Page 8 - The Suffolk Lawyer - December 2020 - Vol. 35, No. 8
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8                                                          THE SUFFOLK LAWYER - December 2020


        The Proof is More Than Just Loss of Employment

        By Michael F. LoFrumento              be mindful that when a court is              In the aftermath of the 2008 finan-  the court a net worth affidavit and his testi-
                                              tasked with determining whether a            cial crisis, the Dodd-Frank Act of  mony failed to specify any change. As a re-
          As discussed in my previous article, the  substantial change in circumstanc-     2010 strengthened the Commodi-  sult, the lower court held that he failed to
        current pandemic has had many parents look  es  occurred,  the  court  will  com-  ty Futures Trading Commission’s  meet his burden. Surpa at 540.
        to the court for assistance in seeking either  pare  the  noncustodial  parent’s  fi-  regulatory authority to oversee   In Riendeau, the lower court denied the fa-
        an increase in support based upon increased  nancial circumstances at the time     the more than $400-$500 trillion  ther’s petition for a downward modification,
        household expenses or for a decrease based  the  downward  modification  was       credit default swaps (CDS) market  which  was  based upon  the  father’s  loss  of
        upon  loss of  employment  or  a  decrease  in  filed against the noncustodial par-  that Larry made a killing on.  Lit-  employment. In affirming the Family Court’s
        earnings. This second installment will focus  ent’s financial circumstances at the   michaeL f.   erally, overnight Larry, through no  denial, the Second Department held:
        on the non-custodial parents who have had  time the support order was orig-  Lofrumento  fault of his own, went from earn-  Here, the Family Court properly deter-
        their salaries slashed or altogether eliminat-  inally made.  See Tomassi v. Suf-  ing $2,000,000 per year to be-  mined that the father failed to meet his bur-
        ed forcing them to make partial payments  folk County Department of Social Services,  ing unemployed. At 50 years of age, Larry  den of demonstrating a substantial and unan-
        of child support or none at all.  Towards that  144 A.D.3d 930, 41 N.Y.S.3d 540 (2  Dept.  was unemployed with no real job prospects  ticipated change in circumstances warranting
        end, we will examine the noncustodial par-  2016). Such an analysis does not only con-  and a hefty child support obligation.  After  a downward modification of his child support
        ent’s burden in establishing a change of cir-  sider the noncustodial parent’s employment/  months of searching for employment, Lar-  obligation. The father caused his own loss of
        cumstances based upon a loss of employment  earning status but also their current assets.    ry was hired as a financial manager earning  employment by failing to meet his child sup-
        warranting a downward modification.     As a result, the roadmap to any potential-  $150,000 per year, but he was still obligated  port obligation, which resulted in his incar-

          A  parent  seeking  a  downward  modifi-  ly  successful  downward  modification  peti-  to pay $15,000 per month in child support.  ceration for a period of six months. In addi-
        cation  of their child support obligation has  tion is the noncustodial parent’s Net Worth  As a result, Larry sought a downward mod-  tion, the father’s unsubstantiated, conclusory
        the burden of establishing a substantial and  Affidavit.  This  affidavit  juxtaposed  against  ification. At trial, Larry was able to compare  allegations that he diligently sought employ-
        unanticipated change  in circumstances.  See   the noncustodial parent’s Net Worth Affida-  his earnings at the time he entered into the  ment  commensurate  with  his  qualifications
        Riendeau v. Riendeau, 95 A.D.3d 891, 943   vit produced at the time the original support  original support agreement versus his current  and experience were insufficient to meet his
        N.Y.S.2d 215 (2  Dept. 2012). In some in-  order was made is the first and easiest step  financial predicament. Likewise, he was able  burden. Citations Omitted.  Supra at 215.
        stances, the noncustodial parent’s loss of em-  to illustrate to the court that a change has, in  to establish that his loss of employment was   In  Isichenko,  the  Appellate Division af-
        ployment may justify a downward modifica-  fact, occurred.                 through no fault of his own and was direct-  firmed  the  lower  court’s  denial,  without  a
        tion of support where the loss of employment   An equally important piece to the puzzle  ly related to federal legislation. Lastly, Larry  hearing, of the father’s request for a down-
        occurred through no fault of the noncusto-  is the noncustodial  parent’s employment  produced his resume, job recruiter affidavits  ward modification of his child support obli-
        dial parent. See Bruckstein v. Bruckstein, 78   records.  These records must be properly  and employment search results. In doing so,  gation. While the father successfully estab-
        A.D.3d 695, 910 N.Y.S.2d 176 (2  Dept.   vetted to ensure that any loss of employ-  Larry was able to establish that he attempted  lished that his income had decreased from
        2010).  However, the noncustodial parent   ment was not through any fault of their  to gain similar employment and was forced  the $750,000 it was at the time of the original
        must establish more than just a loss of em-  own, or by their voluntary resignation.  The  to settle on a much lower paying job.  As a  order, he failed to establish it was below the
        ployment.  Indeed, they must  establish that   last component, and most delicate, is pro-  result, Larry successfully met his burden in  $350,000 imputed to him for child support
        their termination was not caused by their   ducing evidence regarding the noncustodi-  establishing a downward modification of his  purposes. The Second Department held:
        negligence  and that they diligently  sought   al parents efforts to obtain similar employ-  child support obligation.    On the other hand, we agree with the Su-
        employment at a salary similar to what they   ment.                          Unfortunately, most litigants are not as  preme Court’s determination denying, with-
        were previously earning.  See  Gedacht  v.   By way of example, let’s discuss Lar-  prepared as Larry when seeking a downward  out a hearing, that branch of the plaintiff’s
        Agulnek, 67 A.D.3d 1013, 890 N.Y.S.2d 76   ry, a fictious credit default swap trader who  modification. In Tomassi, the father sought a  motion which was for a downward modifi-
        (2  Dept. 2009). The burden is significant.  in 2007 earned $2 million per year and was  downward modification of his child support  cation of his child support obligation, as it
          Additionally, the noncustodial parent must   paying $15,000 per month in child support.  obligation. However, he failed to submit to   (Continued on page 22)

