Then the business should have them as SOP in the course of business or pay to have them reset. I don't think OP said anything about a contract that would obligate him to assist after being terminated.
Printable View
Bud, I 100% disagree with you in this instance. Here we have a marital asset that he hopes to profit from in the future, via the divorce. Causing problems for the asset, particularly by withholding something as trivial as a computer password, will NOT endear him to the judge that will hear his divorce case.
If he were an ordinary employee who was fired from a job I am still not sure that I would agree with you, but that would definitely be a different scenario from what the OP is dealing with.
Stepping out of labor law for a second, would the judge me more upset about an unshared password or by her abusing her unilateral control over my income and employment when I am the PPR raising our children? She is exploiting the COVID loophole to appear as though she was forced to violate marital status quo and therefore is not obligated to pay alimony under those circumstances. However, we have a long history of documented emails where she was already trying very hard to encourage me to quit on my own (absolving her of alimony claims) by changing my duties to include personal favors and reducing my pay 20% when our business was booming and she gave herself a raise. Personally, I find messing around with the income of your kids' primary caretaker more offensive than a password thing especially since I also think once you fire a person, you cut off your relationship completely and you're responsible yourself for consequences of your own actions. Also, if I were an employer, I would offer some kind of severance package to encourage good will and transition assistance because that's what I got at my last job and I did help out the transition. So I'm curious about your point of view if taking the divorce side out of it.
For an asset that will be 100% hers by the end of things, morally she should give back at least all the money invested to really cut out my family completely and it be completely hers. Of the invested amount, we're already expecting to lose at least half of it in an endless argument over gift vs. loan. She is now trying to weasel out on the other half as well thereby stealing 100% of the large grand sum my family had put into getting our mom and pop shop up and still end up keeping the business all to herself at the end. So in the grand scheme of things, I am not profiting from the asset but instead mitigating loss so I don't imagine a judge would hold this "smooth transition" thing against me, especially since if she really digs back in her emails and texts, she already has everything she's asking me for but is too lazy to look and would rather bully me, scapegoat me, and intimidate me into remaining a subservient abuse victim to her. There's certainly no smooth transition for me suddenly being unemployed, financially insecure, and job hunting and e-learning young kids through a quarantine!
But again, since she is attempting to claim this as unrelated and independent to Marital Status Quo, her strategy, not mine, then we are approaching this issue divorce-free making me an ordinary employee. In that scenario, why couldn't I just block communications from the employer who just unilaterally ended their relationship with me?
Y'know, I would really love to hear her side of the story.
OP, it appears that what you REALLY want is for someone to agree with you, regardless of how wrong you are.
So here goes: You're right, she's wrong, and the judge is going to sentence her to a lifetime of listening to nothing but yodeling podcasts.
Not true... I seek different legal perspectives so I'm not surprised when it all goes down, but I was previously and fairly criticized for not providing enough information to obtain informed advice and suggestions so I'm trying to be more forthcoming, but sorry if that seems like a one-sided sob story where I'm only seeking affirmation. If I'm wrong, I'd like to know why so I can handle the situation appropriately but so far I've heard stuff like we're both wrong but with little explanation. I do not know enough to decide on my own if I'm legally wrong or not, and so winning a popularity vote on these forums will not help me at all in a court of law, ethics, and evidence.
Here's the answers I got so far to my current inquiry:
1. Divorce court will not look favorably upon my actions. I don't disagree but there are mitigating circumstances which will be addressed in actual divorce court. I have to ask this just in terms of labor law first. Cross that other bridge when I get to it.
2. You were fired and have no obligations anymore strictly speaking from a business sense. That's what I thought but...
3. I don't agree with the last person. Okay, so why not? I need to know the legal fine print in this kind of case that I might not be aware of.
4. Passwords belong to a company. This also means the company has full control over administering, altering, and resetting passwords, right? I hear that more in terms of once I leave the company, I'm locked out of the all the systems which is perfectly reasonable because they own the systems and in that case, also own control over the passwords like you said, but it's still unclear why that has anything to do with me anymore after I've been ejected from the company.
