Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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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)

Wednesday, August 25, 2010

Proposed Pennsylvania legislation seeks to limit punishment for “sexting”

CBSNEWS reported on June 10, 2010 that a bill has passed a Pennsylvania committee that would limit the punishment for "sexting" (the practice in which adolescents forward sexually explicit images of themselves or their peers via text message).  The bill is in responses to several prosecutions of teens under child pornography laws.  According to the report, eights students received a felony pornography charge for exchanging nude photos of each other via cell phone. 

Source: CBSNEWS, 6/5/10 By Michelle Miller and Phil Hirschkorn

August 25, 2010 in Legislation | Permalink | Comments (0)

Wednesday, June 16, 2010

A Bill To Protect Non-CItizens

Workplace Prof Blog recently summarize a new federal Bill,  the Protect Our Workers from Exploitation and Retaliation (POWER) Act. The act would amend the Immigration and Nationality Act to provide protections for non-citizen workers when those workers have been harmed by violations of the immigration laws or labor and employment laws. It appears that this Bill would over rule the Supreme Court's Hoffman decision.

I do not expect this Bill to come close to passing.

Mitchell H. Rubinstein

June 16, 2010 in Employment Law, Legislation | Permalink | Comments (1)

Saturday, January 23, 2010

New Jersey enacts medical marijuana law; no employer accommodation required

New Jersey enacted the Compassionate Use Medical Marijuana Act  and became the 14th state in the nation to legalize medical marijuana. The law removes statewide penalties for the possession and use of up to two ounces of marijuana when a New Jersey licensed physician recommends it for a qualifying medical condition. Patients will be issued ID cards in a program run by the state department of health and senior services. The marijuana will be obtained from tightly regulated alternative treatment centers set up across the state. The statute was signed into law by outgoing Gov. John Corzine.

Very significantly, the statute provides: "Nothing in this act shall be construed to require... a private health insurer to reimburse a person for costs associated with the medical use of marijuana, or an employer to accommodate the medical use of marijuana in any workplace."

Mitchell H. Rubinstein

January 23, 2010 in Legal News, Legislation | Permalink | Comments (0)

Monday, January 11, 2010

Anti-bullying legislation gains momentum in Massachusetts

The Boston Globe reported that the Massachusetts legislature appears poised to crack down on bullying among schoolchildren, with hearings beginning this week on nearly a dozen bills that would force local schools to respond more aggressively to instances of cruelty among students. Currently 37 states have enacted anti-bullying legislation. Nearly a quarter of Massachusetts high school students reported being victims of bullying, while 14 percent admitted to bullying or pushing someone around, according to the state’s most recent survey of health and risk behaviors, which was released last year. In middle school, a smaller portion of students said they were bullied.

The legislation gaining momentum at the State House would require the state to develop a model policy for local schools, which would be required to address both traditional bullying and cyberbullying, i.e. cruelty by computer. Local schools also would have to document all cases of harassment, discrimination, intimidation, and bullying, and report on the resulting discipline. All incidents would then be reported to state education regulators, who would compile an annual report for the legislature and periodically review each school’s policies and level of enforcement.

Source: Boston Globe, 11/15/09, By James Vaznis

Mitchell H. Rubinstein

January 11, 2010 in Education Law, Legislation | Permalink | Comments (0)