Tag Archive: Employment

Apr 23

Title VII at Fifty Symposium – Day One Overview

On April 4th and April 5th, the Labor Relations and Employment Law Society co-hosted the Title VII at 50 Symposium in conjunction with with NYU Law School, The Ronald H. Brown Center for Civil Rights and Economic Development and the Journal of Civil Rights and Economic Development. For the 50th anniversary of the passing of Title VII of the Civil Rights Act of 1964, the symposium focused on how far we’ve come in the last 50 years and how far we have to go in the hopes of eliminating employment and racial discrimination altogether.

The first day was kicked off by Professor David Gregory, co-chair of the Symposium, Vice Emeritus Dean Andrew Simons and the President of the Labor Relations and Employment Law Society, May Mansour ’14. The morning panel was entitled, “The Living History of Title VII: Voices of 1964, and Passing the Torch to a New” and was moderated by Professor Cheryl L. Wade, the Dean Harold F. McNeice Professor of Law at St. John’s University. The panelists were: Paulette Brown, President Elect of the ABA, Dean Andrew Simons, and former U.S. Congressman Rev. Doctor Floyd H. Flake. Paulette Brown spoke of her ability to go to a newly integrated school because of Title VII, although the new environment was far from encouraging. Rev. Dr. Floyd H. Flake, Former U.S. Congressman and Senior Pastor for the Greater Allen A.M.E. Cathedral of New York, discussed how racial minority groups are still facing challenges they should not have to face. With graduation rates for African Americans, Latinos and Asians at 32%, 62% and 75% respectively, Rev. Dr. Flake said that these groups should be in a position today to do what they want to do in regards to their careers and to have the lifestyle they hope for. Vice Emeritus Dean Andrew Simons discussed the case New York Times Co. v. Sullivan, as well as Johnson’s address before a joint session of Congress after President John F. Kennedy where he said no eulogy would be better than the earliest possible passage of the Civil Rights bill.

Before lunch, Professor Gregory and Paulette Brown announced Ralph Carter ’14 as the winner of the Inaugural Edwards Wildman Palmer for Best Paper on Fair Employment Law 2013-14 for his paper on an employer’s use of their employee’s social media information and passwords. During lunch, Professor Janai S. Nelson, 
Associate Dean for Faculty Scholarship 
and Associate Director of 
The Ronald H. Brown Center for Civil Rights and Economic Development, introduced her former colleague and mentor Jacqueline A. Berrien as the keynote speaker. Ms. Berrien is the current chair 
of the U.S. Equal Employment Opportunity Commission (EEOC). She recounted her time as Associate Director-Counsel for the NAACP Legal Defense and Educational Fund (LDF), where she worked prior to being nominated by President Obama to be chair of the EEOC. Berrien then discussed the initiatives and actions being taken by the EEOC since her appointment to shrink the discrimination seen in the workplace through the charges of discrimination brought forth to the EEOC.

After lunch, an all-female panel presented stories of race, gender, ethnicity, and diversity as well as their roles as scholars and journalists. “Stories of Race, Gender, Ethnicity, and Diversity: The Roles of Scholars and Journalists” was moderated by Special Hagan, who kept the debate flowing and the questions coming in a fascinating panel that explored the many different facets of diversity.

Rebecca K. Lee, an 
Associate Professor of Law at Thomas Jefferson School of Law, discussed Fisher v. University of Texas, affirmative action and applying strict scrutiny in higher education. Kimani Paul-Emile, 
an Associate Professor of Law at Fordham University School of Law, explained her research of employers use of background checks and criminal records in determining whether to hire an applicant as well as if they will terminate an employee if a record is found. Kathleen Wells, a 
Radio Host 
and Multi Media Journalist, discussed research that showed that we still have a long way to go before discrimination is a thing of the past. Sahar F. Aziz, Associate Professor of Law at 
Texas A&M University School of Law, discussed research she conducted that shows the stereotypes facing women, in particular Muslims, and ways in which these women go about trying to remove these stereotypes. Natasha Martin,
 Associate Dean for Research and Faculty Development and Associate Professor of Law
 at Seattle University School of Law, talked about how there are still echoes of Jim Crowe laws in the workplace. Lastly, Professor Elayne E. Greenberg, 
Assistant Dean of Dispute Resolution Programs, Professor of Legal Practice
 and Director of the 
Hugh L. Carey Center for Dispute Resolution at 
St. John’s, discussed implicit biases and how those biases effect decisions made.

The last roundtable of the day discussed affirmative action through the reflections on Fisher v. University of Texas with Professor Gregory, Professor Rebecca Lee, and Professor Gregory’s research students Brendan A. Bertoli ’14, Courtney Chicvak ‘14 
and Sarah Mannix ’15. Bertoli, Chicvak and Mannix discussed their research regarding the Fisher case and how it starts to show where the Supreme Court is heading in regards to Affirmative Action. In addition, Professor Lee provided a deeper analysis from her previous panel discussion into strict scrutiny. Ms. Mannix recalled her experience on the panel as ” a really excellent forum to discuss our research and findings with out practitioners and academics, and a great opportunity for discussion!”

