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October, 2016
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We are pleased to announce that all three of the firm's partners have been selected to the 2016 New York Metro Super Lawyers list. Avi Moskowitz was selected to the Super Lawyers list for the ninth straight year, Chaim Book was selected to the Super Lawyers list for the fifth straight year, and Todd Parker was selected to the Super Lawyers Rising Stars list for the fourth straight year. Each year no more than 5% of the lawyers in the state are named to Super Lawyers and no more than 2.5% of the lawyers in the state are selected to the Rising Stars list by the research team at Super Lawyers. We are very pleased that our firm's lawyers have received this recognition.
EEOC Announces Revisions to Employer Information Report

The United States Equal Employment Opportunity Commission recently released an updated EEO-1 reporting form. Subject to certain exemptions, all private employers with 100 or more employees and all federal contractors with 50 or more employees must submit this form annually. The two new features of the revised EEO-1 are:
  • Summary pay information: the form divides pay data into 12 pay bands and requires employers to enter the number of employees in each pay band based on the sex and race/ethnicity of the employees. Employers will use the information from Box 1 of the employee's W-2 form to determine the pay band in which an employee belongs.
  • Aggregate hours worked: Employers must enter the total number of hours worked in the last year for all employees in each pay band by gender and race or ethnicity. For exempt employees, the employer may report 40 hours for full-time employees and 20 hours for part-time employees.
The previous version of the EEO-1, which had to be filed annually by September 30, did not require employers to submit any pay-related data. According to the EEOC, these changes are intended to help identify and combat discriminatory pay practices. The revised form goes into effect in 2017 and is due on March 31, 2018.

New York Department of Labor Issues Regulations Concerning Payroll Debit Cards

New York employers who wish to pay their employees via payroll debit card must now comply with additional requirements. Last month, the NY Department of Labor ("DOL") issued revised regulations in order to clarify the permissible methods of payment of wages, particularly the payment of wages via payroll debit cards. The regulations allow employers to continue to pay employees using payroll debit cards, but set forth certain requirements which are designed to ensure that the employer is not passing the costs associated with payroll debit cards onto employees. Namely, employers must ensure that employees who are paid by payroll debit card:
  • Have access to at least one fee-less ATM within a reasonable travel distance from where the employee lives or works
  • Are given unlimited fee withdrawals from a fee-less ATM.
  • Do not incur any of the fees for an enumerated list of items and services, including account initiation, point-of-sale transactions, account inactivity, customer service, overdraft, account maintenance, balance inquiries, or card replacement.
Employers must also ensure that they have consent from employees before paying wages via payroll debit card. In addition, where an employee is covered by a collective bargaining agreement, the employer must have approval of the union before paying the employee wages via payroll debit card.

Second Circuit Weighs in on Age-Related Comments Made During Job Interview

In a September 27, 2016 summary order, the United States Court of Appeals for the Second Circuit affirmed the dismissal of an age discrimination lawsuit filed by a plaintiff based on age-related comments made to him during a job interview.

In Dunaway v. MPCC Corp., the plaintiff, a 65-year old man, filed a lawsuit against MPCC Corp. pursuant to the Age Discrimination in Employment Act ("ADEA") following a job interview during which his interviewer made the following age-related comments to him: (1) he stated that he was looking for an employee who would stay 10 to 15 years; (2) he asked Dunaway his age; (3) he mentioned his septuagenarian father who was no longer running the company but remaining involved with it; and (4) he asked Dunaway whether he was "capable of withstanding the rigors of the position."
The Second Circuit affirmed the district court's grant of summary judgment, finding that "the ADEA . . . does not make all discussion of age taboo. [A]n employer's concern about the economic consequences of employment decisions, such as the likelihood of an employment candidate's retirement within a short timeframe, does not constitute age discrimination under the ADEA, even though there may be a correlation with age." The Second Circuit also noted that "the questions were germane to the probable length of Dunaway's potential employment and his fitness to do the job," and that even though Dunaway was passed over for the job, a candidate only one year younger than him was offered the position.

If you have any questions regarding any of the above issues, please contact Chaim Book at cbook@mb-llp.com or Todd Parker at mparker@mb-llp.com, or Brita Zacek at zbracek@mb-llp.com

M&B Victorious in the First Department
On October 13, 2016, the First Appellate Department of the New York Supreme Court reversed the convictions of M&B's clients, a licensed electrical contractor and its principal. The Court reversed the convictions because the prosecution violated the Confrontation Clause of the United States Constitution by improperly offering evidence of a co-defendant's guilty plea and because the trial court erred in allowing into evidence bank records that were unreliable hearsay. Avi Moskowitz, Todd Parker, and Chris Neff represented M&B's clients at the two trials and on appeal, and Todd Parker argued the appeal at the First Department on September 21. M&B is thrilled that these wrongful convictions have been overturned, and hopes that the District Attorney's Office will exercise its discretion and decide not to retry this case for a third time.
Welcome to Brita Zacek
Brita Zacek joins our firm as an associate as of September 2016. Prior to joining the firm, she served as a law clerk to the Honorable Eric G. Bruggink in the United States Court of Federal Claims in Washington, DC.
Brita graduated cum laude from the University of Alabama School of Law, where she was a member of the Managing Board of the Alabama Law Review. During law school, she served as an extern to the Honorable L. Scott Coogler in the United States District Court for the Northern District of Alabama. She earned her B.A. from the University of Florida in 2012.
Brita can be reached at bzacek@mb-llp.com .
Wishing all of our Jewish clients, friends and colleagues a happy and healthy New Year and a joyous Sukkot holiday!

Moskowitz & Book, LLP  | cbook@mb-llp.com  | http://mb-llp.com/

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