5. You're both wrong. That's probably true in any disagreement that gets personal, but please elaborate why you think so in this case so that I can reflect on my own wavering stance on the matter.
6. Her side of the story. Yeah that's fair. Re-reading some explanations, I may have interpreted some of the reasons behind her actions for her, but the actions themselves and the timeline are still objective facts. Most if not all are documented in some form or another. Whether or not the consequences of such actions were intentional is up to interpretation. I feel I have enough presentable evidence to show a pattern of behavior that would make these consequences appear intended, but now we're re-entering subjective territory and falls back into the divorce court realm so to avoid any further dismissal of my inquiries as simply seeking affirmation, I'll curtail the dramatic language stick to the plain facts as much as possible.
The best advice I heard offline so far is to aggressively move ahead with the divorce. This labor law matter is only coming up now because we're both waiting for the lawyers to work on something and she's probably bored. Once we accelerate the divorce, this labor matter will probably drop off or get resolved as part of the settlement and become moot.
Here is the thing...If your behavior is above reproach then she is absolutely going to look like the bad guy to the judge. However, if you do petty things that can hurt the business, like withholding passwords, then that makes you look like the bad guy as well, and dilutes the strength of your position.
^^^^Like button
NJ is an equitable distribution state and that distribution is controlled by statute and fact. So a judge adjudicating the divorce is bound by the facts and the statute. If a judge were to favor one party over the other that was outside of the law or facts, the settlement could be challenged on appeal.
You are in a divorce proceeding and not an employment proceeding. They are two separate actions so don't intermix them. So far you have been fired from your employment. If you haven't already, you should apply for UI benefits. You were fired from an S-corp. You were not fired by your wife. The value of that business and what money was used to start the business will be worked out in the analysis of equitable distribution.Quote:
2A:34-23.1 Equitable distribution criteria.
4.In making an equitable distribution of property, the court shall consider, but not be limited to, the following factors:
a.The duration of the marriage or civil union;
b.The age and physical and emotional health of the parties;
c.The income or property brought to the marriage or civil union by each party;
d.The standard of living established during the marriage or civil union;
e.Any written agreement made by the parties before or during the marriage or civil union concerning an arrangement of property distribution;
f.The economic circumstances of each party at the time the division of property becomes effective;
g.The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage or civil union;
h.The contribution by each party to the education, training or earning power of the other;
i.The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, or the property acquired during the civil union as well as the contribution of a party as a homemaker;
j.The tax consequences of the proposed distribution to each party;
k.The present value of the property;
l.The need of a parent who has physical custody of a child to own or occupy the marital residence or residence shared by the partners in a civil union couple and to use or own the household effects;
m.The debts and liabilities of the parties;
n.The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse, partner in a civil union couple or children;
o.The extent to which a party deferred achieving their career goals; and
p.Any other factors which the court may deem relevant.
In every case, except cases where the court does not make an award concerning the equitable distribution of property pursuant to subsection h. of N.J.S.2A:34-23, the court shall make specific findings of fact on the evidence relevant to all issues pertaining to asset eligibility or ineligibility, asset valuation, and equitable distribution, including specifically, but not limited to, the factors set forth in this section.
It shall be a rebuttable presumption that each party made a substantial financial or nonfinancial contribution to the acquisition of income and property while the party was married.
L.1988, c.153, s.4; amended 1997, c.407; 2006, c.103, s.80; 2009, c.43, s.2.
I suggest that you read the statutes that I linked to in this post and don't put the cart before the horse.
Equitable distribution in and of itself is somewhat subjective. What the judge believes to be equitable factors into any decision that is made. If the OP diminishes the value of the company because his wife could not access the computer to handle business, that factors into the mix. The OP wants to come across as the good guy, not as an equal bad guy. You giving him the impression that bad behavior on his part won't hurt him in the divorce, is unfair and misleading.
