro v New York State Thruway Auth., 2013 NY Slip Op 07234, Appellate Division, Third Department*
A union official submitted a Freedom of Information Law [FOIL] request to the New York Thruway Authority in an effort to “ensure that nonunion contractors comply with the prevailing wage law” (see Labor Law §220). Among other things, the official asked the Thruway to provide certified payroll records of a private nonunion contractor relating to work it performed on a public works project and the names and home address of the employees performing the work employed by the nonunion contractor.
The Thruway granted the official's request in part, providing employee titles and corresponding wage rates that were paid, redacting the employees' names, home addresses and Social Security numbers. The Thruway contended that providing the names and related information of the employees would constitute an unwarranted invasion of personal privacy within the meaning of FOIL.
After an unsuccessful administrative appeal, the official filed an Article 78 petition in Supreme Court seeking a court order directing the Thruway to provide him with the private employer’s employees' names and home addresses. Supreme Court dismissed the petition and official appealed that court’s ruling.
The Appellate Division, pointing out that the personal privacy exemption set out in Public Officers Law §87 [2] [b]) provides “a nonexhaustive list of categories of information that falls within the exemption.”
Where, however, none of the categories of exemption specifically cover the information demanded, the court said that the issue of whether there is an "unwarranted invasion" of privacy is decided "by balancing the privacy interests at stake against the public interest in disclosure of the information."
As to the balancing analysis, the Appellate Division said that “An unwarranted invasion of personal privacy has been characterized as that which ‘would be offensive and objectionable to a reasonable [person] of ordinary sensibilities.'  Here the official wishes to obtain the names and home addresses so that it can contact employees of the nonunion contractor to find out if they were paid as reported by their employer.”
In the words of the Appellate Division, “The scenario of nonunion employees of a nongovernment employer being contacted at their homes by someone from a union who knows their names, their home addresses, the amount of money they reportedly earn, and who wants to talk about that income would be, to most reasonable people, offensive and objectionable.” This, the court characterized as “a significant privacy interest.” Citing United States Dept. of Defense v Federal Labor Relations Auth., 510 US 487.
Rejecting the union official’s argument that the release of this information to his union is in the public interest since the union is attempting to ensure that the contractor paid appropriate wages and that the union is gathering necessary data should an underpaid employee desire its representation under Labor Law § 220-g, the Appellate Division said that the redacted payroll records that the Thruway provided – indicating employee titles and corresponding wage rates — provide “sufficient information (absent fraudulent record creation by a contractor) to confirm whether the contractor complied with wage requirements.”
Further, explained the court, in the event fraudulent or any other noncompliant conduct is suspected, an investigation may be initiated upon request to the appropriate government official as Labor Law §220 (7) provides that a governmental fiscal officer "shall on a verified complaint in writing of any person interested or of [a union] [or] may on his [or her] own initiative cause a compliance investigation to be made to determine whether the contractor . . . has paid the prevailing rate of wages."
The Appellate Division’s conclusion” “Notwithstanding the FOIL presumption of access to information gathered by the government and the important policy of ensuring payment of prevailing wages, the significant personal privacy interests implicated here prevail, particularly since the information already provided to petitioner should be sufficient to ensure compliance; in any event, other avenues are available to ensure compliance without invading the privacy of the employees of the nonunion contractor by disclosing their names and home addresses.”
* See also Stevens v New York State Thruway Authority, 2013 NY Slip Op 07235, Appellate Division, Third Department, a case involving essentially the same issues, posted on the Internet at:
The Massaro decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

January 7, 2014 in New York Law, Public Sector Labor Law | Permalink | Comments (0)

Sunday, January 5, 2014

Attorney Labor Unions


A few years ago I wrote a short article about attorney labor unions.  Download Attorney Labor Unions

The point of that article is that attorneys are employees like anyone else. The rules are not any different simply because lawyers are involved. 

There is a battle going on in Ohio whether Assistant Directors of Law for the Civil Division in the City of Cleveland are eligible for unionization. The issue boils down to whether or not these attorneys are public employees as that term is defined in the Ohio statute. 

The City won round one in that the Ohio State Employment Relations Board held that the attorneys were not public employees because they act in a fiduciary capacity to public officals. A copy of the decision can be found by clicking  Download SERB's Order Dismissing Req. Recognition The decision is a bit disappointing in that the Board merely rubber stamped the ALJ decision. One would think that on an issue so important that the Board would have at least offerred an opinion. Although I do not practice in Ohio, I would imagine that this is significant in that a court may not pay as much deference to a decision of an ALJ.

An appeal has, in fact,  been filed in court. I would be interested in knowing if any readers are in attorney labor unions. If you are, leave a comment on this blog with a name of the union. You do not need to leave your name if you do not want too.

We will be following this important case.

Mitchell H. Rubinstein


January 5, 2014 in Public Sector Labor Law, Unions | Permalink | Comments (3)

Friday, January 3, 2014

State Comptroller is required to correct any errors affecting a retiree's benefits upon the discovery of the error

2013 NY Slip Op 07238, Appellate Division, Third Department
A police officer [Officer] submitted an application for disability retirement benefits. While his application was pending, Officer’s employer filed disciplinary charges against him and, on November 19, 2007, he was terminated by the employer.
Officer’s application for disability retirement benefits was approved on August 12, 2008 and his effective retirement date was set as November 17, 2007, the date of Officer's last day on the employer’s payroll as reported by the employer.
However, after receiving additional information from the employer indicating that Officer had, in fact, remained on the employer’s payroll through November 19, 2007, the Retirement System adjusted Officer’s retirement date to November 20, 2007. 
Following an unsuccessful administrative appeal seeking to reinstate November 17, 2007 as the effective date of his retirement for disability, Officer filed an Article 78 petition seeking a court order vacating the Comptroller’s determination.
The Appellate Division affirmed the administrative determination noting that Comptroller “is vested with the exclusive authority to determine applications for retirement benefits and such determination, if supported by substantial evidence, must be upheld.”  Citing 2 NYCRR 309.6, the court said that the effective date of a member's disability retirement is either [1] "on the date of filing of such disability retirement application" or [2] "on the day after the last date on which the member receives salary, whichever is later."
As the Comptroller is required to correct any changes or errors affecting a retiree's benefits upon discovery thereof, notwithstanding Officer's claim that his effective retirement date was changed as a result of actions taken by the employer in retaliation for a civil rights claim that he had asserted against it, the Appellate Division held that the Comptroller is entitled to rely upon the payroll information provided by the employer.
As the record reflected Officer's termination date from the payroll as November 19, 2007, the Comptroller’s determination was held to be supported by substantial evidence and Appellate Division said that it found no basis to disturb it.
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

January 3, 2014 in New York Law, Public Sector Employment Law | Permalink | Comments (0)