Thursday, July 31, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 9

It should be noted that on the DOL website FAQ for employers re "Employer UI Fraud", consenting to ineligible requests for benefits is not specifically mentioned:

"The State Labor Department has a 24-hour toll-free hotline for those who wish to report employer UI fraud. Examples of employer UI fraud are:
  • Paying “off the books” or “under the table” wages
  • Intentional misclassification of workers as independent contractors
  • State Unemployment Tax Act (SUTA) dumping – shifting workers between employer payrolls to improperly use a lower contribution rate"
So the question remains if the three items listed and later discussed are only examples, are there other examples, viz., consenting to ineligible requests for benefit.

Wednesday, July 30, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 8

Employers are also reminded to respond honestly to claim applications in the FAQ with respect to SIDES ( Developed through a strategic partnership between the U.S. Department of Labor and state Unemployment Insurance agencies, the State Information Data Exchange System (SIDES) and SIDES E-Response systems offer employers and third-party administrators (TPAs) – free of charge – a secure, electronic and nationally standardized format to respond to Unemployment Insurance information requests, reduce follow-up phone calls and streamline Unemployment Insurance response processes.):

"Q: What are the main causes of Unemployment Insurance overpayments?
A: The two largest causes of Unemployment Insurance overpayments are a lack of complete and accurate information when someone files a claim and people who work while collecting Unemployment Insurance benefits. Many Unemployment Insurance overpayments, which could be prevented by receiving timely and accurate information, negatively impact employers’ bottom lines.
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Q: Are SIDES and SIDES E-Response expected to reduce Unemployment Insurance overpayments?

A: Yes. Both options have the potential to reduce Unemployment Insurance overpayments while improving the Unemployment Insurance information exchange process."

Tuesday, July 29, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 7

This is the new regulation which is applicable to this discussion:

"Section 1. Section 472.12 is repealed and a new Section 472.12 is added to read as follows:

472.12 Responding to Requests for Information and Employer Relief of Charges – Timely and Adequately Requirement for Responding

(a) A response to a notice of potential charges (hereinafter referred to as a claim notice) must be received by the Department of Labor within 10 calendar days of the date on the claim notice.

(b) All other requests for information pertaining to an unemployment insurance claim must be received by the Department of Labor within the number of days specified in the written (including electronic transmission) or verbal request for information.

(c) The Department of Labor may communicate its request for information to employers by letter; electronic communication; fax; telephone; through "SIDES," the State Information Data Exchange System (if agreed to by the employer); or other method of communication approved by the Department of Labor.

(d) The claim notice and all other requests for information referenced in subdivisions (a) and (b) shall be sent to the employer’s address, fax number, or email address of record on file with the Department of Labor, or an electronic account authorized by the Department of Labor. The Department of Labor may also request information by calling the employer’s business telephone number. Employers must notify the Department of Labor when any of the above contact information changes. Requests for information sent to the employer’s last known address, business telephone number, fax number, email address or authorized electronic account shall be deemed to have been sent to the correct address for the purposes of this section.

(e) Employers may respond to a claim notice and/or request for information by fax, electronic communication, SIDES, U.S. Postal Service, private delivery service, telephone (if the request for information required a telephone response), or other method of communication approved by the Department of Labor. An employer’s response to the Department of Labor shall be deemed to have been received on the date indicated by the date stamp placed on incoming faxes by the Department of Labor’s fax machine, the date stamp on paper documents, or the date the electronic submission is received. If no fax or date stamp exists, the receipt date will be deemed to be two days prior to the date the document is entered in the Department’s imaging system. If the employer disputes the date a response was received by the Department of Labor, the burden shall be on the employer to provide proof that the response was timely. Proof may include, but is not limited to, a confirmation of delivery, a stamped receipt by an agent of the Commissioner, or an affidavit of personal service on the Commissioner or his/her agent.

(f) An employer’s response to a request for information must contain adequate information. To be considered adequate, the response must:

(1) specify the reason(s) for the separation, or other issue affecting the claimant’s eligibility or entitlement for benefits;

(2) answer, in good faith, all questions in detail; and

(3) provide all relevant information and documentation for the Department of Labor to render a correct determination regarding the claimant’s eligibility or entitlement for benefits.

(g) If the Commissioner of Labor determines that overpaymentsoverpayments, except in accordance with subdivisions (h), (i) and (j). The employer shall not be relieved of charges for each
week that an overpayment is made, through the date that the Department of Labor makes a determination that the claimant is no longer eligible for or entitled to benefits or makes a determination that results in a reduction of benefits.

