Adjunct Law Prof Blog

Refusal of Suitable Offer of Employment Leads To Unemployment Disqualification

Matter of Neuman v. Commissioner of Labor, ____A.D. 3d___(3d Dep't. April 18, 2013), illustrates an important point. As the court explained:

 "A claimant who refuses to accept a job for which he or she is reasonably suited by training and experience will be disqualified from receiving unemployment insurance benefits" (Matter of Schirra [Commissioner of Labor], 45 AD3d 1067, 1068 [2007] [internal quotation marks and citation omitted]; see Matter of Southern-Penn [Commissioner of Labor], 83 AD3d 1318, 1319 [2011]). Here, the record confirms that claimant was qualified for the job offered to him and the position paid the prevailing wage (see Matter of Schirra [Commissioner of [*2]Labor], 45 AD3d at 1068). As for claimant's rejection of the job offer due to its location, "dissatisfaction with the length of one's commute does not constitute good cause for rejecting an otherwise suitable offer of employment" (Matter of Pelle [Commissioner of Labor], 12 AD3d 750, 751 [2004]; see Matter of Cunningham [Commissioner of Labor], 19 AD3d 980, 980 [2005]). Notably, claimant admitted receiving the unemployment insurance handbook explaining his obligations regarding reasonable commuting distances under these circumstances.

Mitchell H. Rubinstein

Judge removed from his position for cause notwithstanding his earlier resignation from the position

A former Judge [Judge] appealed a determination of the State Commission on Judicial Conduct in which the Commission had sustained a single charge of judicial misconduct against him and determined that he should be removed from office (see NYS Constitution, Article VI, §22; Judiciary Law §44[1]).

The Judge had earlier resigned from his position after admitting to certain conduct that he characterized as “indefensible” that occurred 40 years earlier.

Notwithstanding the Judge’s resignation, the Commission continued the proceeding and ultimately sustained the charge*and ordered Judge’s removal, finding that his admission, standing alone provided a sufficient basis for the determination.**

Citing Matter of Going, 97 NY2d 121 and Matter of Aldrich, 58 NY2d 279, the Court of Appeals affirmed the Commission’s action, explaining that it measures “the necessity for removal ‘with due regard to the fact that judges must be held to a higher standard of conduct than the public at large’ as even ‘relatively slight improprieties subject the judiciary as a whole to public criticism and rebuke, it is essential that we consider’ the effect of the Judge's conduct on and off the Bench upon public confidence in his [or her] character and judicial temperament."

The Court said that it agreed with the Commission that Hedges' admissions, by themselves, were sufficient to warrant the finding of judicial misconduct. The admitted conduct undermined the integrity and impartiality of the judiciary and therefore, said the court, rendered Hedges unfit for judicial office.

Noting that “[I]t is troubling that the petition is based solely on conduct that occurred 40 years ago —- 13 years before [Hedges] was elevated to the bench,” the Court of Appeals said that the misconduct alleged is grave by any standard.

Accordingly, said the court, the determined sanction of removal should be accepted and Judge removed from the office of Judge.

* Two Commission members dissented in part on the ground that Judge had removed himself from his judgeship by resigning and that his post-resignation removal proceedings "served no purpose" in this case.

** Similarly, 4 NYCRR 5.3(b) of the State Civil Service Commission’s Rules, which applies to employees of the State as the employer, provides, in pertinent part, “…when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation.” Many local civil service commissions have adopted a similar provision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02773.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

SDNY Circuit Issues Major Decision On Unpaid Interns

Glatt v. Fox Searchlight Pictures, ____F.Supp.2d____(S.D.N.Y. June 11, 2013), is a major FLSA decision concerning the status of unpaid interns. At issue were interns who worked on the movie 'Blank Swan." In a lengthly and well reasoned decision, the court holds that the interns were employees. Of note is that the court approved of the Department of Labor's multiple factor test to examine whether interns are employees. There is also an extensive discussion of joint employment and the statute of limitations. A claim was also sucessfully brought under New York Law.

There are relatively few reported decisions concerning the status of unpaid interns. While this was an FLSA case, it will be interesting to see if the same analysis is applied under other employment statutes such as Title VII or even the NLRA, which apply different tests for employee status. 

Law review commentary is always welcome on this developing issue.

