Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Tuesday, October 25, 2016

Breaking News! Court Enjoins Obama Executive Order Requiring Disclosure of Labor Law Violations

On July 31, 2014, President Obama issued Executive Order 13673 which requires federal contractors to disclose labor law and employment discrimination violations. This Executive Order also precludes certain contractors from entering into predispute arbitration agreements concerning employment discrimination claims. The Office of Federal Procurement and the Department of Labor in turn issued regulations which were enjoined in Associated Builders and Contractors v. Rung, ___F.Supp. 2d___, 1:16-CV-425 (E.D. Tx. Oct. 24, 2016),  Download ABC PI 10-14-16 This disclosure could result in the contractors being debarred from federal contracts. 

In a lengthly decision, the court preliminary enjoined these regulations as compelled speech in violation of the First Amendment and because they conflicted with Congressional statutory mandates which specified how labor law violations needed to be addressed. The court reasoned in part:

                                Finally, even if federal agencies could properly disqualify government contractors based
                                upon final administrative decisions, arbitration awards, and court orders enforcing one of the
                                fourteen labor laws at issue, the Executive Order and FAR Rule should not be allowed to go into
                                effect because they extend their reach far beyond those limited circumstances. The Order and Rule
                                appear to conflict directly with every one of the labor laws they purport to invoke by permitting
                                disqualification based solely upon “administrative merits determinations” that are nothing more
                                than allegations of fault asserted by agency employees and do not constitute final agency findings
                                of any violation at all. As noted above in the Findings of Fact, agency employees who are
                                assigned to administer these labor laws issue thousands of complaints, cause findings, wage
                                notices, and citations each year, many of which are dismissed or significantly reduced after they
                                are contested, often after lengthy proceedings. There is no statutory basis to treat these
                                “administrative merits determinations” as final and binding while they are still being contested or
                                when they are settled without admission of fault. Thus, it appears to be a denial of fundamental
                                statutory and constitutional rights for the Executive Order and FAR Rule to so act.

Labor laws in this country have been widely criticized for being ineffective. This is an important case because it concerns whether it could regulate who it contracts with. This decision will surely be appealed. Law review commentary on this important topic would be most welcome.

Mitchell H. Rubinstein

October 25, 2016 in Discrimination Law, Labor Law, Law Review Ideas, Legislation, Litigation, NLRB | Permalink | Comments (0)

Thursday, April 14, 2016

Breaking News California Appellate Court Reverses Vergara Which Held Calif Tenure Statutes Unconstitutional

On April 14, 2016, a California appellate court reversed a lower court decision which declared several California tenure statutes unconstitutional under state law. Download Vergara Court of Appeals Opinion

In a lengthy well-reasoned opinion the court rejected a facial challenge to the statute and reasoned that if poor students were receiving an inferior education it was because of staffing decisions, reasoning:    

                It is possible that the challenged statutes—in the way they pertain to teacher tenure and seniority—lead to a higher                        number of grossly ineffective teachers being in the educational system than a hypothetical alternative statutory scheme             would. This possibility may present a problem with policy, but it does not, in itself, give rise to an equal protection         violation, which requires a classification affecting similarly situated groups in an unequal manner. (Cooley, supra, 29             Cal.4th 228, 253.)

       Assuming that poor and minority students encounter more grossly ineffective teachers and that this impacts their             constitutional right to “basic educational equality” (Butt, supra, 4 Cal.4th 668, 681), the constitutional infringement is the            product of staffing decisions, not the challenged statutes. Even if the statutes were struck down, the harm at issue—the             disproportionate assignment of inferior teachers to poor and minority students—could still occur as before. (Any system             will have some teachers who are not as effective as others.) And, since the challenged statutes, on their face and in effect,           do not dictate where teachers are assigned, declaring the statutes facially unconstitutional would not prevent administrators             from assigning the worst teachers to schools serving poor and minority students.

This case attracted significant media attention, several amicus briefs and copycat cases in other states. This high profile case was backed by former CNN reporter Cambell Brown.