(h) An employer shall be relieved of charges imposed in subdivision (g) for the first instance that the employer or its agent fails to provide timely or adequate information, if the employer provides good cause for such failure. Good cause shall include any significant event that the employer could not reasonably have anticipated which affects the employer’s ability to respond timely to requests for information, as determined by the Commissioner. After the first instance of failing to provide timely and adequate information, the employer shall only be relieved of charges for a subsequent failure in accordance with the provisions of subdivisions (i) and (j) below.

(i) An employer may be relieved of charges if the charges were due to an error by the Department of Labor.

(j) An employer may be relieved of charges if they were unable to respond in a timely manner due to a disaster emergency as declared by the Governor of their State or the President of the United States."

Monday, July 28, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 6

In April of this year, the law firm of Epstein Becker Green posted an article "Act Now Advisory: Changes to New York State's Unemployment Insurance Laws May Affect Employers' Severance Procedures and How Employers Respond to DOL Inquiries" and stated (italics supplied):

"In response to the requirements of the Act, as set forth above, the New York UI law was amended to provide that employers will not be relieved of charges to their UI accounts if the State UI Division determines that: (1) the payment of unemployment benefits was made because the employer or its agent was at fault for failing to respond timely or adequately to the request of an agency for information relating to a claim for UI benefits, or (2) the employer or its agent has established a pattern of failing to respond timely or adequately to such requests.

In New York State, the UI Division generally sends requests for information pertaining to a former employee's eligibility for UI benefits in a standard form, which asks for information, such as the former employee's previous pay and the circumstances of his or her termination. Upon receipt of the request, New York employers have 10 days to respond. Employers that do not submit a timely response will be deemed to have failed to respond. Employers that fail to respond to two or more claims are deemed to have exhibited a "pattern of failing" to respond and will not be refunded any erroneous UI payments that are recouped by the State. In other words, even if the UI Division decides that the former employee is not entitled to benefits (or has been otherwise overpaid), the UI Division will not credit the employer's account (as it used to do). Instead, that money will be paid into the State's general UI Fund.

Thus, if an employer wishes to contest a UI claim, it should ensure that it makes a timely and complete response to the UI Division's initial request for information. On the other hand, if the employer does not wish to contest the claim, there does not appear to be any independent penalty for not responding. We are aware that some New York employers opt not to respond to such inquiries, either because they wish for the former employee to receive UI benefits or because they fear that their response to the UI inquiry will be used as evidence in some other proceeding, unrelated to UI eligibility (e.g., a discrimination claim). Now, employers must understand that failing to respond may have other implications."

Friday, July 25, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 5

In yesterday's post, I noted that the Department of Labor would consider, at the very least, the employee to have committed fraud because the employee "[c]ollaborated "with an employer to illegally claim unemployment insurance benefits."

But would the Department of Labor also consider the employer to  have committed fraud if the employer collaborated with an employee to illegally claim unemployment insurance benefits? This is not clear. From the Department of Labor website:

"Employer UI Fraud

24-Hour Toll-Free Hotline
(1-866) 435-1499

The State Labor Department has a 24-hour toll-free hotline for those who wish to report employer UI fraud. Examples of employer UI fraud are:
  • Paying “off the books” or “under the table” wages
  • Intentional misclassification of workers as independent contractors
  • State Unemployment Tax Act (SUTA) dumping – shifting workers between employer payrolls to improperly use a lower contribution rate
Misclassifying workers and paying workers off the books can have a severe impact on workers and employers in industries where the practice prevails.
For employers, it creates an unfair economic advantage and imposes higher costs on responsible employers. This makes them less competitive and more likely to be under-bid by businesses that intentionally misclassify workers.
For workers, it affects working conditions by encouraging unscrupulous employers to ignore labor protections, such as wage and hour requirements, and safety and health regulations.
SUTA dumping occurs when employers and/or their representatives transfer employees between multiple payrolls strictly to obtain lower UI contribution rates.
We need your help to keep the UI system fair and equitable for everyone. If you are aware of an employer committing fraud, you may report it anonymously by these methods:
  • Call 1-866-435-1499
  • Contact our UI Fraud Unit at (518) 485-2144 between 8 am and 4 pm
  • Fax information to (518) 457-0024 or (518) 485-6172
  • Report by mail to:
    New York State Department of Labor
    Liability and Determination, Fraud Unit
    Building 12, Room 322
    W.A. Harriman State Office Campus
    Albany, NY 12240 "

Thursday, July 24, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 4

Thus, it would appear that the Department of Labor would consider, at the very least, the employee to have committed fraud because the employee, although consented to by the employer:

1. Failed "to disclose information on [his/her]  application for benefits, including lying about how [he/she] lost [their] job" and/or provided false information.

