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Academic

Adjunct Law Prof Blog

By Mitchell H. Rubinstein

Post Frequency: 42.5/day

Last Entry: April 01, 2011 at 01:00:00

EDPa: Muslim employee can pursue religious bias, harassment claims

Posted on May 17, 2010
A Muslim employee discharged for poor job performance may proceed with her Title VII religious bias and reprisal claims; however, she was unable to proceed with her hostile work environment claim because her supervisor's conduct alone was not sufficiently severe...

WDPa: Independent contractor status defeated Title VII, ADEA claims

Posted on May 17, 2010
A 62-year old male plaintiff was unable to make out ADEA and Title VII discrimination claims because he was an independent contractor not entitled to protections under those laws. Neither Title VII nor the ADEA provide a helpful definition of...

Do Law School Clinics Have To Disclose Client Lists??

Posted on May 17, 2010
Independence of Maryland Law School Clinic is an interesting March 29, 2010 National Law Journal article. It raises the issue whether the Univ. of Maryland School of Law has to turn over its client list to the state legislature. The...

NLRB Invites Amicus Briefs

Posted on May 16, 2010
On May 14, 2010, the NLRB issued a press release inviting amicus briefs with respect to the following issues: One set of cases raises the question of whether Board-ordered remedial notices should be posted electronically, such as via a company-wide...

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EDMich: Timing of discharge, stack of work raised fact questions in FMLA case

Posted on May 16, 2010
A marketing communications specialist discharged on the day she returned from FMLA leave may go forward with her interference and reprisal claims under the Act. After dismal holiday sales in 2007, Sysco decided to cut staff, including the specialist's position...

Ability to pass hearing test without the assistance of a hearing aid found a business necessity for the purpose of qualifying for a security position

Posted on May 16, 2010
Ability to pass hearing test without the assistance of a hearing aid found a business necessity for the purpose of qualifying for a security position Allmond v. Akal Security Inc., No. 07-15561, USCA 11th Circuit Wilbur Allmond sued Akal Security...

School Law Jobs

Posted on May 15, 2010
School Law Jobs Job Title Employer Job Location Labor & Employment Attorney Lozano Smith Fresno, California Legal Counsel II Whittier Area Cooperative Special Education Program Whittier, California School Attorney Harbottle Law Group Orange County, California Special Education Attorney Lozano Smith...

5thCir: "Old, gray-haired fart" comment insufficient to establish pretext

Posted on May 14, 2010
Jackson v Cal-Western Packaging Corp, (5th Cir. March 26, 2010), is an interesting case. A 69-year old employee discharged for violating his company's sexual harassment policy could not proceed with his ADEA suit, even if the company official who discharged...

8thCir: Safety concerns justified refusal to refer Muslim worker wearing khima

Posted on May 14, 2010
EEOC v Kelly Servs, Inc, ___F.3d___(8th Cir. March 25, 2010), is an interesting case. Safety concerns justified Kelly Services' refusal to refer a Muslim worker for temporary employment at an industrial printing plant because she refused to remove her khimar...

Police chief held to have qualified immunity with respect to First Amendment violation allegations

Posted on May 14, 2010
Gubitosi v. Kapica, CA2, 154 F.3d 30 After a local newspaper reported that Police Officer Lori Gubitosi of the Town of Greenburgh was a lesbian, Gubitosi became reluctant to perform strip searches on female prisoners. She feared charges of improper...

Rare Reversal of Civil Service Law Sec. 75 Decision

Posted on May 14, 2010
Civil Service Law Section 75 provides very limited protection to tenured public employees in New York. The Hearing Officer is appointed by the employer and it is the employer who makes the final determination. Matter of Baker v. Poughkeepsie, ____A.D...

Federal Judge Grants TRO Enjoining Furloughs In New York

Posted on May 13, 2010
A federal judge in Albany signed a TRO enjoining a recently enacted statute imposing a one day furlough of state employees. The furlough is likely to violate the Contract Clause contained in the federal constitution. The contracts are the extant...

Defendants Sentenced To Lengthy Prison Sentences For Peonage

Posted on May 13, 2010
U.S. v. Sabhhani, ____F.3d____(2d Cir. March 25, 2010), is a modern day example of slavery where individuals were kept in peonage and were required to offer their labor under terrible conditions. Some of the facts were as follows: Samirah worked...

New York?s Nursing Mothers in the Workplace Act (NY State Labor Law �206-c)

Posted on May 13, 2010
New York?s Nursing Mothers in the Workplace Act, NY State Labor Law �206-c, which was enacted about a year or so ago employers to provide reasonable unpaid break time or permit an employee to use paid break time or meal...

Dismissal from a position because the individual does not possess a valid required license or certification is not a disciplinary termination

Posted on May 13, 2010
Matter of New York State Off. of Children & Family Servs. v Lanterman, 2010 NY Slip Op 02432, Decided on March 25, 2010, Court of Appeals [Decided with Matter of New York State Office of Alcoholism and Substance Abuse Services...

