Friday, February 6, 2015
Matter of Pratt (Cellular Sales) v. Commissioner of Labor, ____A.D.3d___(3d Dep't. 2015), is an interesting Unemployment decision. I bring it to the readers' attention because it demonstrates how, courts, in my view, often tip the balance in favor of the discharged employee. We all know that an employee is not eligible for unemployment for misconduct, but what is misconduct? The court explains:
The employer contends that claimant engaged in disqualifying misconduct by failing to abide by its call in policy prior to being absent for two consecutive shifts and that this amounted to a resignation under the provisions of the employee manual. Initially, we note that whether an employee's actions rise to the level of disqualifying misconduct for unemployment insurance purposes is a factual issue for the Board to resolve and its determination will be upheld if supported by substantial evidence (see Matter of Cardenas [Metropolitan Cable Communications, Inc.—Commissioner of Labor], 118 AD3d 1234, 1234-1235 ; Matter of Andrews [A.C. Roman & Assoc.—Commissioner of Labor], 118 AD3d 1216, 1216-1217 ). Here, claimant stated that he was unaware of the employer's call in policy and did not contact his supervisor prior to his absences on August 20 and August 21 because he thought that this had been taken care of when he reported to his supervisor that he was locked out of the system, at which point he could not perform any work. In view of this, as well as the absence of any indication that claimant had time or attendance problems in the past, the Board could reasonably conclude that claimant did not engage in disqualifying misconduct (see Matter of Jaiyesimi [ISS Action Inc.—Commissioner of Labor], 114 AD3d 983, 984 ). Accordingly, substantial evidence supports the Board's decision and we decline to disturb it.
Mitchell H. Rubinstein
Wednesday, February 4, 2015
Sarwar v New York Coll. of Osteopathic Med. of N.Y. Inst. of Tech. 2015 NY Slip Op 30128(U) (Nassau Co. 2015), is an interesting decision. Download Sarwar v. NY College of Osteopathic Medicine, 2015 NY Slip Op 30128 (Nassau Co. 2015)
Though the decision is written in a somewhat conclusionary fashion, it does hold that the plaintiff is time barred because he did not commence within the time frame permitted by Article 78. The court also discussed the deference due to the school, stating:
"Strong policy considerations militate against the intervention of courts in controversies
relating to an educational institution's judgment of a student's academic performance" (Matter oj Susan M v. New York Law School, 76 N.Y.2d 241, 245 ). "Courts retain a restricted role" in dealing with and reviewing controversies involving institutions of higher learning. (Maas v. Cornell Univ., 94 N.Y.2d 87, 92 ). "CPLR aiiicle 78 proceedings are the appropriate vehicle because they insure that the over-all integrity of the educational institution is maintained". Id. Although couched in the complaint herein in terms of breach of contract and unjust enrichment, plaintiffs complaint is in fact a challenge to defendant's academic and administrative decisions, and consequently the redress for his dismissal was an Article 78 proceeding, instead of this plenaiy action (Keles v. Trustees of Columbia Univ. in the City of NY, 74 A.D.3d 435 [1st Dept. 2010], Iv. app. dsmd 16 N.Y.3d 890 , cert. den. 132 S. Ct. 255 ); Padiyar v. Albert Einstein Coll. of Medicine of Yeshiva Univ., 73 A.D.3d 634 [1st Dept. 2010], Iv. app. den. 15 N.Y.3d 708 ; Gary v. New York Univ., 48 A.D.3d 235 [1st Dept. 2008]; Frankel v. Yeshiva Univ., 37 A.D.3d 760 [2d Dept. 2007], lv. app. den. 9 N.Y.3d 802 ; Bottalico v. Adelphi Univ., 299 A.D.2d 443 [2d Dept. 2002]; Diehl v. St. John Fisher
Coll., 278 A.D.2d 816 [4th Dept. 2000], Iv. app. den. 96 N.Y.2d 707 ; 1\1elvin v. Union Coll., 195 A.D.2d 447 [2d Dept. 1993]).
Furthermore, as the limitations period for commencement of an Article 78 proceeding is
within four months after the determination to be reviewed becomes final and binding (CPLR 217; see Padiyar, supra, and Bottalico, supra), any claim plaintiff might have had is time-barred (Padiyar, supra; Frankel, supra; Bottalico, supra). This finding of untimeliness applies to plaintiffs breach of contract claim as well as the claim for unjust enrichment. (Kickertz v New York Univ., 110 A.D.3d 268, 276-277 [1st Dept. 2013]). Under these circumstances, conversion by this Cowt of this action to a special proceeding is not available (Keles, supra), and the complaint must be dismissed.
