Adjunct Law Prof Blog

Ethics In Arbitration

Attorney Steven Bennett just published an excellent article entitled "Who Is Responsible For Ethical Behavior By Counsel In Arbitration, 63 Jul Disp. Resol. J. 38 (May-July 2008)(available via Westlaw). The answer to the questions raised by this article are not easy. This is because underlying the regulation of attorney ethical behavior lies the question whether arbitration itself is the practice of law. In fact, many arbitrators are not even lawyers, so having them involved in ethical issues seems a bit odd.

The author surveys the scant case law that is available. Not surprisingly, the case law in this area is conflicting. The author purposes a practical solution to this problem Institutional arbitration associations should start ethics panels whom arbitrators can turn to for guidance or these panels can be given the authority to sanction offenders themselves.

While I believe Attorney Bennett is on to something here, I do not agree that these arbitration panels or arbitrators should be given the responsibility to decide attorney ethical issues. Instead, this panel should be given the authority to decide ethical issues according to a code of ethics that the tribunal itself may adopt. That ethical tribunal would have the ability to debar attorneys and others from appearing before that panel for conduct it deems sanctionable. The NLRB regulates conduct of attorneys and non-attorneys that  appear before it and arbitration tribunals could do the same.

This issue is ripe for law review commentary.

Mitchell H. Rubinstein    

Novel Issues Involving The Recognition of Gay Marriages

The June 8, 2008 Washington Post ran an interesting article entitled Calif. Battle Over Gay Marriage Raises Novel Legal Questions. It notes that the issue of California gay marriages is being proposed as a constitutional amendment and raises the question what would happen to the thousands who are expected to marry if this amendment actually passes. How's that for a law school hypo??

As the article states:

If the November measure were to pass, we would be entering unprecedented territory," said David B. Cruz, an expert on constitutional law at the University of Southern California in Los Angeles. "We have never seen a constitutional amendment like this in California that would take away rights that people had already exercised."

The language of the measure does not seem to suggest revoking marriages that take place between June and November, legal experts say. But such a move would depend on the courts' interpretation of the proposed amendment.

Experts say that if the measure passes, the state may choose to recognize the marriages, creating a pocket of married same-sex couples. "It just means that people who didn't take advantage of that window can't get married until or unless that amendment was repealed down the road," said Vikram Amar, a law professor at the University of California at Davis.

Hence the hurry with which couples are booking appointments with wedding vendors and county clerks. San Francisco city officials expect as many as 500 couples to marry per day, for days on end. In Los Angeles County, the clerk's phone is ringing off the hook.

Mitchell H. Rubinstein

Who Is Responsible For Blogging Comments??

Professors Sunstein and Volokh had an interesting video debate about who owns comments posted on blogs. That is an important issue and is likely to become more important as the use of blogs continues to increase. There debate can be viewed here.

Professor Leiter, who runs multiple blogs and who discussed this on his Law School Report Report Blog,  offers a simple solution to limit liablity. Limit who could post and pick and choose which comments are  actually posted on your blog.(For example, Brian has rejected a number of my comments in the past). That is exactly the problem, however. With respect to Professor Leiter, if a blog editor moderates what could be posted he or she is making a value judgement that later may be challenged.

One thing blog editors could do would be to include a disclaimer on their blog. I have one on mine which readers of this posting are authorized to copy if they would like. I am frankly stunned that most law professors do not include such disclaimers. I would even go a step further and recommend that Network owners include disclaimers. I have mentioned this to several well known professor bloggers, but no one seems to be listening. Perhaps, the Sunstein/Volokh debate may open up some professor's eyes.

In any event, this is also an excellent issue that is ripe for law review commentary.

Mitchell H. Rubinstein

Supremes Deny Cert Over Whether FMLA Waivers Are Valid

  In Progress Energy v. Taylor, 493 F.3d 454 (4th Cir. 2007), the 4th Circuit held that an individual cannot waive FMLA rights unless the waiver was approved by a court or the Department of Labor. The 4th Circuit strictly construed 29 CFR 825.220(d) which provides: "Employees cannot waive, nor may employers induce employees to waive, their rights under the FMLA." Notice how this language only refers to "employees."

Obviously, such a holding discourages settlement. Unfortunately, the Supremes recently denied cert. in Progress Energy. This issue has generated a conflict in the circuits and is ripe for law review commentary.

Mitchell H. Rubinstein

Hat Tip:  FMLA Blog

9th Issues Major Decision Finding Privacy Right In Employee E-Mail

  Stop Your Snooping! Court Limits Employers’ Ability to Search Email is an important June 19, 2008 Wall Street Law Journal Blog story about Quon v. Arch Wireless, ___F.3d___(9th Cir. June 18, 2008). The court held that the 4th Amendment protected certain electronic messages. In finding a reasonable expectation of privacy, the court reasoned in part:

We do not endorse a monolithic view of text message
users’ reasonable expectation of privacy, as this is necessarily
a context-sensitive inquiry. Absent an agreement to the contrary,
Trujillo, Florio, and Jerilyn Quon had no reasonable
expectation that Jeff Quon would maintain the private nature
of their text messages, or vice versa. See United States v.
Maxwell, 45 M.J. 406, 418 (C.A.A.F. 1996) (“[T]he maker of
a telephone call has a reasonable expectation that police officials
will not intercept and listen to the conversation; however,
the conversation itself is held with the risk that one of
the participants may reveal what is said to others.” (citing
Hoffa v. United States, 385 U.S. 293, 302 (1966))). Had Jeff
Quon voluntarily permitted the Department to review his text
messages, the remaining Appellants would have no claims.
Nevertheless, the OPD surreptitiously reviewed messages that
all parties reasonably believed were free from third-party
review. As a matter of law, Trujillo, Florio, and Jerilyn Quon
had a reasonable expectation that the Department would not
review their messages absent consent from either a sender or
recipient of the text messages.

