Labor and Employment Arbitrator: NYC Teacher Awarded Tenure By Estoppel Even Though She Was In Rubber Room

Tuesday, June 20, 2017

NYC Teacher Awarded Tenure By Estoppel Even Though She Was In Rubber Room

Wilson v. Board of Education, ___Misc. 3d____(N.Y. Co. June 12, 2017), is an important decision to be aware of which addresses tenure by estoppel. Tenure by estoppel, aka by operation of law, occurs when a teacher or other public employee works past their probationary period and the public employer does not act to either grant tenure, terminate the employee or extend the employee's probation with what is known as a Juul agreement.
But, what if the Board continues to employ the teacher and simply assigns her to a rubber room and she does not work. This decision holds that the teacher is entitled to tenure by estoppel because the Board could have taken action and didn't.

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Mitchell H. Rubinstein's Accomplishments

Education

J.D. Hofstra University School of Law

B.S. Cornell University School of Industrial and Labor Relations

Presently

-Hearing Officer, N.Y.C. Office of Administrative Trials & Hearings (“OATH”)

-Hearing Officer, N.Y.S. Education Dep’t., Office of Adult Career & Continuing Educational Services-Vocational Rehabilitation (“ACCES-VR”)

-Public Arbitrator-FINRA

-Adjunct Professor of Law, New York Law School

Formerly

-Employment Attorney, Sapir, Schragin, LLP (represented individuals)

-Senior Counsel, New York State United Teachers (“NYSUT”) (represented unions and union members)

-Adjunct Professor of Law, St. John’s Law School

-Labor Attorney, Trans World Airlines (“TWA”) (represented employer)

-Labor Associate, Breed, Abbott & Morgan (represented employers)

-Labor Associate, Seyfarth, Shaw, Fairweather & Geraldson (represented employers)

Published Scholarship

LAW REVIEW ARTICLES

1. Employees, Employers and Quasi-Employers; An Analysis Of Employees & Employers Who Operate In The Borderland Of An Employer-Employee Relationship, 14 U. Pa. J. Bus. L. 605 (2012).

2. Duty Of Fair Representation Jurisprudential Reform: The Need To Adjudicate Disputes In Internal Union Review Tribunals And The Forgotten Remedy Of Re-Arbitration, 42 U. Mich. J.L. Reform 517 (2009) (lead article).

3. Obama’s Big Deal; The 2009 Federal Stimulus; Labor And Employment Law At The Cross Roads, 33 Rutgers L. Rec. 1 (2009) (lead article).

4. A Lawyer’s Worst Nightmare: The Story Of A Lawyer And His Nurse Clients Who Were Both Criminally Charged Because The Nurses Resigned En Mass, 103 Nw. U. L. Rev. Colloquy 317 (2009).

5. Privacy Legal Issues In The Public Sector, 58th Ann. N.Y.U. Conf. on Lab., ch. 18, pp. 629-669 (Wolters Kluwer, Jonathan Remy Nash & Samuel Estreicher eds. 2010)(by invitation).

6. Sprint/United Co. v. Mendelsohn: The Supreme Court Appears To Have Punted On The Admissibility of “Me Too’ Evidence Of Discrimination. But Did It? 102 Nw. U. L. Rev. Colloquy 264 (2008)

6A. Reply To Professors David L. Gregory and Paul M. Secunda With Respect To The Significance Of Sprint/United Management Company v. Mendelsohn, 102 Nw. U. L. Rev. Colloquy 387 (2008).

7. Parents As Quasi-Therapists Under the Individuals With Disabilities Education Act, 76 U. Cin. L. Rev. 899 (2008).

8. Is a Labor Relations Evidentiary Privilege Developing?,29 Berkeley J. Emp. & Lab. L. 221 (2008).

9. Assignment of Labor Arbitration, 81 St. John’s L. Rev. 41 (2007).

10. Our Nation’s Forgotten Workers: The Unprotected Volunteers, 9 U. Pa. J. Lab. & Emp. L. 147 (2006).

11. Union Immunity From Suit In New York, 2 N.Y.U. J. L. & Bus 641 (Summer 2006) (lead article).

12. Altering Judicial Review Of Labor Arbitration Awards, 2006 Mich. St. L. Rev. 235 (Summer) (lead article).

13. Advisory Arbitration Under New York Law: Does It Have A Place In Employment Law? 79 St. John’s L. Rev. 419 (Spring 2005).

14. A New York Court Recognizes A Labor Union Evidentiary Privilege, 9 The Labor Lawyer 595 (Fall 1993).

15. The Use of Predischarge Misconduct Discovered After An Employee’s Termination As A Defense In Employment Litigation, 24 Suffolk Univ. L. Rev. 1 (1990) (lead article).

16. The Affirmative Action Controversy, 3 Hofstra Lab. L. J. 111 (1985).

SHORTER PUBLICATIONS

1. A Peek at New York Defamation Law, 82 N.Y.S. Bar. J. 58 (Nov./Dec. 2010).

2. Attorney Labor Unions, 79 N.Y.S. Bar Journal 23 (Jan. 2007).

3. Public Sector Labor and Employment Law (2d Ed. 1998) (By Lefkowitz, Osterman & Townley).

4. Contributing Editor, Discipline And Discharge In Arbitration (BNA 1998)

5. Reciprocal Discovery In Teacher Discipline Proceeding Under Section 3020-a Of The Education Law, Vol. 23, No. 2, p. 23, Labor & Employment Newsletter (NYS Bar Ass’n. June 1998).

6. Labor Arbitration Under New York Law, 64 N.Y.S. Bar Journal 35 (Sept/Oct. 1992).

7. Refusal to Hire Overqualified Applicants May Age Discrimination, NYLJ, May 17, 1991 at 1

8. Don’t Burden The Employers, National Law Journal, Oct. 30, 1989, at 13, col. 1.

Labor and Employment Arbitrator

Tuesday, June 20, 2017

NYC Teacher Awarded Tenure By Estoppel Even Though She Was In Rubber Room

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