It makes no difference if the court sees OP as a good guy or a bad guy. It's a matter of law and facts plain and simple. Besides, the issue of the passwords wouldn't even come up in a divorce proceeding. It would be irrelevant.
I don't think budwad was suggesting it wouldn't hurt me in the divorce, but that he was addressing the separate matter since she intends to take me to non-divorce court to handle it. But I think I further understand your point now. Whether or not I was obligated from a labor law perspective, the priority should be how I come off in the divorce matter above all else. Regardless if I could win the labor case, letting this go to labor court would lose me the divorce case for sure. If that's your point, I find it quite convincing. Having conceded so much to her bullying to date, it's still more important that I maintain good faith on my end regardless of what I'm eating in return in hopes that divorce court will recognize that and help me make my stand at that point, but now, with this, it's not the right time.
You are certainly entitled to your opinion but since nobody anointed you arbitrator of truth, I disagree. What OP does as a fired employee will have no impact on his divorce. He doesn't have to please the court to get an equitable distribution based in law and fact.
You are just not getting it. Your divorce proceeding have nothing to do with your obligation to the business. You were fired and are no longer an employee. You don't have a contract that survives beyond your termination. You have no obligations to the business. If you Ex wants to file some sort of action against you for some sort of breach of contract or interfering with economic gain of the business then let her do it. But chances are she doesn't have a cause of action.
Stop viewing your divorce in the light of the business dispute. It doesn't matter no matter what llworking says.
That means that when the time comes the value of the business and who put what into the business will be decided. Nothing you do now will impact that.Quote:
Assets are not immune from equitable distribution simply because they are owned by a corporate entity. Scherzer v. Scherzer, 136 N.J. Super. 397, 400 (App. Div. 1975). Indeed, business assets, including those held in corporate form or as a sole proprietorship, are subject to equitable distribution. Ibid.
At least in one state withholding computer passwords from a former employer is a criminal act. And while that state is not the OP's state there may be a similar law in NJ.
https://www.forbes.com/sites/ericgol.../#1bd52e4423bb
As far as I can determine NJ has no such rule and shutting down an entire network is a far cry from accessing a work station. And you should also notice that that an employee is not required to disclose personal passwords according to that article.
For all we know a single workstation is an entire network at this employer. But NJ Rev Stat § 2C:20-25 (2019) in part says this.
Quote:
b. Alters, damages or destroys any data, data base, computer, computer storage medium, computer program, computer software, computer system or computer network, or denies, disrupts or impairs computer services, including access to any part of the Internet, that are available to any other user of the computer services;
The workstation was basically a backup for data that all exists elsewhere, either on cloud data storage or on other workstations. But somehow this is causing her "great financial harm." It's like she's already forgotten we've worked together quite closely for the past few years so I know for a fact, this is nothing more than a matter of convenience and certainly no financial threat to the asset.
However, PayrolGuy's research does still make it sound like not worth making this a big deal:
4.A person is guilty of computer criminal activity if the person purposely or knowingly and without authorization, or in excess of authorization ... denies, disrupts or impairs computer services, including access to any part of the Internet, that are available to any other user of the computer services;
As for interpretation of this clause, "that are available to any other user of the computer services" sounds like it would clear me as not accessing that one workstation does not affect regular flow of business nor to what people regularly access on a daily basis. As I've said, it's a data backup computer. However, it's the "in excess of authorization ... denies" which wasn't applicable while I was employed but could be interpreted against me now that I'm not, that it may be worth it to just let this one go and focus on the bigger battles ahead.
Also to clarify how she's phrasing things, she's accusing me of messing with her operations, completely forgoing the fact that she has already and permanently messed with my employment and income by terminating me. In doing so, she messed with her own operation by removing a rather essential cog in her operations and not replacing it first. Why am I responsible for her mistakes?