This is a major decision-particularly when one considers the importance of e-mail and text messaging today. The decision is lengthly and well researched. I am sure that this is going to spark much academic debate about privacy rights and e-mail.

Mitchell H. Rubinstein

Hat Tip:

Sachin Raval
Class of 2010
New York Law School
Zicklin School of Business at Baruch College 

The Problem of The ADA and Misconduct

There is a tension in the ADA between protecting the disabled by requiring employer's to reasonably accommodate and permitting employers to discharge employees for misconduct. To illustrate, if an employee shows up under the influence at work and violates a work rule, is he a victim of discrimination if the employer fires him without first trying to accommodate his disablity?? The caselaw is in conflict with respect to this important issue.

Professor McCormick over at Workplace Prof Blog touches on this important issue in her posting entitled The ADA and Misconduct. She points to a recent EEOC informal discussion letter which provides in part:

The ADA generally allows employers to develop and enforce conduct standards that are job-related and consistent with business necessity, such as prohibitions on violence, threats of violence, or destruction of property, as well as requirements of timeliness and attendance. Similarly, employers may prohibit insubordination towards supervisors and managers, forbid employees from yelling, cursing, shoving, or making obscene gestures at each other in the workplace, and require employees to show respect for clients and customers. Although an employer must provide reasonable accommodations to enable an employee to perform a job or to enjoy equal benefits and privileges of employment, reasonable accommodation does not include excusing a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity even if an employee’s disability causes him to violate the rule.

I am deeply troubled by this letter. Does this mean that if the employer wants to terminate the employee for showing up under the influence, that the policy must be consistent with "business necessity"? Business necessity is a term of art in employment discrimination. In this context, it appears that it means that employers must establish that they had no other reasonable alternative other than to enforce the rule in question.

I am concerned that under this standard, much employee misconduct would be deemed protected. This is because employers will not be able to meet the business necessity standard.

This issue is ripe for law review commentary.

Mitchell H. Rubinstein

Breaking News!!! 2d Issues Major Student First Amendment Decision Involving Blogs

Doninger v. Niehoff, ___F.3d___ (2d Cir. May 29, 2008), is a major student First Amendment free speech case. The facts are simple and straight forward. A disagreement arose concerning the "battle of the bands" concert. A high school student posted what was described as a "vulgar and misleading" message from her home on a publicly accessible web blog where among other things, she referred to the central administration as "douchebages." In turn, the school disqualified her from running for Senior Class Secretary and from speaking at graduation. Why? The administration concluded that the student's conduct "failed to display the civility and good citizenship expected of class officers."

Plaintiffs sought a preliminary injunction to allow the student to speak at graduation which presumably will occur in a few weeks. The District Court rejected plaintiffs First Amendment challenge and the Second Circuit affirmed. Significantly, the court noted that the this type of case was a bit different because the speech in question did NOT occur on school grounds or at a school event, but occurred on a blog, reasoning:

The Supreme Court has yet to speak on the scope of a school's authority to regulate expression that, like Avery's, does not occur on school grounds or at a school sponsored event. We have determined however, that a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct "would foreseeably create a risk of substantial disruption within the school environment," at least when it was similarly foreseeable that off campus expression might reach campus. . . But as Judge Newman accurately observed some years ago, "territoriality is not necessarily a useful concept in determining the limit of [school administrators'] authority." True enough in 1979, this observation is even more apt today, when students both on and off campus routinely participate in school affairs, as well as other expressive activity unrelated to the school community, via blog postings, instant messaging, and other forms of electronic communication.

The court held that it was reasonably foreseeable that the posting would reach campus and that the posting created a substantial risk of disruption because of the language utilized, that the student encouraged others to conduct the administration, and because her message was misleading which caused rumors to be circulated. Students were "all riled up" and threatened a "sit in".

Come on! While I believe the court applied the correct body of First Amendment jurisprudence, its reasoning is extreme and out of touch with reality. As the court also noted, this was a good student. She had a disagreement with the school and used the word "douchebages." She attempted to obtain support from her fellow classmates. The speech was off campus and the speaker was a senior high school student. This is exactly what the First Amendment protects. If this type of speech is not protected, then what type of speech will be protected? Is a student limited to merely saying "I disagree" or "please Mr. principal, change your mind."

Is the problem with the speech here that the word "douchebages" was used? If so, then the court is completely out of touch how students and others (lawyers too) talk to one another. Was there a real threat of disruption? I think not. The court appearantly "feared" disruption because the student sought support from others. However, that is exactly what the First Amendment protects. Does speech become disruptive because "rumors" circulate and others-repeat others-threaten a sit in?? It might be a bit differerent if the plaintiff was advocating a sit in or some type of violence. But that was not this case.

There is a second very unique part of this decision. The court noted that a relatively minor penalty was imposed (plaintiff could run for class office or speak at graduation) and hinted that a more severe penalty may have raised other constitutional concerns. What concerns would they be? Equal Protection? Due Process? The court here is deciding whether speech is protected under the First Amendment. I fail to see, how the level of penalty is a relevant consideration for First Amendment purposes.

