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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

Is The Employee Free Choice Act Constitutional??

Posted on February 05, 2009
Professor Michael Gottesman on the ACS Blog has an interesting piece about the constitutionality of the Employee Free Choice Act. Gottesman responds to Professor David Epstein (Univ of Chicago LS) who argued that the EFCA is unconstitutional. Professor Gottesman responds...

Damages Can Be Increased To Account For Adverse Tax Consequences

Posted on February 05, 2009
TaxProf Blog reported on Eshelman v. Agere Systems, Inc., No. 05-4895 (3d Cir. Jan. 30, 2009). In a lengthly and well written opinion, the 3rd Circuit held that in employment discrimination cases courts can increase the amount of damages to...

Management Rights Clause Does Not Survive Expiration Of CBA

Posted on February 05, 2009
Racetrack Food Services, 353 NLRB No. 76 (Dec. 31, 2008), is an interesting decision. The Board held that a management rights clause does not survive the expiration of a CBA, absent prove of specific intent to the contrary.As the Board...

Markel, Seiner on punitive damages

Posted on February 05, 2009
Two good law review articles on punitive damages have been released this month. The Cornell Law Review has published "Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction" by Dan Markel (Florida State). Here is the abstract:Not long ago,...

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Reverse Sex Discrimination

Posted on February 04, 2009
Grushevski v. Texas Wings Inc. et al., No. 09-cv-00002, complaint filed, 2009 WL 101632, Jan 08, 2009(S.D. Tex., Corpus Christi Div. Jan. 8, 2009), is a complaint filed by a man who was denied a job as a server. He...

Agency?s enforcing its rule prohibiting misconduct does not require that it show ?employee?s intent?

Posted on February 04, 2009
Matter of Daveiga v City of New York, 2008 NY Slip Op 10222, Appellate Division, First Department The New York City Housing Authority dismissed Kymel Daveiga from his position as Supervisor of Grounds after he was found to have violated...

7th Holds State Time Off Law Preempted By NLRA

Posted on February 04, 2009
520 S. Mich Ave Assoc dba The Congress Plaza Hotel v Shannon, ___F.3d____(7th Cir. December 15, 2008), is an important NLRA preemption decision. The 7th held that Illinois' "One Day Rest In Seven Act," mandating two 15-minute paid breaks and...

8th Holds Failure To Properly Adhere To Call-In Policy Defeats FMLA Claim

Posted on February 04, 2009
Bacon v Hennepin County Medical Ctr, ___F.3d___( 8th Cir. December 22, 2008) is an important FMLA case. It reminds us that employees must comply with employer time and attendance procedures. The 8th held that an employee who was terminated for...

No private right of action against public employers under Sec. 1981

Posted on February 03, 2009
McGovern v Philadelphia, ___F.3d___(3d. Cir. January 28, 2009), is an important public sector employment law case. The 3rd held that a former employee of the City of Philadelphia could not proceed with his Sec. 1981 race discrimination claim against the...

Wrightslaw-Special Education Resources

Posted on February 03, 2009
Pam Wright, an Adjunct Professor of Law at William and Mary Law School, maintains a web site, Wrightslaw that contains useful legal and practical information relative to special education law, including several books that she wrote. She also maintains a...

Lawyer Help Wanted

Posted on February 03, 2009
Cheaper By The Hour is an interesting Jan. 16, 2009 New York Law Journal article (registration required) about lawyers loosing their jobs and facing unemployment like everyone else. According to the article, this is caused some type of boom in...

4th Circuit Holds Administrative Exhaustion Excused For Related Reprisal Claim

Posted on February 03, 2009
Jones v Calvert Group, Ltd, ___F.3d___(4th Cir. January 5, 2009), is an interesting decision. As most of you know, before a Title VII claim can be brought, a plaintiff must exhaust his administrative remedies by filing a charge of discrimination...

President Obama Signs Important Employment Related Executive Orders

Posted on February 02, 2009
In a White House ceremony on Jan. 30, 2009 attended by AFL-CIO President John Sweeney and other union leaders, Obama signed three executive orders that reverse a series of orders by then-President George W. Bush, which govern the way federal...

D.C. Circuit Issues Major Successor Decision Holding That Successorship Can Take Place Even If Employees Had Previously Been Public Sector Employees

Posted on February 02, 2009
Dean Transp. v. NLRB, ___F.3d___(D.C. Cir. Jan. 3, 2009), is an important decision. When the Petitioner, a bus provider, took control of a facility that provides transportation for a public school district, it violated the NLRA by failing to recognize...

Staring As Sexual Harassment

Posted on February 02, 2009
The San Francisco Employment Blog has an interesting January 3, 2009 Posting about staring as sexual harassment. It reports on Birschtein v. New United Motor Manufacturing, Inc. (2001) which is an appellate decision from a state court in California which...