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

Leaving Job To Take Retirement Package Disqualifies Individual From Unemployment

Matter of Rubscha v. Commissioner of Labor, ____A.D.3d____(April 18, 2013), demonstrates an important point about leaving work to take advantage of an early retirement package. Basically, that would disqualify an individual from receiving benefits. As the court explained:

Claimant had worked as a mechanical design engineer for 29 years when his employer instituted a voluntary reduction in force program in an effort to avoid eventual layoffs. He had no information that his job would be eliminated, but nevertheless accepted the severance package out of concern that he or his coworkers would be laid off. Inasmuch as leaving a job in order to take advantage of a severance or early retirement package when continuing work is available does not constitute good cause for leaving one's employment, substantial evidence supports the determination of the Unemployment Insurance Appeal Board that claimant voluntarily left his employment without good cause (see Matter of Keane [Commissioner of Labor], 93 AD3d 1002, 1003 [2012], lv denied 20 NY3d 854 [2013]; Matter of Powell [Commissioner of Labor], 79 AD3d 1507, 1507 [2010], lv denied 17 NY3d 701 [2011]). Substantial evidence further supports the Board's finding that claimant received retirement incentives identical to those that he would have been provided had he been laid off and that, as a result, he lacked "a compelling financial incentive to leave his job" (Matter of Biedka [Hudacs], 196 AD2d 944, 944 [1993]; see Matter of Fisher [Levine], 36 NY2d 146, 153 [1975]).

Mitchell H. Rubinstein

 

Employers must use the revised federal Employment Eligibility Verification Form (Form I-9) after May 7, 2013.

The U.S. Citizenship and Immigration Services, Department of Homeland Security, advises employers that after May 7, 2013*only the newly revised federal Employment Eligibility Verification Form (Form I-9)** may be used 

New York State Department of Civil Service has added Advisory Memorandum 13-1 to the State Personnel Management Manual. This Manual applies to officers and employees of the State as the employer.

Advisory Memorandum 13-1, prepared by Marc Hannibal, Special Counsel, addresses the use of the newly revised federal Employment Eligibility Verification Form (Form I-9).

N.B. With respect to I-9 Forms prepared after May 7, 2013, onlythe new March 8, 2013 version of the Form I-9 will be accepted. The form and instructions for its use is posted on the Internet at:

 http://www.uscis.gov/files/form/i-9.pdf .

Political subdivisions of the State may wish to check with the responsible local civil service commission or personnel officer concerning the processing of the Form I-9 in their respective jurisdictions.

The Department of Civil Service’s Advisory Memorandum 13-1 is set out below:

 =================

This Advisory Memorandum updates State Personnel Management Manual Advisory Memorandum #09-01, dated March 13, 2009, located in Sections 1000 and 1800. Note on both copies of the 2005 Memo that this Advisory Memorandum should be consulted.

United States Citizenship and Immigration Services (USCIS) has published a revised Employment Eligibility Verification Form I-9 for use. Improvements to Form I-9 include new fields, reformatting to reduce errors, and clearer instructions for both employees and employers.

Effective March 8, 2013:

1. Employers should begin using the newly revised Form I-9 (Rev. 03/08/13)N for all new hires and reverifications.

2. Employers may continue to use previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09) Y until May 7, 2013.

3. After May 7, 2013, employers must only use Form I-9 (Rev. 03/08/13)N.

The revision date of the Form I-9 is printed on the lower left corner of the form.

Employers should not complete a new Form I-9 for current employees if a properly completed Form I-9 is already on file.

Copies of the March 8, 2013 version of Form I-9 (including instructions) are available for download on the USCIS Web site atwww.uscis.gov.

Print copies of the March 8, 2013 version of Form I-9 for your agency’s use and destroy all blank copies of previous versions of Form I-9 in your possession. Check the USCIS Web site regularly for the latest official information and guidance.

__________________________________________

* N.B. The March 8, 2013 revised Form I-9 notes that it expires on March 31, 2016. Presumably a replacement form will be promulgated by the Department of Homeland Security prior to that date.

** Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States.

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

 

Justices Will Not Review Ruling Shielding Retirees' Health Care Benefits

Denying a packaging firm's petition for review, the U.S. Supreme Court recently denied cert to a case which held that retirees of a Michigan plant are vested with lifetime, employer-paid health care insurance for themselves and their spouses ( Menasha Corp. v. Moore, U.S., No. 12-942, cert. denied 3/25/13 ).

Menasha Corp., sought review of a U.S. Court of Appeals for the Sixth Circuit decision that outside evidence clarifying collective bargaining agreements signed in 1994 and 1997 indicated Menasha and the union intended to provide retirees and their spouses with vested, lifetime health care benefits (660 F.3d 444, 193 LRRM 3249 (6th Cir. 2012).