As this case demonstrates, students have very limited First Amendment protections. Perhaps, this case will start a trend where students may look to the Equal Protection Clause and the Due Process Clause and challenge the level of discipline imposes. This issue is certainly ripe for law review commentary.

Mitchell H. Rubinstein

     

Does An E-Mail Satisfy The Statute of Frauds??

E-Mail Meets the Statute of Frauds is a very interesting May 22, 2008 New York Law Journal article. The article reviews the limited jurisprudence in New York which addresses whether an e-mail can satisfy the ancient statute of frauds which is codified today in New York law as well as in most other states. As can be expected, this area of law is developing, but some courts have embraced it.

The article provides in part:

One of the major frustrations for lawyers in technology-rich practice areas is the almost universal truth that business tends to adopt technological innovation much faster than the law can adapt to it. The older the legal framework, the more likely it is to create unexpected results in the face of new ways of doing business.

These issues have recently been confronted in a series of decisions pitting one of the most ancient concepts in common law, the statute of frauds, against the increasingly widespread practice of "papering" very substantial business arrangements through e-mail. New York's statute of frauds, though now codified by N.Y. Gen. Oblig. Law §5-701, goes back to a British statute enacted in 1677 and still contains the major features of that law.[FOOTNOTE 1] People's methods of doing business, on the other hand, have changed somewhat over the last 330 years.

Mitchell H. Rubinstein

9th Holds Disabled Student Does Not Have To First Try Public School Before Being Eligible For Private School Reimbursement

  In Tom F v. Board of Education, 128 S.Ct. 1 (2007), the Supreme Court affirmed by an equally divided Court the question of whether a disabled student must first fail at a public school education before being eligible for private school reimbursement. The Second Circuit had held in a series of cases that the student does NOT have to first enroll in public school. See, Frank G v. Board of Education, 459 F. 3d 356 (2d Cir. 2006); Tom F v. Board of Education, 193 F. Appx. 26 92d Cir. 2006).

On April 28, 2008, the 9th Circuit issued an important decision which follows the Second Circuits lead. Forest Grove School Dist. v. T. A., ___F.3d____(9th Cir. April 28, 2008).   The court held that students who had not previously received special education and related services within the meaning of the IDEA provison allowing students who have received such services reimbursement for private school tuition, are nonetheless eligible for reimbursement.

This is a critically important issue and it is not likely to go away until the Supreme Court finally decides it. This issue is also ripe for law review commentary.

Mitchell H. Rubinstein

ERISA Plan Not Subject To Labor Arbitration

Steelworkers v. Rohm, ___F.3d___(3rd Cir. April 14, 2008) is an important decision. The court holds that a dispute over an ERISA disablity plan is generally not subject to labor arbitration. As the court stated:

While we recognize the strong
policy considerations favoring arbitration of labor disputes,
there is no right to arbitration of ERISA benefits under a CBA
unless the ERISA benefits sought are either: (i) derived directly
from an ERISA plan established and maintained by or
incorporated into a CBA whose grievance procedure contains an
arbitration clause, or (ii) created by a separate ERISA plan and
that plan and/or the CBA provide that adverse benefit
determinations by a plan administrator are subject to the CBA’s
grievance procedure that includes arbitration. Because we hold
that the benefits sought in this case are neither created by or
incorporated into the CBA nor made subject to the CBA’s
grievance procedure, we reverse the District Court’s order
granting summary judgment to the union and those workers
seeking disability benefits and denying summary judgment to
the employer.

This was a lengthy decision that we are likely to hear more about in the future.

Mitchell H. Rubinstein

Federal District Court Approves of Action By 2 Member NLRB

Workplace Prof Blog has an important April 23, 2008 posting about an important federal district court decision, Muffley v. Massey Energy , ___F. Supp. 2d ___(S.D. West. Va. April 14, 2008). The court refused to dismiss an application for 10(j) injunction on the basis that the NLRB lacked the legal authority to bring the petition because the Board currently has only 2 Members. Interestingly, the Board waited over 3 years from the commencement of the Unfair Labor Practices and 18 months after the filing of the complaint before petitioning for injunctive relief. The court stated that it will address that aspect of the decision after a hearing is conducted. Additionally, the court did not detail exactly what relief the Board was seeking.

Quite simply on December 20, 2007, the Board delegated its authority to seek 10(j) relief to the General Counsel and this delegation was upheld. The court concluded that Section 153(d), 29 U.S.C. Sec. 153(d) of the Act gave the General Counsel "such other duties as the Board may prescribe or as may be provided by law." The court followed Evans v. Typographical Unin, 76 F. Supp. 881 (D. Ind. 1948),and a handful of other lower courts which which have held that under that statute the General Counsel can be delegated with the authority to seek 10(j) injunctive relief.

Significantly, the court also indicated that the Board cannot generate "all" of its powers to the General Counsel and may therefore, not delegate away its authority to make quasi-judicial adjudicatory decisions.

The decision appears to make sense in the context of an application for injunctive relief by the General Counsel, but does little to answer the question whether the Board can lawfully issue two Member decisions. As Professor Hirsh over at Workplace Prof Blog explains:

As this last paragraph illustrates, doubts about 2-member decisions still remain.  Motions for 10(j) injunctions are largely a prosecutorial function that is more appropriate for delegation to the GC, which has exercised influence over 10(j) decisions in the past (I'd love to hear if anyone can give more info on past GC control over this area).  Issuing decisions is different matter and I don't think this decision will shut the door on challenges to 2-member decisions.   

This is a critically important decision to watch. There is also a need for law review commentary in this area.

