Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, December 9, 2009

Solis Pushes Agenda to Bolster Labor is an interesting Dec. 8, 2009 Wall Street Journal article which quotes my college buddy Deputy Secretary of Labor Seth Harris. It is about how the U.S. Department of Labor plans to enact new rules which will give more power to both organized labor and workers. As the article states:

Ms. Solis's agenda will promote rules requiring employers to increase disclosure to workers on how their pay is computed, strengthening affirmative action requirements for federal contractors, and compelling greater disclosure from employers about their dealings with consultants who advise the companies on how to deal with workplace unions or unionization attempts.

Currently employers and consultants are not required to report "advice" they get from consultants, but the Labor Department said in a statement that this filing exception should be narrowed so employees will have a more transparent view into what employers are doing in response to union matters.

The agency "is going to explore that exception and try to more accurately define what advice means," Deputy Labor Secretary Seth Harris said in an interview. More broadly, "Our goal is that through greater openness and transparency, we increase compliance without having to send an investigator into the workplace."

Mitchell H. Rubinstein

December 9, 2009 in Current Events, Unions | Permalink | Comments (0)

Monday, November 9, 2009

Unemployment Hits 10.2%

The New York Times reported on November 6, 2009 that Unemployment hit 10.2%. That is the highest level in 26 years. The full article is available here. The article states:

In the six decades since the government began compiling such data, the highest level of unemployment came at the end of 1982, when it hit 10.8 percent. Despite the widespread assumption that the recession has already ended, and even as the economy has resumed growing, the government’s latest snapshot of the labor market released Friday testified to the uncomfortable truth that expansion had yet to translate into jobs.

“The guy on the street is going to ask, ‘What recovery?’ ” said Stuart Hoffman, chief economist at the PNC Financial Services Group in Pittsburgh. “The job market is still in reverse.”

The sharp rise in unemployment — which climbed from 9.8 percent in September, as the nation lost another 190,000 net jobs — intensified pressure on the Obama administration to show results from the $787 billion package of spending measures unleashed early this year to spur the economy.

Mitchell H. Rubinstein

November 9, 2009 in Current Events | Permalink | Comments (0)

Sunday, October 18, 2009

Balloon Boy's Family In Big Trouble Over What Now Appears To Be A Hoax

The Balloon boys parents may face criminal and other charges now that it has been declared a hoax. A New York Times story about the case is available here. Adjunct Law Prof Blog predicted that criminal charges may be filed if the incident were declared a hoax. As the article states:

Richard Heene and his wife, Mayumi, have not been arrested, but Sheriff Alderden said that among the charges being considered were three felonies: conspiracy between the husband and the wife to commit a crime, contributing to the delinquency of a minor and an attempt to influence a public servant, the last of which carries a prison term of six years. The charges could also include a misdemeanor, filing a false report.

The sheriff said his conclusions were based on separate interviews of the Heenes and their three children as well as searches of their computers, e-mail records and documents in their home. He said the plot to send up a balloon and tell the authorities that Falcon was aboard was planned two weeks ago, with the aim of obtaining a contract to do a reality television show.

He said the authorities had asked a professor of physics at Colorado State University whether the balloon could fly with a 37-pound boy inside. The professor determined that this particular balloon could not, even though the compartment, put together with duct tape and plywood, could carry the boy.

Mitchell H. Rubinstein

October 18, 2009 in Current Affairs, Current Events | Permalink | Comments (0)

Friday, August 28, 2009

Remembering Senator Kennedy

Senator Kennedy's wonderful career has been reviewed and discussed throughout the media and in households across America. One thing that I have not seen discussed is the fact that he has been a champion for children and the disabled. He was the sponsor of the 1975 IDEA law and its later amendments which guarantees disabled children a Free and Appropriate Education.

Thank you Senator Kennedy.

