Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Thursday, February 16, 2012

Taking Photos Can Be Concerted Activity


NLRB v. White Oak Manor, No. 10-2122 (4th Cir., Oct. 28, 2011), is an interesting case which warrents law review commentary. You also cannot make these facts up. An employee wore a hat to work because she was embarrassed by a bad haircut, but a manager instructed her to remove the hat. The next day she returned to work and began taking photographs of other employees who wore hats and other clothing that violated the dress code. Some of the photos were taken with the photographed employees’ consent, while others were not. Upon hearing complaints from employees about having their photos taken and shared with other employees without consent, the company terminated the employee.  The NLRB and court held that the photographing effort was protected concerted activity because it centered on enforcement of the dress code, a working condition.  The court  wrote that the employee’s “grievance may have started as an individual gripe,” but it “evolved into a campaign to have the dress code enforced in a fair and equitable manner.”  

Mitchell H. Rubinstein

February 16, 2012 in Labor Law, Law Review Ideas, NLRB | Permalink | Comments (0)

Monday, January 16, 2012

Obama's NLRB Recess Appointments To Be Challenged


Two pro-business groups, including the National Right To Work Foundation, are challenging President Obama's recess appointments to the NLRB. As can be expected, Obama's Justice Department issued a formal opinion which concluded that such appointments were appropriate. A copy of the Justice Department Memo is available here.  

I do not profess to be an expert here, but it seems to me that there is a tension between the advice and consent portion of the constitution with the power to issue recess appointments-particularly where there are back to back recess appointments as in the case of the NLRB. Readers will recall that Craig Becker, whose recess appointment just expired, was appointed last year under a recess appointment. 

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

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

January 16, 2012 in Law Review Ideas, NLRB | Permalink | Comments (0)

Sunday, December 25, 2011

6th Circuit Issues Major Decision Addressing Volunteer Coverage Under Title VII

Bryson v. Middlefield Volunteer Fire Department, ____F.3d____(6th Cir. Sep't. 2, 2011), is a major employment law case. Normally, Title VII as well as other employment laws only covers employees. Thus, volunteers would not be protected under most employment laws because they are not employees. But who is a volunteer? Does it may if they receive some type of remunication? I wrote a law review article on this in 2006. Our Nation's Forgotten Workers: The Unprotected Volunteers  
Journal of Labor and Employment Law, Vol. 9, p. 147. Notice how I use the term "most." There are several circumstances where an employment relationship could be found where there is no traditional employment relationship. I will have more to say on this topic when my forthcoming law review article in the Univ of Penn Journal of Business Law is published early next year. For now, I wish to stick to the issue of the status of volunteers. 

In Bryson, the 6th Circuit rejected the Second Circuit's two step test which first examines whether the putative employee receives significant remuneration and then analyzes the common law right to control test. The 6th Circuit held that the issue of remuneration should not be part of a separate step, but rather it is an issue which can be included within the common law factors. Thus, the court drew a very fine line. It explained its reasoning as follows:

We believe that the district court erred, however, in its conclusion that remuneration must be an independent antecedent inquiry. The district court adopted the Second Circuit's two-step test for determining whether an individual is an employee under Title VII, which requires a plaintiff to establish first that she is a "hired party" by showing that she received "substantial benefits not merely incidental to the activity performed," before the district court may consider the common-law agency test from Darden and Reid. City of New York, 359 F.3d at 91-92 (internal quotation marks omitted); see R.25 (Dec. 14, 2009 Dist. Ct. Op. at 3 & n.4) (citing O'Connor v. Davis,126 F.3d 112, 115-16 (2d Cir. 1997), cert. denied, 522 U.S. 1114 (1998)). In this case, each individual firefighter-member is a "hired party" in that each has a contractual relationship with the Department—the firefighter-member provides firefighting services to the Department in exchange for benefits from the Department, including worker's compensation coverage, insurance coverage, gift cards, personal use of the Department's facilities and assets, training, and access to an emergency fund. See Demski v. U.S. Dep't of Labor, 419 F.3d 488, 492 (6th Cir. 2005) (concluding that petitioner—the sole shareholder of a company that had contracts with the purported "employer" company—was not an "employee" of the latter company under the Energy Reorganization Act, 42 U.S.C. § 5851, because "[i]t is undisputed that no contractual relationship of any sort existed between [the purported "employer" company] and [the petitioner]"). But we decline to adopt the Second Circuit's view that, to be a "hired party," a plaintiff must demonstrate that she received significant remuneration. See City of New York,359 F.3d at 91-92York v. Ass'n of the Bar of N.Y., 286 F.3d 122, 125-26 (2d Cir.), cert. denied, 537 U.S. 1089 (2002)O'Connor, 126 F.3d at 115-16.