Professor Leonard Baynes, the Ronald H. Brown Professor of Law at St. John’s and Stephanie Rainaud ’15, Symposium Editor for the Journal of Economic and Civil Rights closed out Day One.

Specials thanks to everyone who came out to the Title VII Symposium and who shared their time and experiences on this day.

Mar 30

Title VII at 50 Symposium – THIS WEEK!

The Center for Labor and Employment and the Labor Relations and Employment Law Society would like to invite any interested students or colleagues to the Title VII at 50 Symposium Conference, which takes place this week on April 4 and 5, 2014.

This program is presented in conjunction with the St. John’s Law Review, the Journal for Civil Rights and Economic Development and the St. John’s Journal of International and Comparative Law, the NYU Center for Labor and Employment Law, The Ronald H. Brown Center for Civil Rights and Economic Development, and the St. John’s Center of International and Comparative Law.

This two-day symposium commemorates Title VII and featuring panelists and speakers who will assess the past, present and future of Title VII. Please see the attached program for the events schedule and speakers.

This is an amazing learning and networking opportunity for those interested in labor or employment law, and we encourage any interested party to attend. Please feel free to distribute the program and this email to any groups you are a member of. Scholarships and prizes will be awarded at this event.

The conference is free of charge and open to all, but please RSVP to Paula Edwards at (718) 990-6653 or clel@stjohns.edu.

We hope to see you in attendance at one or both days of the conference.

More Information: http://www.stjohns.edu/about/events/school-law-title-vii-50-two-day-symposium
Program – Title VII at 50 Symposium – 3-27-14

Mar 14

Workers sue McDonald’s for wage theft

McDonald'sYesterday, McDonald’s workers filed seven class-action lawsuits in New York, California and Michigan Thursday. The suits allege that McDonald’s has forced employees to work off the clock, not paid them overtime and struck hours off their time cards, and those discrepancies resulted in wage theft.

The suits varied by state. In New York, worker’s claimed that their wage was driven below the federal minimum wage because of unreimbursed expenses. In California, the workers alleges meal and break violations. In Michigan, workers claimed they would only start getting paid only when customers walked into the restaurants, even if they had been at work for hours.
All of these claims violate the federal Federal Labor Standards Act (FLSA) and In all of these cases, the relationship between the franchises and the corporate parent company will be examined.

The suit comes in the midst of a long public relations campaign by fast-food workers demanding higher wages.The workers are represented by Cohen Milstein Sellers & Toll, which specializes in representing plaintiffs in class actions. This case will surely be a fascinating case to watch unfold. Click over to the New York Times for more on the beginnings of this case.

Feb 20

What’s New With the CLEL – Spring Update

The Center for Labor and Employment works closely with the Labor Relations and Employment Law Society at St. John’s. The LRELS is the student-run arm of the Center and is headed by President May Mansour ‘14, Co-Vice Presidents Sarah Mannix ‘15 and Rich Berrios ‘14, Treasurer Monica Hincken ’14 and Secretary Samantha Kimmel ‘15. Next year, Cynthia Vella ’16 and Stephen Halouvas ’15 will join the board. In addition to the many opportunities offered by he LRELS and the Center for Labor and Employment, there are several exciting events taking place this semester.

The first event was a Distinguished Speaker Series, A Conversation with Harry I. Johnson III, a former partner at Arent Fox and a current NLRB Member appointed by President Obama. This event took place on February 19 and Mr. Johnson joined Professor Gregory’s labor law class on February 20 as well to give a speech about recent NLRB decisions, the decision making process and how the agency operates. Mr. Johnson graciously spoke to the attendees and provided fascinating and entertaining insights into the NRLB. (Stay tuned for pictures of the event!)

Next up, he Center for Labor and Employment will co-host a symposium entitled Title VII at 50, with NYU Law School, The Ronald H. Brown Center for Civil Rights and Economic Development and the Journal of Civil Rights and Economic Development, on April 4-5, 2014. 2014 is the 50th anniversary of the enactment of the Title VII of the Civil Rights Act of 1964 and the programs will celebrate the evolution of Title VII over the years and the current state of the law. In attendance will be some of our most distinguished alumni as well as very prominent academics and practicing attorneys in the field. Some of the presenters will include: Paulette Brown, President-Elect of the ABA; Amanda Jaret ’13, Law Fellow AFL-CIO; Samuel Estreicher, Director of the Center for Labor and Employment Law at New York University; as well as other NLRB directors, and Professors. Over Friday and Saturday there will be roundtables and panel discussions covering a variety of topics including Professor Gregory’s forthcoming paper, “Past as Prologue in the Affirmative Action Jurisprudence of the Supreme Court: Reflections on Fisher v. University of Texas.” The conference will be an exploration of the living history of Title VII while looking ahead to what the next fifty years will bring. The winners of the inaugural Edwards Wildman Palmer Prize and the 2014 Coca-Cola Refreshments Scholar will be announced at the conference.