Teacher Terminated For Misconduct Is Not Eligible For Unemployment

Posted on May 12, 2010
Matter of Czosek v. Commissioner of Labor,___A.D.3d___(3d Dep't. March 25, 2010), is an interesting case. A tenured teacher was offered a hearing pursuant to Education Law Sec. 3020-a. After he was terminated, he sought unemployment. The court held that the...

Primer on New York Arbitral Law

Posted on May 12, 2010
Matter of City of New York v. Teamster, ___Misc. 3d____(N.Y. Co. March 22, 2010), involves a petition to vacate a public sector arbitration concerning leaves given to school safety officers who have been assaulted. I bring the decision to your...

Is Obesity A Protected Disability?

Posted on May 12, 2010
Maybe, at least under a New York City Local Law. Spiegel v. Schulmann____F.3d____(2d Cir. May 4, 2010), remands this issue to a lower court to decide. the 2d also held that there is no individual liability for retaliation claims under...

Failure to allow worker to start shift later could violate ADA

Posted on May 11, 2010
Shattleroe v Avfuel Corp,___F.Supp.2d___(E.D. Mich. March 15, 2010), is an important ADA decision. A mechanic with ulcerative colitis could pursue his ADA claims alleging that his employer acted unlawfully when it failed to accommodate his disability by allowing him to...

Refusal to answer questions after being given ?use immunity?

Posted on May 11, 2010
Martinez v Safir, App. Div., 1st Dept., 251 A.D.2d 62 John Martinez, a New York City probationary police officer, refused to answer question posed by a superior concerning his conduct while off-duty and outside his jurisdiction despite being given ?use...

1 Day Furloughs For New York State Employees

Posted on May 11, 2010
The New York Times reported on May 10, 2010 that the Legislature just approved a one day furlough for about 100,000 state employees which is about 50% of the work force. The only problem is that I doubt that it...

Change in telecommuter privileges may constitute retaliation

Posted on May 11, 2010
Yeager v UPMC Horizon, ___F.Supp.2d ___(W.D. Pa.March 17, 2010, is an interesting case. A health education specialist may go forward with her Title VII and Pennsylvania law reprisal claims alleging that her telecommuting privileges were revoked after she complained that...

Faragher Affirmative Defense Not Available To Employers Under State Law

Posted on May 10, 2010
Zakrzewska v. New School, ____N.Y. 3d____(May 6, 2010), is an important-very important New York employment discrimination decision. Interpreting the NYC Administrative Code, the Court holds that the Faragher v City of Boca Raton, 524 US 775 (1998) and Burlington Industries,...

Article on Sexting

Posted on May 10, 2010
Nancy Willard, M.S., J.D., who is the director of the Center for Safe and Responsible Internet Use recently wrote an article on sexting which lawyers and researchers may find of great interest. A pdf version of this article, which spans...

Replacement workers were not entitled to WARN notice

Posted on May 10, 2010
Sanders v Kohler Co, ___F.Supp.2d___ (E.D. Ark. March 18, 2010), is an important case to be aware of. Replacement workers who were let go after a strike was settled at a Kohler manufacturing plant were not terminated in conjunction with...

County Health Rankings

Posted on May 10, 2010
The Robert Wood Johnson Foundation and the University of Wisconsin Population Health Institute have put together county health ratings which researchers may find of interest. The report describes these ratings as follows: This web site provides access to the 50...

President Obama Nominates Elena Kagan to the U. S. Supreme Court

Posted on May 10, 2010
In the instant-information era, this is already old news, but for the record, President Barack Obama nominated Solicitor General Elena Kagan, former Dean of the Harvard Law School, to the United States Supreme Court earlier today. Kagan is nominated to...

New Metadata Ethics Opinion - Minnesota

Posted on May 09, 2010
On May 4, 2010, the ABA on its web site cited to an important Minnesota ethics opinion concerning metadata. The article describes this opinion as follows: At the end of March, Minnesota's Lawyers Professional Responsibility Board approved a new ethics...

Pro Se Claimant Non-suited For Failing To Timely Request Unemployment Hearing

Posted on May 09, 2010
Matter of Wright v. Commissioner of Labor, ___A.D.3d___(3rd Dep't. March 18, 2010), demonstrates that pro se litigants must comply with procedural rules and there pro se status will not always excuse the failure to follow proper procedure. Here, plaintiff did...

Employee Disqualified For Unemployment After He Quit Because Employer Yelled At Him

Posted on May 09, 2010
Matter of Davis v. Commissioner of Labor, ___A.D. 3d___(3rd Dep't. March 18, 2010), demonstrates that an employee who quits work without a good reason is disqualified for unemployment. Mere disrespect by the employer is not a sufficient reason. As the...

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