2. Collaborated "with an employer to illegally claim unemployment insurance benefits."

From the Department of Labor website:

"Unemployment Insurance Benefits Fraud
Report UI Fraud
(Online Form)

24-Hour Toll-Free Hotline
(1-888) 598-2077

When someone collects unemployment insurance (UI) benefits by lying to the Department of Labor, he or she is committing fraud. We take UI benefits fraud very seriously. It is a crime that affects businesses and workers. It drives up UI costs to law-abiding businesses, and it leaves honest workers unprotected. We need every dollar to help those who honestly need these benefits.
Some examples of UI benefits fraud include:
  • Providing false information or failing to disclose information on your application for benefits, including lying about how you lost your job
  • Working while collecting unemployment benefits and inaccurately reporting your days and earnings
  • Working any amount of time in a week while collecting benefits and telling us you did not work
  • Earning more than $405 from employers in one week where benefits are collected and not correctly reporting true total earnings for that week
  • Failing to be ready, willing and able to work (e.g., out of the area, on vacation, sick, suffering total disability) while collecting UI benefits
  • Working "off the books" while collecting benefits
  • Using another person's identity (e.g., name, social security number) to file fraudulent claims
  • Helping another person file a false unemployment insurance claim
  • Collaborating with an employer to illegally claim unemployment insurance benefits
Any person who commits fraud will have to pay us back the money. He or she will be penalized, and may be arrested and prosecuted.
We need your help to keep the UI system fair for everyone. If you have reason to believe that someone committed UI benefits fraud, please contact us. You may remain anonymous.
You can report UI benefits fraud three ways:
Report UI Fraud
(Online Form)
  • Click the button to the right to use our Online Form
  • Call our hotline toll-free at (1-888) 598-2077
  • Report by mail to:
    NYS Department of Labor
    Office of Special Investigations
    Bldg 12 - Room 576
    W. Averell Harriman Campus
    Albany, NY 12240"

Wednesday, July 23, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 3

The Department of Labor website clearly sets forth:

"UI Benefits Fraud

UI benefits fraud is committed by people who:
  • Claim UI benefits that they know they are not entitled to
  • Help others claim benefits they are not entitled to
Call toll-free (1-888) 598-2077 to report UI benefits fraud. See UI Benefits Fraud for more information."

Would an employer who consents to employee's application for unemployment insurance benefits with the knowledge that the employee is not entitled to engaging in UI benefits fraud?.

Tuesday, July 22, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 2

In 2011, Congress passed the Unemployment Insurance Integrity Act ("Act") to help maintain the integrity of the nationwide UI program. The Act required each state to implement, by October 2013, legislation to prevent, detect, and reduce the improper payment of UI benefits.

According to the DOL website:

"The U.S. Department of Labor is implementing a number of strategies to help states address Unemployment Insurance (UI) improper payments. Reducing the improper payment rate requires strong federal-state collaboration and intense focus by the entire UI system. The Department announced a call to action to all states to ensure that payment integrity remains a top priority and to foster the development of state specific strategies to prevent improper payments. This call to action reinforced that "everyone owns integrity" across the UI system and provided the expectation that states continuously assess their root causes of improper payments and implement state-specific action plans to reduce their rates."

http://www.dol.gov/dol/maps/Strategies.htm

Monday, July 21, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS

Assume employee wants to resign without a compelling cause or employee is terminated for misconduct and is thus ineligible for unemployment insurance benefits. For various reasons (long term relationship, family connections, etc.), employer agrees not to contest employee's application for unemployment insurance benefits.

Can this be accomplished without adverse consequences to either employee or employer?

Friday, July 18, 2014

MORE RE: UNLICENSED HOME CONTRACTORS

One of my blog posts that has had the most views and comments is from May 28, 2010 and can be found at this link:

https://www.blogger.com/blogger.g?blogID=3717763000184349948#editor/target=post;postID=4615810626068974929;onPublishedMenu=allposts;onClosedMenu=allposts;postNum=3;src=postname

It deals with unlicensed contractors and many times I am asked by victims of unlicensed home contractors: what can I do, can I get them arrested?