For the record, this is not a case where plaintiff alleges that defendant failed to comply
with its own obligations as specifically set forth in the school's bulletins, circulars, student
handbook and regulations (cf. Clogher v. New York Med. Coll., 112 A.D.3d 574, 576 [2d Dept. 2013]). Nor is it a case where arbitrary action taken against a student was predicated upon grounds unrelated to academic performance (cf. Matter of Rizvi v. New York Coll. of Osteopathic Medicine of N. Y. Inst. of Tech., 98 A.D .3d 1049 [2d Dept. 2012]). Nor yet is this a case where dismissal is premature (Eidlisz v. New York Univ., 15 N.Y.3d 730 ).
Plaintiff does not allege that any specific policy, rule, guideline or regulation was
violated by defendant (Ga1y, supra). Instead, he suggests that religious discrimination played a role in his dismissal, although any claim for religious discrimination under the state Human Rights Law would be untimely under the three-year limitations period for discriminatory practices (CPLR §214(2); Murphy v. American Home Prods. Co1p. , 58 N.Y.2d 293, 239 ).
Mitchell H. Rubinstein
On February 6-7, the Denver Law Review is hosting a two-day symposium, "CrImmigration: Crossing the Border Between Criminal Law and Immigration Law." Registration information and the speaker's schedule is here.
Monday, January 26, 2015
Friday, December 19, 2014
The Virginia Law Review has published "Another Look at Professor Rodell's Goodbye to Law Reviews" by Judge Harry Edwards (D. C. Circuit) in its November 2014 issue. Michael Dorf (Cornell) added his thoughts here.
Friday, December 5, 2014
Politico reports that NY Times Labor Reporter Steve Greenhouse took a buyout.
As the article states:
Steven Greenhouse, the labor correspondent for the New York Times, took a buyout this week. That decision immediately reduced by 50 percent the number of reporters at major U.S. newspapers who cover labor full-time—even as the dismal situation of the American worker becomes a central preoccupation for American politicians and policymakers.
To some extent, labor reporters are falling victim to the very same workplace trends they cover. “Newspapers are under the gun financially,” observes Greenhouse, “and they’ve laid off a lot of workers.” Editors, he said, don’t view labor as “the sexiest beat.”
Labor coverage’s decline—like that of labor unions—long predates print journalism’s circulation slide. At Newsweek, for instance, as long ago as 1985, covering labor was no more than an entry-level job. Bob Cohn (today president and chief operating officer at the Atlantic, then my fellow grunt at Newsweek) became labor and workplace correspondent at the tender age of 22. Back then, he and I would swap wisecracks about what a backwater the beat had become.
I only met Steve, who is a trained lawyer himself, a few times. Congratulations Steve! Hopefully, the NY Times will recognize the importance of hiring a new labor reporter.
Mitchell H. Rubinstein
Thursday, November 13, 2014
Wednesday, November 12, 2014
The Indiana Supreme Court upheld the law’s constitutionality in a 5-0 decision in Zoeller, et al. v. Sweeney, et al., (Nov. 6, 2014). The decision reverses a lower court decision that previously declared the law unconstitutional.
Indiana’s Right to Work law prohibits employers from requiring union membership or the payment of dues as a term or condition of employment. A knowing or intentional violation of the law subjects the violator to a Class A misdemeanor.
Mitchell H. Rubinstein
Thursday, November 6, 2014
The Texas Board of Law Examiners released results for the July 2014 bar exam yesterday. A summary:
- 77.1% overall pass rate;
- 80.9% pass rate for first-time takers from Texas law schools;
- 38.9% pass rate for repeat takers from Texas law schools;
- Baylor had the highest overall pass rate at 90.7, followed by Texas (87.7%) and Houston (85.1%);
This is the complete summary. Contratulations to the newest Texas attorneys!
Wednesday, November 5, 2014
Alexandra D. Lahav (Connecticut) has posted The Jury and Participatory Democracy at SSRN. The essay, a contribution to a symposium on the civil jury, has been published by William & Mary Law Review. The abstract:
Citizens directly participate in the civil justice system in three ways. They can be sued, they can sue another, and they can serve on a jury. Beyond that involvement, the court system is peopled by professionals: judges, lawyers, clerks, and administrators. This Essay considers the reasons our society might want citizens to directly participate as adjudicators in the third branch.
