Adjunct Law Prof Blog

Breaking News. 3rd Circuit Follows DC Circuit By Invalidating NLRB Craig Becker Appointment

In a 102 page opinion released a majority of the 3d Cir. (Smith and Van Antwerpen) agreed with the D.C. Cir. that recess appointments can only be made during a recess between congressional sessions.  Judge Greenaway wrote a 55 page dissent.  The majority held that Craig Becker's appointment on March 27, 2010, was invalid.  The case is NLRB v. New Vista Nursing and Rehabilitation, Nos. 11-3440, 12-1027, and 12-1936.

Law Review commentary on this important topic, which will likely go to the Supremes, would be most welcome.

Mitchell H. Rubinstein

Union Release Time In The Public Sector

A court in Arizona reportedly held that police could not use release time for union representationalwork. A newspapter article describing this case is available here. The plaintiff's theory appears to be that paying public employees for union business is a gift of public funds.

I do not buy this for a minute and it is just another example of anti-union animus that some people feel. I see this as no different than wages. A union also presents order in the workforce and that provides a benefit to the public. Preventing arbitrary employer action is also in the publics interest as most labor law statutes were enacted to reduce industrial strife. Public policy supports the right to organize and bargain collectively.

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

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

To Mirandize Or Not To Mirandize

Whether or not authorities are duty bound to read the alleged Boston Marathon bomber, Dzhokhar Tsarnaev, his Miranda rights (and the consequences, if any, of their failure to do so) has been a hot topic in the news and blogosphere in recent days.  I have been following the story as closely as I can and though I would post some of the most informative and interesting news and opinion pieces on the subject here: 

• Adam Goodman (Harvard Law Student), "How the Media Have Misunderstood Dzhokhar Tsarnaev's Miranda Rights" (The Atlantic).
• Erwin Chemerinsky (UC-Irvine Law), "Dzhokhar Tsarnaev Has Rights" (Los Angeles Times).
• Akhil Reed Amar (Yale Law), "What If Dzhokhar Tsarnaev Decides Not to Talk?" (Slate).
• Eric Posner (Chicago Law), "The New Law We Need in Order to Deal With Dzhokhar Tsarnaev" (Slate).
• Jeffrey Rosen (George Washington Law), "Do You Have the Right to Remain Silent? The Obama administration's radical view of Miranda rights was in place well before Boston" (The New Republic).
• Roger Pilon (Cato Institute), "The Constitution Ensures A Fair Trial For Dzhokhar Tsarnaev, But Miranda Has a Public-Safety Exception" (Forbes).
• Real Clear Politics, "Dershowitz: Authorities Will "Regret" Not Reading Boston Bomber His Miranda Rights" (video).
• Bloomberg Editorial, "Dzhokhar Tsarnaev’s Rights, and the Public’s" (Bloomberg View).
• Doug Mataconis, "Dzhokhar Tsarnaev, Miranda, And The Public Safety Exception" (Outside the Beltway).
• Tom McCarthy, "Lindsey Graham: don't read suspect Miranda rights if arrest is made" (The Guardian).

Thiere are surely many more well-reasonsed commentaries on this subject - please feel free to add or link to them in comments.  As an aside, I predict a healthy increase in law review submissions by  professors, practicing attorneys and students addressing the public safety exception to Miranda v. Arizona, in the coming months.

Craig Estlinbaum

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

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 

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

Calif and IL Enact Legislation Prohibiting Employer's From Requiring Passwords

Well, it is a New Year. As a result, several new laws will become effective. Among the most interesting employment laws are from CA and IL which both enacted legislation banning employers from requiring that employees disclose their passwords. A Reuters Story discussing new legislation is available here.

Mitchell H. Rubinstein

Sex Discrimination—Reasonable Accommodations—Breast-Feeding

Pitts-Baad v. Valvoline Instant Oil Change,  ___N.E.2D___(Ohio Ct. App.10/15/12), is an interesting Ohio state court appellate decision. The Ohio Court of Appeals rejects a female employee's sex bias claim based on her employer's alleged failure to accommodate her breast-feeding. The court concluded that allowing such a claim under the “sex-plus” theory of discrimination would impermissibly elevate breast milk pumping to the level of a protected status.