There are many opportunities to get involved with the Center for Labor and Employment and the Labor Relations and Employment Law Society. Please follow the TWEN page or visit stjclelblog.org to stay updated on the happenings and scholarship opportunities.

Jan 08

Around the Web – New Year’s Edition!

4950670414_8b5205edc5_mHappy New Year and welcome back to the blog! 2014 started with a bang and promises to be a great year! We are especially excited about the upcoming Title VII at 50 Symposium taking place April 4-5 2014. The year is young but there are already lots of stories on our radar!

Social Media is sure to be a hot topic again this year as employers explore the boundaries of monitoring employees and investigating prospective employees online. This article explores a study where researchers found essentially zero correlation between an applicant’s facebook profile and their actual job performance. Some food for thought next time you want to check out a potential hire online!

A hint of good news for the year ahead? Hiring in the private sector increased in December, says a new report. Private-sector payrolls added over 200,000 positions in December, mainly in manufacturing and construction. The benefits and wages are other topics that will garner attention this year. The Senate voted on Tuesday to advance a three-month extension of unemployment benefits that expired over the holidays and resume negotiations on the long term outcome of the benefits. Many states, including New York, have increased their minimum wages effective December 31, and many more are considering increases in the year ahead.

Fitness is always a hot topic in the month of January, but for some female Marines increasing their arm strength was more than just a New Year’s resolution, it was a job requirement. Starting in 2014, all female Marines were supposed to be able to do at least three pullups on their annual physical fitness test and eight for a perfect score. When Only 45% of the women tested could do the 3 pullups, the Marine’s delayed the implementation of new standard. This article explores the requirements and minimum qualifications that women hoping to be trained for combat must meet.

Happy New Year and make sure to add your name to the list for information about the Title VII at 50 Symposium here!

Sep 18

FLSA Update: New Rule Expands Coverage to Home Care Workers

Photo Credit: VA

Photo Credit: VA

Yesterday, the United States Department of Labor (“DOL”) announced the final version of a rule that will expand the coverage provided by the Fair Labor Standards Act (“FLSA”).  Under the new rule, home care workers will be protected by the minimum wage and overtime provisions of the FLSA.[1]  Although home care workers whose primary role is to provide companionship to the patient remain exempt from the provisions, the expansion of coverage is expected to bring approximately 2 million additional workers under the coverage umbrella.[2]

Already, both sides of the issue have expressed opinions on why the expanded coverage either will or will not be a good thing in the long run.  Proponents of the new rule have highlighted the fact that a large number of workers who were traditionally underpaid for the services and hours they provided may now have an opportunity to earn a fair salary.[3]  Opponents of the new rule warn of “unintended consequences” that will result from requiring the payment of minimum wage and, in particular, overtime.[4]  They believe that one potential consequence will be the creation of an underground industry within the home health care industry comprised of workers who do not have proper training.[5]

The new rule takes effect January 1, 2015.[6]  Between now and then, the DOL will work with stakeholders in the industry, including the agencies who employ home care workers, home care workers, and patients, on implementation.[7]  More information, including fact sheets and details about upcoming webinars, are available at a special DOL website, which can be accessed here.

[1] United States Department of Labor, Minimum wage, overtime protections extended to direct care workers by US Department of Labor, September 17, 2013, available at http://www.dol.gov/opa/media/press/whd/WHD20131922.htm.

[2] Id.

[3] Bryce Covert, Why It Matters That Home Care Workers Just Got New Labor Rights, Think Progress, September 17, 2013, available at http://www.thinkprogress.org/economy/2013/09/17/2634411/home-care-workers-rule-change.

[4] Angela Gonzales, New ruling on home care workers could mean bigger bills for consumers, Phoenix Business Journal, September 17, 2013, available at http://www.bizjournals.com/phoenix/blog/health-care-daily/2013/09/new-ruling-on-home-care-workers-could.html.

[5] Id.

[6] Department of Labor, supra at note 1.

[7] Id.

Sep 12

17th Annual Management Lawyers’ Colloquium

Please join the Center for Labor and Employment Law and the Labor Relations and Employment Law Society on Monday, September 16, 2013 for our Annual Management Lawyers’ Colloquium. Our Distinguished Speaker Series welcomes leaders in the field to the Law School to discuss timely issues and trends in labor and employment law. We are excited to welcome practitioners from a variety of firms and companies including: Bond, Schoeneck & King; Jackson Lewis LLP; Highgate Hotels; Lamb & Barnosky LLP; Coca-Cola Refreshments; Employment Practices Advisors, Inc.; Skadden, Arps, Meagher & Flom LLP; Hilton Hotels and others.

The 17th annual colloquium will feature a discussion of cutting-edge labor and employment law issues by a distinguished panel of management side labor and employment law attorneys. The event will close with an announcement of the student recipients of the annual Jackson Lewis Scholarship for Excellence in Labor and Employment Law in Memory of Allan C. Becker.