It is the District Attorney that decides who to prosecute and of course the question is what motivates the DA to take action in one case as opposed to another. Earlier this month, the press reported about a Long Island man sentenced to 3 1/2 to 10 years in prison for stealing more than a half-million dollars from 13 Nassau County residents in a home-improvement scam and for putting up as collateral a property he didn't own. There were two different schemes apparently:

1.  In the first scheme in which he took money for residential and commercial improvements, the unlicensed contractor pleaded guilty to third-degree grand larceny and first-degree scheming to defraud.

2. In the second scheme, he used a property he did not own for collateral in a business deal, viz., he took $392,590 from a Long Island man, asked the victim to invest money into his business and then paid back only a small amount. There he pleaded guilty to second-degree grand larceny, also a felony.

From a reading of the article, it appeared that in the second scheme, involving one man, the defendant wrongfully obtained twice as much money as the first scheme which involved about a dozen different people.



Thursday, July 17, 2014

THE VIRTUAL ESTATE

Modern technology has created a new asset that survives after death - the online accounts, blogs, websites, etc. of a deceased.

The press has recently reported on a proposed law drafted by the Uniform Law Commission. Here is a link to their press release issued yesterday on the proposed Uniform Fiduciary Access to Digital Assets Act:

http://www.uniformlaws.org/NewsDetail.aspx?title=Uniform Fiduciary Access to Digital Assets Act Approved

Wednesday, July 16, 2014

DIVORCE WITHOUT LITIGATION?

From an email I received from Mark S. Gottlieb CPA, P.C. :

http://www.bizactions.com/n.cfm/page/e100/key/270233223G2334J5952409N0P35P3081T1/

In the words of Abraham Lincoln: "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough."

Tuesday, July 15, 2014

CHIILD CUSTODY - PASSPORT

There are parents who live in desperate fear that the other parent will abduct their child to another country and that they will never see the child again. There are parents who desperately want to “go home” with their child to their country of origin.

In Matter of Hamad v Rizika 2014 NY Slip Op 03266 Decided on May 7, 2014 Appellate Division, Second Department:

"In October 2010, the Supreme Court awarded the mother custody of the subject child, with visitation to the father. In August 2012, the mother filed a petition to modify the provisions of the order of custody and visitation, among other things, so as to grant the father only supervised visitation with the subject child. The father filed a cross petition seeking expanded visitation. As relevant here, the Supreme Court directed that neither parent could leave the country with the subject child absent a court order, that the father was not to obtain an Egyptian passport for the child, and that the mother was to deliver the child's passport to the court. On appeal, the mother contends that there was no basis for the Supreme Court's directive that she deliver the subject child's passport to the court.

Under the circumstances of this case, the Supreme Court erred in directing the mother to deliver the subject child's passport to the court (see generally Linda R. v Ari Z., 71 AD3d 465, 465-466; Anonymous v Anonymous, 120 AD2d 983, 984; Jin C. v Juliana L., 39 Misc 3d 1201[A], 2013 NY Slip Op 50397[U] [Sup Ct, Kings County]). There is no evidence in the record that the mother posed any threat to remove the subject child from the country without court approval and, therefore, there was no basis for the Supreme Court's directive that she deliver the child's passport to the court."

Monday, July 14, 2014

SMALL BUSINESS OWNER AND DIVORCE

From a recent email from Cohen Greve Company CPA, P.C.:

Top Five Issues for Business Owners in Divorce

Note the following conclusion:

"From our perspective as forensic accountants, this process could be made far more cost and time effective if the parties were able to set aside their emotions and be more forthcoming, if not to each other, then to their respective legal counsel. Our message to the matrimonial attorneys and their clients is simple: if you can support your claims with documentation, do so. If you can’t, then understand that the process will generate costs and delay the divorce. Is the amount at issue worth the cost of the investigation?"

Read more: http://www.cohengreve.com/top-five-issues-for-business-owners-in-divorce/#ixzz37RMvU6iA

Thursday, July 10, 2014

ISSUES IN RESIDENTIAL SALES - CONTINUED

The author of the email was The Home Equity Theft Reporter and offered a  "helpful starting point for additional legal research in an effort to void certain abusive real estate transactions involving unwitting, financially strapped homeowners who have been screwed out of the equity in their homes by unscrupulous real estate operators."

But the warnings should also be utilized by those representing buyers of residential homes whether from unscrupulous real estate operators or simply in the situation where possession of the property is by an occupant other than the seller/vendor - even with a title company doing a search, etc. - can a buyer (or mortgagee) otherwise be charged with notice of the fraud thereby making bona fide purchaser/encumbrancer status unavailable to them.