We do not believe that the term "hired party" from Darden and Reid supports an independent antecedent remuneration requirement. The Supreme Court included the term "hired party" inDarden only in a direct quote from its decision in Reid, and the Reid Court's use of "hired party" was in the context of the "work for hire" provision from the Copyright Act. Although the Court did not define "hired party" in Reid, it did define "hiring party": "By `hiring party,' we mean to refer to the party who claims ownership of the copyright by virtue of the work for hire doctrine."490 U.S. at 739. We doubt that the Court would define "hiring party" as such while at the same time considering "hired party" to carry much more substantive weight in requiring that it be an individual who received significant remuneration for his services. Moreover, the Court's instruction to apply the common law of agency is not limited to when the individual receives significant remuneration but rather "when Congress has used the term `employee' without defining it." Reid, 490 U.S. at 739-40 (emphasis added); accord id. at 741 ("[T]he term `employee' should be understood in light of the general common law of agency."); see also Darden, 503 U.S. at 323 ("[W]e adopt a commonlaw test for determining who qualifies as an `employee' under ERISA.").

Our decision to consider remuneration as a factor when determining whether a employment relationship exists comports with Darden's instruction that, when evaluating a particular relationship, "`all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.'" Darden, 503 U.S. at 324 (quoting UnitedIns. Co., 390 U.S. at 258);accord Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 450-51 (2003);Johnson, 151 F.3d at 568Ware, 67 F.3d at 578. "`[T]he extent of control . . . is not dispositive,'" and several of the factors listed in Darden and Reid relate to financial matters.Ware, 67 F.3d at 577-78 (quoting Reid, 490 U.S. at 752). To be sure, "[t]he degree of importance of each factor [will vary] depending on the occupation and the factual context in which the services are performed." Rev. Rul. 87-41; accord Ware, 67 F.3d at 578. But no one factor, including remuneration, is decisive, and therefore no one factor is an independent antecedent requirement.

Mitchell H. Rubinstein


December 25, 2011 in Employment Discrimination, Employment Law, Law Review Ideas | Permalink | Comments (0)

Saturday, December 10, 2011

Federal district court rules Pennsylvania school district not liable for peer bullying

Kirby v. Loyalsock Twp. Sch. Dist., ____F.Supp.2d____ (M.D. Pa. Sept. 6, 2011), is an interesting case. A Pennsylvania lower federal court granted summary judgment in favor of a school district and individual school officials in a suit brought by a former student who claimed the defendants violated her constitutional rights to free association, equal protection, and procedural and substantive due process because school officials failed to discipline the students who were bullying her. Because it found that the student had failed to establish as a matter of law that her constitutional rights were violated, the court declined to address the school officials’ claim that they were entitled to qualified immunity from the suit. The cour also concluded that the school district could not be held liable under the theory of municipal liability, based on the manner in which the officials enforced the school district’s anti-bullying policy, because the court had ruled that the officials had not violated the student’s constitutional rights.

Bullying remains one of the "hot" legal issues today and law review commentary is always welcome.


Mitchell H. Rubinstein


December 10, 2011 in Education Law, Law Review Ideas | Permalink | Comments (0)

Monday, December 5, 2011

More Offices Allowing Employees To Purchase Their Own Tech Equipment

More Offices Let Workers Choose Their Own Devices is an interesting September 22, 2011 New York Times article. As the title states, more companies are allowing workers to purchase their own technology at company expense. 