Mitchell H. Rubinstein

August 28, 2009 in Current Affairs, Current Events | Permalink | Comments (1) | TrackBack (0)

Pope's June 29, 2009 Encyclical Supports Labor Unions

On June 29, 2009, the Pope issued an Encyclical where he strongly supports unions and the need for workers to receive decent wages. Download Encyclical - Caritas in Veritate

In the below passage, the Pope also stresses the importance of unions reaching out to other workers who may be less fortunate:

While reflecting on the theme of work, it is appropriate to recall how important it is that labour unions — which have always been encouraged and supported by the Church — should be open to the new perspectives that are emerging in the world of work. Looking to wider concerns than the specific category of labour for which they were formed, union organizations are called to address some of the new questions arising in our society: I am thinking, for example, of the complex of issues that social scientists describe in terms of a conflict between worker and consumer. Without necessarily endorsing the thesis that the central focus on the worker has given way to a central focus on the consumer, this would still appear to constitute new ground for unions to explore creatively. The global context in which work takes place also demands that national labour unions, which tend to limit themselves to defending the interests of their registered members, should turn their attention to those outside their membership, and in particular to workers in developing countries where social rights are often violated. The protection of these workers, partly achieved through appropriate initiatives aimed at their countries of origin, will enable trade unions to demonstrate the authentic ethical and cultural motivations that made it possible for them, in a different social and labour context, to play a decisive role in development. The Church's traditional teaching makes a valid distinction between the respective roles and functions of trade unions and politics. This distinction allows unions to identify civil society as the proper setting for their necessary activity of defending and promoting labour, especially on behalf of exploited and unrepresented workers, whose woeful condition is often ignored by the distracted eye of society.

There is a whole body of legal literature concerning Catholic labor theory. My colleague at St. John's Law School, David Gregory, has written several important articles in this area.

Mitchell H. Rubinstein 

August 28, 2009 in Current Affairs, Current Events, Misc., Legal, Misc., Non-Legal, Politics, Unions | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 18, 2009

NY Legislatures And Double Dipping

A disturbing August 17, 2009 New York Times article highlights the practice of some New York Legislatures who retire on day one and start work on the same job on day two. Hence, they are double dippers.  The article does not provide much of a discussion of the legal issues, but it sure does smell.

Mitchell H. Rubinstein 

August 18, 2009 in Current Events, Pension Law, Pension Plans, Public Sector Employment Law | Permalink | Comments (0) | TrackBack (0)

Sunday, August 16, 2009

Should Michael Vick Been Rehired By The Eagles??

Adjunct Law Prof Blog reported on Vick's arrested and reproduced a copy of the criminal indictment, available here. Now he is out of prison after serving time for unspeakable crimes inflicted upon defenseless dogs. The Eagles rehired him. This gives us the opportunity to discuss an important issue as Vick is not the first person to go to jail and then seek to be hired.

I have personally represented many many individuals who engaged in what is referred to as "off duty misconduct." It can be a crime like DWI or something more serious and un-speakable. Should that person loose his job? Well, in most jurisdictions which afford a due process type of hearing to the employee, the law is that the employee can be fired if there is a nexus to work. Where an employee is a role model, just about any criminal felony conviction speaks to morality and therefore, will satisfy the nexus requirement. Note, the employee may not  be fired if there is a nexus; but he will get some type of penalty such as a suspension and very well may be fired.

What about Vick? Clearly this is off duty misconduct and clearly he is a role model. I submit that if he were anyone else, he would not have been hired for any job in the public eye. The only employment he possibly could get would be something where he was very much in the background and no one new who he was.

Therefore, I am very disappointed in the Eagles. They essentially gave preferential treatment that you or I would not have gotten.

Now, I do recognize he paid his debt to society, but that does not erase what he has done. He has no right to play football and he should have to struggle to find work just like every other x-con.

It is my hope that the Philadelphia fans will teach their team a lesson-its not all about winning at all costs.

And yes, I am a dog lover. And no, I am not an Eagles fan, and frankly I am not even a football fan.

