Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
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Monday, August 4, 2014

Instructor at Yoga School Is An Employee

Matter of Yoga Vida v. Commissioner of Labor, ___A.D. 3d___(3d Dep't. July 31, 2014), is an interesting case.  In the context of Unemployment, the court had to decide whether a Yoga instructor was an employee. In concluding that she was, the court applied the right to control test and reasoned:

                Classes were held in Yoga Vida's studios and students were solicited by the                 company. [*2]Yoga Vida published class schedules on its website and set the duration of                 each class. Instructors were compensated by check according to a negotiated rate, with                 some instructors preferring a set rate for each class and others electing to take a percentage                 of the fees that were collected from students who attended classes. Patton averred that                 the  instructors were an integral part of Yoga Vida's business (see Matter of Professional                 Career Ctr., Inc. [Commissioner of Labor], 105 AD3d 1219, 1220 [2013]), and he                 personally ensured that they were properly certified and had adequate training and                 expertise to conduct classes. While Yoga Vida disputed that it supervised the instructors,                 Patton conceded that he would personally address instructors regarding their manner of                 instruction if it posed a risk of injury to the students or if they were otherwise engaged in                 conduct that he found objectionable. Overall, despite the existence of evidence that could                 result in a contrary result, the record contains substantial evidence to support the Board's                 decision that Yoga Vida had sufficient control over the instructors' work, thereby allowing                 for a finding of an employer-employee relationship (see Matter of Anwer [Exclusive                 Fragrance & Cosmetics, Inc.—Commissioner of Labor], 114 AD3d at 1115; Matter of                 Human Performance, Inc. [Commissioner of Labor], 28 AD3d 971, 972 [2006]; Matter of                 Fitness Plus [Commissioner of Labor], 293 AD2d 909, 910 [2002])

Mitchell H. Rubinstein

August 4, 2014 in Employment Law | Permalink | Comments (0)

Sunday, March 9, 2014

Interesting Faithless Servant Decision

Henry v. Concord Limousines, Inc., ___ F. Supp. 2d ___(E.D.N.Y. 2014)(Faithless servant doctrine allows car service to seek disgorgement of bribes to dispatcher.) 
Mitchell H. Rubinstein

March 9, 2014 in Employment Law | Permalink | Comments (0)

Wednesday, February 19, 2014

Delay in Termination Does Not Change The Fact That Employee Not Eligible For Unemployment

Matter of Capello v. Commissioner of Labor, ___A.D.3d___(3rd Dep't. Jan. 16, 2014), is an interesting case. The employee tried to argue that he was not terminated for misconduct because the employer delayed firing him. The employee was absent a week after the incident and it then took the employer 2 weeks to investigate. 

Mitchell H. Rubinstein

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

Sunday, February 16, 2014

Hospital Employee States Whistleblower Cause of Action

Galbraith v. Westchester Medical Center, ___A.D.3d___(2d Dep't. Jan. 15, 2014), is an interesting read. A hospital  perfusionist stated a cause of action under N.Y. Labor Law Section 741. He alleged that  alleging that he was demoted in retaliation for his objections to the rapid infuser policy, which he voiced because he was concerned that it threatened the quality of patient care. 

Note, that this is a public sector employment law case. The law is far my restrictive in the private sector in New York.

Mitchell H. Rubinstein

February 16, 2014 in Employment Law, Employment-At-Will & Exceptions | Permalink | Comments (0)

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)

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)

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)

Sunday, December 22, 2013

Catering Surcharge Not ‘Tip' Under FLSA or New York Law Before 2011

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

December 22, 2013 in Employment Law | Permalink | Comments (0)

Thursday, November 14, 2013

Service as an independent contractor does not count in qualifying for unemployment insurance benefits