The Importance of Proper Comparators Under Title VII

Posted on February 02, 2009
Jones v. Wal-Mart, __F.3d___(5th Cir. Jan. 6, 2009), demonstrates the importance of proper comparators under Title VII. As the 5th Circuit explains,to establish a prima facie case of discrimination in a disparate treatment case, a plaintiff must show that she...

Obama And His Blackberry

Posted on February 01, 2009
New Symbol of Elite Access-Email to the Chief is a very interesting Feb. 1, 2009, NY Times article. As the title implies only a select view have access to President Obama's email address for security reasons. Both Obama and V.P....

Conflict of interest for agency attorneys?

Posted on February 01, 2009
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright � 2008, All rights reserved http://lawprofessors.typepad.com/adminlaw/ An article on Law.com, "State of California Appears Favored in Attorney Conflict Case", describes a case before the Supreme Court of California arguing that an...

Obama and Employment and Labor Law

Posted on January 31, 2009
The law firm of Akin-Gump just released a 32 page report summarizes changes to the labor and employment law landscape which might occur as a result of the election of President Obama. It is quite detailed. The table of contents...

Court Summarize Rule 12(b) and 56(c) Requirements In Context of Discrimination Case

Posted on January 31, 2009
Lewis v. Asplundh Tree Expert Co., ___F.3d___(11th Cir. Dec. 30, 2008), is an employment discrimination case which demonstrates the importance of federal procedure in litigation. Because this case was treated as one for summary judgment, it was subject to the...

President Obama Has A Blog

Posted on January 30, 2009
Guess what, President Obama has a blog! Its called "The Blog." Interestingly, viewers cannot comment on the blog, but they can comment on the White House web site. The Blog also does not have any links. Hey President Obama, I...

Big Brothers/Big Sisters of America cannot be held liable for the actions of a volunteer mentor, but there local affiliate can be

Posted on January 30, 2009
We have discussed the difficulty in determining who is and who is not an employee many times on this blog, and in particular with respect to whether volunteers can be treated as employees. Now comes another twist, can companies be...

D.C. Cir. Issues Excellent Primer On Labor Arbitration

Posted on January 30, 2009
American Postal Workers v. U.S. Postal Service, ___F.3d___(D.C. Cir. Dec. 23, 2008), provides an excellent summary of how difficult it is to vacate an arbitration, that arbitration is a creature of the parties contract and even if the arbitrator makes...

Police Officer Who Violates Direct Order Forefeits 10 days Of Vacation

Posted on January 30, 2009
Matter of Clifford v. Kelly, ___A.D. 3d___(1st. Dept. Jan. 8, 2009), is an interesting case and I am somewhat amazed that it reached this point. A police officer was found to have violated a direct order and after a hearing...

Sorkin on Voir Dire

Posted on January 30, 2009
Professor David E. Sorkin (John Marshall Law School) has posted "Voir Dire: A Two-Way Street" on the Social Science Research Network (SSRN). Here is the abstract: Voir dire is more than merely the procedure used to select a fair and...

Union Membership Up Sharply in 2008

Posted on January 29, 2009
Union Membership Up Sharply in 2008 is an important Jan. 28, 2009 New York Times article by Steven Greenhouse. It summarizes just released BLS statistics on unionization rates. Union membership grew by 428,000 which is the largest gain in a...

NY Court Issues Major Decision Demonstrating The Importance of Local Employment Discrimination Laws

Posted on January 29, 2009
Williams v. NYC Housing Authority, ___A.D.3d___(1st Dept. Jan. 27, 2009), is a major employment discrimination case which demonstrates the importance of state and local law. In this lengthly decision, the Court analyzed the Local Civil Rights Restoration Act of 2005...

Mere Change In Job Duties Is Not An Adverse Employment Action

Posted on January 29, 2009
Baloch v. Kempthorne, ___F.3d___(D.C. Cir. Dec. 30, 2008), reminds us that a mere change in job duties is not an adverse employment action under Title VII. Thus, the plaintiff here failed to make a claim for discrimination. Here, the employer...

Lawyer Resume Fraud

Posted on January 29, 2009
The Legal Profession Blog had an interesting Jan. 2, 2009 posting about resume fraud by attorneys. It reports on a California and D.C. case where attorneys were sanctioned for misrepresentations on their resumes. Frankly, I am not sure that this...

President Obama signs the Lilly Ledbetter Fair Pay Act of 2009

Posted on January 29, 2009
Earlier today, President Barack Obama signed the Lilly Ledbetter Fair Pay Act of 2009. Here are the statements by President Obama, The First Lady, Michelle Obama, and Lilly Ledbetter from the signing ceremony, along with a copy of the law....

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