Please join us in the Mattone Family Atrium for networking, and an engaging panel discussion.

Please RSVP to edwardsp@stjohns.edu

We hope to see you there!

Jun 17

Course Selection Recommendations from Professor David L. Gregory

Many students have asked for advice about making course selections. The most proactive route for a student interested in labor and employment law is to immediately concentrate in the subject area, but these recommendations are generally applicable to any student.

The general principle is: life is short. A student who knows they want to be a labor and employment lawyer should take as many L&E classes as they can, as soon as possible. While most of these proactive, inquiring students ultimately concentrate in labor and employment law (L&EL), these suggestions have broader utility. For those who are sampling different areas of interest, know that a fine grade in a single elective is better than a terrible grade in an elective. This advice is especially pertinent to rising 2L’s.

If you are able to take four courses in L&E law in the fall semester, do so. Take additional courses in the spring semester and take required courses after building an impressive block of excellence in labor and employment law classes. Human nature being what it is, a student is likely to do very well in the subjects they are most interested in. Even if  you graduate and never directly practice L&EL, you have nevertheless gained  a conceptual and practical architecture portable to virtually any other substantive area of law.

There are many examples of students who excelled in labor and employment classes who went on to practice in different areas entirely. The Chief Counsel to the Governor of a major state graduated at the top of the class as an evening student, practiced entertainment law briefly, went to the U.S. Attorney’s Office, moved up the ranks to become the Executive Assistant to the U.S. Attorney (who is now Governor); the Chief of Staff to the U.S. Secretary of Defense also is another example.

Virtually without exception, students taking two or more related courses in the same semester find that the whole is greater than the sum of the parts—i.e., one does better taking synergistic courses in the same semester.  This will create opportunities to show a depth of knowledge in the subject area.  Some L&E courses may be paper based, with opportunity for developing a publishable paper competitively situated for an external prize competition. (e.g., the NYSB Association L&E Law Section annual writing competition.) Prospective employers will be impressed. Most scholarships and employment opportunities are concentrated on 2L students.

Imagine being the employer considering 2L students for summer associate positions. Candidate F takes Labor Law in the fall semester, 2013, and receives a B+ (or, OK, A-; not bad!) Candidate F remains an F, however, if F does not take any other L&E course. Meanwhile, Candidate A takes Labor Law with NLRB Regional Director and prominent alumna Karen Fernbach, Pension and Benefits Law with John Campbell of the United States Department of Labor Office of the Solicitor, Employment Law with me and Employment Discrimination Law co-taught by David Marshall, partner with the management side firm Edwards Wildman, and yours truly.

Four courses trump one or two courses.  Simple.

Candidate A becomes the A+ summer associate, and receives a partial tuition scholarship in addition. Candidate F was never really in the game. During the fall interview, in response to the employer’s query regarding labor and employment law courses, Candidate F says Labor Law was the only course that fit F’s fall schedule.

Candidate A, however, submits the fall and spring list of eight labor and employment courses Candidate A is taking the full academic year. Case closed. All things being equal otherwise, if one position is available between Candidates A and F, F gets the rejection letter and Candidate A gets the summer position.

With a summer position secure and likely to lead to an offer to join the firm as an associate after graduation, Candidate A can take the required courses in the third year with relatively greater confidence that a lower grade in a required course would not be catastrophic. Candidate A’s GPA went up significantly in the fall semester, after acing every L&E course. Meanwhile, Candidate F and friends have squandered their critically important fall 2L semester. Rather than developing some substantive depth, Candidate F et al maintain that they have “gotten several required courses out of the way, although cumulative GPAs did suffer.” Candidate F and friends have little substantive depth and lower cumulative GPAs.  Presented in this fashion, the choice is simple.

Good luck!!

Apr 12

Blowing the Whistle: An Employment Law Perspective on the Rutgers Basketball Situation, Part Two


Photo Credit: The Fayj

Photo Credit: The Fayj

In Part One of this two-part series on the Rutgers basketball situation, we explored potential employment law issues surrounding Mike Rice and his actions.  In part two, we will look at one of the other major players in the Rutgers basketball story – Eric Murdock.  It should be noted that Murdock has filed a lawsuit claiming, among other things, that he should be afforded protection as a whistle-blower[1].  Although this piece looks at the same statute, it is in no way meant to demonstrate whether or not Murdock has a claim or to comment on the merits of his claim.  Rather, the purpose of this piece is to provide an overview of the statute and relevant case law, and to explain what needs to be shown in order for a claim to be successful.