Mitchell H. Rubinstein

August 16, 2009 in Current Events, Employment Law | Permalink | Comments (2) | TrackBack (0)

Wednesday, July 8, 2009

Strike Could Threaten 2010 World Cup

A July 9, 2009 Associated Press article reported that South African construction workers recently went on strike and that strike could effect the 2010 World Cup.  As the article states:

Thousands of workers at stadiums across the country put down their tools after wage negotiations deadlocked earlier this week. Workers are demanding a 13 percent pay increase while employers are offering 10.4 percent.

Mitchell H. Rubinstein

Hat Tip: Shruti Sasidharan, Student New York Law School

July 8, 2009 in Current Events | Permalink | Comments (0) | TrackBack (0)

Sunday, July 5, 2009

Copy of Michael Jackson's Will Available

A copy of Michael Jackson's will is all over the internet. If you have not seen it by now, it is available here. It was executed in 2002 and what is surprising to me is that it only spans 5 pages. He leaves his entire Estate to the Jackson Family Trust. That Trust is not disclosed. I wonder if that Trust is only for his children. I doubt it. Jackson's elderly mother is the guardian of her children, but if she is unwilling to do so, he appoints Diana Ross. It is interesting that no one else in the Jackson family is mentioned. The 3 executors of the Estate are also outside the Jackson family.

Mitchell H. Rubinstein

July 5, 2009 in Current Events | Permalink | Comments (0) | TrackBack (0)

Sunday, June 28, 2009

Bill To Legalize Gay Marriage In New York Stalled In State Legislature

As most attorneys in New York know, the N.Y.S. legislature is in a state of disarray. Therefore, questions can be raised about any legislation that is passed. The New York Law Journal is reporting that because of this, legislation concerning gay marriage in New York has been taken off the table-at least for the moment. As the article states:

A bill legalizing same-sex marriage in New York dropped off Governor David A. Paterson's agendas for special state Senate sessions last week at the behest of sponsors and advocates, who argued that doubts over the legality of proceedings in the stalemated Senate should not extend to questions about the validity of a same-sex marriage measure, should one pass. Empire State Pride Agenda Executive Director Alan Van Capelle said the Senate must vote on the same-sex marriage bill (A7732/S4401) before concluding its regular 2009 session at the end of the year, but not until the leadership dispute is worked out or set aside and "we are certain that any such vote taken by the Senate is valid and not subject to legal challenge." The chief sponsor of the bill in the Senate, Thomas Duane, D-Manhattan, said he wants the legality of the Senate vote on the bill to be "crystal clear" before it is put before senators. The measure passed the Assembly 89-52 in May and Mr. Paterson said he will sign it if it reaches his desk. The New York State Bar Association has issued a revised memorandum in support of the same-sex marriage bill to reflect a change in policy approved by the group's House of Delegates earlier this month.

Mitchell H. Rubinstein


June 28, 2009 in Current Events | Permalink | Comments (0) | TrackBack (0)

Friday, June 26, 2009

Michael Jackson-A Lawyers Dream!!

There are so many legal issues that arise concerning Michael Jackson's death that I do not know where to begin to start.

1.    Criminal Law Issues

Assuming Jackson died of an overdose, who gave him the medicine? Did the doctor know about the other medications he was taking. What about the pharmacy? Did they dispense the drugs properly?? Was more than one involved.

2.  Malpractice Issues and Professional Discipline Issues

Reportedly, Jackson had a personal doctor with him. Did the doctor know about the other medications? Did he ask??

3. Civil Law Issues

Perhaps the estate may bring a wrongful death suit against the doctor or persons who gave him the drugs.

4.  Family Law Issues

Jackson's children have two different mothers. Who will get custody? Will the children be separated?(I doubt that).  

5. Estate Issues

Did Jackson have a will? Who are his heirs?? What is the estate worth? Giving the complicated financial mess Jackson reportedly was in, it may take years to sort this out. These issues are important as Jackson's songs are likely to continue to generate royalty issues. Tax Prof Blog highlights some of the issues. 