Mitchell H. Rubinstein   

Terminated Volunteer Dog Walker Awarded $50, 000 in Emotional Distress Damages

As regular readers of this blog know, I have an interest in the legal status of volunteers. There is a serious gap in the law because volunteers are not covered under our nation's labor and employment laws. Why? Because these statutes generally only apply to employees. I wrote a law review article about this in 2006, Our Nation’s Forgotten Workers: The Unprotected Volunteers, 9 U. Pa. J. Lab. & Emp.  L.  47 ( Fall 2006).

I just became aware of a very interesting and important case which is pending on appeal in the 2d Circuit, Lynch v. Town of Southampton, 492 F. Supp. 2d 197 (E.D.N.Y. 2007).  The plaintiff, a print and television journalist and author, was also a dog lover. She volunteered as a dog walker at the Town of Southampton Animal Control Shelter. While volunteering, she wrote letters criticizing certain conditions and policies and eventually filed suit about the Animal Shelter's euthanasia policies. Shortly after the plaintiff filed an Order To Show Cause in support of an application to enjoin the euthanasia policy, she was directed to leave by uniformed officers.

Plaintiff sued under a 42 U.S.C. Section 1983 and alleged that her rights under the First Amendment were violated. The jury returned a verdict in her favor in the amount of $251,000 which was reduced by Judge Spatt to $50,000. Judge Spatt also awarded counsel fees in the amount of $71, 407.35.

This is the first such case that I am aware of. I reviewed some of the papers below and it was argued brilliantly by Carle Place New York attorney Steven Morelli. This is an important case to watch. Moreover, additional law review commentary is needed on this important subject.

Note, there other important litigation issues involved in this case, including the calculation of attorneys fees and emotional distress damages.

Mitchell H. Rubinstein

Constructive Notice Under FMLA

Family, Medical Leave Act: Constructive Notice for Leave is an interesting March 26, 2008 New York Law Journal article by Dean L. Sliverberg and Melissa Beekman. This article discusses the Oct. 7, 2998 Seventh Circuit decision in Stevenson v. Hyre Electric Co., which held that although an employee may not have given direct notice for leave under the Family and Medical Leave Act (FMLA), she may have provided constructive notice of her need for FMLA by her unusual workplace behavior, apparently precipitated by a stray dog in the office. The authors conclude:

This decision will probably have large implications for employers by forcing them to seriously scrutinize the circumstances surrounding an employee's absence when considering whether the FMLA, along with its attendant rights and obligations, are triggered.

It is hard to argue with the rational of the court. The FMLA notice requirements are not complex. No magic words are needed. When an otherwise good employee transforms virtually over night and has bizzare behaviors at work, it might be obivious that something is wrong and the employee is in need of leave. On the other hand, are employers expected to have a crystal ball where they can read into the employee's medical or personal problems?    

This is a case of first impression that appears ripe for law review commentary.

Mitchell H. Rubinstein

2d Recognizes Association Discrimination Claim

Holcomb v. Iona College, __F.3d__(2d Cir. April 1, 2008), is an important decision.Download 063815cv_opn1.pdf In a case of first impression, the court recognized a cause of action for discrimination on the basis of association.

A white plaintiff asserted that the college’s decision to dismiss him as an assistant basketball coach was motivated by his marriage to a black woman. The college claimed that plaintiff’s removal was part of a necessary overhaul of the poorly performing team. In vacating judgment and remanding the case, the appellate court held, for the first time, that an employer may violate Title VII if it takes action against an employee because of that employee’s association with a person of another race. Rejecting the college’s “restrictive reading of Title VII” the court said that “[w]here an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee’s own race.” A reasonable jury could find that the decision to dismiss plaintiff was at least partly motivated by his marriage to a black woman.

There is conflicting case law on this issue and this issue is ripe for law review commentary. While I applaud the result here, I am not sure that it is right. In DeCinto v. Westchester Medical Center, the 2d Circuit held that Title VII did not extend to prohibit discrimination by a supervisor who promoted his girl friend over others. However, that was a sex discrimination case and this was a racial discrimination case. Is there a difference? Should there be a difference??

Workplace Prof Blog reports on a 6th Circuit decision coming down the same way. Available here.

Mitchell H. Rubinstein

Passwords and the Fifth Amendment

Passwords and the Fifth Amendment is a very interesting March 11, 2008 New York Law Journal article By Ken Strutin (registration required). He discusses the leading cases concerning wall safes and alike and cites to some recent cases involving passwords. Query whether passwords will be treated differently than other matters. The article states:

We are cautioned to create undecipherable passwords and pin numbers to protect our privacy, identity and property. On the flip side, these protections may be put to the test in a criminal investigation.

Until recently, the Fifth Amendment provided guidance in responding to demands for keys to lock boxes and combinations for safes. Now suspects are being asked to disclose information that will access computer hard drives and open encrypted files. How far will the Constitution protect the right against self-incrimination in light of increasingly sophisticated means of securing computer contents?

Secret writing is as old as writing itself, underscoring the longstanding interest in the privacy of communications and records. Even those early Americans who conceived and ratified the constitutional protection against self-incrimination lived through an era of ciphers and codes spawned by the Revolutionary War.

Now, the steady evolution of electronic privacy measures is leading us into new territory and new interpretations of that constitutional protection.

