Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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
 (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)

Monday, December 31, 2012

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

December 31, 2012 in Employment Law, Law Review Ideas | Permalink | Comments (0)

Saturday, November 17, 2012

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

November 17, 2012 in Employment Discrimination, Law Review Ideas | Permalink | Comments (1)

Saturday, November 10, 2012

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

November 10, 2012 in Law Review Ideas, Unions | Permalink | Comments (0)

Monday, November 5, 2012

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


November 5, 2012 in Employment Law, Law Review Ideas | Permalink | Comments (0)

Wednesday, September 19, 2012

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

September 19, 2012 in Constitutional Law, Law Review Ideas | Permalink | Comments (0)

Tuesday, August 14, 2012

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



August 14, 2012 in Law Review Articles, Law Review Ideas, Law Schools | Permalink | Comments (1)

Monday, August 13, 2012

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

August 13, 2012 in Employment Law, Law Review Ideas | Permalink | Comments (0)

Thursday, August 9, 2012

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

August 9, 2012 in Law Review Articles, Law Review Ideas, Misc., Law School | Permalink | Comments (0)

Sunday, July 22, 2012

Alaska Supreme Court Issues Major Decision Recognizing Labor Union Privilege

Alaska Supreme Court

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


July 22, 2012 in Labor Law, Law Review Articles, Law Review Ideas | Permalink | Comments (1)

Saturday, July 14, 2012

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

July 14, 2012 in Current Events, Employment Law, Law Review Ideas | Permalink | Comments (0)

Monday, June 25, 2012

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


June 25, 2012 in Education Law, Law Review Ideas | Permalink | Comments (1)

Tuesday, June 12, 2012

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

June 12, 2012 in Discrimination Law, Education Law, Law Review Ideas | Permalink | Comments (0)

Sunday, June 3, 2012

NY Appellate Court Holds That Accusing Someone of Being Gay Is No Longer Defamation Per Se

Yonaty v. Mincolla, ____A.D.3d___(3d Dep't. May 31, 2012), is an exceedingly important case that has not gotten much press. The case was a defamation action and the legal issue was whether or not falsing accusing someone as being gay is defamation per se. This is important because if it is slander per se, then plaintiff has to allege special damages. 

Here the court refused to follow 30 year old precedent from another Department which held that making such a false accusation was indeed slander per se. As the court explained:

In regard to New York in particular, we locate "the public policy of [this] state in the law as expressed in statute and judicial decision and also [by] consider[ing] the prevailing attitudes of the community" (Debra H. v Janice R., 14 NY3d 576, 600 [2010], cert denied ___ US ___, 131 S Ct 908 [2011] [internal quotation marks and citations omitted]; see Dickerson v Thompson, 73 AD3d 52, 54 [2010]). Rather than countenancing the view that homosexuality is disgraceful, the Human Rights Law, since 2002, has expressly prohibited discrimination based on sexual orientation in employment, public accommodations, credit, education and housing (Executive Law § 296). Most revealing of the respect that the people of this state currently extend to lesbians, gays and bisexuals, the Legislature passed the Marriage Equality Act (Domestic Relations Law § 10-a, as amended by L 2011, ch 95, § 3) in June 2011, which was strongly supported by the Governor and gave same-sex couples the right to marry in New York, thereby granting them all the benefits of marriage, including "the symbolic benefit, or moral satisfaction, of seeing their relationships recognized by the State" (Hernandez v Robles, 7 NY3d 338, 358 [2006]). Even prior to the Marriage Equality Act, this Court had previously explained that "the public policy of our state protects same-sex couples in a myriad of ways" — including numerous statutory benefits and judicial decisions expressing a policy of acceptance (Dickerson v Thompson, 78 AD3d at 54). Similarly "evidenc[ing] a clear commitment to respect, uphold and protect parties to same-sex relationships[,] executive and local orders extend[] recognition to same-sex couples and grant[] benefits accordingly" (id.see Godfrey v Spano, 13 NY3d 358, 380-381 [2009] [Ciparick, J., concurring] [detailing the many statutes and court decisions reflecting a public policy of acceptance of lesbians, gays and bisexuals]).