For those not familiar with the events that have transpired at Rutgers University, here is a brief overview of the facts that have been reported as they relate to Eric Murdock.  (A comprehensive discussion of the overall incident can be found in Part One.)  Eric Murdock is the former director of player development for the Rutgers men’s basketball team[2].  The accounts of the circumstances under which Murdock left the university vary.  Murdock claims he raised concerns with the university regarding the behavior exhibited by Coach Mike Rice during practices[3].  He further contends that the evidence he presented was ignored for as long as six months[4].  Murdock believes that he was later targeted for termination because he raised concerns[5].  Rice allegedly told Murdock he was let go because he was insubordinate[6].  The charge of insubordination arises from a disagreement between the two regarding Murdock attending another event rather than an event the basketball team was conducting[7].  Rutgers contends that Murdock was not, in fact, terminated, but rather that his contract was not renewed upon its expiration[8].  Murdock presented video evidence of Rice’s behavior during practices to Rutgers in November[9].  The Federal Bureau of Investigations (FBI) is now looking into whether, along with the video footage, Murdock presented the university with an ultimatum[10].  Murdock’s lawyer attempted to settle with the university for $950,000[11].  Murdock has now filed a lawsuit claiming he was wrongfully terminated from his position[12].

New Jersey is an employment at-will state[13].  This means employers are free to terminate employees for any reason or no reason[14].  There are, however, protections in place to prevent workers from being fired for certain reasons.  One such protection prevents employers from removing employees who qualify as whistle-blowers.  This class of employees is protected under the Conscientious Employee Protection Act (CEPA)[15].

Under CEPA, employers are prohibited from taking retaliatory action against an employee who reports activity undertaken by the employer if the employee “reasonably believes” the activity is contrary to “a law, or a rule or regulation promulgated pursuant to law[16].”  An employee is also protected if he or she “reasonably believes” the activity being reported is “fraudulent or criminal” in nature[17].  Similarly, if an employee is being asked to participate in activity that he or she “reasonably believes” is against the law, is “fraudulent or criminal” in nature, or which “is incompatible with a clear mandate of public policy concerning public health, safety or welfare or protection of the environment,” the employee is free to refrain from participation without retaliation[18].  After reporting activity or failing to participate in activity described, supra, an employee may not be terminated, suspended, or demoted, among other forms of adverse employment action, as a result of reporting or failing to participate[19].  An individual who thinks he or she has been the victim of retaliation and should have whistle-blower status can file a lawsuit against his or her former employer within one year of the adverse action[20].  The employee, if his or her claim is successful, may be eligible for various forms of relief, including, but not limited to, an injunction, reinstatement, and “compensation for all lost wages, benefits and other remuneration[21].”  The employer may also be fined up to $10,000 for a first violation and up to $20,000 for additional violations[22].

In Dzwonar v. McDevitt[23], the Supreme Court of New Jersey considered the application of CEPA in a case where the employee of a union believed she had been fired for raising concerns about the union curtailing the ability of its members to participate in union activities[24].  The court held that in order for an employee to prevail on a CEPA claim, he or she must show that “(1) he or she reasonably believed that his or her employer’s conduct was violating either a law, rule or regulation promulgated pursuant to a law, or a clear mandate of public policy; (2) he or she performed a ‘whistle-blowing’ activity described [in the statute]; (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action[25].”  The employee bringing the claim does not have to show that the law was actually broken, only that he or she reasonably believed that to be the case[26].  The trial court, however, must be able to make a connection between the conduct and a specific law or regulation[27].

Recently, the Appellate Division of the Superior Court revisited CEPA claims and reiterated the requirements that must be met[28].  The court also made clear that CEPA and its provisions are meant to secure “‘broad protections against employer retaliate[ion] for workers whose whistle-blowing activities benefit the health, safety and welfare of the public[29].’”

It is clear from the statue and case law that in order for Murdock to be successful on his CEPA claim against Rutgers University, he will have to demonstrate that he had provided information regarding behavior on the part of Mike Rice, which Murdock reasonably believed was contrary to a law or regulation, to the university.  But more than that, the court must be able to clearly and concretely draw a connection between Rice’s behavior and a law or regulation.  The next hurdle he will have to overcome is demonstrating that he was, in fact, terminated and not that the university simply failed to renew his contract, as is their contention.  In the alternative, he will have to show that the failure to renew his contract was an adverse employment action under the meaning of retaliatory action in CEPA.  Finally, if he is able to show he undertook whistle-blowing activity to bring to light a violation of the law or a regulation and that the university took retaliatory action against him, Murdock must then draw a direct link between the adverse action and his voicing of concerns regarding the coach’s behavior.

Although New Jersey is an at-will employment jurisdiction, there are still protections in place for certain classes of employees, including those who qualify for whistle-blower status under CEPA.  Now that Eric Murdock has filed a lawsuit claiming whistle-blower status for his role in the Rutgers basketball situation, it will be interesting to see how the case plays out.


[1] Christian Red and Michael O’Keeffe, Ex-Rutgers ass’t coach Eric Murdock files wrongful termination suit against University, New York Daily News, April 5, 2013, available at http://www.nydailynews.com/sports/college/ass-coach-hits-rutgers-lawsuit-article-1.1308948.

[2] Associated Press, Mike Rice fired from Rutgers after abuse video goes public, Newsday, April 3, 2013, available at http://www.newsday.com/sports/college-basketball/mike-rice-fired-from-rutgers-after-abuse-video-goes-public-1.4998367.