Mitchell H. Rubinstein

April 14, 2016 in Equal Protection, Law Review Ideas, Legislation, Litigation, Public Sector Labor Law, Recent Developments | Permalink | Comments (0)

Wednesday, April 8, 2015

Fifth Circuit: Arbitrator's Attorney's Fee Award Reinstated

The Fifth Circuit Court of Appeals reversed a District Court judgment and reinstated an arbitrator's attorney's fees award last week.  The case is Campbell Harrison & Dagley v. Hill, No. 14-10631 (5th Cir., April 2, 2015).

The underlying claim is an attorney's fees dispute that arose after Hill terminated two law firms' litigation services.  The contract between the Hill and each law firm provided for a hybrid-fee agreement with an hourly rate plus a contingency.  Hill later settled his underlying case for "approximately $188 million," and Hill refused to pay the two law firms.  The law firms sued Hill for their unpaid fees.

After the district court referred the case to arbitration as provided by the contract and after a nine day hearing, the arbitrator rejected Hill's defenses and awarded the two firms over $3.3 million in hourly fees plus their 15% contingency -- an additional $25 million.  The firms moved the district court to confirm the award; Hill moved to vacate on evident partiality, unconscionability and public policy grounds.  The district court vacated the contingency portion for unconscionability.

The Fifth Circuit noted the highly deferential consideration given to an arbitrator's award under Texas law.  "Under Texas law," the court wrote, "review of an arbitration award is so limited that an award may not be vacated even if there is a mistake of fact or law."  Further, the court cautioned that a court may not substitute its judgment for the arbitrator's simply because it would have reached a different decision.  The only grounds for vacation an arbitration award are corruption, fraud, evident partiality or the arbitrator exceeding its powers.  An award may also be vacated on common law grounds of "manifest disregard of the law, gross mistake and an award that violates public policy."  In reversing the award, the Fifth Circuit held the district court improperly substituted its judgment for that of the arbitrator.  The panel reversed the district court, rendered judgment on the arbitrator's award and remanded the case to the district court to determine pre-judgment interest.

Craig Estlinbaum

 

April 8, 2015 in Arbitration Law, Legislation | Permalink | Comments (0)

Thursday, July 24, 2014

House Bill Would Require 2 Weeks Notice of Change in Work Schedules

There is a Bill pending in Congress which would require that employers give part time workers 2 weeks notice of change to their schedules. Further details can be found here

Mitchell Rubinstein

July 24, 2014 in Legislation | Permalink | Comments (0)

Friday, March 14, 2014

Florida: Damage Cap Statute Violates State Constitution

In a notable state constitutional law decision, the Florida Supreme Court on certified questions from the 11th Circuit, held that Florida's statutory cap on noneconomic damages in wrongful death cases violates the equal protection clause in the Florida Constitution.

The case is Estate of McCall vs. United States, No. SC11-1148 (Fla., March 13, 2014). 

Craig Estlinbaum

March 14, 2014 in Constitutional Law, Legislation, Recent Developments | Permalink | Comments (0)

Tuesday, October 8, 2013

Sisk: Strict Construction and Soverign Immunity

Gregory C. Sisk (St. Thomas MN) has posted, "Twilight for the Strict Construction of Waivers of Federal Sovereign Immunity," on SSRN.  This paper surveys recent Supreme Court cases which mark a shift in interpretive approach to statutory language waiving soverign immunity.  On first review, this strikes me to be an important paper that thoroughly analysis recent developments in the Court's soverign immunity construction and jurisprudence.  Here is the abstract:

The Government of the United States has long benefited from two canons of statutory construction that tip the scales of justice heavily in its direction in civil litigation by those seeking redress of harm by that government: First, the federal government’s consent to suit must be expressed through unequivocal statutory text. Second, even when a statute explicitly waives federal sovereign immunity for a subject matter, the traditional rule has been that the terms of that statute “must be construed strictly in favor of the sovereign.” The restrictive effect of these rules has made a distinct difference in cases that truly matter to the lives and well-being of ordinary people.