Then she went on saying I am not cooperating with the exit of my employment so she is therefore pursing legal action. She always phrases things certain ways to reflect legal tidbits she dug up on the internet. Does anyone know what actual statute she's referring to? Reminder: There was no employment contract nor termination agreement. Just a "oh you were already fired weeks ago when the furlough started" mentioned in passing at divorce mediation.
Unless you are actively doing something after your termination to deny her access to her data, you are not breaking the law.
The statute you cited has nothing to do with the situation at hand.
Quote:
2C:20-25 Computer criminal activity; degree of crime; sentencing.
4.A person is guilty of computer criminal activity if the person purposely or knowingly and without authorization, or in excess of authorization:
a.Accesses any data, data base, computer storage medium, computer program, computer software, computer equipment, computer, computer system or computer network;
b.Alters, damages or destroys any data, data base, computer, computer storage medium, computer program, computer software, computer system or computer network, or denies, disrupts or impairs computer services, including access to any part of the Internet, that are available to any other user of the computer services;
c.Accesses or attempts to access any data, data base, computer, computer storage medium, computer program, computer software, computer equipment, computer system or computer network for the purpose of executing a scheme to defraud, or to obtain services, property, personal identifying information, or money, from the owner of a computer or any third party;
d. (Deleted by amendment, P.L.2003, c.39).
e.Obtains, takes, copies or uses any data, data base, computer program, computer software, personal identifying information, or other information stored in a computer, computer network, computer system, computer equipment or computer storage medium; or
f.Accesses and recklessly alters, damages or destroys any data, data base, computer, computer storage medium, computer program, computer software, computer equipment, computer system or computer network.
g.A violation of subsection a. of this section is a crime of the third degree. A violation of subsection b. is a crime of the second degree. A violation of subsection c. is a crime of the third degree, except that it is a crime of the second degree if the value of the services, property, personal identifying information, or money obtained or sought to be obtained exceeds $5,000. A violation of subsection e. is a crime of the third degree, except that it is a crime of the second degree if the data, data base, computer program, computer software, or information:
(1)is or contains personal identifying information, medical diagnoses, treatments or other medical information concerning an identifiable person;
(2)is or contains governmental records or other information that is protected from disclosure by law, court order or rule of court; or
(3)has a value exceeding $5,000.
A violation of subsection f. is a crime of the fourth degree, except that it is a crime of the third degree if the value of the damage exceeds $5,000.
A violation of any subsection of this section is a crime of the first degree if the offense results in:
(1)a substantial interruption or impairment of public communication, transportation, supply of water, gas or power, or other public service. The term "substantial interruption or impairment" shall mean such interruption or impairment that:
(a)affects 10 or more structures or habitations;
(b)lasts for two or more hours; or
(c)creates a risk of death or significant bodily injury to any person;
(2)damages or loss in excess of $250,000; or
(3)significant bodily injury to any person.
Every sentence of imprisonment for a crime of the first degree committed in violation of this section shall include a minimum term of one-third to one-half of the sentence imposed, during which term the defendant shall not be eligible for parole.
h.Every sentence imposed upon a conviction pursuant to this section shall, if the victim is a government agency, include a period of imprisonment. The period of imprisonment shall include a minimum term of one-third to one-half of the sentence imposed, during which term the defendant shall not be eligible for parole. The victim shall be deemed to be a government agency if a computer, computer network, computer storage medium, computer system, computer equipment, computer program, computer software, computer data or data base that is a subject of the crime is owned, operated or maintained by or on behalf of a governmental agency or unit of State or local government or a public authority. The defendant shall be strictly liable under this subsection and it shall not be a defense that the defendant did not know or intend that the victim was a government agency, or that the defendant intended that there be other victims of the crime.
A violation of any subsection of this section shall be a distinct offense from a violation of any other subsection of this section, and a conviction for a violation of any subsection of this section shall not merge with a conviction for a violation of any other subsection of this section or section 10 of P.L.1984, c.184 (C.2C:20-31), or for conspiring or attempting to violate any subsection of this section or section 10 of P.L.1984, c.184 (C.2C:20-31), and a separate sentence shall be imposed for each such conviction.