Is this a good idea? On some level, yes-and that is certainly the tenor of the article. But there are two may problems with having the employee purchase the equipment and being reimbursed later. First, there is the issue of security. I do not know much about technology so I cannot further comment.

But, there is also an employment law issue. If the company provides the equipment, case law provides that the employees do not have a reasonable expecation of privacy. Therefore, employers can, and often do, mointor email and the like. So, does an employee have a greater expecation of privacy if he purchases the equipment and is simply reimbursed? Maybe.

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

Mitchell H. Rubinstein

December 5, 2011 in Employment Law, Law Review Ideas, Technology | Permalink | Comments (0)

Monday, November 14, 2011

2d Cir Upholds Ban Of School District's Use Of Schools For Religious Purposes


Bronx Household of Faith v. Board of Educ. of  the City of New York, No. 07-5291 (2d Cir. Jun. 2, 2010), is a major decision. The Second Circuit held that the New York City Board of Education’s (NYCBOE) policy prohibiting the use of school facilities for “religious worship services” does not violate the First Amendment’s Free Speech Clause. Having determined that NYCBOE had created a limited public forum, the majority concluded the policy satisfied the standard that restrictions imposed by the forum be viewpoint neutral and reasonable in light of the purpose served by the forum.

Mitchell H. Rubinstein

November 14, 2011 in Constitutional Law, Education Law, Law Review Ideas | Permalink | Comments (1)

Supremes Grant Cert In Obama Care Case

Details here

Mitchell H. Rubinstein

November 14, 2011 in Employee Benefits Law, Law Review Ideas | Permalink | Comments (0)

Monday, November 7, 2011

Lawyers Beware. Blogging May Be Considered To Be Lawyer Advertising

Virgina State Bar's Crackdown on Lawyer's Blog Raises Questions is an important undated article in the Washington Post.  It discusses a situation where the Virginia State Bar brought a charge of misconduct against a criminal lawyer, in part, because of his postings on his blog. Apparently, they were written in such a way to constitute lawyer advertising triggering the need to include a disclaimer. As the article states:

One purpose of the Web site is to market the firm and attract business, so any discussion of Hunter’s cases is considered advertising and must include a disclaimer “that puts the case results in a context that is not misleading,” the charge said.

Hunter’s case, which is scheduled for a hearing Oct. 18, appears to be the first time the Virginia State Bar has lodged a formal charge against an attorney over blogging and whether it violates advertising rules. State bar counsel Edward Davis would neither confirm nor deny the existence of previous charges against lawyers over blogs and advertising, but there is no record of disciplinary action against Virginia attorneys regarding the matter, according to the bar’s archives of disciplinary actions dating back to 1999. The bar can suspend or disbar attorneys found in violation of legal ethics.

The blog can be found here. 

This raises many interesting legal issues ripe for law review commentary.

Mitchell H. Rubinstein 

Hat Tip: New York Public Personnel Law 


November 7, 2011 in Blogs, Legal, Law Review Ideas, Lawyers | Permalink | Comments (0)

Saturday, November 5, 2011

Small Change-Big Deal Lawsuits

Prawfs Blawg ran an interesting posting on small change lawsuits. Lawsuits involving nominal amounts of money which made there way to the Supreme Court and established some type of important precedent. The author, Professor Jay Wexler asks readers if they know of other cases and whether this is a viable book idea. 

Small change cases happen all the time; particularly with respect to lawsuits financed by some advocacy organization. Additionally, if the party is facing a small fine, such as the $5.00 criminal fine in  Wisconsin v. Yoder, the case holding that the Wisconsin Amish had a right to keep their older kids out of school despite a state mandatory attendance law-then litigants may be more willing to fight. 

Nominal cases occur all the time in employment discrimination. Often times they effectively become cases about attorneys fees because attorneys fees in such cases can be awarded. 