[3] Red and O’Keeffe, supra at note 1.

[4] Id.

[5] Associated Press, Report: FBI eyes possible extortion at Rutgers, USA Today, April 7, 2013 available at http://www.usatoday.com/story/sports/ncaab/2013/04/07/fbi-extortion-rutgers-mike-rice-eric-murdock/2061757.

[6] Red and O’Keeffe, supra at note 1.

[7] Id.

[8] ESPN, Rutgers AD Time Pernetti resigns, ESPN, April 7, 2013, available at http://www.espn.go.com/new-york/mens-college-basketball/story/_/id/9137089/tim-pernetti-rutgers-scarlet-knights-athletic-director.

[9] Red and O’Keeffe, supra at note 1.

[10] Associated Press, supra at note 5.

[11] Red and O’Keeffe, supra at note 1.

[12] Id.

[13] New Jersey State Department of Labor (NJDOL), Wage and Hour Compliance FAQs, accessed April 2013, available at http://www.lwd.dol.state.nj.us/labor/wagehour/content/wage_and_hour_compliance_faqs.html.

[14] Id.

[15] N.J. Stat. 34:19-1-8.

[16] N.J. Stat. 34:19-3(a)(1).

[17] N.J. Stat. 34:19-3(a)(2).

[18] N.J. Stat. 34:19-3(c).

[19] N.J. Stat. 34:19-2(e).

[20] N.J. Stat. 34:19-5.

[21] Id.

[22] Id.

[23] 177 N.J. 451 (2003).

[24] Id at 460.

[25] Id at 462 (brackets added), citing Kolb v. Burns, 320 N.J. Super. 467, 476, 727 A.2d 525, 530 (App. Div. 1999).

[26] Id at 462-63, citing Gerard v. Camden County Health Servs. Ctr., 348 N.J. Super. 516, 522, 792 A.2d 494, 497-98 (App. Div.), certify. Denied, 174 N.J. 40, 803 A.2d 636 (2002).

[27] Id at 463.

[28] Racanelli v. County of Passaic, 417 N.J. Super. 52 (Sup. Ct. of N.J. 2010).

[29] Id at 56, quoting Feldman v. Hunterdon Radiological Assocs., 187 N.J. 228, 239, 901 A.2d 322 (2006) (citation and internal quotations omitted).

Apr 10

Foul Shot: An Employment Law Perspective on the Rutgers Basketball Situation, Part One


Photo Credit: slgckg

Photo Credit: slgckg

By now, most have heard about the series of events that transpired at Rutgers University involving the head coach of the men’s basketball team.  Many have seen the video that has caused public outcry.  The actions of Coach Mike Rice and the response of Athletic Director Tim Pernetti raise a number of legal questions, including whether Rutgers, as the employer, had the ability to discipline Rice twice for the same underlying infractions and whether any of the students who played for Rice have claims against the university for negligent hiring, supervision, and retention.

For those not familiar with the story, here is a summary of the facts.  At various times between 2010 and 2012, video recordings were made of basketball practices conducted by Rice[1].  The videos showed Rice undertaking various forms of abuse[2].  His conduct included hitting and kicking players, throwing basketballs at players, and using, among other forms of verbal abuse, gay slurs to address the players[3].  The footage was given to Pernetti in November by a former employee of the basketball program[4].  Pernetti then sought outside review of Rice’s conduct[5].  A report prepared by Connell Lacey LLP allegedly concludes that Rice could have been fired for the behavior captured in the video[6].  Rather than fire Rice, however, Pernetti suspended Rice for three days and levied fines that ended up costing Rice a total of $75,000[7].  No further action was taken until the tape was made public; subsequent to the tape being aired and the resulting public outcry, Rice was terminated[8].  The firing came approximately four months after Rice was suspended[9].  In its announcement of the firing, Rutgers stated that officials based their decision on “recently reviewed information” and a “review of previously discovered issues[10].”  Rice’s termination was followed shortly by Pernetti’s resignation[11].  At the time he resigned, Pernetti claimed he had advocated for terminating Rice last year rather than issue the suspension, but that his suggestion was rebuffed by those senior to him[12].  Earlier this week, Rutgers announced it would be undertaking a further review of the situation and the way in which university officials responded[13].

Before delving into a discussion of the potential employment law implications related to Mike Rice’s coaching style and his termination, it is important to highlight a few factors.  First, New Jersey, where Rutgers University is located, is an at-will employment state, which means there is no cause requirement for an employee’s termination[14].  Second, there is no indication that Mike Rice’s employment contract with Rutgers contained provisions for discipline or requiring just cause (or any cause) in order to terminate his contract.  Finally, there has been no indication that Rice was a member of any union or had the protection of any collective bargaining agreement.