Tuesday, November 4, 2014
The Connecticut Law Review will host its Fall Symposium on November 14, 2014, at the law school. The symposiuim is titled "The 50th Anniversary of Griswold v. Connecticut, Privacy Laws Today." The description reads:
Connecticut Law Review presents a symposium every fall to discuss an opportune topic of law. This year, the symposium will address the 50th anniversary of the Supreme Court's decision in Griswold v. Connecticut, exploring the history of the right of privacy through the present day. There will be three main topics discussed: the history of the right to privacy, privacy as sexual autonomy, and privacy as reproductive freedom. The keynote address will be provided by Professor Reva Siegel of Yale Law School.
The website says the symposium is free for those who RSVP by November 10.
Monday, November 3, 2014
Katie Rose Guest Pryal, Clinical Assistant Professor of Law at UNC-Chapel Hill, has written "A Manifesto for the Freelance Academic" at Vitae. The subtitle is "Five principles to guide you in a career without a university employer." At universities today, an increasingly large percentage of classes are taught by adjunct or untenured professors, and this trend is not likely to change soon -- Professor Pryal says as much in her essay.
Friday, October 31, 2014
Sometimes you cannot make these cases up. Dancers who perform at a Nevada strip club are employees, not independent contractors, and therefore are covered by the state's minimum wage law, the Nevada Supreme Court rules in a unanimous opinion (Terry v. Sapphire/Sapphire Gentlemen's Club, Nev., No. 59214, 10/30/14).
A copy of this decision can be found on the Nevada Supreme Court's web site, here. In a 20 page decision, the Court applies the economic realities test that is also applied in FLSA cases.
Mitchell H. Rubinstein
Monday, October 27, 2014
Ward Farnsworth will be guest-blogging at The Volokh Conspiracy in the coming days regarding is new book, "Restitution: Civil Liability for Unjust Enrichment" He posted his first substantive contribution, "Restitution law: Interesting and useful to the few who understand it" earlier today. I have been teaching Damages at South Texas since 2004 and the chapter on Resitution is one of my favorites. I am looking forward to his contributions at TVC and to reading the book.
Thursday, October 23, 2014
I have posted Effective Plea Bargains for Noncitizens on SSRN. Here is the abstract:
In Padilla v. Kentucky, the United States Supreme Court held that the Sixth Amendment requires criminal defense attorneys to advise non-citizen clients regarding the deportation risks associated with a guilty plea. The Court held in that case that a defendant's guilty plea may be involuntarily made when defense counsel fails to advise the client about those deportation risks. Trial judges accepting guilty pleas from criminal defendants have a duty to confirm the defendant makes the plea voluntarily and intelligently. Judges make this determination through the plea colloquy -- a series of admonishments and questions with the pleading defendant done prior to accepting the plea. Padilla at a minimum requires trial judges to inquire whether or not the defendant is a non-citizen, and if so, whether the defendant has received the correct advice regarding the guilty plea's immigration consequences. The judge's failure to do so may result in a conviction tainted by ineffective assistance or supported by a plea not voluntarily and intelligently made.
This Article suggests trial judges should take affirmative steps prior to accepting a non-citizen's plea to reveal whether counsel has provided relevant and correct immigration advice to the defendant. Part I discusses Padilla's facts, rationale and holding, Part II discusses the requirement for a voluntary and intelligently made guilty plea in modern plea bargain jurisprudence and Part III discusses the process for obtaining post-conviction relief for Sixth Amendment violations under Strickland v. Washington's ineffective assistance standard. Part IV closes by discussing best practices for trial judges and counsel to safeguard a non-citizen's rights while developing a record that anticipates post-conviction Sixth Amendment claims.
I presented this paper at an immigration law symposium hosted by The Scholar: St. Mary's Law Review on Race and Social Justice in April. The students and faculty hosting the event were top notch and I appreciated greatly the chance to meet and work with them all.
Wednesday, October 22, 2014
- Impacts of recent developments on the use of adjuncts
- How many adjuncts and what courses should they or should they not teach?
- Maximizing the benefits of adjuncts
I have two initial responses:
Lander writes in the first post, "And if a school is looking for a quick way to cut a few thousand dollars from its expense budget, reduction in the number of adjuncts may seem a handy way to find that reduction while asking "underutilized" tenured faculty to teach the courses the adjuncts had been teaching."
This is true, but aren't greater saving realized by not hiring a tenure track professor and using two adjuncts to teach elective classes otherwise being taught by full-time staff, leaving required and bar classes for the the full-timers? At many adjunct pay scales, this approach would hold greater appeal to the bottom line.
