Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

A Member of the Law Professor Blogs Network

Tuesday, July 1, 2014

Employee in Process of Getting Divorce Protected From Marital Status Discrimination

In a major ruling, the NJ Appellate Division held that an employee who was going through a divorce stated a cause of action for marital status discrimination. Smith v. Millville, (June 27, 2014). As the court explained:

        "Marital status" necessarily embraces stages preliminary to
        marriage — one's engagement to be married. The term also covers
        stages preliminary to marital dissolution — separation and
        involvement in divorce proceedings. The apparent purpose of the
        ban on marital-status-based discrimination is to shield persons
        from an employer's interference in one of the most personal
        decisions an individual makes — whether to marry, and to remain
        married. 

This is an important issue. Law review commentary on this most important topic would be most welcome.

Mitchell H. Rubinstein

July 1, 2014 in Employment Discrimination, Law Review Ideas | Permalink | Comments (0)

Monday, June 30, 2014

Supremes Decide Harris v. Quinn

The Supreme Court just issued its 5-4 decision in Harris v. Quinn. The Court upholds Abood,  a First Amendment decision which upheld agency fee statutory requirements. However, the court refuses to extend that precedent to the quasi-employees in Harris. Law review commentary would be most welcome.

Mitchell H. Rubinstein

June 30, 2014 in Law Review Ideas, Public Sector Labor Law | Permalink | Comments (0)

Monday, June 16, 2014

California Court Strikes Several Teacher Tenure Statutes

In case you have not seen it, a lower court in California struck down, on constitutional grounds, several provisions involving teacher tenure. Vergara v. California (Calif Superior Court, June 10, 2014). Frankly, I have never seen such a poorly written decision. The decision appears to be drafted by a law student. It is written in conclusionary form and does not contain very much analysis which supports its conclusion. 

Though this appears to be a political, rather than legal decision, it has caused much public debate.

Law review commentary would be most welcome.

Mitchell H. Rubinstein

June 16, 2014 in Law Review Ideas, Public Sector Labor Law | Permalink | Comments (0)

Thursday, February 6, 2014

Breaking News. Important District Court Decision Concerning Graduate Students

A United States District Court recently held ruled that legislation seeking to
prohibit Graduate Student Research Assistants from forming labor
organizations was invalid because it was adopted in violation of the
Michigan Constitution . The decision will open the door for GSRA in the
State of Michigan to decide if they wish to be represented by a union.

A copy of the decision can be downloaded by clicking  Download Decision

It will be interesting to see what effect this decision may have on the pending NLRB decision concerning the statutus of graduate students under the NLRA.

Mitchell  Rubinstein

February 6, 2014 in Law Review Ideas, NLRB, Public Sector Labor Law | Permalink | Comments (0)

Tuesday, February 4, 2014

California Admits Undocumented Alien To The Bar

An interesting NYLJ article about California admitting an undocumented alien to the bar can be found here.  Law review commentary on this important topic would be most welcome.

Mitch Rubinstein

February 4, 2014 in Law Review Ideas, Lawyer Employment | Permalink | Comments (0)

Monday, November 4, 2013

7th Issues A Major Decision Concerning Union Release Time

7thCir

In Titan Tire Corp. v. United Steel Workers (Nov. 1, 2013), the Seventh Circuit held that an arbitration award requiring the company to honor a contract provision requiring the payment of the full-time union salaries of covered employees who took leave to hold local union office was void as against public policy because it required payments that violate LMRA § 302.  Expressly disagreeing with the Third Circuit's decision in Caterpillar, Inv. v. UAW, 107 F.3d 1052 (3d Cir. 1997), the Seventh Circuit concluded that the level of compensation paid to the local officers under the terms of the collectively bargained union leave provision was so incommensurate with the officers' former employment at Titan as to not come within the 302(c)(1) for payments made "by reason of" former employment.  Chief Judge Wood, joined by two other circuit judges, dissented from denial of rehearing en banc.

A copy of the decision is available to be downloaded by clicking  Download Titan Tire v. United Steel Workers

This decision is 49 pages long and full of cites. Law review commentary on this important topic would be most welcome.