The most immediate question raised by Rice’s termination following the public release of videos showing his behavior during team practices is whether Rutgers could level a second punishment against Rice for the same incident of misconduct.  Remember, Rice had been suspended in December for the conduct displayed in the video[15].  Now, without new publicly-known facts (although Rutgers referenced new information it had considered[16]), Rice was fired for the conduct shown in the video.  Does this constitute an impermissible application of a second punishment for the same offense similar to the criminal law doctrine of double jeopardy?  The New Jersey courts have not dealt with the idea of double jeopardy in employee discipline in any cases that can be analogized to the present case.  There were, however, two recent arbitration decisions that can be.

In In re Calumet Specialty Products and United Steelworkers International Union, Local 13-245[17], a union grieved on behalf of an employee who failed to report for a scheduled shift after shifts for all employees had been altered[18].  The employee was given a notice stating the discipline being applied to him and the reasoning for it; the following day, he received an amended notice of discipline[19].  The union argued, in part, that the receipt of two separate notices for the same incident was double jeopardy[20].  In reviewing the case to determine whether double jeopardy was a claim that could be raised, the arbitrator looked to how double jeopardy had been viewed in relation to discipline in the employment setting.  The arbitrator concluded, “Once discipline for a given offense is imposed and accepted, it cannot thereafter be increased, nor may another punishment be imposed, lest the employee be unfairly subjected to ‘double jeopardy[21].’”  The arbitrator then held that the employee in Calumet Specialty Products had been subjected to double jeopardy[22].

Later that same year an arbitrator reached the same conclusion in In re Chicago Transit Authority and Amalgamated Transit Union, Local 241[23], where a union had filed multiple grievances on behalf of an employee[24].  The grievances involved challenges to discipline “other than discharge[25].”  The arbitrator held that applying two different disciplinary actions to the same employee for the same incident constitutes double jeopardy[26].

Applying these two cases to the Mike Rice situation, it appears that the concept of double jeopardy would generally apply.  Rice was disciplined for the conduct he was shown to engage in during practices in December by way of suspension[27].  Thus far, no evidence has been made public to show that he continued to engage in the inappropriate conduct during practices or other interactions with players.  And yet, last week, his employment was terminated because of the conduct displayed in the video[28].  Therefore, two separate punishments were meted out for the same acts of misconduct.  As Calumet Specialty Products and Chicago Transit Authority clearly demonstrate, such action by an employer constitutes impermissible double jeopardy[29].  Had there been intervening occurrences of the same misconduct or other forms of misconduct, the termination would be more likely to be seen as escalating discipline.  Again, however, it should be noted that New Jersey is an employment at-will state, meaning Rutgers does not have to provide a reason for terminating Rice’s employment with the univeristy[30].  Further, both cases discussed, supra, involve unionized workers.  It is unclear whether the concept of double jeopardy would apply to workers outside the unionized workplace who are subject to at-will termination.  As such, Rice would likely not enjoy the protection afforded by the rule against double jeopardy.

Turning attention now to the individuals who were on the receiving end of the behavior shown in the video, the second question raised by this incident is whether the players on the men’s basketball team have a claim against Rutgers for negligent hiring, supervision, and retention of Rice.  Tim Pernetti has said that prior to Rice being hired as the head coach, Rice and Pernetti had a lengthy discussion about Rice’s reputation when it came to his coaching style[31].  After Pernetti was made aware of how Rice was conducting practices, he chose to merely suspend Rice because the coach appeared to demonstrate that he knew the behavior was wrong[32].  Does this give rise to a situation in which the players would have a claim for negligent hiring, supervision, and retention for the timeframe represented by the video?  If the conduct continued after Rice served his suspension, would the players have a claim for the subsequent timeframe?  The New Jersey courts have looked at the issue of negligent hiring, supervision, and retention in two recent cases.

In Jafar v. Elrac, Inc.[33], the court defined negligent hiring, supervision, and retention as “broader forms of liability than under the doctrine of respondeat superior[34].”  One year later, in D.T. v. Hunterdon Medical Center[35], the court again looked at the requirements for negligent hiring, supervision, and retention under New Jersey law.  The court provided two requirements necessary for a claim to be successful[36].  The first requirement is that the employer was aware of the possibility that the employee may cause harm to others[37].  The second requirement is that the employee’s actions proximately caused the injuries claimed to have been suffered and this causation would not have been possible absent the employee being hired by the employer[38].  The employer must have “[known] or had reason to know” about the possibility that the employee could harm others[39].  The opinion points out that “The Court has explicitly recognized ‘the tort of negligent hiring or retention of an incompetent, unfit or dangerous employee and h[e]ld that one may be liable for injuries to third persons proximately caused by such negligence[40].’”