Matter of Tkachyshyn (Commissioner of Labor), 2013 NY Slip Op 06057, Appellate Division, Third Department
Volodymyr I. Tkachyshyn, a substitute teacher and math tutor, filed three claims for unemployment insurance benefits.
Although initially deemed eligible for benefits in each instance, following Appellate Division’s decision in Leazard v TestQuest, Inc., 74 AD3d 1414, the Department of Labor issued revised decisions finding that earnings in connection with tutoring services through TestQuest, Inc. was not covered employment for the purposes of qualifying for unemployment insurance benefits “given that tutors such as [Tkachyshyn] were independent contractors.”
The Appellate Division commented that in “TestQuest, Inc. tutors such as claimant were deemed by this Court to be independent contractors … which decision is conclusive and binding upon all such persons employed by TestQuest, Inc.,” citing Labor Law §620[1][b].* Thus, said the court, those earnings cannot qualify for inclusion as remuneration in the base periods to determine eligibility for unemployment insurance benefits.**
As the record establishes that Tkachyshyn did not have sufficient covered earnings to file a valid original claim pursuant to Labor Law §527 in either his base period or alternate base period for any of the three claims, the Appellate Division found that substantial evidence supports the Board's decision and dismissed his appeal.
* §620[1][b] of the Labor Law, in pertinent part, provides that the hearing officer’s “decision shall not be deemed limited in its effect to the immediate claimant making the claim for benefits but shall be deemed a general determination of such questions with respect to all those employed by such person or employer for all the purposes of this article, and such decision shall be conclusive and binding upon the claimant and such person or employer…”.
** The Appellate Division noted that “notwithstanding the absence of any fault on the part of Tkachyshyn, he was charged with a recoverable overpayment of federal emergency unemployment compensation funds. Whether Tkachyshyn was eligible for a waiver of recoverability of those benefits was referred back to the Department of Labor and was not at issue on this appeal.
The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

November 14, 2013 in Employment Law | Permalink | Comments (0)

Thursday, November 7, 2013

The Unemployment Insurance Appeals Board is bound by the disciplinary hearing officer's "factual findings” and his conclusion that the employee had been insubordinate in determining if the individual’s behavior constituted disqualifying misconduct

2013 NY Slip Op 05942, Appellate Division, Third Department
A school custodian [Employee] was served with disciplinary charges pursuant to Civil Service Law §75 alleging that he was guilty of misconduct, incompetence and insubordination. The disciplinary hearing officer found Employee guilty of charges of misconduct and insubordination involving numerous incidents, including Employee’s sleeping while on duty and Employee’s “using vacation days” without giving proper notice or obtaining authorization to do so.
The hearing officer also determined that Employee was guilty of misconduct and insubordination with respect to his behavior after being served with the initial disciplinary charges and specifications brought against him by “verbally abusing his supervisor and failing to immediately leave the premises after being directed to do so.”*
Noting that Employee had violated an earlier "last chance" agreement specifying that dismissal was appropriate if he engaged in any future misconduct, the hearing officer recommended that Employee be terminated from his position.
The appointing authority adopted the hearing officer’s findings and recommendation and dismissed Employee from his position.
Employee applied for unemployment insurance benefits. The Unemployment Insurance Appeal Board determined that Employee's behavior “did not rise to the level of disqualifying misconduct" and awarded him unemployment insurance benefits.The employer appealed the Board’s decision.
The Appellate Division reversed the Board’s ruling, explaining that although the Board was free to make "independent additional factual findings" and draw its own independent conclusion as to whether Employee's behavior rose to the level of disqualifying misconduct for purposes of entitlement to unemployment insurance benefits, it was also bound by the disciplinary hearing officer's "factual findings” with respect to Employee’s conduct and the hearing officer's conclusion that Employee was guilty of insubordination.
As the Board failed to consider whether some of the established instances of misbehavior constituted disqualifying misconduct, and improperly contradicted other factual findings of the disciplinary hearing officer, the Appellate Division remanded the matter to the Board “so that it may reconsider” its ruling consistent with the court’s decision.
* Presumably the initial disciplinary charges served on Employee were amended or supplemented to reflect these additional allegations of misconduct.
The decision is posted on the Internet at:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

November 7, 2013 in Employment Law | Permalink | Comments (0)

Thursday, October 24, 2013

Overtime For Domestic Workers In California

California recently enacted legislation providing that domestic workers are entitled to over-time. More details on workplace prof blog.

Mitchell H. Rubinstein

October 24, 2013 in Employment Law | Permalink | Comments (0)

Thursday, September 19, 2013

Interesting Case on Employment Status of Volunteers

Are volunteers employees and subject to employment laws? Of course not. I wrote a law review article on this topic. But, what is a volunteer. 

A recent case which discusses some of these issues is Henderson-Jones v. Industrial Commission of Arizona, ___P.  3d___, 2013 WL 4475051 (Ariz. App. Div. 1, August 22, 2013).  Intersted readers may want to check this case out. The court also cited me. I always get a kick out of that.