Law review commentary on this issue would be most welcome.

Mitchell H. Rubinstein

Court Allows USW to Proceed With Challenge To Recent Indiana Right-to-Work Legislation

An Indiana trial court ruled Oct. 16 that the United Steelworkers can pursue a legal challenge to the right-to-work legislation enacted in the state earlier this year, finding the court could not “categorically” rule “at this time” that the new statute does not violate the state constitution (United Steelworkers v. Daniels, Ind. Cir. Ct., No. 45C01-1207-PL-00071, 10/16/12). The statute is (H.B. 1001) which took effect March 14, 2012. 

Law review commentary on this important topic is encourgaged. Undoubtedly, there will be further appeals.

Mitchell H. Rubinstein

Political Employers

Here's A Memo From The Boss: Vote This Way is another excellent article from NY Times Reporter Steven Greenhouse which I thought I would post on election day. As the article states:

Imagine getting a letter from the boss, telling you how to vote. Until 2010, federal law barred companies from using corporate money to endorse and campaign for political candidates — and that included urging employees to support specific politicians.

But the Supreme Court’s Citizens United decision has freed companies from those restrictions, and now several major companies, including Georgia-Pacific and Cintas, have sent letters or information packets to their employees suggesting — and sometimes explicitly recommending — how they should vote this fall.

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

Mitchell H. Rubinstein

 

4th Circuit Holds That Awarding Off Campus Religious Instruction Credit Is Constitutional

The case is Moss v. Spartanburg Cnty. Sch. Dist. Seven, ___F.3d____ (4th Cir. Jun. 28, 2012). The court held that a South Carolina school district policy allowing students to earn academic credit for off-campus religious instruction does not violate the First Amendment’s Establishment Clause. After concluding that only one of the three plaintiffs had standing, the panel determined the school district’s policy survived the three-part test laid out in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).. The circuit court held that there was no religious entanglement problem as the school district’s policy relied exclusively on the provision of off-campus religious instruction by nongovernmental educators and passively accommodated the genuine and independent choices of parents and students to pursue such instruction.

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

Mitchell H. Rubinstein

Should We Abolish Law Reviews?

Abolish the Law Reviews! is an interesting July 5, 2012 article from The Atlantic by Walter Olson. He makes the familar arguments that law schools take too much time to publish and serve only the needs of the faculty. Olson favors online scholarship, such as blog posts instead.

While Olson and others have somewhat of a point, I would not go so far as to abolish the law reviews. They serve a purpose at law school. It is called training law students how to write. More fundamentally, what is wrong with law reviews today is that they focus on legal theory. Law School should teach law students how to practice law.

Unfortunately, look at any law school today. You will see that there are very few professors hired in the last 10 years or so that has any material amount of practice experience. Law schools are too busy chasing the prestige of an Ivy league Phd (in addition the the required JD). Because so few professors have practical experience, they often write about things that no body cares about.

The solution is to ONLY hire professors with significant experience and ONLY hire professors who can teach. Publications should be related to practice. Law schools can save money and time by only publishing articles online. Many law schools do that now, but not for their main stream law review.

Wake up law schools, we are in the 21st Century!  ABA are you listening. You need to wake up and change the ABA Standards NOW.

Mitchell H. Rubinstein

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Appearance Based Discrimination

JD Supra ran an interesting story about an EEOC initiated investigation of a coffee chain in Boston which apparently shows a preference for hiring attractive woman. Is that sex discrimination? The answer is probably not because Title VII only protects against sex discrimination which is gender based. Thus, other woman, who are less attractive, would be in the same boat as men. Men and woman and not treated differently because of their gender. See DeCintio v. Westchester Medical Center (2d Cir.). 