This is a huge issue under ERISA and under collective bargaining agreements and I expect the Supremes will visit it one day. Law review commentary on this important topic would be welcome.

Mitchell H. Rubinstein

Special Invesitgators Exempt Under FLSA

We do not cover FLSA issues much on this blog, but it is an important area of employment law. The 6th Circuit recently issued an intersting decision finding that special investigators for Nationwide Mutual Insurance Co. who weed out fraudulent insurance claims are properly classified as exempt employees. Therefore,  they are not entitled to overtime pay. Foster v. Nationwide Mut. Ins. Co., 6th Cir., No. 12-3107, 3/21/13.

Mitchell H. Rubinstein

Arbitration Given Collateral Estoppel By Unemployment

Matter of Mordukhayev (Commissioner of Labor), ____A.D.3d____(3d Dep't. March 14, 2013). As the Court stated:

Where a claimant has had a full and fair opportunity to litigate the issue of the conduct precipitating termination in an arbitration proceeding, the arbitrator's factual findings must be [*2]accorded collateral estoppel effect (see Matter of Redd [Commissioner of Labor], 98 AD3d 791, 791 [2012], lv denied 20 NY3d 857 [2013]; Matter of Bishop [New York City Human Resources Admin.—Commissioner of Labor], 282 AD2d 924, 924 [2001]). It is incumbent upon the Board, however, to make an independent assessment as to whether such conduct constitutes misconduct for purposes of qualifying for unemployment insurance benefits (see Matter of Nwaozor [City of New York—Commissioner of Labor], 82 AD3d 1475, 1475 [2011]; Matter of Eustace [Suffolk County Sheriff's Off.—Commissioner of Labor], 52 AD3d 1140 [2008]). Here, it was established that claimant was represented at the arbitration hearing and had ample opportunity to participate therein. Inasmuch as she had a full and fair opportunity to litigate the conduct providing the basis for her dismissal, the Board properly gave collateral estoppel effect to the arbitrator's factual findings that claimant removed the telephone from the charger in the room and did not disclose to management that she had found it, and further that the telephone left the hotel premises when claimant did and was later located near her home. From this, the Board reasonably inferred that claimant took the telephone without authorization, providing substantial evidence for its determination that claimant was guilty of misconduct, disqualifying her from receiving unemployment insurance benefits (see Matter of Dit [Commissioner of Labor], 98 AD3d 1183, 1183 [2012]; Matter of Zaydman [Roman Roytberg, Inc., P.C.—Commissioner of Labor], 87 AD3d 1192, 1193 [2011]). In view of this, we decline to disturb the Board's decision.

Mitchell H. Rubinstein

New I-9 Form

The INS released a new I-9 Form that all new employees must fill out. It can be found here.

Mitchell H. Rubinstein

FLSA Court Rules Serving Food at Meetings Did Not Make Manual Labor Primary Duty

A management analyst with the city government, was not entitled to overtime payments under the Fair Labor Standards Act because she exercised independent judgment in performing her duties, the U.S. District Court for the Middle District of Florida ruled March 5 (Griffin-Moore v. Brooksville, M.D. Fla., No. 8:11-cv-02000, 3/5/13).

Locked Out Employees Are Entitled To Unemployment

The North Dakota Supreme Court recently  ruled that American Crystal Sugar workers locked out of their jobs in a labor dispute are eligible for unemployment benefits(Olson v. Job Serv., N.D, No. 2013-ND-24, 2/26/13).

Unemployment For Family Members

In a major decision, the Minnesota Court of Appeals held that a state law prohibiting family-member personal care assistants from obtaining unemployment insurance benefits is unconstitutional (Weir v. ACCRA Care, Minn. Ct. App., No. A12-0764, 2/25/13).

Judge Jill Flaskamp Halbrooks reasoned that the law that defined family-member PCAs as “noncovered employees’’ for unemployment insurance purposes violates the Minnesota Constitution's equal protection clause. 

Federal Court Issues Important Independent Contractor Decision

A federal district court recently held that Oil field gate attendants in Texas were independent contractors and not employees under the Fair Labor Standards Act. Gate Guard Services LP v. Solis, ____F.2d___( S.D. Tex., No. 10-00091, 2/13/13). I bring this case to your attention because the court does a nice job of analyzing this important issue. 

