Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Friday, February 6, 2015

Despite Failure to Call In, Claimant Is Entitled To Unemployment

Matter of Pratt (Cellular Sales) v. Commissioner of Labor, ____A.D.3d___(3d Dep't. 2015), is an interesting Unemployment decision. I bring it to the readers' attention because it demonstrates how, courts, in my view, often tip the balance in favor of the discharged employee. We all know that an employee is not eligible for unemployment for misconduct, but what is misconduct? The court explains:

The employer contends that claimant engaged in disqualifying misconduct by failing to abide by its call in policy prior to being absent for two consecutive shifts and that this amounted to a resignation under the provisions of the employee manual. Initially, we note that whether an employee's actions rise to the level of disqualifying misconduct for unemployment insurance purposes is a factual issue for the Board to resolve and its determination will be upheld if supported by substantial evidence (see Matter of Cardenas [Metropolitan Cable Communications, Inc.—Commissioner of Labor], 118 AD3d 1234, 1234-1235 [2014]; Matter of Andrews [A.C. Roman & Assoc.—Commissioner of Labor], 118 AD3d 1216, 1216-1217 [2014]). Here, claimant stated that he was unaware of the employer's call in policy and did not contact his supervisor prior to his absences on August 20 and August 21 because he thought that this had been taken care of when he reported to his supervisor that he was locked out of the system, at which point he could not perform any work. In view of this, as well as the absence of any indication that claimant had time or attendance problems in the past, the Board could reasonably conclude that claimant did not engage in disqualifying misconduct (see Matter of Jaiyesimi [ISS Action Inc.—Commissioner of Labor], 114 AD3d 983, 984 [2014]). Accordingly, substantial evidence supports the Board's decision and we decline to disturb it.

Mitchell H. Rubinstein

February 6, 2015 in Employment Law | Permalink | Comments (0)

Friday, October 31, 2014

Strippers Are ‘Employees' Under Nevada Wage Law

Sometimes you cannot make these cases up. Dancers who perform at a Nevada strip club are employees, not independent contractors, and therefore are covered by the state's minimum wage law, the Nevada Supreme Court rules in a unanimous opinion (Terry v. Sapphire/Sapphire Gentlemen's Club, Nev., No. 59214, 10/30/14).

A copy of this decision can be found on the Nevada Supreme Court's web site, here. In a 20 page decision, the Court applies the economic realities test that is also applied in FLSA cases.

Mitchell H. Rubinstein

October 31, 2014 in Employment Law | Permalink | Comments (1)

Tuesday, September 30, 2014

NYS Dep't. of Labor applies right to control test to determine employee status

Dunno v. Commissioner of Labor, ___A.D.3d___(3d Dep't. Sept. 25, 2014), is an interesting case. The court held that a security guard was an employee and not an independent contractor. The court applied the common law right to control test, reasoning:

 In making such a determination, the Board considers whether the putative employer exercised control over the [*2]results produced or the means used to achieve those results, with the means being the more important consideration (see Matter of McCollum [Fire Is. Union Free School Dist.—Commissioner of Labor], 118 AD3d 1203, 1204 [2014]; Matter of Joyce [Coface N. Am. Ins. Co.—Commissioner of Labor], 116 AD3d 1132, 1134 [2014]). Here, the testimony of both claimant and Anthony Stone, the principal of ASISS, established that claimant completed an application for employment and was hired at a rate of pay established exclusively by Stone. ASISS assigned claimant to a specific location, established his hours of work and covered him under its workers' compensation insurance. Furthermore, it provided him with an employee code of conduct and required him to call in to an automated system at the beginning and end of each shift, to sign a time sheet and to submit incident reports. The client was not informed that claimant was an independent contractor, claimant was required to request time off two weeks in advance and ASISS would find a replacement if claimant was unavailable for his shift. Claimant was required to adhere to the company dress code by wearing a dark suit and tie, as well as a company lapel pin, while on duty. Furthermore, any complaints about claimant's performance would be handled by ASISS and claimant would receive his pay even if the client did not pay ASISS. Accordingly, while there was other evidence in the record suggestive of an independent contractor relationship, we find that substantial evidence supports the Board's determination that claimant was an employee (see Matter of Anwer [Exclusive Fragrance & Cosmetics, Inc.—Commissioner of Labor], 114 AD3d 1114, 1115 [2014]; Matter of Lamar [Eden Tech., Inc.—Commissioner of Labor], 109 AD3d 1038, 1039 [2013]).

This decision is highlighted because it illustrates some of the factors courts examine in determining employee status. However, the decision is not particularly well written because it merely stated that other evidence in the record supported the opposite conclusion (that the individuals were independent contractors) and the court did not weigh this evidence.

Mitchell H. Rubinstein

September 30, 2014 in Employment Law | Permalink | Comments (2)

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)