Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, October 12, 2016

Supremes Grant Cert In Case That Has Implications For Summary Judgement Motions In Discrim Cases

The Supremes recently granted cert in  Zigler v. Turkmen, which involves pleading discriminatory intent. Though not an employment law case, intent and pleading issues are an important issue in employment discrimination cases-particularly in the summary judgement stage after Twombly and Iqbal. From Scotusblog, via Workplace Prof Blog, the issue in the case includes:

"whether the Court of Appeals erred in finding that Respondents' Fourth Amended Complaint met the pleading requirements of Ashcroft v. Iqbal, and related cases, because that complaint relied on allegations of hypothetical possibilities, conclusional assumptions, and unsupported insinuations of discriminatory intent that, at best, are merely consistent with Petitioner Ziglar's liability, but fall short of stating plausible claims."

Mitchell H. Rubinstein

Hat Tip:   Workplace Prof Blog

October 12, 2016 in Discrimination Law, Employment Discrimination, Employment Law, Supreme Court | Permalink | Comments (1)

Tuesday, October 11, 2016

NLRB Finds That Security Instructors Are Not Managerial Employees

I bring Wolf Creek Nuclear Operating Corp., 364 NLRB No. 111 (Aug. 26, 2016), to your attention because the Board does a nice job in summarizing the criteria for an individual to be excluded from the protection of the Act because he or she is a managerial employee. As the Board explained:

          “Managerial employees are defined as those who formulate and effectuate high-level employer policies or ‘who have discretion in the performance of their jobs independent of their employer's established policy.’” The Republican Co., 361 NLRB No. 15, slip op. at 3 (2014) (quoting General Dynamics Corp., 213 NLRB 851, 857 (1974)); see generally NLRB v. Yeshiva University, 444 U.S. 672, 682 (1980). “Although the Board has no firm criteria for determining managerial status, an employee will not ordinarily be excluded as managerial unless he represents management interests by taking or recommending discretionary actions that effectively control or implement employer policy.” The Republican Co., supra, slip op. at 3–4. The party asserting managerial status bears the burden of proof. See id., slip op. at 4. The fact that employees train or instruct other employees does not, in itself, make them managerial employees. To the contrary, the Board has found that employees who train or instruct other employees are not managerial employees if they do not exercise sufficient independent discretion or judgment in carrying out those duties.

Mitchell H. Rubinstein

October 11, 2016 in NLRB | Permalink | Comments (0)

Supremes Grant Cert In Major Special Education Case Which Will Define The Applicable Standard

The U.S. Supreme Court granted cert in a case about the level of education benefit a child must receive for a school district to have provided an appropriate level of service under the IDEA.

The case, Endrew F. v. Douglas County School District RE-1 (No. 15-827), raises an important question that has divided federal appeals courts: What level of educational benefit must a child receive under his or her individualized education program, or IEP, to satisfy the demands of the Individuals with Disabilities Education Act? A copy of the United States amicus brief is available here.

Parents of course want their child to have the most appropriate level of benefits. But, for years the standard has been that the services must provide some educational benefit. The Supremes will now define what that means.


Mitchell H. Rubinstein


October 11, 2016 in Education Law, Special Education Law | Permalink | Comments (0)

Supremes About To Decide Major IDEA Case Involving Use of Service Dogs In School

The issue in  (Fry v. Napoleon Community Schools) is whether a disabled child’s family must first try to work out with school officials a dispute over the assistance their child needs, before the parents may sue for money damages under federal anti-discrimination law.  The dispute in the case involves a claim by a disabled girl’s family that the school would not allow her to bring a service dog to help her during her classes. 

Law review commentary on the interplay between the IDEA and the ADA as well as exhaustion of administrative remedies would be most welcome.

Mitchell H. Rubinstein

October 11, 2016 in Education Law, Law Review Ideas, Special Education Law | Permalink | Comments (0)

Thursday, August 4, 2016

Fired for Being "Too Cute" Does Not State Cause of Action

Sometimes you just cannot make these cases up. After a female  massage therapist was fired by the male owner for being "too cute, " she sued for sex discrimination. Justice Sholom Hagler, a New York lower court judge who I have appeared before, dismissed her case and concluded that under NYS and NYC law, a cause of action was not stated because appearance based discrimination is not gender based and the sex discrimination statutes only protect gender based discrimination.