Now, there may be a case if the woman had to be attactive, but the men didn't. But then again, how do you judge what is meant by being attractive.

Law review commentary on this issue would be welcome.

Mitchell H. Rubinstein

EICs: Announce Your 2012-13 Symposium/Symposia Here ...

If you are a student law review editor in chief or symposium editor, you may announce your 2012-13 symposia, whether live or paper, or other special issues or projects in comments.   Here are those we have identified so far:

University of Pennsylvania Law Review will hold a fall symposium October 18-19 titled "The Evolving Internet."  The announcement is here.

Creighton Law Review has announced its Spring 2013 symposium, "Strengthening America's Farmland," to be held March 13, 2013.  The announcement is here.

Minnesota Law Review will conduct a symposium on October 26 on democracy and the Minnesota marraige amendment.  Here is the announcement.

Are there any others?

UPDATE (8/10/12):  The Idaho Law Review will host a symposium on March 29, 2013 on fracking in the west.  Here is the Call for Papers announced on the Land Use Prof Blog.

Ohio State Law Review will host a symposium on November 16, 2012 titled "The Second Wave of Global Privacy Protection"  Here is the announcement.

Craig Estlinbaum

Alaska Supreme Court Issues Major Decision Recognizing Labor Union Privilege

The Alaska Supreme Court recognized a union-relations privilege in Peterson v. State of Alaska, No. S-14233, ___P.3d___, 2012 WL 2947636  (Alaska, July 20, 2012), Download Peterson .The Court held that "[b]ased on the strong interest in confidential union-related communications and statutory protection against unfair labor practices, we hold [the state labor relations act] impliedly provides the State's union employees a union-relations privilege."  The reasoning employed by the Court - that "the proper functioning of [a] mandatory grievance and arbitration system . . . requires some protection for confidential communications made for the purpose of facilitating the rendition of grievance-related representative services to the employee" and that recognizing a privilege "harmonizes [the state labor relations act]'s strong public policy in favor of contractual resolution of labor disputes with the civil discovery rules" - should be useful in other states and in other settings where this issue frequently arises.

A copy of the decision can be found Download Peterson Alaska SC Recognizes Labor Union Privil. This is a major decision. It is my hope that other states will follow suit. I wrote a law review article on this topic a few years ago, Is a Full Labor Relations Evidentiary Privilege Developing?, 29 Berkeley Journal of Labor and Employment Law 221 (2008), available here. 

Though this decision arose in the public sector, there is no reason why this decision would not be applicable to private employers. The policies behind the Alaska statute and the NLRA are virtually identical and the policies and need for the recognition of this privilege are certainly identical. 

Mitchell H. Rubinstein

 

California Senate passes legislation barring employers and colleges from requiring access to social media passwords

 In May, the California Senate passed the Social Media Privacy Act, S. 1349, in a 28-5 vote.This Bill would bar private and public postsecondary educational institutions and employers from requiring, or formally asking students, employees, and applicants, to disclose their user name and account password for social media accounts.

It would be interesting to see if this Bill is enacted into law. Employers who require employees to disclose their passwords raises interesting legal issues. Law review commentary would be most welcome.

Mitchell H. Rubinstein

1983 Claim Dismissed Based Upon Student Being Bullied

Estate of Asher Brown v. Cypress Fairbanks Indep. Sch. Dist., ____F.Supp. 2d____(S.D. Tex. May 23, 2012), is an interesting case.  A federal court in Texas granted a school district’s motion dismissing a parent’s Section 1983 due process claim which alleged that through its failure to enforce anti-bullying policies at the student’s middle school, the school district failed to protect the student from harm, who ultimately committed suicide.

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

Mitchell H. Rubinstein

 

Reverse Education Law Discrimination

Reportedly, a male student is suing under Title IX asserting that he has the right to remain on an all girls hockey team. The case is being challenged administratively and the parents are threatening legal action. A copy of a newspaper article in the Boston Herald written by the AP provides additional information, here.

Mitchell H. Rubinstein