 

Mitchell H. Rubinstein

November 4, 2013 in Law Review Ideas, Unions | Permalink | Comments (0)

Sunday, September 29, 2013

Discrimination and Criminal Background Checks

EEOC v Freeman, ____F.Supp.2d ____(D. Maryland August 9, 2013) is an important case. In a well written decision, the court rejects the EEOC claim that an employer violated Title VII by refusing to hire a minority applicant after a criminal background check was performed. 

This case contains an excellent review of disparate impact and was very critical of the statistical experts retained by the EEOC.

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

Mitchell H. Rubinstein

September 29, 2013 in Employment Discrimination, Law Review Ideas | Permalink | Comments (0)

Monday, September 2, 2013

Victimless Sexual Harassment

Professor Charles Sullivan (Seton Hall) wrote an interesting blog posting on victimless sexual harassment where the harasser degrades woman in general, but not a particular individual. He cites to a NJ Supreme Court decision which found this conduct actionable. 

Law review commentary would be most welcome.

Mitchell H. Rubinstein

September 2, 2013 in Employment Discrimination, Law Review Ideas | Permalink | Comments (0)

Tuesday, July 30, 2013

Employee Fired For Adding Him To Benefits Claim Lacks Discrimination Claim

An unmarried, heterosexual female employee of who was fired because she listed her boyfriend as her "spouse" and "same-sex partner" on her benefit enrollment forms lacks marital status and sexual orientation discrimination claims under state law. Hanson v. Mental Health Res. Inc.,____F.Supp. 2d___( D. Minn., No. 12-00540, 6/3/13).

Mitchell H. Rubinstein

July 30, 2013 in Employment Discrimination, Law Review Ideas | Permalink | Comments (0)

Tuesday, July 9, 2013

Court Finds That Retiree's Right To Health Insurance Vested At Time of Retirement

Retirees' rights to lifetime health benefits vested on their retirement and thus were subject to benefits cap that union negotiated when retirees were still active employees. Curtis v. Alcoa Inc., ____F.3d____(6th Cir. 2013). 

This is an important issue which courts are all of the map on.

Law review commentary would be most welcome. 

Mitchell H. Rubinstein

July 9, 2013 in Arbitration Law, Labor Law, Law Review Ideas | Permalink | Comments (0)

Sunday, July 7, 2013

Supremes Decline to Review ADA Case on Reassignment as Reasonable Accommodation

On May 28, 2013, the U.S. Supreme Court declined to review whether an employer violates the Americans with Disabilities Act by allowing disabled employees unable to perform their current jobs to apply for reassignment to vacant jobs, but then choosing the best qualified candidate even if that means the disabled individual does not get the job (United Air Lines Inc. v. EEOC, U.S., No. 12-707, cert. denied 5/28/13).

The Seventh Circuit held that the ADA, as interpreted in US Airways Inc. v. Barnett, 535 U.S. 391, 12 AD Cases 1729 (2002), requires an employer to reassign a disabled employee to a vacant job for which he meets the minimum qualifications, absent a showing of undue hardship (693 F.3d 760(7th Cir. 2012)

The Supreme Court previously had granted review on the same issue, raised in Huber v. Wal-Mart Stores Inc., 486 F.3d 480 (8th Cir. 2007), but that case settled. 

July 7, 2013 in ADA, Law Review Ideas | 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)

Thursday, May 16, 2013

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

May 16, 2013 in Law Review Ideas, NLRB | Permalink | Comments (0)

Tuesday, May 14, 2013

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

May 14, 2013 in Law Review Ideas, Public Sector Labor Law, Recent Developments | Permalink | Comments (0)

Tuesday, May 7, 2013

Justices Will Not Review Ruling Shielding Retirees' Health Care Benefits

USSupremeCourtseal

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 25, 2013

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: 

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

April 25, 2013 in Articles, Constitutional Law, Criminal Law, Current Affairs, Law Review Ideas | Permalink | Comments (0)

Saturday, March 16, 2013

Employee privacy and Internet Social Media

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

March 16, 2013 in Employment Law, Law Review Ideas | Permalink | Comments (0)

Thursday, February 14, 2013

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

February 14, 2013 in Employment Law, Law Review Ideas | Permalink | Comments (0)

Wednesday, February 13, 2013

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 

February 13, 2013 in Employment Law, Law Review Ideas | Permalink | Comments (0)

Wednesday, January 9, 2013

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

January 9, 2013 in Employment Discrimination, Employment Law, Law Review Ideas | Permalink | Comments (0)