Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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* This summary order will not be published in the federal reporter and may not be cited as precedential authority to this or any other court, but may be called to the attention of this or any other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)

Sunday, June 16, 2013

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

June 16, 2013 in Employment Law | Permalink | Comments (0)

Thursday, June 13, 2013

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:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

June 13, 2013 in Employment Law, Judges | Permalink | Comments (0)

Wednesday, June 12, 2013

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

June 12, 2013 in Employment Law, Law Review Ideas | Permalink | Comments (0)

Sunday, May 26, 2013

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


May 26, 2013 in Employment Law | Permalink | Comments (0)

Sunday, May 19, 2013

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:

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

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


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

Tuesday, May 7, 2013

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

May 7, 2013 in Employee Benefits Law, Employment Law, Law Review Ideas | Permalink | Comments (0)

Thursday, April 18, 2013

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

April 18, 2013 in Employment Law | Permalink | Comments (0)

Tuesday, April 16, 2013

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

April 16, 2013 in Employment Law | Permalink | Comments (0)

Sunday, April 14, 2013

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

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

Thursday, April 4, 2013

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).

April 4, 2013 in Employment Law | Permalink | Comments (0)

Sunday, March 31, 2013

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).

March 31, 2013 in Employment Law | Permalink | Comments (0)