It appears clear from public reports that, at the very least, Tim Pernetti was aware of Mike Rice’s reputation as a coach and felt the need to counsel him about his coaching style prior to bringing him on board at Rutgers[41].  There are also indications that after Rice’s hiring, at least one of the employees of the basketball program raised concerns about Rice’s coaching techniques with Pernetti[42].  And lest Pernetti be held out as the only party who knew of the behavior at the administrative level, it should be noted that the President of Rutgers University was made aware of the video footage at the time it was presented to Pernetti and declined to watch the footage[43].  Given that it appears Rutgers was aware of Rice’s behavior at the time he was hired, the players shown being subjected to abuse in the video would likely meet the first requirement for a claim of negligent hiring, supervision, and retention.  Further, since the university was made aware of the behavior displayed by Rice after being hired as the head coach, if the conduct continued after the school was made aware and disciplined the coach, those students harmed at that time would also likely meet the first requirement of knowledge on the part of the employer.  What may be harder for the students to demonstrate is the second requirement.  A student hoping to prevail on his claim will have to be able to demonstrate that he was injured in some way by Rice’s conduct and that the university’s hiring and subsequent retention of Rice was the proximate cause of that injury.

It will be interesting to see how this story plays out going forward.  So far, Mike Rice seems not to be challenging his removal as the head coach of the men’s basketball team, but that could always change down the road.  Were he to attempt to challenge his termination as a double jeopardy punishment, Rice would likely not succeed, as New Jersey is an employment at-will state and he was not a unionized worker.  It also seems as though there are no players coming forward at this time to claim they were directly injured as a result of Rice’s conduct.  If they were to come forward in the future and can demonstrate the injury and the connection between the injury and Rutgers’ hiring of Rice, it is likely the students would prevail on a claim of negligent hiring, supervision, and retention.

[1] Steve Eder, Rutgers Fires Coach Over Abuse and Slurs, New York Times, April 3, 2013, available at http://www.nytimes.com/2013/04/04/sports/ncaabasketball/rutgers-fires-basketball-coach-after-video-surfaces.html?_r=0.

[2] Associated Press, Mike Rice fired from Rutgers after abuse video goes public, Newsday, April 3, 2013, available at http://www.newsday.com/sports/college-basketball/mike-rice-fired-from-rutgers-after-abuse-video-goes-public-1.4998367.

[3] Eder, supra at note 1.

[4] Associated Press, supra at note 2.

[5] Id.

[6] ESPN, Rutgers AD Tim Pernetti resigns, ESPN, April 7, 2013, available at http://www.espn.go.com/new-york/mens-college-basketball/story/_/id/9137089/tim-pernetti-rutgers-scarlet-knights-athletic-director.

[7] Associated Press, supra at note 2.

[8] Id.

[9] Eder, supra at note 1.

[10] Id.

[11] ESPN, supra at note 6.

[12] Id.

[13] Associated Press, Rutgers commissioning review of basketball scandal, USA Today, April 8, 2013, available at http://www.usatoday.com/story/sports/ncaab/2013/04/08/rutgers-basketball-scandal-mike-rice-tim-pernetti/2063013.

[14] New Jersey State Department of Labor (NJDOL), Wage and Hour Compliance FAQs, accessed April 2013, available at http://www.lwd.dol.state.nj.us/labor/wagehour/content/wage_and_hour_compliance_faqs.html.

[15] Associated Press, supra at note 2.

[16] Eder, supra at note 1.

[17] 130 Lab. Arb. Rep. (BNA) 563 (June 27, 2012).

[18] Id at 564.

[19] Id.

[20] Id at 567.

[21] Id at 570, citing Elkouri & Elkouri, How Arbitration Works, 6th Edition, 1997, 2003.

[22] Id at 570.

[23] 130 Lab. Arb. Rep. (BNA) 1575 (November 7, 2012).

[24] Id at 1576.

[25] Id.

[26] Id at 1581.

[27] Associated Press, supra at note 2.

[28] Id.

[29] See discussion, supra.

[30] NJDOL, supra at note 14.

[31] Don Van Natta, Jr., The coach, the assistant and the AD, ESPN, April 5, 2013, available at http://espn.go.com/espn/otl/story/_/id/9133038/bliss-hiring-tim-pernetti-mike-rice-rutgers-university-short-lived-coach-abuse-scandal.

[32] Associated Press, supra at note 2.

[33] 2011 N.J. Super. Unpub. LEXIS 974 (Superior Court of New Jersey, Appellate Division 2011).

[34] Id at 20, citing DiCosala v. Kay, 91 N.J. 159, 174, 450 A.2d 508 (1982); Lingar v. Live-In Companions, Inc., 300 N.J. Super. 22, 29-30, 692 A.2d 61 (App. Div. 1997).

[35] 2012 N.J. Super. Unpub. LEXIS 2204 (Superior Court of New Jersey, Appellate Division 2012).

[36] Id at 30.

[37] Id.

[38] Id.

[39] Id.

[40] Id, citing DiCosala v. Kay, 91 N.J. 159, 174, 450 A.2d 508 (1982).

[41] Natta, supra at note 31.

[42] Keith Sargeant, Rutgers’ Big Ten move could have delayed Mike Rice firing, USA Today, April 7, 2013, available at http://www.usatoday.com/story/sports/ncaab/2013/04/07/mike-rice-big-ten-rutgers-robert-barchi-tim-pernetti/2061579.

[43] Id.

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