Not so fast. While the Judge did cite to the majority of authority which supports this fine line distinction, there is also some contrary authority which the Judge did not cite. Most importantly, it seems to me that there is a type of reverse Price Waterhouse sexual sterotype argument.

In Price Waterhouse, it was unlawful to not promote a woman to partnership because she did not act like a woman.  She was simply too macho. Shouldn't the opposite be true? A woman should not be able to be fired for being too pretty. Seems to me this is classic sex sterotyping. It should be unlawful under Title VII and it certainly should be unlawful under NYC law which is required to be broadly interpreted.

Unfortunately, the Judge did not address this issue and I hope this case is appealed. There have been several law review articles written on this topic and additional scholarly writing would be most welcome.

Note, the court also held that a cause of action for defamation was stated. I am not sure of that holding either, but I have not focused on it.

This case got a lot of press when it came out in May, but I just saw it now.  And yes guys, if  you do an internet search, you can find a picture of the plaintiff.

Edwards v. Nicolai, NYLJ May 23, 2016, Index No. 160830/2013 (N.Y. Co. 2016).

Mitchell Rubinstein




August 4, 2016 in Discrimination Law, Interesting Cases, Law Review Ideas | Permalink | Comments (4)

Saturday, June 18, 2016

So You Want To Be A Lawyer

An Expensive Law Degree, No Where To Use It is a must read June 17, 2016 NY Times article. In it, the author describes the difficulty that many law students from non-ivy league schools face. Some graduate with 200k in debt and no job. Worse yet, because of declining enrollment, some schools have lowered their admission standards which has translated to lower bar exam passage rates. As the article states:

As of this April, fewer than 70 percent of Valparaiso law school graduates from the previous spring were employed and fewer than half were in jobs that required a law license. Only three out of 131 graduates worked in large firms, which tend to pay more generous salaries.

“People are not being helped by going to these schools,” Kyle McEntee, executive director of the advocacy group Law School Transparency, said of Valparaiso and other low-tier law schools. “The debt is really high, bar passage rates are horrendous, employment is horrendous.”

Even as employment prospects have dimmed, however, law school student debt has ballooned, rising from about $95,000 among borrowers at the average school in 2010 to about $112,000 in 2014, according to Mr. McEntee’s group.

Such is the atavistic rage among those who went to law school seeking the upper-middle-class status and security often enjoyed by earlier generations, only to find themselves on a financial treadmill and convinced their schools misled them, that there is now a whole genre of online writing devoted specifically to channeling it: “scamblogging.”

Now of course, these grim statistics do not apply to everyone. Plenty of law students wind up in good jobs. If you want to be a lawyer, you still have to go to law school. My only point is for those who chose to go to law school, go with your eyes wide open.

Mitchell H. Rubinstein


June 18, 2016 in Law Schools, Law Schools, News, Law Students, Lawyer Employment, Lawyers | Permalink | Comments (3)

Tuesday, June 7, 2016

Major 2d Circuit Decision Discussing Whether Hispanic Ancestry Is A Race Under Title VII and 1981

Village of Freeport v. Barrella, ____F.3d____(2d Cir. 2016), is a major case discussing whether Hispanic ancestry is a race under Title VII or 1981. As the court explained:

Based on longstanding Supreme Court and Second Circuit precedent, we reiterate that “race” includes ethnicity for purposes of § 1981, so that discrimination based on Hispanic ancestry or lack thereof constitutes racial discrimination under that statute. We also hold that “race” should be defined the same way for purposes of Title VII. Accordingly, we reject defendants’ argument that an employer who promotes a white Hispanic candidate over a white non‐Hispanic candidate cannot have engaged in racial discrimination, and we AFFIRM the judgment of the District Court insofar as it denied defendants’ motions for judgment as a matter of law pursuant to Rule 50 of the Federal Rules of Civil Procedure

Law review commentary on this important topic would be most welcomed.