See City of New York v Brooklyn LLC 2009 NY Slip Op 52722(U) [26 Misc 3d 1215(A)] Decided on December 18, 2009 Supreme Court, Kings County Velasquez, J.:

"Third, the Court also finds that defendants conducted what appears to b e the standard search recognized by the Second Department in Andy Assoc. — that is, a thorough review of the block and [*7]lot index for the Property and all associated documents. Nothing in those searches would have given rise to inquiry notice particularly since the plaintiff City, itself, recognized lot 127 as being privately owned and therefore taxable. Although there was a Notice of Pendency filed against the Property in 1996, it expired by its own terms three years later, and nothing was recorded thereafter by plaintiff. An expired Notice of Pendency provides no notice at all. See, CPLR §6513, and DaSilva v. Musso, 76 NY2d 436, 560 NYS2d 109 (NY 1990). Defendants, herein, were only chargeable with knowledge to make a diligent search "if reasonable facts excite suspicion and one fails to make some investigation". Fischer v. Sadov Realty Corporation, 34 AD3d 630, 824 NYS2d 434 (2nd Dept. 2006). In the instant matter, the Court finds no facts which would have reasonably excited suspicion.
Fourth, the Court finds that both of plaintiff City's experts were well informed as to what interest the City hoped to find, and therefore conducted searches outside of what the Block and Lot recording act contemplated as reasonable, and where no credible facts constituting reasonable inquiry notice were to be found. Accordingly, the defendants' motion for summary judgment pursuant to CPLR§ 3212 is hereby granted dismissing this action on the ground that Brooklyn LLC is a bona fide purchaser with respect to its interest in the Property, and that reasonable searches were conducted by defendants' title searchers, which did not and could not have uncovered plaintiff's unrecorded interest in lot 127. Plaintiff's claims against defendants are hereby dismissed in their entirety."

Wednesday, July 9, 2014

ISSUES IN RESIDENTIAL SALES - CONTINUED

As the author of the email noted, if a purchaser of a home is deemed a "bona fide purchaser", such sale cannot be set aside in a cause of action arising out of an abusive real estate transaction.  However, where, after scamming or otherwise abusively relieving an unwitting homeowner of his/her title, the scammer either sells the property to a third party, or encumbers the property with a loan from a mortgage lender, if such 3rd party purchaser or mortgage lender had any actual knowledge of the fraud, the sale may be set aside by a court.

Tuesday, July 8, 2014

ISSUES IN RESIDENTIAL SALES - CONTINUED

The author of the email noted that this issue may arise as a result of an abusive real estate transaction (ie. foreclosure rescue sale leasebacks, fraudulent inducement in the execution of a deed, forgeries, other real estate swindles) where, after scamming or otherwise abusively relieving an unwitting homeowner of his/her title, the scammer either sells the property to a third party, or encumbers the property with a loan from a mortgage lender, whether or not said 3rd party purchaser or mortgage lender had any actual knowledge of the fraud.

It would appear that in this recent economy, with the foreclosure process and the aging population of homeowners, abusive real estate transactions may be on the rise.

Monday, July 7, 2014

ISSUES IN RESIDENTIAL SALES

I have a house closing tomorrow - simple - Seller, who lives in home, is selling it. But what if someone else was residing there?

A recent email addressed an issue that some are facing - namely what is the effect of possession by an occupant of real property by one other than the seller/vendor thereof on a prospective real estate purchase - is the buyer a bona fide purchaser.

Wednesday, July 2, 2014

NEW MORTGAGE RULES EFFECTIVE JANUARY 10, 2014

High-Cost Mortgage and Homeownership Counseling Amendments to the Truth in Lending Act (Regulation Z) and Homeownership Counseling Amendments to the Real Estate Settlement Procedures Act (Regulation X):

http://www.consumerfinance.gov/regulations/high-cost-mortgage-and-homeownership-counseling-amendments-to-regulation-z-and-homeownership-counseling-amendments-to-regulation-x/#consumers

Tuesday, July 1, 2014

ON LAWYERS AND LEGAL FEES

This recently came to me by email: "Is Money the Root of All Evil? If you are Suing or Being Sued for Legal Fees You Have Already Lost. By David A. Grossbaum"

A link follows:

http://www.attorneys-advantage.com/sites/ATTORNEYS/rm/qh/Pages/Is-Money-the-Root-of-All-Evil.aspx