Mitchell H. Rubinstein


September 19, 2013 in Employment Law | Permalink | Comments (0)

Sunday, September 15, 2013

Aspiration for another position with the employer not a property right

Gokaran Singh v District Council 37, et al. US Circuit Court of Appeals, 2nd Circuit; 05-2255*
The Circuit Court of Appeals affirmed the district court's dismissal of Gokaran Singh’s complaint that he had been denied due process in connection with his alleged loss of property rights due him by his employer. The lower court had dismissed Singh's petition because, it held, Singh failed to demonstrate that he had been deprived of a cognizable property interest by his employer.
Singh’s complaint was based on his interest in obtaining employment in other positions within his Department, the New York City Department of Design & Construction, and his desire for an “exceptional performance” evaluation.
These objectives, said the court are “abstract need[s], desire[s] or unilateral expectation[s]” and do not satisfy the requirement that Singh demonstrate that he has been denied a property right.
* This summary order will not be published in the federal reporter and may not be cited as precedential authority to this or any other court, but may be called to the attention of this or any other court in a subsequent stage of this case, in a related case, or in any case for purposes of collateral estoppel or res judicata.
The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

September 15, 2013 in Constitutional Law, Employment Law | Permalink | Comments (0)

Sunday, September 8, 2013

Sixth Circuit 2-1 Finds Volunteer Firefighters ‘Employees' for FMLA Claim

Volunteer firefighters in Gibraltar, Mich., who receive a substantial hourly wage for responding to calls when they choose to do so are "employees" under the Family and Medical Leave Act, the Sixth Circuit rules Aug. 15 (Mendel v. City of Gibraltar, 6th Cir., No. 12-1231, 8/15/13).

Mitchell H. Rubinstein

September 8, 2013 in Employment Law | Permalink | Comments (0)

Monday, August 26, 2013

The Unemployment Insurance Appeal Board may apply the doctrine of collateral estoppel in denying a claimant UI benefits based on a disciplinary arbitration that led to the claimant’s dismissal

2013 NY Slip Op 05280, Appellate Division, Third Department
A claimant for unemployment insurance benefits challenged his dismissal from his position by the employer but an arbitrator concluded that there was just cause for his termination.
Subsequently the Unemployment Insurance Appeal Board denied the claimant’s application for unemployment insurance benefits, ruling that he was disqualified from receiving such benefits because he was terminated for disqualifying misconduct. The claimant then appealed the Board’s ruling.
The Appellate Division affirmed the Board’s decision explaining that "as there was a full and fair opportunity to litigate the issue in the prior [arbitration] proceeding, collateral estoppel effect must be given to the arbitrator's factual findings regarding claimant's misconduct."
As the Board had appropriately taken into account the arbitrator's factual findings and made "an independent evaluation as to whether that conduct constitutes 'misconduct' for the purposes of unemployment insurance" the Appellate Division found no basis to overturn the Board's ruling.
Although the individual contended that “at worst, the alleged conduct constituted an excusable error in judgment,” the Board disagreed.
The decision notes that the individual had been counseled by the employer prior to this incident "for various safety violations" and where the misconduct is potentially detrimental to the employer's best interest may, “as in this instance, be sufficient to constitute disqualifying misconduct.”
The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law


Mitchell H. Rubinstein

August 26, 2013 in Employment Law | Permalink | Comments (2)

Thursday, August 8, 2013

Important Post-Hoffman Plastics 2d Circuit Decision

The Second Circuit held in Palma v. NLRB (2d Cir. July 10, 2013), Download 12-1199_Documents that Hoffman Plastic's prohibition on an NLRB award of backpay to an undocumented worker applies even "to aliens who did not gain their jobs through [] fraud but who are simply present in the United States unlawfully." The Court also held that Hoffman Plastic "did not foreclose relief in the nature of an order for reinstatement conditioned upon an employee's submission of documentation as required by IRCA," i.e., a "conditional reinstatement" remedy of the sort approved by the Board and the Second Circuit in the pre-Hoffman Plastic case A.P.R.A. Fuel Oil Buyers Group.