Mitchell H. Rubinstein

June 7, 2016 in Discrimination Law, Employment Discrimination, Law Review Ideas | Permalink | Comments (0)

Tuesday, May 31, 2016

Interesting Infographic Comparing Marijuana Laws


May 31, 2016 in Misc., Legal | Permalink | Comments (2)

Wednesday, May 25, 2016

Weber of Disability Discrimination

DePaul University Law Professor Mark C. Weber  has recently published important scholarship which I would like to bring to my readers' attention. 

  1. Mark Weber, Numerical Goals For Employment of People With Disabilities By Federal Agencies and Contractors, 9 J. H. L. & Pol'y. 35 (2015)
  2. Mark Weber, Intent In Disability Discrimination Law: Social Science Insights and Comparisons To Race and Sex Discrimination, 2016  Illinois L. Rev.  151 (2016)
  3. Mark Weber, Accidentally On Purpose: Intent In Disability Discrimination Law, 16 B.C. College L. Rev. 1417 (2015).  

The Abstract for the Boston College Law Review article is as follows:

American disability discrimination laws contain few intent requirements. Yet courts frequently demand showings of intent in disability discrimination lawsuits. Intent requirements arose almost by accident: through a false statutory analogy; by repetition of obsolete judicial language; and by doctrine developed to avoid a nonexistent conflict with another law. Demanding that section 504 and Americans with Disabilities Act (“ADA”) claimants show intent imposes a burden not found in those statutes or their interpretive regulations. This Article provides reasons not to impose intent requirements for liability or monetary relief in section 504 and ADA cases concerning reasonable accommodations. It demonstrates that no intent requirement applies to ADA employment cases, then explains that the same conclusion should apply to cases under the ADA’s state and local government provisions and section 504. It rebuts an analogy to caselaw under Title VI and Title IX of the Civil Rights Act that some courts use to impose intent requirements. It then discusses the reasoning of cases relying on the inappropriate analogy, cases resting on obsolete precedent, and cases refusing to apply remedies to avoid conflicting with federal law. This Article relies on a contextual reading of Supreme Court decisions, the history of the ADA, and policy considerations.

I hope to read these articles shortly.

Mitchell H. Rubinstein


May 25, 2016 in Discrimination Law, Law Review Articles | Permalink | Comments (1)

Thursday, May 5, 2016

State Judge Strikes Wisconsin's Right to Work Law

Machinists v. Wisconsin, Case No. 2015CV000628 (Dane Co. April 8, 2016) Download Wisc Order is an important case.  A state trial judge struck down 2015 Wisconsin Act 1 which was known as the right to work law. This statute prohibits labor organizations from assessing dues on non-union members and negotiating union security clauses in collective bargaining agreements. This case is important because it is the only decision which has struck down a right to work statute. Slip op. at 13. 

Applying the Wisconsin Constitution, the court held that this statute resulted in a taking of property without just compensation. The court engaged in an extensive analysis of property rights and concluded that the union had a property interest in the services they perform  for both members and non-members because labor is a commodity that can be bought and sold. 

No doubt this decision will be appealed. Law review commentary would be welcomed. I am stunned that this decision is not reported.

Mitchell H. Rubinstein 

May 5, 2016 in Law Review Ideas, Recent Developments, Unions | Permalink | Comments (0)

Monday, May 2, 2016

Call For Papers-Journal Experiential Learning

Dean Patricia E. Salkin (Touro) writes to inform us of an important publishing opportunity. The Journal describes the papers they are looking for as follows:

The Journal of Experiential Learning is interested in articles focused on co-teaching or co-creating educational programs with the academy, the bar and the bench; the use of judges and practitioners to teach skills development or integrative courses; the support programs offered to adjuncts, either those who teach discrete classes or those involved in feld or hybrid clinics or externships. We welcome all articles related to the general topic of opening the academy, of transforming “outsiders” into “insiders” with respect to their roles in educating our future lawyers, and other related topics. If you are interested in submitting an essay of 5,000-10,000 words, lightly footnoted as is typical for online journals, please contact Coordinating Editor Myra Berman at

