Author Archives: AGLR Managing Editor

Allowing Employers to Make Tangible Employment Decisions Based on an Employee’s Use of Tobacco

By Cameron Betterley, Albany Government Law Review

I. A Widespread Problem

            The devastating health effects of tobacco use are well documented and widely known. Tobacco use is the number one cause of preventable death in the United States,[1] resulting in 480,000 deaths annually, or approximately one of every five deaths each year.[2]  Twenty-five thousand of those deaths occur in the State of New York.[3]  Indeed, “more deaths are caused each year by tobacco use than by all deaths from [h]uman immunodeficiency virus (HIV), [i]llegal drug use, [a]lcohol use, [m]otor vehicle injuries, [f]irearm-related incidents.”[4]  The adverse health effects are not limited to smokers, as exposure to secondhand smoke causes approximately 42,000 deaths per year in the United States[5]—2,500 of those who die are New Yorkers.[6]  Moreover, while extraordinary progress has been made in the last fifty year—“reductions in smoking prevalence avoided an estimated 3 million deaths between 1964 and 2000”—efforts have been less successful with the poor and the less educated.[7]  In 2006, for example, 30% of the least educated were smokers, while only 9% of the most educated were.[8]

II. No Right to Smoke

            Federal law does not protect tobacco users or entitle them to equal protection in all aspects of employment, including hiring, firing, and promotions.  The Equal Employment Opportunity Commission, for example, does not recognize tobacco users as a protected class.[9]  However, twenty-nine states and the District of Columbia currently offer employment protections to tobacco users[10] through laws “that expressly prohibit employers from taking adverse employment actions on an employee’s off-duty legal conduct such as smoking[.]”[11]

            New York, which is among these states, actually goes further, prohibiting an employer from firing or from refusing to hire or employ an employee due to his or her legal use of any consumable products outside of work.  This article argues that New York law should be amended to allow employers in New York to fire, or to refuse to hire, employees or potential employees who smoke or otherwise consume tobacco.

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Filed under Employment Law, Health Law, Labor Law, Uncategorized

Levels of Departmental Compliance Related to Timeliness of Fair Hearings Under the Federal Food Stamp Act of 1964

By Dustin Bennett, Albany Government Law Review

 

I.            Introduction

            Statutes are created to set the law on a given topic that the government wishes to control, and are created for individuals as well as for governmental agencies to follow. In pursuit of enforcing these statutes, different agencies within the Executive Branch set regulations creating guidelines for the proposed class or classes to follow. State agencies and departments fall into one of the classes that may be required to follow these promulgated regulations.

            The Federal Food Stamp program,[1] which is an important part of federal benefits law, is one of these statutes. The department that deals with this law the most is the Department of Social Services (DSS), known under different titles depending on the state and administered at the county (or other jurisdictional) level. Regulations that departments such as DSS regularly face, to comply with these laws, are regulations regarding timeliness of benefits and hearing appeals.[2]  The departments deal with so many individual cases that some cases inevitably fall through the cracks. However, according to the regulation, all cases must be dealt with within a specified period of time.[3]  This has caused a dilemma for state departments. In determining the level to which an agency must comply with the regulation, case law has been created causing a circuit split on which level is sufficient. Most courts that have ruled on this issue have held that the departments must “strictly comply” with the federal regulation,[4] meaning every case has to be dealt with within that regulation-created period of time. One circuit has ruled in favor of only requiring “substantial compliance,”[5] but this compliance level has yet to be completely defined and implemented.

            This article will give a brief overview of the case law regarding which level of compliance is currently required within the circuits, and why there may be such a back-and-forth concerning which level is the correct level. In conclusion, this article will explain why substantial compliance should be the preferred compliance level.

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Filed under Equal Protection, Uncategorized

Mandatory Reporting Laws in New York: Why Aren’t We Protecting Our Elderly Like We Protect Our Children?

By Jessica Coombs, Albany Government Law Review

       I.            Introduction

            All fifty states and the District of Columbia have Adult Protective Services (APS) agencies in place to investigate reports of elder abuse and provide vulnerable individuals and victims of abuse with protective services and treatment.[1]  APS was created by law to assist in the protection of impaired adults age eighteen and over.[2]  Nearly every county has its own APS unit which is maintained by that county’s Department of Social Services.[3]  In New York, APS units offer numerous services including investigation and assessment of the adult’s needs, advocacy and case management, legal interventions, counseling for the victim and their family, and emergency living arrangements.[4]

            The services provided by APS have the potential to help many victims; however, they are not implicated until APS has been notified of a potential case.[5]  The lack of a mandated reporting system in the state of New York hinders APS’s ability to help victims who may not be able to seek help themselves.  “Mandatory reporting statutes require individuals to report certain injuries or cases of abuse or neglect to law enforcement, social services, and/or a regulatory agency.”[6]  Every jurisdiction has different statutes regarding which types of abuse must be reported, and who is required to report the abuse.[7]  New York has no such mandatory reporting requirement.

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Filed under Elder Law, Health Law

In The Interests of Justice: Why Federal Prosecutors Should Welcome Evidence Disclosure Reforms

By Kristin Keehan, Albany Government Law Review

            Under Brady, a prosecutor’s failure to provide material, exculpatory evidence to the defense is a violation of due process.[1]  This famous ruling is commonly known as “The Brady Rule.”[2]  The ruling from Brady has been further embodied in the New York Rules of Professional Conduct, Rule 3.8(b):  Special Responsibilities of Prosecutors and Other Government Lawyers:

b. A prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant or to a defendant who has no counsel of the existence of evidence or information known to the prosecutor or other government lawyer that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the sentence, except when relieved of this responsibility by a protective order of a tribunal.[3]

The failure to provide evidence that could be deemed to be Brady material can result in mistrials,[4]  reversal on appeal, and/or professional sanctions.  However, the damage done to a criminal defendant is usually the cause of irreparable harm.

            The thirst for a “win” in court has led to more and more Brady violations.  In 2003, a man by the name of Edgar Rivas was convicted of conspiracy to possess more than five kilograms of cocaine while he was aboard the foreign freighter the Antwerpen arriving in the United States.[5]  The day before trial was to begin, the Government’s main witness admitted to carrying onto the Antwerpen the cocaine that was found in Rivas’s cabin.[6]  The Government, however, failed to disclose this information to the defense, and Rivas was convicted.[7]  On appeal, the U.S. Court of Appeals for the Second Circuit found the Government’s actions to be in violation of the Brady Rule, vacated the judgment, and ordered a new trial.[8]  The only reason that Rivas’s defense counsel ever found out about the Brady violation was through a Government translator who approached defense counsel after the trial.[9]  Unfortunately, Mr. Rivas is just one of many who suffer at the hands of prosecutors who wish to conceal evidence from the defense.  According to Marvin Schecter, “the slow trickle of uncovered Brady violations spawned by DNA exonerations has become a steady, flowing stream of egregious cases.”[10]  Schecter believes that the violating of Brady is “something that is learned and taught.”[11]  Though such claims have been ardently denied[12], the reaction to legislation to keep such Brady violations at bay signals that Schecter’s assertion might not be as outlandish as some claim.

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Filed under Criminal Law, Criminal Procedure, Evidence Law, Prosecution, Uncategorized