Mitchell H. Rubinstein

2d Ciruit Holds Title VII Unconstitututional As Applied In Discrimination Suit Involving A Church

Reyemamu v. Cote, ___F.3d___(2d Cir. March 21, 2008), is an important Title VII decision.  The 2d Circuit holds that Title VII is unconstitutional as applied in a discrimination case involving a church.  The plaintiff Alleged that the Roman Catholic Diocese of Norwich, through its Bishop, misapplied canon law in denying him a requested promotion and, ultimately, in terminating him.  Father Justinian Rweyemamu, the plaintiff, an African-American Catholic priest, claimed racial discrimination in a Title VII suit against the Bishop and the Diocese. Applying the ministerial exception, the 2d Circuit reasoned:

Thus, our limited precedent to date supports the following
propositions: (1) Title VII and the ADEA are not inapplicable to
religious organizations as a general matter; (2) we will permit
lay employees –- but perhaps not religious employees –- to bring
discrimination suits against their religious employers; and (3)
even when we permit suits by lay employees, we will not subject
to examination the genuineness of a proffered religious reason
for an employment action.
Presented with this occasion to formally adopt the
ministerial exception, we affirm the vitality of that doctrine in
the Second Circuit. In our view, the ministerial exception is
constitutionally required by various doctrinal underpinnings of
the First Amendment.
The Free Exercise Clause protects a “church’s right to
decide matters of governance and internal organization.”
Petruska, 462 F.3d at 307. Some employees have only religious
duties. Others may be lay employees of a religious organization.
See, e.g., Catholic High School, 753 F.2d 1161 (discussing lay
teachers). Still others may have both secular and religious
duties. Cf. Hollins, 474 F.3d at 225-26. The more “pervasively
religious” the relationship between an employee and his employer,
the more salient the free exercise concern becomes. Cf. Bruce N.
Bagni, Discrimination in the Name of the Lord: A Critical
Evaluation of Discrimination by Religious Organizations, 79
Colum. L. Rev. 1514, 1539 (1979) (noting that “[t]he relationship
between a church and its clergy and modes of worship and ritual
surely fall within the spiritual epicenter,” which “represents
the purely spiritual life of a church”).
Circuit courts applying the ministerial exception have
consistently struggled to decide whether or not a particular
employee is functionally a “minister.” See Petruska, 462 F.3d at
304 n.6 (collecting cases). While we agree that courts should
consider the “function” of an employee, rather than his title or
the fact of his ordination, see Elvig, 375 F.3d at 958 & n.3
citing cases), we still find this approach too rigid as it fails
o consider the nature of the dispute. As we noted in DeMarco, a
lay employee’s relationship to his employer may be “so
pervasively religious” that judicial interference in the form of
a discrimination inquiry could run afoul of the Constitution.
See 4 F.3d at 172. At the same time, however high in the church
hierarchy he may be, a plaintiff alleging particular wrongs by
the church that are wholly non-religious in character is surely
not forbidden his day in court. The minister struck on the head
by a falling gargoyle as he is about to enter the church may have
an actionable claim.

This is a lengthy and well reasoned opinion which is ripe for law review commentary.

Mitchell H. Rubinstein

GPS and Liability For Technology Failures

The Legal Landscape of GPS Devices is an interesting March 5, 2008 New York Law Journal article by Peter Neger. In this article, the author notes our increasing dependence on technology such as cell phones and GPS devices and discusses possible legal liablity steming from their failures. He reports about an individual who was almost killed by a GPS mistake because it literally directed him onto railroad tracks. The author describes some of the possible legal issues as follows:

To our knowledge, no civil legal claims have been filed in this case, but one can certainly speculate about the types of legal finger-pointing that might arise out of incidents such as this one.

For instance, a driver could claim that when he purchased the GPS navigational device, he did so in reliance on the manufacturer's implicit (if not express) representations and warranties that it would direct him from point to point along recognized roadways, and not along the trackbed of a commuter railroad. A driver could also assert that a navigational device which directs its users into hazardous conditions is either defectively designed or should be required to be sold with prominent warnings and instructions to its users so that accidents are likely to be prevented.

Presumably, a manufacturer would point to its limited warranty and would assert that it is not liable for any incidental, special, indirect or consequential damages resulting from the use or misuse of the device. The manufacturer would assert that drivers should not completely turn off their common sense when switching on a GPS navigational tool, and that it is pretty much a given that driving an automobile along an operating railroad track is not a good idea.

How about a smart phone which does not timely deliver the mail or a voice mail message that is lost on a cell phone? These issues appear ripe for law review commentary.

Mitchell H. Rubinstein

 

Supremes Hold that Under ADEA EEOC Questionaire May Satisfy Administrative Charge Filing Requirement

Federal Express v. Holowecki, 552 U.S. __(Feb. 27, 2008), is an important ADEA case. The issue in the case was what constituted a charge under 29 U.S.C. Sec. 626(d)? That statutory provision provides that a civil action cannot be commenced until 60 days after a charge has been filed with the EEOC.

What happened here was that plaintiff did not file a EEOC charge form. He filed out an EEOC questionnaire and an affidavit which the EEOC is suppose to use in drafting the charge. The Court does not adopt a per se rule as to whether a questionnaire is the equivalent of a charge. Rather, the Court holds a questionnaire could be construed to be a charge if it can be construed to constitute a request that the EEOC take remedial action. For me this decision appears to be a "no-brainer."