Mitchell H. Rubinstein

Employee privacy and Internet Social Media

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120AB1844

California’s Governor Edmund G. Brown has signed into law a bill that prohibits an employer from requiring or requesting an employee or applicant for employment to disclose a username or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media.

The law also prohibits an employer from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a request or demand by the employer that violates these provisions.

The new law provides as follows:

California Labor Code

CHAPTER  2.5. Employer Use of Social Media

§980.

 (a) As used in this chapter, “social media” means an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.

(b) An employer shall not require or request an employee or applicant for employment to do any of the following:

(1) Disclose a username or password for the purpose of accessing personal social media.

(2) Access personal social media in the presence of the employer.

(3) Divulge any personal social media, except as provided in subdivision (c).

(c) Nothing in this section shall affect an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.

(d) Nothing in this section precludes an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.

(e) An employer shall not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates this section. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law.

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

Employee’s lack of remorse concerning activities leading to disciplinary action does not always mandate imposing termination as the penalty

City of New York v Organization of Staff Analysts, 2013 NY Slip Op 00806, Appellate Division, First Department

The Appellate Division affirmed Supreme Court’s denial of the City of New York’s petition to vacate an arbitrator’s award imposing a penalty of a one-year suspension without pay rather than termination of the employee.

The employee had been charged with accessing the personnel files of two co-workers.

The Appellate Division said that although and arbitrator’s award “can be overturned where it is directly contrary to a settled public policy,” citing UFT Local 2 v Board of Education, 1 NY3d 72. The court said that imposing a one-year suspension without pay rather than termination did not violate “the policy of protecting confidential information.”

Further, explained the court, the imposition of a penalty short of termination did not render the award irrational, rejecting the City’s argument that there was a possibility that the employee “will re-offend, especially where there has been no criminal conviction and there is a clear, substantial penalty imposed to deter such future conduct.”

The City had cited Binghamton City School District, 46 AD3d 1042, in support of its contention that termination was the appropriate penalty in this instance. In Binghamton the Appellate Division held that a “school teacher's lack of remorse or understanding of moral aspect of inappropriate relationship with teen student required termination until counseling or other remedial steps taken.”

Although the Appellate Division noted “the employee's lack of remorse,” it held that although “relevant to the risk of recidivism,” in this instance such lack of remorse  “did not rise to the level in the cases relied upon by the City.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00806.htm

New York Public Personnel Law

Mitchell H. Rubinstein

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

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

This appears to be an interesting case to watch.

Mitchell H. Rubinstein

Can Employer's Require That Employees Take Flu Shot

There are a host of legal issues that arise if an employer requires that its employees get a flu shot. If an employee has a religious objection because the shot is made from meat by products, she may have a case against an employer who forces an employee to take the shot. Additional discussion available here.

Law review commentary on this important topic would be most welcome.

Mitchell H. Rubinstein

DOL May Require Employers To State Whether or Not Individuals Are Employees

Worker misclassification is a serious problem. An individual who is improperly classified as an independent contractor may not be protected under our employment laws and may not have appropriate taxes withheld which can prevent him from receiving social security or unemployment. The US DOL has recognized this and may enacted legislation requiring that employers state whether or not employees are truly employees or independent contractors. Details here.

Mitchell H. Rubinstein 

Harassment For Wearing Romney T-Shirt??

Reportedly, according to the Pennsylvania Record, a student has filed suit against the Philadelphia School District claiming a violation of her free speech rights. Her suit alleges that her geometry teacher harassed her because she was wearing a Romney-Ryan T-shirt.

Source: Pennsylvania Record, 12/27/12, By Jon Campisi

Being Fired Because Your Too Attractive Is Not Actionable

Nelson v. Knight, (Iowa Supreme Court Dec. 21, 2012), is one of those cases that you just have to read and which received a significant amount of media coverage. The Court, applying Iowa state law against employment discrimination held that it was not discrimination to fire an employee simply because the boss views the employee as an irresistible attraction.

The Court looked to sexual favoritism cases under Title VII which held that it was not unlawful to give preference to your girl friend because the preference had nothing to do with her gender. Rather, the preference was given because she was your girlfriend. As the Court expalined:

 Title VII and the Iowa Civil Rights Act are not general fairness laws, and an employer does not violate them by treating an employee unfairly so long as the employer does not engage in discrimination based upon the employee’s protected status.

As unfair as this is, it does seem to be correct. Law review commentary would be most welcome.

Mitchell H. Rubinstein