Additional information can be found by clicking  Download Experiential-Learning-Call-for-Papers-Flyer-Vol2-No2 copy

Mitchell Rubinstein

May 2, 2016 | Permalink | Comments (0)

Wednesday, April 20, 2016

Douglas & Douglas On The Duke Power Fable

Robert Douglas (Labor Arbitrator) and his son Jeffrey Douglas (Melzer, Lipp and Goldstein) just published an important article in the Hofstra Labor and Employment Law Journal which explores the erroneous analysis utilized by Chief Justice Burger in the Griggs v. Power decision. The Griggs Fable Ignored: The Far-Reaching Impact of a False Premise  Download Douglas-Final This article is well worth a read.

According to the authors, Chief Justice Burger misinterpreted the fable analogy he utilized in the decision. As the authors state:

In the landmark decision of Griggs v. Duke Power Co., the United States Supreme Court expanded the scope of employment discrimination law under Title VII of the Civil Rights Act of 1964 (Civil Rights Act) by adopting, authorizing, and endorsing disparate impact1 as an independent cause of action in addition to the preexisting disparate treatment theory of discrimination.2 In the critical paragraph in the opinion of the Court, Chief Justice Burger used the fable of The Fox and the Stork as an analogy to explain the Court’s expanded definition of employment discrimination.3 For over forty years, many legal scholars

have analyzed and criticized the Court’s then activist role in creating disparate impact, however, not a single scholar has recognized the importance of examining the Court’s manipulative and incorrect interpretation of the pivotal fable.4 The Chief Justice’s cunning use of the fable enabled the Court to create the legal fiction of disparate impact under the Civil Rights Act.5 In the context of the undetected false premise of Griggs, Congress codified the disparate impact theory in the Civil Rights Act of 1991—twenty years after the Griggs decision.

Mitchell H. Rubinstein

April 20, 2016 in Law Review Articles | 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)

Tuesday, March 29, 2016

Breaking News. Supreme Court Affirms Friedrichs By An Equally Divided Court

Earlier today, the Supreme Court issued its decision in Friedrichs v. California Download Friedrichs Teachers Assoc., 578 U.S. ___(2016), where the Court issued a one-line opinion stating that "The Judgement is affirmed by an equally divided Court."

This means that the Abood decision stands and the agency fee statutes which have been enacted in several states remain constitutional. 

However, the battle is not over. You can expect another case to be filed after the election. No matter where you stand on this issue, this makes the upcoming Presidential election even more important. 

How long might it take for this issue to reach the Supreme Court again? No one knows for sure, but my guess is about 3 years and it will take about 4 years for a decision to be issued. But, then again the Court can deny cert. 

In Friedrichs, the complaint was filed on April 30,2013, the District Court granted the PLAINTIFFS MOTION for judgement on the pleadings on behalf of the DEFENDANT on Dec. 5, 2013, the 9th Circuit summarily affirmed on Nov. 18, 2014, the Supremes granted cert. on June 30, 2015 and the decision was issued on March 29, 2016. 

So that adds up to almost exactly 3 years. But, a Supreme Court Justice is likely not to be appointed until after the election say April 2017 and that is how I came up with this time frame. Of course, if Judge Garland is actually appointed to the Court this term, the time frame may be closer to 3 years than 4 years. 

Mitchell H. Rubinstein

March 29, 2016 in Public Sector Labor Law, Supreme Court | Permalink | Comments (0)

Friday, March 18, 2016

Non-JD Program At Hamiline Law School in Cybersecurity and Information Privacy

 Gregory M. Duhl, Rolf and Nancy Engh Distinguished Professor, Mitchell Hamline School of Law writes to inform us of a new non-JD 13 week program which readers may find of interest. A description of the program is below:

The thirteen-week, intensive online certificate program in Cybersecurity and Information Privacy is designed for practicing lawyers who want to develop their privacy and information security expertise or expand their practice areas to advise clients on how cybersecurity law affects business operations.  It is also designed for executives or in-house counsel who need to identify and apply privacy and information security law to make effective decisions.  The program includes courses in information privacy, information systems, risk management, and data breach liability. Professionals who enroll in the program watch lectures from nationally recognized experts, participate in discussions, and complete practical hands-on exercises. The program description can be found here:


Mitchell H. Rubinstein

March 18, 2016 in Information, Law Schools | Permalink | Comments (3)

Sunday, March 6, 2016

Can Labor Turn Out The Vote

Readers may be interested in this NY Times article by former NY Times labor reporter Steven Greenhouse entitled Can Labor Still Turn Out The Vote. As the article states:

With its shrinking ranks, organized labor, which tilts strongly Democratic, was already struggling to compete with Republican-leaning “super PACs” financed by wealthy conservatives like the Koch brothers, who have vowed with their allies to spend $889 million on this election. Now the labor movement is being buffeted by another force: Donald J. Trump, whose attacks on trade deals, illegal immigrants, Chinese imports and the shifting of jobs overseas are winning over white, blue-collar workers.

Can a weakened labor movement still provide the money, voters and get-out-the-vote muscle to elect the Democratic nominee in crucial swing states, as it has in the past?


Mitchell H. Rubinstein

March 6, 2016 in Information, Unions | Permalink | Comments (1)

Wednesday, February 24, 2016

Professor Duff on Workers Compensation


Professor Michael Duff (Wyoming Law School) writes to inform us that he has recently posted on SSRN his new piece "Worse than Pirates or Prussian Chancellors: A State's Authority to Opt-Out of the Quid Pro Quo.", 17 Marq. Ben. & Soc. Wel. L. Rev (Summer 2016 Forthcoming). The abstract provides:

Privatization of public law dispute resolution in workplaces has been under intense scrutiny in the context of arbitration. Another kind of workplace dispute privatization is presently underway, or under serious consideration, in several states. In connection with state workers’ compensation statutes, one state has implemented, and others are considering, a dispute resolution model in which employers are explicitly authorized to opt out of coverage. “Alternative benefit plans,” created under such statutes, permit employers to, among other things, unilaterally and without limitation designate private fact-finders, whose conclusions are subject to highly deferential judicial review. This model is arbitration on steroids. While there may be doubts in some quarters about the neutrality of arbitrators, reasonable doubts about the loyalties of an employer-appointed fact-finder are inevitable. Such a design would mark a decisive break with the quid pro quo/Grand Bargain of the early twentieth century, and there is a risk of some states getting caught up in a “race to the bottom,” where states not recognizing a right to a remedy for physical injury become havens of low-cost labor, and thus exert pressure on states that safeguard traditional rights to follow suit. The Supreme Court may be forced to intimate an opinion on the constitutional right to a remedy for personal, and especially physical, injury (whether within or outside of the workplace). The Court has not squarely addressed the issue since 1917, when it decided New York Cent. R. Co. v. White, a case originally upholding the constitutionality of workers’ compensation systems. In White, the Court hinted, but did not clearly establish, that the right to a remedy for physical injury may not be abolished without substitution of a reasonable remedy.

Mitchell H. Rubinstein

February 24, 2016 in Law Review Articles | Permalink | Comments (0)

Thursday, February 4, 2016

Kentucky Right To Work Municipal Ordinance Preempted By NLRA

UAW v. Hardin County, ___F. Supp. 2d ___(W.D. Kentucky, Feb. 3, 2016), is an important case.  Download Hardin County Order

A federal court held that a municipal ordinance which mandated right to work and limited union hiring halls and due-checkoff provisions was preempted by the NLRA. The NLRA, of course and most notably in Section 14(b), permits STATES to enact Right to Work laws. 

The decision, which spans 14 pages, is well written and provides a nice summary of the NLRA and existing precedent in this area. As the court explains:

Section 14(b) provides that nothing in the NLRA shall be read to authorize the execution or application of union-security agreements “in any State or Territory in which such execution or application is prohibited by State or Territorial law.” 29 U.S.C. § 164(b). As the plaintiffs observe, it makes little sense to read “State or Territorial law” as encompassing local law in light of the statute’s previous reference to “any State or Territory”—if “State or Territorial law” includes the laws of political subdivisions, then the statute must be read “in any State or Territory [or political subdivision thereof]” to avoid assigning two different meanings to “State” in the same sentence. This is not a logical reading; “[a] standard principle of statutory construction provides that identical words and phrases within the same statute should normally be given the same meaning.”

