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Past Questions

Q:  My spouse and I own a small retail business.  A former employee is making false and defamatory statements about our company and posting them on Facebook.  He also took a loan (under $1,000) from us, and has not paid it back.  We need your help! 

A:  Ah, I feel your pain!  It’s incredibly easy to be victimized these days by people who choose to damage others’ reputations in an effort to direct attention away from their own wrongdoing.  Unfortunately, the internet gives cowards and criminals alike license to make noise far too easily.  Good news is, there are some things you can do both legally and practically to help shut them up.  Here’s how:

First, use the features designed to stem abuse that are already built-in to the social media site the wrongdoer is using.  On Facebook, you can report and block the abuser, and there are similar functions on the other social media sites.  Start there, but keep in mind some abusers are exceptionally vicious.  When it happened to me, every time the abuser’s account was shut down (which was after EVERY false comment), he would create another fake name and account and repeat his crap all over again.  Eventually, it felt as if I were playing a giant game of cyber “Whack-a-mole”!  So, brace yourself for that, and/or stock up on very large pins for the Voo-Doo doll!

Second, send the abuser a “cease and desist” letter, letting him know that you are prepared to seek legal redress if he doesn’t stop his nonsense immediately.  Publishing false statements about you or your business is considered “defamation” (and defamation in written form is called, “libel”).  The possible civil remedies for handling a jerk who keeps up a defamation campaign is to sue for money damages, and more importantly, sue for “injunctive” relief which orders the abuser to stop his conduct. Even though there will be some cost involved in filing a lawsuit, civil money judgments are typically good for twenty years, which means, if you win, you can be a thorn in his side for a loooooong time to come.  When this guy gets that memo, he may be inclined to stop without you having to do another thing.

Third, ask the police for help.  If the defamatory remarks are continuous, threatening, or if the abuser’s behavior rises to the level of “cyber-stalking”, law enforcement may be help you make a case for harassment or another criminal offense.  At the very least, call the cops and tell them you want to file a complaint to document the abuse. 

Fourth, because this guy also owes you money (which may be why he’s defaming you online in the first place), send him a demand letter to pay up, and when he doesn’t do that (and he won’t), file a Small Claims action in your local court. 

Lastly, keep in mind that most times, when people go on the attack online, it is more of a poor reflection on the idiot, or competitor, or disgruntled employee, or unreasonable customer who’s making the false statements, than on you.  Civilized human beings who may have a legitimate gripe, tend to go through the proper channels of redress, rather than risk being sued or getting arrested to vent their misplaced or unwarranted anger.  Whatever you choose, DO NOT ENGAGE IN A TIT-FOR-TAT with these jerks!  If they don’t get the attention they seek, they will go away and find some other victim to prey on.  Those who seek unnecessary vengeance online, need attention like the rest of us need air.  If you don’t give it to them, they eventually get bored, or give up, or get a life!  Any of the above will do J

 

Q: I have been divorced for  over 10 years. In my divorce papers I was supposed to get a certain amount of his retirement set up in my own name. This was never done. Now has been injured on the job and will be going out on permanent disability. Can I call his retirement company and personally try to get this money into an account for me? My fear is once he is out he will get his pension and I will not receive the portion agreed upon.

 

A: Thanks for writing in.  This issue a wee bit sticky, but the short answer to your question is “no, you can’t simply call the retirement company to move the money", but let me explain (based on the limited information before me) what needs to happen.

In order for pensions and retirement accounts to be split, it is usually necessary to file what’s called a QDRO (Qualified Domestic Relations Order).  This is a separate order prepared after divorce and also signed by a judge which instructs the Plan Administrator how to apportion the monies. It’s always a good idea to submit a QDRO as soon as possible after receiving your Judgment of Divorce).  Typically, QDROs are prepared and filed by an attorney (they are a little complicated to do yourself) and are based on the language in your divorce judgment (or stipulation).

If I were you, I would dust off a copy of your divorce judgment and make an appointment with an attorney.  Please keep in mind, that preparing and filing a QDRO isn’t free.  In fact, sometimes, they can be a bit pricey to prepare (which is why when we handle a divorce knowing that a QDRO will be needed, we do our best to negotiate that the monied spouse foot the bill for it). 

Since ten years have passed since your divorce, you’d be smart to handle this asap.  Great question, and thanks again for writing!

 

 

Q:  “Disgruntled D” is a waitress whose employer is forcing her to pay the restaurant out of her own wages for a customer who “dined and dashed”.  In other words, this person (or people, perhaps) apparently stuffed their faces chicken tenders and fried calamari, then skipped out on the bill.  Her question is, is it legal for an employer to force an employee to pay when a customer essentially rips off the restaurant? 

A:  I waited tables for a very brief stint (brief because I stunk at it!) in college, and I imagine — especially depending on your shift — this sort of crap unfortunately happens to almost every server at some point.  However, the employer doesn’t have much of a choice in how to handle it, with the exception of firing the server for even one incident because in New York, employers have the right to fire you without a good reason (most of the time).  