As for a book, who would purchase it? It might be a better idea to discuss this in a law review or perhaps bar journal article. Anyone have any other thoughts?

Mitchell H. Rubinstein

November 5, 2011 in Law Review Ideas, Misc., Legal | Permalink | Comments (0)

Tuesday, October 18, 2011

New York Considering A Loan Repayment System Where Portion Of Student Loan Is Forgiven In Exchange For Representing Poor

Under Plan, Lawyers Who Counsel Poor Would Get Loan Help is an interesting Oct. 18, 2011 New York Law Journal article. Under the proposal, New York would somehow reimburse or foregive student loans in exhange for legal services for the poor. Sounds good doesn't it?? But it is a bad idea, a very bad idea for the following reasons.

First, as the article points out there is a problem with supervision. Are you now going to create an agency to supervise lawyers? Do you really think that newly minted JD's are competent to independently practice law? 

Second, there is an employment problem. If they are not on their own and are supervised, who are there employers? Are they protected by the nations employment law? Are they public sector or private sector workers? 

Law review commentary on this grande idea would be most welcome.

Mitchell H. Rubinstein


October 18, 2011 in Law Review Ideas, Lawyer Employment | Permalink | Comments (0)

Sunday, October 16, 2011

Discrimination Against The Unemployed

We all know the saying, “you need a job to find another job.” To the extent this adage is given credence it makes it more difficult to find a job. On March 11, 2011, New Jersey N.J.S.A. 34:8B-1, designed to eliminate this barrier in today’s job market.  

Query, whether this statute would extend to employment decisions amongest applicants based upon employment status. An unemployed individual has to be considered under this statute, but when it comes down to two individuals can the employer base its decision on the fact that one applicant is working?

Law review commentary on this important statute would be most welcome. Of course, this statute is only applicable in New Jersey.

Mitchell H. Rubinstein


October 16, 2011 in Employment Law, Law Review Ideas | Permalink | Comments (0)

Sunday, October 9, 2011

Title VII standard for materially adverse employment action applies to FMLA retaliation claim


Millea v. Metro–North R.R. Co.2011 WL 3437513 (2d Cir. Aug. 10, 2011).

October 9, 2011 in FMLA, Law Review Ideas | Permalink | Comments (0)

Thursday, September 8, 2011

Federal district court in California grants preliminary injunction allowing student with autism to be accompanied by service dog at school

C.C. Cypress Sch. Dist., ___F.Supp. 2d ____ (C.D. Cal. Jun. 13, 2011), is an interesting case. A federal district court issued a preliminary injunction allowing a student with autism to be accompanied by his service dog at school. The court concluded that the student had demonstrated a likelihood of success on the merits of his Americans with Disabilities Act (ADA) claim that the dog is a service dog under the ADA and the school district failed to demonstrate that its educational program would be fundamentally altered if the dog is allowed to accompany him to school. The court also found that the student had satisfied the other three elements required for issuance of injunctive relief.

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

Mitchell H. Rubinstein


September 8, 2011 in Discrimination Law, Education Law, Law Review Ideas | Permalink | Comments (1)

Monday, August 29, 2011

3rd Cir. Holds School Dist. Violated 1st A For Disciplining Students For Off Campus Speech

J.S. v. Blue Mountain Sch. Dist.
, ____F.3d____(3d Cir. Jun. 13, 2011), is an interesting case. The Third Circuit held ruled that a school district violated a student’s First Amendment free speech rights when it disciplined her for creating a a parody MySpace profile page of her middle school’s principal off-campus on a home computer that contained vulgar, lewd and false statements about the principal. The court’s decision is one of two en banc rulings issued on the same day and finding that the school district defendant had violated the student’s First Amendment right to free speech when it disciplined the student for off-campus speech that took place online. 

Law review commentary on this issue would be most welcomed.