The discriminatees refused to answer questions about their immigration status, but the General Counsel decided to proceed on the assumption that the workers were undocumented. The ALJ found that the employer knowingly hired the workers without verifying their work authorization and then fired them after they concertedly complained about abusive treatment. The ALJ concluded that because only the employer violated the immigration law, not the employees (who did not submit any fraudulent documents to obtain employment), the case was distinguishable from Hoffman Plastic (in which the fired employee used false documents to obtain employment without the employer's knowledge). The ALJ thus awarded conditional reinstatement and backpay.

The Board disagreed with the ALJ's legal conclusion, holding that Hoffman Plastic categorically forecloses an NLRB award of backpay to an undocumented worker regardless of which party violated immigration law.   The Second Circuit agreed with the Board regarding the unavailability of backpay, but remanded so that the Board could address the matter of whether the fired workers are entitled to conditional reinstatement.

August 8, 2013 in Employment Law | Permalink | Comments (0)

Wednesday, July 31, 2013

Second Circuit Finds Supermarket Owner Personally Liable as Employer Under FLSA

The owner, president, and chief executive officer of a supermarket chain in New York is personally liable for his companies' default on payment obligations under an overtime settlement with a class of store managers because he is an “employer” under the Fair Labor Standards Act. Irizarry v. Catsimatidis, ____F.3d___ (2d Cir. July 9, 2013). 

The decision is lengthly and worth a read for those interested in this area of law.

Mitchell Rubinstein

July 31, 2013 in Employment Law | Permalink | Comments (1)

Sunday, June 23, 2013

Hostile Environment Cases Under Title VII, 1981 and NY Human Rights Law Are Subject To Same Standards

Sanchez-Vazquez v. Rochester City School District, ___F.3d___ (2d Cir. May 14, 2013), is an important case because the 2d Circuit holds that hostile work environment cases under Title VII, 42 U.S.C. Sec. 1981 and the NYS Human Rights Law are all analyzed under the same standards. The case also demonstrates that it is difficult to make out a cause of action if only a few offensive comments were made over a period of years.

Mitchell H. Rubinstein

June 23, 2013 in Employment Discrimination, Employment Law | Permalink | Comments (0)

Friday, June 21, 2013

Recent Wage Act Decisions by the Massachusetts Courts

The Massachusetts Supreme Judicial Court and an Appeals Court recently issued two separate decisions interpreting certain aspects of the Massachusetts Wage Act, which allows employees to seek relief against their employer and certain officers of the employer for nonpayment of wages.  

In first decision, Cook v. Patient Edu, LLC (decision here), the SJC held that managers of LLCs can be held liable individually for unpaid wages under the Wage Act. Specifically, a “manager who 'controls, directs, and participates to a substantial degree in formulating and determining' the financial policy of a business entity may be a 'person having employees in his service' under G.L. c. 149, § 148, and thus may be subject to liability for violations of the Wage Act,” [citations omitted].

The issue before the Court was whether the legislative intent was to include managers of LLCs in the group of possible violators of the Wage Act, and the Court found that it did. The Court found a clear legislative intent to hold all individuals who contribute to a business's fiscal and employment policies responsible for how employees are treated.

In second decision, Dow v. Casale (decision here), a Massachusetts Appeals Court held that an employee’s private right of action under the  Wage Act did apply in the case of a traveling salesman who rarely set foot in Mass. This choice of law case basically states that where the Commonwealth has a close connection to the employment relationship of the parties, local law should be applied to the claim.

In this case the plaintiff worked as a salesperson for a Delaware corporation that had its a sole place of business in Massachusetts.  He resided in Florida and conducted most of his sales activity across the country. When the company closed its doors, it terminated his employment with significant commissions outstanding.  The question here was whether Massachusetts law would apply given that the plaintiff rarely visited the state.

The Court found that the nature of the plaintiff's work was such that only Massachusetts was tied to it. Factors examined by the Court include the governing law provisions in the plaintiff's employment agreement, the contact address used on the plaintiff's business cards, the location from which paychecks were issued, how often he traveled to the head office in Mass, and that he worked out of the same cubicle (albeit unassigned to him) when he was onsite.  

While distinguishing a case cited by the defendant where the Wage Act was not applied to an Australian employee operating outside the United States, importantly, the Court did acknowledge that the application of the Wage Act may be different in the case on a non-US employee.


Dimitry Herman

Adjunct Law Professor

New England School of Law


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