        Complying with Employment Laws Applicable to Remote Employees

        By Mordy Yankovich                    ing “off the clock” is difficult. To         working remotely. The Board held  made based on race, gender, disability, age or
                                              avoid having to pay employees for            in two separate cases that only in-  any other characteristic protected under fed-
          The Covid-19 pandemic has compelled  “off the clock” work, an employ-            juries occurring when employ-  eral, state or local labor laws. For example,
        many employers to employ remote workers  er must institute clear directives        ees are actually performing their  an employer may not generally prohibit older
        for the first time. Managing remote employ-  to employees as to how to report      work during work hours are com-  employees from working onsite because they
        ees can be challenging and employers may be  work  that  was  not  scheduled.  If   pensable, while injuries occurring  are more likely to be symptomatic if they con-
        exposed to substantial liability if they do not  an employee nevertheless fails to   during  personal  activities  are  not  tract the virus. In addition, employers should
        have an understanding of how federal, state  report the hours worked per the       compensable. See Aftercare Nurs-  ensure they have a policy in place for indi-
        and local employment laws apply to remote  employer’s policy, the employer   morDy yankovich  ing Services, Inc., 2019 N.Y. Wrk  viduals to request a reasonable accommoda-
        employees. The following are three areas of  does not have to compensate the       Comp LEXIS 9653 (employee’s  tion (e.g., working remotely or moving em-
        potential exposure for employers and how to  employee for those hours.  In addition, em-  injury was not compensable, even though it  ployee from cubicle to office) because they
        best mitigate such exposure.          ployers should instruct employees that per-  occurred during a work call, because it was  have a disability which increases their expo-
        Tracking remote employees’            mission must be requested and granted by  sustained by dropping a can on her foot while  sure to Covid-19. Upon receipt of a request,
        hours worked                          the employer prior to the employee working  she was simultaneously preparing dinner);  an employer must engage in an “interactive
          The Fair Labor Standards Act (“FLSA”)   overtime hours.                  Matrix Absence  Management, 2019 N.Y.  process” with the employee to determine if
        and New York State Labor Law require em-  Workers Compensation laws        Wrk Comp LEXIS 4888 (employee’s injury,  the employee can perform the essential func-
        ployers to pay employees at least the mini-  Employees’ injuries are compensable pur-  which occurred while employee was install-  tions of his or her job with a reasonable ac-
        mum wage for all hours worked and time and  suant to the New York State Workers Com-  ing furniture he purchased for his home of-  commodation. If such an accommodation is
        a half for all hours worked over 40 during a  pensation Law if they “arise out of and in the   fice, was not compensable).  available, an employer may only deny the
        work week. Employers are responsible for  course of employment.” However, the nature   Employers must, thus, implement clear  accommodation if the employer can show
        tracking employees’ hours worked and can  of remote work makes it difficult to decipher   policies as to remote employees’ work hours,  an “undue hardship.” 42 U.S.C. 12112(b)(5)
        face substantial liability if they fail to do so.  whether an employee’s injury “arises out of   job duties and provision of office equipment  (A); Graves v. Finch Pruyn & Company, Inc.,
        29 U.S.C. § 211(c); Anderson v. Mt. Clemens  and in the course of employment.” For ex-  to mitigate exposure.    457 F.3d 181 (2d Cir. 2006).
        Pottery Co., 328 U.S. 680 (1946); Moon v.  ample, if an employee leaves his or her home  Compliance with discrimination laws
        Kwon, 248 F. Supp.2d 201 (S.D.N.Y. 2002)  office to take a break and fractures his or her   It is important that employers determine   Note:  Mordy Yankovich  is a senior as-
        (holding that where employers fail to main-  leg while tripping over a toy left in the mid-  which  employees  are  permitted/required  to   sociate  at  Lieb  at  Law,  P.C.  practicing
        tain the appropriate records, a presumption  dle of the hallway by the employee’s toddler,  work remotely solely based on legitimate   in the areas of Employment, Real Estate
        arises in favor of the employee’s statement as  is the injury covered?     business reasons (e.g., which jobs can be per-  and Corporate Law. He can be reached at
        to the hours allegedly worked).        The New  York State  Workers Compen-  formed effectively at home, which employ-
          Tracking the hours, a remote employ-  sation Board (“Board”) recently limited the  ees are unable to socially distance in the of-
        ee works and preventing them from work-  scope of covered injuries for employees  fice, etc.). None of these decisions should be
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