Mitchell H. Rubinstein

August 29, 2011 in Education Law, Law Review Ideas | Permalink | Comments (0)

Saturday, July 16, 2011

References to employee as a pedophile not gender based; insufficient basis for Title VII hostile work environment claim

Christine v Mortgage Investors Corp, ___F. Supp.2d____(M.D.Fla, May 23, 2011) is a tough case. A male employee who claimed that his supervisors and coworkers made repeated comments and innuendos that he was a pedophile was unable to pursue his Title VII claim alleging that he was subjected to a sexually hostile environment because the alleged conduct was not based on his gender.  As the court explained:

Upon review of the complaint, the Court finds that [the plaintiff] has not alleged facts that show that the harassment disadvantagedmale  employees in general; instead, his allegations show only thathe, personally, was being ridiculed and accused of being apedophile.  While the conduct at issue is offensive andinappropriate, it is not actionable under Title VII.  See Griffithv. City of Des Moines, 387 F.3d 733, 739 (8th Cir. 2004)(notingthat the plaintiff perceived that he was being ridiculed andostracized for being a child molester, but that discrimination onthat ground is not prohibited by Title VII).  Accordingly, MortgageInvestors Corp.’s motion to dismiss Christine’s sexual harassmentclaim is granted.

Plaintiff may have a defamation cause of action. However, the court declined to exercise supplemental jurisdiction over that claim.

I think there are two lines of cases which the court does not recognize. On the one hand you have the Miller case from California.  As I recall, that court held that whether or not a sexual harassment claim can be made out depends upon the degree of ridicule and harassment.  On the other hand you have decisions like this one and the 2d Circuit decision in DeCintio v. Westchester Co. Medical Center which limit Title VII to gender based claims.

Law review commentary would be most welcome.

Mitchell H. Rubinstein

July 16, 2011 in Employment Discrimination, Law Review Ideas | Permalink | Comments (0)

Friday, July 8, 2011

Chief Justice Roberts Comments On Legal Scholarship Today

I am delighted to see that Chief Justice Roberts recently commented on contempory legal scholarship. The American Constitution Society Blog provides a picture of Chief Justice Roberts and summarizes his speech as follows:

Specifically Roberts claimed that legal scholarship is not relevant to the work of lawyers and judges, saying he is on the same page with Judge Harry T. Edwards of the U.S. Court of Appeals for the D.C. Circuit, who believes there is a great “disconnect between the academy and the profession.”

Roberts continued, “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”

A law professor responded   "more often than not, published law review articles offer muscular critiques of contemporary legal doctrine, alternative approaches to solving complex legal questions, and reflect a deep concern with the practical effect of legal decision-making on how law develops in the courtroom.”

Chief Justice remarks are right on point. The legal academy focus on theory and is largely composed of professors who never practiced law. Law schools look to hire someone with a JD/Ph.d from Ivy league school and give little weight to litigation or other legal experience. My own law review scholarship has been crticized by some as "practice orientated." Law review scholars often cite each other and some do not even cite cases. 

Everyone I talk with about this agrees that there is too much focus on theory. But when are the law schools going to change? Unfortunately, I do not see change happening. 

Mitchell H. Rubinstein


July 8, 2011 in Law Professors, Law Review Articles, Law Review Ideas, Law Schools, Supreme Court | Permalink | Comments (25)

Thursday, June 30, 2011

Great Article On Public Sector Bargaining Crisis In This Country

Joe Slater, one of the most important scholars whose focus is public sector labor law, recently published an important article for the American Constitution Society, The Assault on Public Sector Collective Bargaining: Real Harms and Imaginary Benefits (2011). As the article states:

Perhaps the most striking political development in 2011 is the widespread and aggressive assault on public sector collective bargaining rights.  While the most highly publicized and most significant changes have taken place in Wisconsin and Ohio, moves are afoot in a number of states.  These changes represent the most radical revisions to labor law in the U.S. in decades, and they have set off a political firestorm.This brief will argue that these attacks are deeply misguided.  They serve no purpose beyond a partisan attempt to weaken a key supporter of the Democratic party and they do not address budget deficits.  Instead, they take away a core right that has been recognized in the vast majority of the United States for up to half a century, a right that is considered fundamental in much of the industrialized world, a right that helps individual teachers, firefighters, police officers, and other public employees in their day-to-day lives at the workplace, a right that helps sustain a vital middle class, and a right that helps ensure talented and skilled people will find public service an attractive career option.

