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In This Issue
May, 2015



Recently, ESPN suspended reporter Britt McHenry for a week, after a video of McHenry berating a tow lot employee went viral. In the video, McHenry is seen swearing at and belittling the employee. We can assume that as a television personality, McHenry had a written employment contract with ESPN. Such contracts often allow the employer to discipline or terminate employees for conduct that would reflect poorly on, or hurt the reputation of, the employer.

But without such a contract provision, would ESPN be within its rights to discipline McHenry? Perhaps not, under New York Labor Law Section 201-d. That statute prohibits discriminating or taking adverse employment action against employees for engaging, among other things, in legal recreational activities outside of work hours. Arguably, McHenry's conduct, while embarrassing and reprehensible, was legal and not during work hours and thus, without a written contract, not something for which she could be disciplined or terminated.



In analyzing potential age discrimination cases, we have often advised that if the employee was hired when over the age of 40 and the supervisor who made the decision to demote or fire the employee was over age 40, then it is highly unlikely that allegations of age discrimination could be successful. That has now changed.

A few weeks ago in Rollins v. Fencers Club, Index # 106303/09, the First Department upheld the denial of defendant's motion for summary judgment, clearing the way for trial in a case based entirely on comments from which one could infer discriminatory animus. The Plaintiff in that case was hired at age 58, terminated a year later by supervisors who were also in their 50s, and replaced by a 54 year old. The Court in Rollins held that notwithstanding those facts, allegations that statements had been made indicating that Plaintiff "looked tired" and "might not be up for the job" were enough evidence of age discrimination that a plaintiff should be given an opportunity to present evidence to a jury to decide whether the termination was based on age and thus violated the New York City Human Rights Law.

 If you have further questions regarding any of these items, feel free to contact Chaim Book at or Todd Parker at


Exciting News at M&B
  • On May 11, 2015 in Facebook, et al, v. DLA Piper LLP (US) et al., Index No. 653183/2014, Justice Rakower denied motions to dismiss Facebook's Complaint, which had been filed by three sets of Defendants, including DLA Piper, Milberg LLP, and Lippes Mattias Wexler Friedman LLP. The decision allows Facebook's claims against all Defendants for malicious prosecution and violation of New York Judiciary Law ? 487 to proceed to discovery. M&B is local counsel for Facebook in this matter.
  • On June 30, 2015, Randi Melnick will be presenting at a New York State Bar Association seminar titled Employment Law 2015: Current and Cutting-Edge Issues for the Corporate Counselor and General Practitioner. Randi will be on a panel on Navigating Federal Wage and Hour Laws in 2015: Classification Issues, Compensable Activities, and Other Hot Topics. The seminar will take place at the Radisson Martinique on Broadway, 49 West 32nd Street, in New York City. If you are interested in attending, go to

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