Since the dawn of the new century, however, the Supreme Court’s increasingly common encounters with waivers of federal sovereign immunity are also becoming more conventional in interpretive attitude. During the first eleven years of the twenty-first century, the Court turned a deaf ear to the government’s plea for special solicitude in the substantial majority of instances and frequently declared that the canon of strict construction was unhelpful or ill-suited. In four sovereign immunity cases decided in the 2012 Term, the Court continued to evidence a commitment to text, context, and legislative history, unblemished by any presumption of narrow construction. Notably during oral arguments in this most recent term, multiple members of the Court openly challenged the government’s reach for broader immunity.

In these recent decisions, the Court increasingly accepts a dichotomy between the threshold question of whether sovereign immunity has been waived (requiring a “clear statement” by Congress) and the inquiry into how the statutory waiver should be interpreted in application (with the canon of strict construction fading away as a viable tool for statutory interpretation).

This paper is shown to be accepted for publication by North Carolina Law Review.

Craig Estlinbaum

October 8, 2013 in Law Review Articles, Legislation, Supreme Court | Permalink | Comments (0)

Saturday, February 23, 2013

Senator Rand Paul Introduces Anti-Union Amendment To NLRA

Tea Party favorite Sen. Rand Paul (R-Ky.) introduced a bill (S. 204) that would amend the National Labor Relations Act to bar the inclusion of union security clauses in collective bargaining agreements, which require the payment of union dues or fees as a condition of employment. The proposed National Right-to-Work Act also would amend the Railway Labor Act. The bill currently has 10 co-sponsors, all Republicans.
Expect it to go nowhere, but it demonstrates that there are a number of anti-union Senators in the Congress.
Mitchell H. Rubinstein

February 23, 2013 in Legislation, NLRB | Permalink | Comments (0)

Tuesday, January 15, 2013

New Law School Proposed for South Texas

At least two Texas legislators, Rep. Eddie Lucio, III of Harlingen and Rep. Armando Martinez of Weslaco, have filed bills to establish a public law school in the Rio Grande Valley.  The two bills are similar to one another - the primary difference is that Lucio's bill would place the law school in the University of Texas System, while Martinez's bill would authorize the school to be created and operated by any willing and existing university system.

A law school in the fast-growing Rio Grande Valley has long been a goal for South Texas's legislative delegation.  While the need for a new law school in this national market is doubtful, the Rio Grande Valley is greatly underserved.  The nearest public law school to the Valley is the University of Texas at Austin some 300 miles away.  The Rio Grande Valley appears by far to be the largest region in the nation, measured by population, located so far from a public law school.  The two MSA's that make up the Valley have almost 1.2 million in population according to the last Census.

Texas created a public law school in the Dallas during the 2009 session - the University of North Texas Dallas (UNT-Dallas) College of Law is scheduled to open in the Fall of 2014.  With law schools facing declining enrollment in this tough job market, getting yet another law school opened in Texas looks to be an uphill battle this session.

The Texas Legislature meets for 140 days during odd-numbered years, called special sessions excluded.

Craig Estlinbaum

January 15, 2013 in Colleges, Law Schools, Legislation, Politics | Permalink | Comments (0)

Sunday, July 15, 2012

Bill introduced to raise federal minimum wage to $10 an hour

This Bill is sponsored by Representative Jesse Jackson, Jr. (D-Ill.). It is called "The Catching Up to 1968 Act of 2012" (H.R. 5901) would amend the FLSA to both create the increase and to tie any future adjustments to increases in the consumer price index. The first increase, to a $10 an hour minimum wage, would occur within 60 days of enactment. I do not believe this Bill has any realistic chance of passage.

Mitchell H. Rubinstein

July 15, 2012 in Legislation | Permalink | Comments (0)

Thursday, May 10, 2012

Federal Bill Introduced To Require Flex-Time

The Working Families Flexibility Act (H.R. 4106, S. 2142) would allow employees to ask for changes in the terms or conditions of the employee’s employment relating to either the employees’ required work hours, the employees’ required start time, the employees’ required worksite, or the notice that employers give regarding work schedule assignments. Once an employer gets such a request, it would be required to meet with the employee to discuss it and to give the employee a written decision about the application “within a reasonable period.”