I am sure that Joe will be turning this piece into a law review article. 

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

June 30, 2011 in Articles, Law Review Ideas, Public Sector Labor Law | Permalink | Comments (0)

Thursday, June 23, 2011

Inadvertent Disclosure

In these days of email and computers, it is not unusal for an attachment to be missed and therefore, certain documents are inadvertentedly disclosed. In New York, the new Rules of Professional Conduct, Rule 4.4(b), requires that attorneys who recieve such documents to notify the sender. As this article points out, this rule raises more questions than it answers and I am sure that we are going to see more cases addressing this important issue.  Download Inadvertent Disclosure

Law review commentary would be most welcome.

MItchell H. Rubinstein

June 23, 2011 in Articles, Law Review Ideas, Litigation | Permalink | Comments (0)

Thursday, June 16, 2011

Cyberbullying and Intentional Infliction of Emotional Distress

The New York Law Journal published on Feb. 9, 2011, an excellent article on Cyberbullying and Intentional Infliction of Emotional Distress,  Download OUTSIDE COUNSELCyberbullying and Intentional Infliction ofEmotional The article provides in part:

Cyberbullying typically takes place when at least one individual uses technology to harm or threaten another. Some conduct has become so commonplace that a whole new parlance has developed to describe a variety of cyberconduct. The conduct may take the form of "cyberstalking" (following victims when they go online), "impersonation" (hacking into a victim's computer or creating fictitious profiles including pretending to be the victim, signing the victim up for e-mail lists such as junk mail or pornography, or performing illegal or immoral acts in the name of the victim), "denigrating" or "dissing" (spreading untrue gossip or rumors about a person), "sending malicious code" (forwarding the victim a computer virus), and "outing" (sharing intimate information about the victim with others without the victim's consent).2Extreme cyberbullying can lead to actions seeking civil redress based on the tort of intentional infliction of emotional distress and even criminal prosecution. In Kaisman v. Fernandez,3 it was alleged that defendants caused plaintiff's name to be improperly linked to pornographic websites on certain Internet search results. In an illustrious case in Missouri, the mother of a 13-year-old girl, who did not get along with another 13-year-old girl named Megan Meier, set up a fictitious social network profile of an actual 16-year-old boy, contacted and initially flirted with Megan, but ultimately told her that "he" no longer liked her and that the world would be a better place without her. Thereafter, Megan committed suicide and criminal prosecution against the mother of the other girl ensued.Many states have passed legislation relating to cyberbullying, but for the most part, this legislation relates to criminal penalties or prohibitions concerning school-related activities. This article will examine how civil theories and in particular the tort of intentional infliction of emotional distress may apply in cyberbullying situations.

I am sure we are going to see more of this. 

Mitchell H. Rubinstein

June 16, 2011 in Articles, Law Review Ideas | Permalink | Comments (0)

Monday, June 13, 2011

New York Wage Notice, Tips and Independent Contractor Legislative Changes

Joseph P. Furfaro and Risa M. Salins recently published an excellent article entitled New State Laws Cover Wage Notices, Tips, Independent Contractor Status (New York Law Journal Feb. 4, 2011)  Download Wage theft article 

The article discusses several recent legislative enactments in New York, including the Wage Theft Protection Act, S. 838, which is basically imposes  a notice and written wage statement requirement, The Hospitality Industry Minimum Wage Order which deals with tip credits for minimum wage purposes, New York State Construction Industry Fair Play Act, S. 5847-F, which creates a rebuttable presumption in favor of employee status for individuals performing services for construction industry contractors.

Mitchell H. Rubinstein

June 13, 2011 in Articles, Employment Law, Law Review Ideas | Permalink | Comments (0)