However, what I found surprising occurred very early in the opinion. Justice Kennedy, writing for a 7 Justice majority added what he called a "cautionary preface." He noted that the procedures under Title VII are not the same and therefore, the result may not be the same under Title VII. As the Court stated:

  As a cautionary preface, we note that the EEOC en-forcement mechanisms and statutory waiting periods for ADEA claims differ in some respects from those pertaining to other statutes the EEOC enforces, such as Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., and the Americans with Disabili-ties Act of 1990, 104 Stat. 327, as amended, 42 U. S. C. §12101 et seq. While there may be areas of common definition, employees and their counsel must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination. Cf. General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581, 586–587 (2004). This is so even if the EEOC forms and the same definition of charge apply in more than one type of discrimination case.

Why did the Court see the need to add this dicta? Also, why was it added at the start of the opinion, before the analysis? This issues is ripe for law review commentary.

Mitchell H. Rubinstien

E-Mail Sent Via Employer's E-Mail System To Attorney Not Privileged

Scott v. Beth Israel Medical Center, 17 Misc.3d 934 (Sup. Ct. N.Y. Co. 2007) is an interesting and important case dealing with the novel issue of whether an employee's e-mail to his personal attorney from his work computer was privileged and/or whether e-mail the attorney sent back was protected as work product.

In a lengthly and well reasoned opinion, a New York lower court held that such e-mails were not so protected. Why? Because the employer had a policy stating that it could monitor e-mails and the employer had a no personal use policy. As the court stated:

The court rejects Dr. Scott's argument that CPLR 4548 invalidates BI's policy and holds that BI's e-mail policy is critical to the outcome here. First, Jiang is not at all persuasive. The e-mail policy in Jiang is significantly different than the policy here which prohibits personal use. A "no personal use" policy combined with a policy allowing for employer monitoring and the employee's knowledge of these two policies diminishes any expectation of confidentiality, while the policy in Jiang would not have such an effect. (See John Gergacz, Employees' Use of Employer Computers to Communicate with Their Own Attorneys and the Attorney-Client Privilege, 10 Comp L Rev & Tech J 269, 282 [2006].)

Second, CPLR 4548 does not preclude an employer from adopting a no personal use policy. Indeed, the language of the statute ("[n]o communication . . . shall lose its privileged character for the sole reason") contemplates that there may be other reasons that an electronic communication may lose its privileged character. Therefore, the court must determine whether Dr. Scott's use of BI's e-mail system to communicate{**17 Misc 3d at 940} with his attorney in violation of BI's policy renders the communication not made in confidence and thus destroys the attorney-client privilege if it ever applied.

While there is certainly some merit to this type of rationale and on some level the decision may be technically correct, I question whether this type of thinking is outdated. E-Mail has transformed the American workforce. While the employer's equipment may be used, as a practical matter employees do have an expectation of privacy. There are zones of privacy. An employee may, for example have an expectation of privacy in a locked desk, but not in an open office.

An employer no personal email policy and a handbook stating that the employer can monitor should not be enough to find a waiver of the expectation of privacy. I submit that these can be factors that courts could examine. However, courts should look to whether the employer actually has monitored the employees e-mail and whether the employee had actual notice of this fact. Quite simply E-mail is different and the law needs to play catch-up with technology.

This is an important issue that is likely to arise again and is ripe for law review commentary. A Feb. 5, 2008 New York Law Journal story about this case is available here.

Mitchell H. Rubinstein

'Ghostwriting' Lawyers Can Remain Cloaked, but Not for Tactical Advantage

'Ghostwriting' Lawyers Can Remain Cloaked, but Not for Tactical Advantage is an interesting Jan. 29, 2008 New Jersey Law Journal article by Charles Toutant. It is about a New Jersey ethical opinion which indicates that it is appropriate in certain cases for lawyers to ghost write for pro se litigants. As the article states:

Disclosure is not required if the limited assistance is simply an effort to aid someone who is financially unable to secure an attorney or if it is part of a nonprofit program designed to provide legal assistance to people of limited means, the panel said in Opinion 713.

But full disclosure is required "where such assistance is a tactic by a lawyer or party to gain advantage in litigation by invoking traditional judicial leniency toward pro se litigants while still reaping the benefits of legal assistance."

Disclosure is also required when it's clear from the facts that the lawyer, not the pro se litigant, is "effectively in control of the final form and wording of the pleadings and conduct of the litigation," the panel said.

The ghostwriting issue has been haunting since last spring when U.S. Magistrate Judge Tonianne Bongiovanni ruled, in Delso v. Trustees for the Retirement Plan for Hourly Employees of Merck & Co. Inc., that a lawyer's anonymous help in preparing pleadings without affirmatively notifying the court was "not emblematic of the candid honesty contemplated by [Rule of Professional Conduct 3.3]," which requires candor to the tribunal.

I have a serious problem with lawyer ghost writing because of the wide latitude which is given to pro se litigants. The standard utilized, looking at who was in control of the final product, is unworkable. This issue is ripe for academic commentary.

Mitchell H. Rubinstein

Note to Litigants: Don’t Use Work Email to Discuss Your Case

Note to Litigants: Don’t Use Work Email to Discuss Your Case is an important Jan. 28, 2008 Wall Street Journal Law Blog article by Ashby Jones. It discusses a New York lower court decision which held that an email sent by an employee from his employers e-mail account to his personal attorney was not privileged. Why? Because there is was expectation of privacy in an employer's e-mail system.

This is a very important issue that is likely to repeatedly arise. I am not sure that the court got this one right. What about if the conversation occurred over the phone at work? Is that different. Or, what if the employee invited the lawyer up to his private office owned by the employer and they had a private conversation. Would that be privileged. E-mail has changed the way we work and the way us profs teach. Therefore, I believe that decisions such as the one discussed in the article will not stand.