When a violation of any subsection of this section involves an offense committed against a person under 18 years of age, the violation shall constitute an aggravating circumstance to beconsidered by the court when determining the appropriate sentence to be imposed.
L.1984,c.184,s.4; amended 2003, c.39, s.3.
You need access to the system or network which OP no longer has (a,b,c,e,f). Read through the statute and tell me which subsection you think applies to an ex-employee refusing to disclose his workstation password.
I agree that statute does not apply to a mere refusal of an ex-employee to provide his/her password. The spouse/employer did a poor job in setting up the computer system if she somehow gave her employee the only keys, as it were, to the computer system. Any good IT system will be set up so that nothing in the system is dependent on access by a single person. At the very least the spouse/employer should have had it set up so that she always had access to everything so that no matter what happened to the husband/employee — whether death, illness, termination — she wouldn't be stuck without access to the computer system. So unless there is more to this story about the computer passwords (and who knows, maybe there is more to it) I don't see any legal obligation on the OP's part to cough up the password. The computer problem would seem to be a mess of the spouse's own making.
However, if the lack of access ends up diminishing the value of the business that may mean he gets less in the divorce as one of the assets — the business — is worth less as a result and thus there is less to divide. So the OP needs to look at the total picture and decide what course of action will give him the best overall result when all the dust settles on the divorce. I've seen several divorces in which the spouses pursued a strategy of frustrating each other at every turn because it felt good just to spite the other, not realizing how much they both were losing in the process. In one of those divorces the scorched earth approach ultimately meant there was nearly a quarter million dollars loss in value of marital assets, which along with the all the fees they paid their attorneys for all their battles (which was substantial) they each ended up about $200,000 poorer at the end of the divorce as a result of it.
OP's own words in post #13:
Quote:
The workstation was basically a backup for data that all exists elsewhere, either on cloud data storage or on other workstations. But somehow this is causing her "great financial harm." It's like she's already forgotten we've worked together quite closely for the past few years so I know for a fact, this is nothing more than a matter of convenience and certainly no financial threat to the asset.
Each subsection says the perp has access to the system. OP doesn't have access.
Read the statute and tell me which subsection you think applies. The OP is not the only one that has access to the system it is only his workstation that he has the password to.
If you don't think I am correct then read TM response. The statute has nothing to do with the present situation.
b.Alters, damages or destroys any data, data base, computer, computer storage medium, computer program, computer software, computer system or computer network, or denies, disrupts or impairs computer services, including access to any part of the Internet, that are available to any other user of the computer services;
"b." doesn't
That is denial of service. It has nothing to do with the password to a former employee password to a workstation.
FYI, my divorce lawyers came up with a good approach that should address both sides of the concerns brought up here so now I'm just acting a devil's advocate for this current debate since I'm responsible for starting it.
I've been trying to analyze this specific clause for a while now. I agree with PayrolGuy that "denies" is a pretty critical key word. It's the end of the sentence that actually ends up needing some more breakdown for me. For the sake of argument, if it was my personal workstation, then by definition, it is NOT "available to any other user" and therefore this clause may not apply in that situation.
However, then to what time length does "available" extend to? If someone is eventually hired to take my place and is supposed to use my former workstation, then that computer then becomes "available" to that user, but certainly no longer to me. Can the law still apply that far down the road? We have to consider what's reasonable expectations for normal employer/employee separation of work relations.
Also, it is an awkward wording since I read it as they meant actively causing new problems as per their specific example of "access to the Internet" which would mean like I somehow after getting fired figured out how to remotely shut off her internet.
Anyway, like I said, this issue has now been handled in a wholly different way so this above is no longer a real-life situation, but it would still be nice to come to a consensus for future reference.
FYI, it also occurs to me just now that I definitely set up her workstation to access mine when I first set everything up so she DEFINITELY has the password saved on her own computer... LOL...