That said, the short answer to “Disgruntled’s” question is a big, fat NO!  An employer cannot extract payment from a server for the misdeeds of a criminal customer (and yes, leaving a restaurant without paying the bill is theft).  For a more detailed answer, I turned to one of my trusted associates at Jonna Spilbor Law, my personal injury guru and civil law maniac, John Ventosa, to do the research.  This is what he found (see below). If you are in this situation - in any profession, whether a server, or otherwise —  feel free to show this blog to your boss!  If you are the boss, well, read it and weep.  Good luck!

THE LAW: 

"Section 193 of New York Labor Law governs an employer’s ability to deduct from an employee’s wages.  If the deduction is not specifically enumerated in the statute, it isn’t legal for the employer to deduct it. There is no provision in the statute allowing a deduction for non-payment of a customer, or for unsatisfactory job performance.

In Edlitz v. Nopkow & Kobelt, Inc., 264 A.D.2d 437 (2nd Dep’t 1999), the Appellate Division, Second Department, upheld summary judgment for the employee in an action to recover unpaid compensation, which included a $3,000 withholding by the employer due to a customer’s failure to pay the employer.

In Guepet v. International Tao Systems, Inc., 110 Misc.2d 940 (Nassau County Supreme Court 1981), an employer counter-claimed against an ex-employee for past wages paid to employee, alleging that employee failed to perform the work properly. In dismissing the employer’s counter-claim, the court stated “Nowhere does [Labor Law section 193] permit an employer to make contemporaneous deductions from wages because an employee failed to perform properly.”  

 

So, whether the justification of the employer is non-payment by the customer, or because the waitress’ job includes ensuring the receipt of payment from the customer, the employer is not entitled to deduct the amount of the unpaid check from the waitress’ wages.

 

Q: I have two children, one of whom is in college (the other still in high school). Since my one child is now over 18 years old, and in college, can I pay my child support directly to my child?

 

A:  Nope!  Child support can never be paid directly to the child for many reasons, not the least of which being that children, when left to their own devices, will spend the money on Fruit Loops, beef jerky and sometimes puppies. 

Here’s the legal scoop when it comes to child support:   Often it is the case that parents believe child support should only be spent on items for the direct benefit of the child.  In other words, if a non-custodial parents pays $500 per month in child support, the paying parent may mistakenly believe that the entire $500 must be spent on sneakers, or lunch money , or haircuts, etc. for the child.  The reality, however, is that the law allows child support to be spent on those items that indirectly benefit the child as well – such as paying the electric bill, the mortgage, and putting gas in the custodial parent’s car.  Therefore, child support will always be paid directly to the other parent (or guardian) and never directly to the child. 

That said, IF ever there is a genuine issue regarding child support, ALWAYS bring the issue before the child support magistrate!  If you have an Order for support, and you simply stop payment, or reduce payment – even if the custodial parent “said it was okay” – you will be in very hot water if the Order isn’t validly modified.  Yikes!  

 

Q:  “Where’s the Beach” writes:  If one parent has sole custody, and wants to move out-of-state with the child, can she/he just up and go?  

A:  Typically, when parents petition a Family Court for custody and/or visitation, more often than not the Order of that Court will include language restricting the radius that one parent may move without permission. If your Order contains such language, you must petition the Court for permission to “relocate” (unless you and the other parent agree to modify that Order, but if you do “agree” MAKE SURE YOU ALSO MODIFY THE ORDER ON CONSENT SO THE COURT IS AWARE!  Don’t simply do it with a handshake or a text message.  You would be amazed at how many parents “agree” to allow the other parent to do something, and then miraculously develop a case of amnesia later on when something goes awry.  Without solid proof of the agreed-upon modification, the “offending” parent could be in hot water). 

If there is no such language in your Order, remember that the other parent has the right to co-parent no matter where you live (unless that right has been terminated, and you have not indicated such in your letter).  And, if visitation is spelled out in that Order, and you move the child to another state, technically, you are potentially violating the Order of Visitation. So, if you move without permission, the other parent will have the right to petition a court to try to get you to come back (one extreme which could be costly) or for a modified visitation schedule (a lesser extreme) and may even seek to have you punished for a willful violation.  In other words, it gets sticky. Remember, the Court doesn’t care that you have a burning desire to live in a beach bungalow.  It cares about what’s “in the best interest of the child”. 

If, as the custodial parent, you want to, what I call, “keep your side of the street clean”, you should first seek permission from the other parent.  If you get it, go back to Family Court and ask to modify the previous Order on Consent (not a big deal, but you probably should have a lawyer help you with this part to get it done quickly and correctly). If the other parent refuses consent, then you will have to file a full-blown relocation Petition and make your case as to why your move is in junior’s best interest.  Doing it any other way exposes you to a lot of needless expense and risk.  Remember, always love your children more than you hate your ex.  Let that be your guide. Good luck!