I wish I could find a Education Law or Labor Law angle to all of this. I do not see one, but I would not be surprised if one arises.

Mitchell H. Rubinstein

June 26, 2009 in Current Events | Permalink | Comments (1) | TrackBack (0)

Wednesday, June 10, 2009

Executive Pay And Say To Play Rules

Overseer To Set Executive Pay At Rescued Companies is an important June 10, 2009 article from the NY Times. It reports that the Obama Administration has appointed a compensation czar to oversee executive compensation at firms which received stimulus funds. That is not surprising and has been in the works for a while. Much more importantly, the article also reports that Secretary Geithner wants publicly traded corporations to adopt “say on pay” legislation giving shareholders the ability to hold non-binding votes on compensation levels. As a Senator, Obama reportedly supported such legislation. 

Specifically, the Department of the Treasury is seeking legislation to authorize the Securities and Exchange Commission to require annual non-binding shareholder votes on compensation at all publicly traded companies.  I have included copies of Secretary Geithner's statement, the U.S. Department of Treasury's "Say on Pay" Fact Sheet and the Providing Compensation Committees New Independence fact sheet.

The Administration believes that such legislation is necessary to achieve the following five goals:

 First, compensation plans should properly measure and reward performance.Second, compensation should be structured to account for the time horizon of risks. Third, compensation practices should be aligned with sound risk management.Fourth, golden parachutes and supplemental retirement packages should be reexamined to align the interests of executives and shareholders.Fifth, transparency and accountability in the process of setting compensation should be promoted.

The legislation will build on Sarbanes-Oxley to regulate corporate behavior. This proposal does not just those corporations that participate in the so-called "TARP" program and were required to allow "say on pay" votes by shareholders this year.

The information provided is a bit vague, but it is apparent that this will become an important part of corporate and employment law.

Mitchell H. Rubinstein

June 10, 2009 in Current Affairs, Current Events, Employment Law, Litigation, Misc., Legal, Politics | Permalink | Comments (0) | TrackBack (0)

Monday, June 8, 2009

Breaking News! En Banc 6th Cir Reverses Itself And Rejects Associational Discrimination Theory


Thompson v North Am Stainless, LP, ___F.3d___(6th Cir. June 5, 2009) (en banc), is a critically important case. The en banc panel overturned its prior 2-1 ruling which had broadened the scope of Title VII’s anti-retaliation provision. A divided en banc Sixth Circuit held  that Sec. 704(a) of the Act does not provide a cause of action for third-party retaliation for individuals who did not personally engage in protected activity. “Our interpretation does not undermine the anti-retaliation provision’s purpose because retaliation is still actionable, but only in a suit by a primary actor who engaged in protected activity and not by a passive bystander.”  In its previous ruling, the Sixth Circuit became the first court of appeals to recognize a claim for associational retaliation under Title VII’s anti-retaliation provision, noting its decision comported with precedent from the Seventh and Eleventh Circuits, the EEOC's Compliance Manual, and the Supreme Court’s reasoning in Burlington N & Santa Fe Railway Co v White.
However, this time, the court joined the Third, Fifth and Eighth Circuits, which have “soundly rejected” such claims, in concluding the plain language of the statute covers only individuals’ own opposition or participation activity and does not protect related or associated third parties. “We decline the invitation to rewrite the law,” the majority noted. Thus, the court affirmed summary judgment to the employer on a suit brought by a male employee who alleged he was fired in retaliation for an EEOC sex bias charge filed by his then-fiancée, who also worked for the company. In what probably will become an important quote, the court explained:

In essence, plaintiff and the EEOC request that we become the first circuit court to
hold that Title VII creates a cause of action for third-party retaliation on behalf of friends and
family members who have not engaged in protected activity. However, we decline the
invitation to rewrite the law.

This is a very interesting issue in dire need of good law review commentary. If any of my students are still looking for a paper topic, this is a great one. Richard, I scooped you on this one! Finally!!