That subsection definitely does not apply. In using the word denies the statute is referring to denial of service attack on a network or a website.
https://www.paloaltonetworks.com/cyb...ice-attack-dosQuote:
A Denial-of-Service (DoS) attack is an attack meant to shut down a machine or network, making it inaccessible to its intended users. DoS attacks accomplish this by flooding the target with traffic, or sending it information that triggers a crash. In both instances, the DoS attack deprives legitimate users (i.e. employees, members, or account holders) of the service or resource they expected.
You can read NJ case law if you want to understand what 2C:20-25 (b) refers to.
So this didn't end. I responded if she asks me respectfully as a personal favor, I promise I will help her out for the sake of the kids. She couldn't do it. She threatened me again with the lawsuit.
FYI, she's not asking for just a single password. She is claiming I'm legally obligated to cooperate with my exit transition by returning to the office under her supervision to walk her through everything I've been working on at the time she fired me, reset all the passwords, any other manual labor she wants me to do, and to do all this without pay because I'm already fired. I have never heard of a fired employee being legally obligated to smooth out any "exit transition" not of his/her own choosing.
I'm considering offering her consultant technical services, albeit at a pretty high hourly rate, to counter any further accusations of petty retaliation. I think that's pretty commonplace in business, right?
In my opinion, that was incredibly tacky on your part.
This is not reasonable on her part if you were just an employee that she fired. However, once again we are back to the situation that the business is a marital asset, which you should be expecting to be bought out of, and if you don't assist with preserving the asset, you are just cutting off your nose to spite your face.Quote:
FYI, she's not asking for just a single password. She is claiming I'm legally obligated to cooperate with my exit transition by returning to the office under her supervision to walk her through everything I've been working on at the time she fired me, reset all the passwords, any other manual labor she wants me to do, and to do all this without pay because I'm already fired. I have never heard of a fired employee being legally obligated to smooth out any "exit transition" not of his/her own choosing.
Again, you are trying to be treated as nothing but a former employee, when legally you should want to be treated as a co-owner because of the divorce. I think that you are being extremely foolish to do anything other than making sure that the business thrives.Quote:
I'm considering offering her consultant technical services, albeit at a pretty high hourly rate, to counter any further accusations of petty retaliation. I think that's pretty commonplace in business, right?
Well you are entitled to your opinion. A terminated employee without a contract that says otherwise doesn't have to do squat to help the employer. I serious doubt that this business would be significantly impacted without OP's help. His work station whas mainly a backup. His wife is not computer literate. That doesn't make OP responsible to educate her. She could hire an IT professional and have it all fixed in a day.
I am certain she's pushing this issue in order to intentionally drive down the asset value because even if she has no case, it costs the business money to pursue this. Win or lose the case, she ends up costing me money out one end or the other. And even when I do give in to this bullying, she will nonetheless find some other ways to further artificially drive down the value as she has already done at divorce mediation negotiations and most recent settlement proposal.
After some analysis of her requests and remembering what I did there, I realize nothing she needs from me from my former employment legitimately affects her ability to work or succeed in the business, especially during this pandemic period of lower patient volume. All digital files are duplicated elsewhere where she definitely does have access so there's no urgency nor hindering of ability to do business. Additionally, most of these duplicated digital files are scans of physical paper files, which of course are all also available at the office already. And then, how does it hurt the business finances if I held on to my copied set of keys until the divorce was settled? This is just a power play and there is no legitimate threat of business loss from my termination other than my participation and manpower of which she unilaterally terminated.
Therefore, any possible loss to the asset value comes from her pursuing this frivolous matter so basically I'm being forcibly coerced into giving in to threats and harassment and agreeing to indentured servitude due to the marital portion of this issue and that feels really criminal.
You do realize that she needs the password to change the password and these are HIPAA protected files that are not so protected at the moment.
As to HIPAA, I see your point, but I think I am also still bound by HIPAA even post-termination? If so, then there is no risk factor here as I would still be held responsible. If not and only the company could be liable, then yeah it's fair to need to plug up that potential leak.