Mitchell H. Rubinstein

May 10, 2012 in Legislation | Permalink | Comments (0)

Saturday, July 9, 2011

Connecticut Becomes First State To Mandate Paid Sick Leave and 14th To Prohibit Disccrimination On Basis of Gender Identity

 Public Act 11-52, An Act Mandating Employers Provide Paid Sick Leave to Employees 

Connecticut also became the fourteenth state (plus DC for a total of fifteen state and state-like jurisdictions) to prohibit discrimination on the basis of gender identity or expression. Public Act 11-55, An Act Concerning Discrimination 

Hat Tip: Workplace Prof Blog

Mitchell H. Rubinstein

July 9, 2011 in Employment Discrimination, Employment Law, Legislation | Permalink | Comments (1)

Sunday, June 12, 2011

New York Governor Andrew Cuomo introduces pension reform legislation

Source: Office of the Governor

On June 9, 2011 Governor Andrew M. Cuomo introduced pension reform legislation that would impose a new Tier VI for future employees of the State and its political subdivisions other than New York City. Estimated savings of $93 billion over the next 30 years.
The bill also includes, at the request of Mayor Michael R. Bloomberg, a separate pension reform proposal for New York City and the uniformed services. 

The new pension tier will increase the retirement age for new employees from 62 to 65, increase employee pension contributions and end so-called pension padding where employees accumulate substantial amounts of overtime in their final years of service to increase their pension.


Key elements of the proposed legislation:*

1. Raises the retirement age from 62 to 65

2. Ends early retirement

3. Requires employees to contribute six percent of their salary for the duration of their career

4. Provides 1.67 percent annual pension multiplier

5. Vests after 12 years instead of 10 years

6. Excludes overtime from final average salary

7. Uses a five-year final average salary calculation with an 8 percent anti-spiking cap

8. Excludes wages above the Governor's salary of $179,000 from the final average salary calculation

9. Eliminates lump sum payouts for unused vacation leave from the final average salary calculation

10. Prohibits the use of unused sick leave for additional service credit at retirement

The proposed reform of the state pension system would impact new hires by the state and local governments, including school districts.

The City of New York’s proposed pension reform plan would cover new employees of New York City, including the uniformed services. 

The text of the proposed bill is available here

The text of the proposed bill memo is available here.

* Changes applicable to individuals eligible to elect to participate in the several optional retirement plans available to certain employees of the State Department of Education, the State University of New York and its community colleges and other entities are set out in Sections 25, 26 and 27 of the proposed legislation.

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

June 12, 2011 in Legislation, New York Law | Permalink | Comments (0)

Sunday, June 5, 2011

Connecticut Becomes First State To Mandate Paid Sick Leave

Connecticut recently became the first state in the country to mandate paid sick leave for thousands of service workers. A New York Times article describes this new law as follows:

The bill applies only to businesses with 50 or more employees. It exempts manufacturing companies and nationally chartered nonprofit organizations, day laborers, independent contractors and temporary workers.

The measure covers only service workers who receive an hourly wage, an estimated 200,000 to 400,000 of them, including waiters, cashiers, fast-food cooks, hair stylists, security guards and nursing home aides. It allows each employee to earn one hour of paid sick time for every 40 hours worked, with the number of days capped at five per year.

Mitchell H. Rubinstein

June 5, 2011 in Legislation | Permalink | Comments (0)

Wednesday, April 27, 2011

New York Enacts Wage Theft Protection Act

Governor Patterson recently signed the Wage Theft Protection Act into law. 

There is growing evidence that minimum wage violations are quite common in this country. No doubt this statute was enacted to combat this as well as over-time violations. It amends the state labor law. Specifically, the statute imposes additional notice requirements requiring that employees be informed in writing about their rate of pay and eligibility for over-time pay, requires that employers maintain payroll records for 6 years, provides the state commissioner of labor with additional enforcement powers, provides employees may recover liquidated damages and attorneys fees. Most interesting is that employers who commit willful violations can be responsible criminally. If the amount is more than 1 millions dollars it can even be a felony. Query, how can an employer serve jail time and who from the employer would be criminally responsible?

It will be interesting to see if this new law changes anything.