We note that the most recent Appellate Division decision considering the issue in depth was decided nearly 30 years ago (Matherson v Marchello, 100 AD2d 233, 241-242 [2d Dept 1984], supra). In that case, the Second Department concluded that it was "constrained . . . at this point in time" to hold that a statement imputing homosexuality was defamatory per se in light of the then-existing "social opprobrium of homosexuality" and "[l]egal sanctions imposed upon homosexuals in areas ranging from immigration to military service" (id. at 241 [emphasis added]). Ultimately, the Court held that "the potential and probable harm of a false charge of homosexuality, in terms of social and economic impact, cannot be ignored" (id. at 242). In light of the tremendous evolution in social attitudes regarding homosexuality, the elimination of the legal sanctions that troubled the Second Department in 1984 and the considerable legal protection and respect that the law of this state now accords lesbians, gays and bisexuals, it cannot be said that current public opinion supports a rule that would equate statements imputing homosexuality with accusations of serious criminal conduct or insinuations that an individual has a loathsome disease (see Stern v Cosby, 645 F Supp 2d 258, 273-275 [SD NY 2009];Albright v Morton, 321 F Supp 2d 130, 136-139 [D Mass 2004], affd on other grounds 410 F3d 69 [2005]; [*5]Donovan v Fiumara, 114 NC App 524, 528-531, 442 SE2d 572, 575-577 [1994]; Hayes v Smith, 832 P2d 1022, 1023-1025 [Colo 1991]; Boehm v Bankers Ins. Group, Inc., 557 So 2d 91, 94 and n 1 [Fla 1990], review denied 564 So 2d 1085 [Fla 1990]; but see Gallo v Alitalia-Linee Aeree Italiane-Societa per Azioni, 585 F Supp 2d 520, 549-550 [2008] [relying, in part, on our decision in Tourge v City of Albany (285 AD2d 785 [2001], supra) in concluding that statements imputing homosexuality remain slanderous per se under New York law]). While lesbians, gays and bisexuals have historically faced discrimination and such prejudice has not been completely eradicated, "the fact of such prejudice on the part of some does not warrant a judicial holding that gays and lesbians [and bisexuals], merely because of their sexual orientation, belong in the same class as criminals" (Stern v Cosby, 645 F Supp 2d, at 275).

Mitchell H. Rubinstein

June 3, 2012 in Discrimination Law, Law Review Ideas, Litigation, New York Law | Permalink | Comments (0)

Friday, May 25, 2012

Maryland Joins Illinois in Recognizing a Labor Relations Privilege

Readers to this blog know that I am interested in the legal question of whether or not a labor relationsprivilege is developing. I have written two law review articles on this topic, the most recent of which is  “Is a Full Labor Relations Evidentiary Privilege Developing?

Maryland now joins Illinois as the only two states that have enacted, by legislation, a labor relations privilege. Senate Bill No. 97, effective Oct. 1, 2012, was recently signed into law by the Governor, here. The statute provides, with certain exceptions:

A labor organization or an agent of a labor organization may not be compelled to disclose any communication or information the labor organization or agent received or acquired in confidence from an employee while the labor organization or agent was acting in a representative capacity concerning an employee grievance

This is a major development and it is my hope that other states follow Maryland and Illinois' lead. Even without explicit legislation, as I argued in my law review article, there is need for courts to recognize a labor relations privilege. Public policy should encourage and support open and frank communications between bargaining unit employees and their unions. This would be healthy for both management and labor. With honest and frank communication, perhaps less industrial strife will occur. Open and honest communications may result in fewer grievances being filed and the filing of grievances with merit. 


Hat Tip: Jean Marc Favreau, Esq.

               Peer, Gan Geisler, Washington D.C. 




May 25, 2012 in Labor Law, Law Review Articles, Law Review Ideas | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 15, 2012

4th Circuit Holds ADHD Is Not A Disability


Halpern v. Wake Forest University Health Sciences, ____F.3d____(4th Cir. Feb. 28, 2012), is an extremely important case. The court upholds the discharge of a medical student from medical school and rejected his ADHD defense under the Rehab and ADA. Why, providing deference to the medical school, the court held that he was not qualified under the statute because "professionalism" was an essential part of the program. 

The court cited to several employment cases which held that an employee misconduct is not protected even if the disability caused the misconduct.

Law review commentary on this important case would be most welcome. Here that students!

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

May 15, 2012 in Discrimination Law, Education Law, Law Review Ideas | Permalink | Comments (2)

Monday, May 14, 2012

Breaking News D.C. District Court Strikes Down NLRB Election Rules


The decision is Chamber of Commerce v.  NLRB, ____F. Supp. 2d____ (D.D.C. May 14, 2012) and can be downloaded here,  Download DDC decision

According to the judge, "Member Hayes ... did not vote on the adoption of the final rule when it was circulated through the JCMS system on December 16, 2011."  The judge explained:

"T]he December 16th decision to adopt the final rule, not the earlier votes, was the relevant agency action. A quorum, accordingly, must have participated in that decision. And although Hayes need not have voted in order to be counted toward the quorum, he may not be counted merely because he was a member of the Board at the time the rule was adopted. More was required. Because the final rule was promulgated without the requisite quorum, the Court must set it aside on that ground and does not reach Plaintiffs' remaining arguments."

Looks like this is another issue headed to the Supremes.

Mitchell H. Rubinstein

May 14, 2012 in Law Review Ideas, NLRB | Permalink | Comments (0)