Lander writes in his second post, "One very important concern is the effect of the dependence on adjuncts on scholarship and publications. Although many adjuncts do write articles, nearly all of the true legal scholarship is done by full-time faculty and very little is done by adjuncts. This lack of scholarship has many negative implications...Research and publications will suffer in any area where full time faculty is replaced by adjuncts. Areas which make major use of adjuncts such as trial practice, bankruptcy, and sports and entertainment law have probably reached a tipping point where the amount and quality of research is significantly affected by the mix of adjuncts and full-time faculty working in these fields."
I would certainly agree that in the law school arena adjuncts on the whole are less productive scholars than are full-time professors on the whole, if journal articles and books measure "true legal scholarship." The question, though, is this: How many fully tenured professors are no longer productive scholars (and here)? It seems unfair to criticize adjuncts for not contributing scholarship when tenured professors - those best situated to make scholarly contributions - do not themselves write.
I am looking forward to more from Mr. Lander during his time at The Faculty Lounge.
Tuesday, September 30, 2014
Dunno v. Commissioner of Labor, ___A.D.3d___(3d Dep't. Sept. 25, 2014), is an interesting case. The court held that a security guard was an employee and not an independent contractor. The court applied the common law right to control test, reasoning:
In making such a determination, the Board considers whether the putative employer exercised control over the [*2]results produced or the means used to achieve those results, with the means being the more important consideration (see Matter of McCollum [Fire Is. Union Free School Dist.—Commissioner of Labor], 118 AD3d 1203, 1204 ; Matter of Joyce [Coface N. Am. Ins. Co.—Commissioner of Labor], 116 AD3d 1132, 1134 ). Here, the testimony of both claimant and Anthony Stone, the principal of ASISS, established that claimant completed an application for employment and was hired at a rate of pay established exclusively by Stone. ASISS assigned claimant to a specific location, established his hours of work and covered him under its workers' compensation insurance. Furthermore, it provided him with an employee code of conduct and required him to call in to an automated system at the beginning and end of each shift, to sign a time sheet and to submit incident reports. The client was not informed that claimant was an independent contractor, claimant was required to request time off two weeks in advance and ASISS would find a replacement if claimant was unavailable for his shift. Claimant was required to adhere to the company dress code by wearing a dark suit and tie, as well as a company lapel pin, while on duty. Furthermore, any complaints about claimant's performance would be handled by ASISS and claimant would receive his pay even if the client did not pay ASISS. Accordingly, while there was other evidence in the record suggestive of an independent contractor relationship, we find that substantial evidence supports the Board's determination that claimant was an employee (see Matter of Anwer [Exclusive Fragrance & Cosmetics, Inc.—Commissioner of Labor], 114 AD3d 1114, 1115 ; Matter of Lamar [Eden Tech., Inc.—Commissioner of Labor], 109 AD3d 1038, 1039 ).
This decision is highlighted because it illustrates some of the factors courts examine in determining employee status. However, the decision is not particularly well written because it merely stated that other evidence in the record supported the opposite conclusion (that the individuals were independent contractors) and the court did not weigh this evidence.
Mitchell H. Rubinstein
Monday, September 29, 2014
Glassdoor, the a jobs and career community, has identified 20 of the highest rated jobs for work-life balance. This list was compiled based entirely on employee feedback shared on Glassdoor over the past year. The full lis is available here.
Number 1 is Date Scientist. Interestingly, Law Clerk ranked number 11. Attorneys did not make the top 20. No surprise here.
Mitchell H. Rubinstein
Friday, September 26, 2014
The National School Board's Association has a web page dedicated to careers in Education Law which readers may find of interest, here. They describe what school board lawyers do in part, as follows:
Advisers Guiding School Boards on Legal Matters
School lawyers are employed by school boards to represent their school districts in legal matters. These lawyers need to wear many hats. Their job duties include offering advice on legal and policy matters, researching legal issues, and representing the school district in litigation matters.
Why do school districts need lawyers?
School boards and district staff must deal with legal issues daily. A school board attorney helps district officials to follow the web of state and federal regulations affecting schools, and to avoid costly litigation. When litigation is necessary, a school attorney advocates for the school board before courts and administrative bodies. - See more at: https://www.nsba.org/services/council-school-attorneys-cosa/what-school-lawyers-do#sthash.lcA6RFaf.dpuf
Mitchell H. Rubinstein