Mitchell H. Rubinstein   

Court Reviews 'AIDS-Phobia' Suit Deadline

Court Reviews 'AIDS-Phobia' Suit Deadline is a Jan. 2, 2008 New York Law Journal article which previews an upcoming New York Court of Appeals case, Ornstein v. New York City Health and Hospitals Corporation.  A RN was stuck with a needle from an AIDS infected patient. The issue in the case is how long a period of time she should be permitted to recover emotional distress damages for. The article describes the case as follows:

In January 2004, Manhattan Supreme Court Justice Sheila Abdus-Salaam denied New York City’s motion to limit Ms. Ornstein's claim for emotional damages to the six months after her thumb was punctured by the needle (NYLJ, Jan. 20, 2004). The First Department overruled Justice Abdus-Salaam, finding in Ornstein v. New York City Health and Hospitals Corp., 27 AD3d 180 (2006), that her claims of a post-traumatic stress syndrome were "simply an end-run around the six-month AIDS phobia restriction" enunciated in Brown (NYLJ, Jan. 4, 2006).

Subsequent to the First Department's ruling, Ms. Ornstein's case went to trial. On Feb. 16, 2007, a Manhattan Supreme Court jury awarded her $330,000 for past pain and suffering and $15,000 in lost wages.

In her briefs, Ms. Ornstein argues that the fear and anxiety of waiting out a possible finding that she has the HIV virus was not confined to the six months following her being stuck by the needle. If 95 percent of HIV carriers test positive within six months of being exposed, that means 5 percent do not, Ms. Ornstein’s attorney Lenore Kramer observed in a brief.

I am sure that this case will be of interest to researchers and law review comnentators.

Mitchell H. Rubinstein

Virtual Schools

Virtual Schools Could Get Logged Off is an interesting Jan. 16, 2008 article which discusses "virtual schools." As I understand it, a virtual school is a cross between traditional education and home schooling. The student is educated at home, but its given assignments via computer and must take tests over the internet that are reviewed by certified teachers.

The article discusses Virtual Academy. In December, 2007, a Wisconsin appellate court ordered the state to stop funding this school because licensed educators did not do the teaching. This is spuring a ranging debate in some circles. As the article states:

Supporters say virtual schools are an innovative educational option that works better for some students and is a godsend for parents who prefer their children learn from home.

But critics, including the nation's largest teacher's union, say the so-called cyber charter schools amount to little more than home schooling at taxpayers' expense. They complain they take away money from traditional public schools and profit companies who sell curricula to districts.

Wisconsin is at the center of the debate after an appeals court in December ordered the state to stop funding the Wisconsin Virtual Academy, the state's largest virtual school with 800 students.

The ruling was the first of its kind in the nation and has triggered a debate among lawmakers over how the schools should be funded and regulated. The schools' supporters are preparing to fight one plan they say would cripple them in Wisconsin.

For my Education Law students out there, sounds like an interesting topic for a paper.

Mitchell H. Rubinstein

FMLA Lawsuit Barred On Basis of Sovereign Immunity

McKlintic v. 36th Judicial Circuit, ___F.3d___ (8th Cir. Nov. Nov. 28, 2007) is an important decision under the FMLA concerning sovereign immunity. The issue in the case was whether state sovereign immunity was abrogated by the self care provisions of the FMLA. The court holds that sovereign immunity was not abrogated. The opinion is brief because there is recent 8th circuit precedent. What is most interesting about this decision, however, is that the majority opinion was via a per curiam unsigned opinion while a concurrence was signed by one judge. It does not take rocket science to figure out who the two remaining judges were. Additionally, in this 4 page circuit court opinion, the concurrence states that the issue of whether sovereign immunity was abrogated by virtue of the FMLA self care provisions "needs resolution by the U.S. Supreme Court."

While the opinion is brief, it does provide a number of cites that researchers may find helpful. As for eventual Supreme Court review, that seems like a bit of a stretch. However, for those looking for a law review topic, this may be something to look into.

Mitchell H. Rubinstein   

Foxwoods Workers Vote to Join Union

The November 25, 2007 Associated Press carried an interestng article entitled "Foxwoods Casino Dealers to Join Union." The story is about the union's victory at Foxwoods which is an Indian casino. The issue of whether tribal or U.S. law applies is being litigated at the NLRB. The Casino argued, of course, that tribal not U.S. law applies. As the article states:   

Saturday's vote was held after the National Labor Relations Board rejected a motion by the casino's owners, the Mashantucket Pequots, to delay the process while the board reviews the ruling by regional NLRB officials that found the dealers had the right to unionize.

The regional office had rejected the Mashantuckets' argument that tribal employment law has jurisdiction in the matter.

"We are disappointed with the preliminary tally, however, these results will not be official until all legal issues, including jurisdiction, are resolved," said John O'Brien, the casino's president. "We continue to believe as we have from the very beginning that the labor board lacked jurisdiction and that any election should have been governed by tribal laws."

Connecticut Attorney General Richard Blumenthal, who had argued in favor of the right to unionize at the casino, predicted the vote will be upheld. Federal courts already have ruled that labor laws apply at tribal casinos, he said.

Look for this case to be litigated perhaps up to the U.S. Supreme Court one day. It presents some very interesting legal issues. Additionally, it is quite unusual for a state attorney general to be appearing before the NLRB. These issues are ripe for law review commentary.

Mitchell H. Rubinstein

Can Lawyers Give Undisclosed Assistance To Pro Se Litigants?