Law review commentary would be most welcome. 

Mitchell H. Rubinstein




February 4, 2016 in Labor Law, Law Review Ideas, NLRB, Recent Developments, State Law, Unions | Permalink | Comments (0)

Thursday, January 28, 2016

BLS Union Membership Stats Just Released

On January 28, 2016, the BLS released their annual statistics on union membership and the results are not pretty if you support unions, particularly in the private sector. Here.  Among the highlights:

•	Public-sector workers had a union membership rate (35.2 percent) more
	than five times higher than that of private-sector workers (6.7 percent).
	(See table 3.)

•	Workers in protective service occupations and in education, training,
	and library occupations had the highest unionization rates (36.3 percent
	and 35.5 percent, respectively). (See table 3.)

•	Men continued to have a slightly higher union membership rate (11.5
	percent) than women (10.6 percent). (See table 1.)

•	Black workers were more likely to be union members than were White,
	Asian, or Hispanic workers. (See table 1.)

•	Median weekly earnings of nonunion workers ($776) were 79 percent of
	earnings for workers who were union members ($980). (The comparisons
	of earnings in this release are on a broad level and do not control for
	many factors that can be important in explaining earnings differences.)
	(See table 2.)

•	Among states, New York continued to have the highest union membership
	rate (24.7 percent), while South Carolina had the lowest (2.1 percent).
	(See table 5.)

Researchers and scholars may find this information very helpful.

Mitchell H. Rubinstein

January 28, 2016 in Unions | Permalink | Comments (0)

Friday, January 15, 2016

Exotic Dancers Are Employees

Exotic Island Enterprises v. Commissioner of Labor, ___A.D.3d___ (3rd Dep't. Jan. 14, 2016), raises a whole host of legal questions for which law review commentary is welcome. 

Factually, the court held that exotic dancers are employees for unemployment purposes. Applying the right to control test, the court reasoned:

The corporations challenge the brevity and thoroughness of the investigation by the Department auditor, arguing that it was insufficient to establish that the dancers were employees. However, any evidentiary gaps in the initial investigation were filled through the testimony of Slifstein and the corporations' accountant at the hearing. Slifstein testified that the venues attracted new dancers by placing advertisements in trade magazines and newspapers. Before permitting a dancer to perform at the venues, he would inquire into their prior experience, ask them what schedule they would like, and assess their appearance. If a dancer was not physically fit, he would not permit them to perform at the venues. The dancers were required to provide a driver's license or other form of identification and would not be allowed to dance at the venue if they did not do so. If a dancer lacked experience, he would instruct them to observe a more experienced dancer in order to learn how to "move sexy." Although dancers were not required to report to work at any set time, upon advising the owner of their availability, they would be placed on a nightly schedule posted in the venue for the patrons to view. The venues set the prices that the dancers would charge patrons for private dances and retained a percentage of the money earned. Although the dancers provided their own makeup and costumes, the venue provided the stage for the dancers to perform on, sound equipment and, at times, the music accompanying the dances. The corporations' accountant also testified that the corporations carried workers' compensation coverage for the dancers. Thus, despite other evidence that may have supported a contrary result, we find the Board's decision that the corporations exercised sufficient direction and control over the dancers to be supported by substantial evidence (see Matter of Enjoy the Show Mgt. [Commissioner of Labor], 287 AD2d 822, 822-823 [2001]; see also Matter of Human Performance, Inc. [Commissioner of Labor], 28 AD3d 971, 972 [2006]).

If this is so and a dancer is sexually harassed, can they bring a Title VII case, an OSHA case is their is a safety issue etc. I would think so. 

Mitchell H. Rubinstein

January 15, 2016 in Employment Law, Law Review Ideas | Permalink | Comments (10)