Mitchell H. Rubinstein

June 8, 2009 in Current Events, Discrimination Law, Law Review Ideas | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 12, 2009

Vermont legalizes same-sex marriage and becomes first state to do so by statute

On April 7, 2009 Vermont became the fourth state in the nation to legalize same-sex marriage, overriding a veto from Governor Jim Douglas (R) to make it the first state to legalize same-sex marriage by statute (S. 115). Only four days earlier, Iowa became the third state to legalize same-sex marriage when the Iowa Supreme Court ruled that limiting civil marriage to a union between a man and a woman violated the equal protection clause of the Iowa Constitution. The other states that have permitted same-sex marriage—Massachusetts and Connecticut—were also decided by the states' high courts. Vermont's Act will take effect September 1.

The Vermont statute defines marriage as follows:

Marriage is the legally recognized union of two
people. When used in this chapter or in any other statute, the word “marriage”
shall mean a civil marriage. Terms relating to the marital relationship or
familial relationships shall be construed consistently with this section for all
purposes throughout the law, whether in the context of statute, administrative
or court rule, policy, common law, or any other source of civil law.

Mitchell H. Rubinstein

May 12, 2009 in Current Events | Permalink | Comments (0) | TrackBack (0)

Thursday, May 7, 2009

Falling Wage Syndrome

NY Times Op-Ed Columnist Paul Krugman wrote an interesting May 3, 2009 piece entitled "Falling Wage Syndrome."His point is that falling wages are bad for the economy. Why? Because purchasing power declines when wages are lower. As the article states:

But why is that a bad thing? After all, many workers are accepting pay cuts in order to save jobs. What’s wrong with that?

The answer lies in one of those paradoxes that plague our economy right now. We’re suffering from the paradox of thrift: saving is a virtue, but when everyone tries to sharply increase saving at the same time, the effect is a depressed economy. We’re suffering from the paradox of deleveraging: reducing debt and cleaning up balance sheets is good, but when everyone tries to sell off assets and pay down debt at the same time, the result is a financial crisis.

And soon we may be facing the paradox of wages: workers at any one company can help save their jobs by accepting lower wages, but when employers across the economy cut wages at the same time, the result is higher unemployment.

Here’s how the paradox works. Suppose that workers at the XYZ Corporation accept a pay cut. That lets XYZ management cut prices, making its products more competitive. Sales rise, and more workers can keep their jobs. So you might think that wage cuts raise employment — which they do at the level of the individual employer.

But if everyone takes a pay cut, nobody gains a competitive advantage. So there’s no benefit to the economy from lower wages. Meanwhile, the fall in wages can worsen the economy’s problems on other fronts.

Mitchell H. Rubinstein

May 7, 2009 in Current Events | Permalink | Comments (0) | TrackBack (0)

Monday, May 4, 2009

UAW and Chrysler

Union Takes Rare Front Seat in Deal For Chrysler is an important May 1, 2009 New York Times article.  In exchange for agreeing to some wage concessions, the U.S. Gov't has stated that it will stand behind the health insurance VEBA's. In those VEBA's the UAW accepted responsibility for the health insurance in exchange for stock-alot of it. When Chrysler emerges from bankruptcy the UAW will own 55% of the company. Wow!!
This is a fundamental change in labor relations. Will the UAW become both the employer and union?? With 55% share, not technically-but perhaps practically. On the other hand, 55% of nothing is nothing. Therefore, alot may depend upon what type of company emerges out of bankruptcy.

Mitchell H. Rubinstein 

May 4, 2009 in Current Events, Unions | Permalink | Comments (0) | TrackBack (0)

Thursday, April 23, 2009

Furlough's Instead Of Layoffs??

Europe's Solution: Take More Time Off is an interesting March 29, 2009 commentary from the New York Times. This story debates whether some employees should work less in exchange for a company not having to make layoffs. The story then presents several commentaries with examples from Europe about how such as system might work. The introduction to the article states:

While many European companies have long turned to shorter workweeks and mandatory time off in economic downturns, the idea has never really caught on in the United States. Despite reports of unpaid furloughs and wage cuts, American companies continue to rely heavily on layoffs to control labor costs.