I just came across ABA Formal Opinion No. 07-446 (May 5, 2007), which concludes that it is not a violation of the Model Code for lawyers to give undisclosed assistance to pro se litigants. They also appear to indicate that lawyer ghost writing is not unethical. The ABA does not share the view exposed by many that this practice should not be permitted because pro se litigants get special treatment in litigation.

I could not disagree more with this opinion. Lawyers need to be responsible for every thing they advice or write. If they are not, then how can a client rely on such advice or papers? A friend who the lawyer gives legal advice to becomes a client whether the lawyer is paid or not.

In any event, as this ABA opinion notes, there is wide disagreement over this issue and a lawyer should consult his/her state decisions or ethical opinions on this issue.

Note, I previously blogged about lawyer ghostwriting here.

Mitchell H. Rubinstein

Woman Thrown Out of Ladies Restroom For Looking Like A Man Brings Suit

The October 10, 2007 New York Times ran a very interesting article entitled "Sexual Sterotypes, Civil Rights and a Suit About Both" which is about a lawsuit filed under a NYC local law and NYS law by a restaurant patron who was thrown out of a ladies rest room for looking like a man. Although the plaintiff is not transgender, a transgender organization filed suit on her behalf. As the article states:

The Transgender Legal Defense and Education Fund filed the lawsuit on behalf of Ms. Farmer in State Supreme Court in Manhattan. It accuses the restaurant of discriminating against Ms. Farmer because her appearance did not comply with society’s norms concerning gender identity.

A 2002 amendment to the city’s human rights law protects the rights of city residents whose gender expression is different from their sex at birth. The state’s civil rights law does not include a similar protection. But the defense fund argues that it should be interpreted as protecting New Yorkers against sexual stereotyping, in which people are expected to conform to gender-appropriate behavior.

Although Ms. Farmer is not transgender, the legal defense group considered the suit to be a strategically important case with the potential to set a precedent, said Michael D. Silverman, the organization’s executive director and general counsel. The lawsuit’s claims are being made under both city and state law.

Plaintiff is trying to extend the Price Waterhouse v. Hopkins sexual sterotyping decisions in employment to transgendered individuals. As my employment law students know, some courts have held that homosexuals were protected aganist sex discrimination under this theory, notwithstanding the fact that Title VII does not protect homosexuality.

This case may be trying to extend the sexual sterotyping theory too far and might actually result in courts cutting back on extending Title VII protections to homosexuals on the basis of sexual sterotyping.

Mitchell H. Rubinstein

Discrimination Against Employees With Tattoos

The San Antonio Express Newspaper ran an interesting September 5, 2007 article entitled "Think Before You Ink" which discusses the increase use of tattoos and that some with tattoos believe they have been victims of employment discrimination.  As the article states:

"The guy really wanted to talk to me," recalls Shutt, who lives in Cibolo. "But when I showed up for the interview, he said, 'Oh, no, you can't have visible tattoos.'

"Before anyone at any age gets a tattoo, they need to think long and hard what they're going to get and where it's going to be put because people do discriminate against you."

Discrimination against tattoos has led a Florida man to launch an advocacy group to help the tattooed fight for employment rights. Russell Parrish, the former owner of a tattoo parlor, says he was turned down for more than two dozen jobs over a couple of months. Last May, when a reporter for the Orlando Sentinel interviewed him for a story, the 29-year-old was managing a small restaurant owned by his father-in-law.

This raises the an interesting legal question whether employees with tatoos are protected under any of our nation's employment laws. Employees with Tattoos are probably not a protected class under Title VII and therefore,Title VII has little application unless perhaps a disparate impact on a protected group could be made out. Such a theory of liability would seem to be a bit of a stretch. A much better argument may exist under the various legal activities laws that exist in some states which permit employees spend there free time as they would like-subject of course, to several exceptions. See, New York Labor Law 201-d, for example. Additionally, in the public sector, perhaps some type of First Amendment claim could be made out. The Connick v. Meyers public concern test as well as Garcetti decision may present significant First Amendment hurdles, however.

Mitchell H. Rubinstein

6th Cir. Holds Adult Children May Be Covered Under FMLA, But Grandchildren Are Not; Circuit Also Addresses What Are Acceptable Forms of Medical Certification

  Novak v. MetroHealth Medical Center, ___F. 3d___(6th Cir. Sep't. 28, 2007), is an important FMLA case for several reasons. First, the case addresses the adequacy of employee medical certifications (e.g., doctors notes) . The 6th holds that medical certification forms for an employee's back injury were insufficient to establish the existence of a serious health condition under the FMLA. The first form submitted was signed by a physician, but it did not contain the date on which the serious health condition began, the probable duration of the condition, or the appropriate medical facts within the physician's knowledge. The second form was completed by the physician's assistant at the insistence of the employee and its contents were not authorized by the physician. The final form acknowledged that another doctor, not the physician who signed the form, had treated the employee for her back problems.

Second, the 6th addresses whether an employee can take leave to care for an adult child(age 18 or older). The court holds two requirements must be met. First, the adult child must be suffering from a serious health condition, and second, the adult child must be incapable of self-care because of a mental or physical disability.

Third, the 6th held that the FMLA does not authorize leave to care for a new born grandchild.

This case also contains an excellent summary of FMLA law and also notes the disagreement between the EEOC and the First Circuit concerning the issue of whether temporary non-chronic impairments are disabilities  within the meaning of the FMLA. That issue is ripe for some scholarly commentary.

Mitchell H. Rubinstein