Mitchell H. Rubinstein

April 27, 2011 in Employment Law, Legislation, New York Law | Permalink | Comments (1)

Saturday, April 2, 2011

Proposed federal legislation would require schools to report bullying of disabled students to federal government

According to the Daily Caller, Rep. Jackie Speier (D. CA) plans to introduce a bill in the U.S. Congress that would require schools to report incidents of bullying against children diagnosed with conditions like Down syndrome and Aspergers to the federal government.

 Daily Caller, 3/17/11, By Alex Brown and Chris Moody

MItchell H. Rubinstein

April 2, 2011 in Education Law, Legislation | Permalink | Comments (1)

Sunday, February 6, 2011

Nj Enacts Anti-Bullying Legislation

The Newark Star Ledger reported that Governor Christie signed anti-bullying legislation into law, which makes NJ one of the toughest laws in the nation. The “Anti-Bullying Bill of Rights” is intended to eliminate loopholes in the state’s first anti-bullying law, enacted in 2002, that encouraged school districts to set up programs to combat bullying but did not mandate it.

The new law will require training for most public school teachers, administrators and other employees on how to spot bullying and mandate that all districts form a “school safety team” to review complaints. School districts would be graded by the state on their efforts to combat the problem. Administrators who do not investigate reported incidents of bullying would be disciplined, while students who bully could be suspended or expelled. School employees would also be required to report all incidents they learn of, whether they take place in or outside of school.

Source: Star-Ledger, 1/7/11, By Matt Friedman

 

February 6, 2011 in Legislation | Permalink | Comments (0)

Thursday, January 27, 2011

President Obama Vetoed National Notary Legislation

The President  recently vetoed HR 3808 which would have allowed state and federal courts to recognize notary signatures from other states. I cannot imagine why the President did this. It makes perfect sense to recognize notaries from the several states.

Mitchell H. Rubinstein 

January 27, 2011 in Legislation | Permalink | Comments (2)

Wednesday, December 15, 2010

Federal Wi-Fi (Free!)

A Bill has been introduced into Congress requiring that public areas in federal buildings provide free Wi Fi Access. It's called the Wi Fi Net Act. S.3995 was introduced by Senator Snowe and only has one sponsor. Therefore, it seems as if this Bill is not going to be enacted into law anytime soon.

Personally, I believe this Bill is a great idea. I believe access to the internet should be free and that 4 G should be available everywhere. If not free, the internet should be treated similar as a utility. Available everywhere at reduced rates.

The internet has transformed society and will like continue to do so in the years ahead.

Mitchell H. Rubinstein

December 15, 2010 in Legislation | Permalink | Comments (0)

Wednesday, December 1, 2010

New Jersey passes “Anti-Bullying Bill of Rights” legislation, sends to governor

The Star-Ledger reports that  both houses of the New Jersey legislature have approved bill A3466, known as the “Anti-Bullying Bill of Rights,” and sent it to Gov. Chris Christie for his signature. Reportedly, it would give New Jersey the strictest anti-bullying statute in the nation. The measure fills gaps in the state’s first anti-bullying law, passed in 2002, that encouraged school districts to set up anti-bullying programs but did not mandate it. The measure would require training for most public school employees on how to spot bullying and mandate that all districts form “school safety teams” to review complaints. Superintendents would have to report incidents of bullying to the state Board of Education, which would grade schools and districts on their efforts to combat it. Public colleges and universities would also be required to include a policies on bullying in their codes of conduct.

Source: Star-Ledger, 11/23/10, By Matt Friedman

December 1, 2010 in Education Law, Legislation | Permalink | Comments (0)

Wednesday, September 15, 2010

Massachusetts Anti-Bullying Law

The Boston Globe recently reported that the Massachusetts Department of Education released a model anti-bullying plan. The plan is intended to serve as a template for school districts as they implement policies that will comply with the state’s new anti-bullying law.  

The new state anti-bullying legislation requires school employees to report all instances of bullying, both in person and online,  and requires principals to investigate them. Parents can report bullying, and reports can be anonymous, although no disciplinary action will be taken against a student based solely on an anonymous report. 

Boston Globe, 8/25/10, By Peter Schworm

Mitchell H. Rubinstein

September 15, 2010 in Legislation | Permalink | Comments (1)