Much of this has to do with cultural differences as well as the social safety net that many European governments offer. For American employers, is one approach — layoffs versus shorter workweeks and wage cuts — better for the economy? Could it be true — as the Germans argue — that keeping more workers on the job is a good way to stimulate the economy in a recession?

My view is that such a system cannot work in this country. Why?? The answer can be summed up in one word. Employee Benefits. In the U.S., employees rely on their employer for health insurance and other benefits. Those benefits are a big chunk of employee compensation. In many countries in Europe health insurance is nationalized so employees do not have to worry about it. Not so here.

Mitchell H. Rubinstein   

April 23, 2009 in Current Events | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 15, 2009

Big Brothers Watching

Administration Seeks Increase in Oversight is an interesting NY Times article from March 22, 2009. It is about the fact that the Obama Adminstration is seeking additional oversight with respect to Executive Pay at financial institutions. The article is abit vague about what exactly the Administration is interested in.  As the article states:

The administration has been considering increased oversight of executive pay for some time, but the issue was heightened in recent days as public fury over bonuses spilled into the regulatory effort.

The officials said that the administration was still debating the details of its plan, including how broadly it should be applied and how far it could go beyond simple reporting requirements. Depending on the outcome of the discussions, the administration could seek to put the changes into effect through regulations rather than through legislation.

One proposal could impose greater requirements on company boards to tie executive compensation more closely to corporate performance and to take other steps to ensure that compensation was aligned with the financial interest of the company.

The new rules will cover all financial institutions, including those not now covered by any pay rules because they are not receiving federal bailout money. Officials say the rules could also be applied more broadly to publicly traded companies, which already report about some executive pay practices to the Securities and Exchange Commission. 

I am afraid that this might be an overreachtion to the AIG bonus mess. Freedom of contract is an essential part of labor and employment law-indeed most of law. The government does not need to get involved in any perhaps the most extreme situations as when it is giving a company bailout money. Lets not overreact.

Mitchell H. Rubinstein

April 15, 2009 in Current Events | Permalink | Comments (1) | TrackBack (0)

Tuesday, March 17, 2009

NY Times Running Debate On Whether AIG Contract Bonuses Can Be Voided And My Take On This

When Bonus Contracts Can Be Broken is a running debate over whether the AIG Contract bonuses that has so outraged the country can be broken. Most of the commentators believe that the government has a shot. The commentators are as follows:

While it is always difficult to give a useful opinion without seeing the documents in question, here is my take. Assuming New York law applies, the contracts are for work performed and part of their compensation, they are going to be protected under New York Labor Law 197 and can even be criminal under New York Labor Law 198-A. Additionally, the employer is probably on the hook for breach of contract because I do not see a reason why the contract is not enforceable.

So is this outrageous? Of course it is. Who is to blame? I blame Congress. They could have included provisions in the bailout which would have prevented this. Federal law would preempt state common law breach of contract actions as well as state labor law. But they didn't. Perhaps, the money can be taken out of the bailout monies given to AIG, but it cannot be taken back from the employees.

Mitchell H. Rubinstein

March 17, 2009 in Current Events | Permalink | Comments (0) | TrackBack (0)

Thursday, March 12, 2009

Copy of Madoff's Guilty Plea Allocution

Readers may be interested in seeing a copy of Bernard Madoff's guilty plea allocution he made in federal court, here. It is 6 pages long and made before Judge Denny Chin, who interestingly enough was a plaintiff's side employment lawyer before he was appointed to the federal bench. Madoff states in part:

As I engaged in my fraud, I knew what I was doing was wrong, indeed criminal. When I began the Ponzi scheme, I believed it would end shortly and I would be able to extricate myself and my clients from the scheme.

Mitchell H. Rubinstein

March 12, 2009 in Criminal Law, Current Events | Permalink | Comments (0) | TrackBack (0)