How to Determine a Diligent Job Search

The first part of this article reviews some of these challenges, with a view toward enabling practitioners to argue this issue successfully, whether representing a payor or payee ex-spouse. The second part discusses steps an individual can ' and should ' take to secure employment.

Legal Standards Regarding'a Diligent Job Search

Legal standards with respect to the diligence of a job search vary from jurisdiction to jurisdiction. For example, Massachusetts legislation expressly includes “employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary” as a factor in alimony determinations. (Mass. Gen Laws Ch. 208, ' 53 (2011)). In contrast, as an example (it is beyond the scope of this article to review the statutes and case-law of all 50 states), California makes no mention of job-search efforts with respect to alimony recipient employability, looking only at ” … marketable skills … the job market for those skills… time and expenses required … to acquire the appropriate education or training to develop those skills … the possible need for retraining or education to acquire other, more marketable skills or employment” and vaguely expressing the “ goal that the supported party shall be self-supporting within a reasonable period of time.” (Cal. Fam. Code ' 320 [subd. (a)(1)) & subd. (2)(l)]). But California courts appear reluctant to reduce alimony as a punitive measure against recipients whose job searches apparently fall short. Just last year, in the unpublished case (Laughman v. Laughman), the appellate court held that the ex-wife was not obligated to demonstrate anything more than good faith in attempting to become employed. (No. B251863, Cal. Ct. App., Aug. 28, 2014). In contrast, New York courts require “more than a token effort,” and will order a special hearing to assess job search efforts. (Szalapski v. Schwartz, 35 Misc. 3d 1219, 951 N.Y.S.2d 84 (N.Y. Sup. Ct. 2011).)

Since case law on the subject of job search diligence is not copious in many jurisdictions, other areas of law may provide persuasive reasoning. In the context of Workers' Compensation cases, Michigan courts set out a four-pronged test for a prima facie showing of disability that includes a requirement for claimants to prove what jobs, if any, they are trained for and capable of performing. (Stokes v. Chrysler LLC' 750 NW 2d 129, 138 (Mich. 2008). While avoiding absolute requirements, the court provided numerous suggestions on how to prove a case, including consultation with career counselors and job placement agencies. The decision essentially advised claimants that it is in their interest to provide evidence of as thorough a job search as possible (Id. at 138-139). Significantly, and relevant to the discussion below, a more recent appellate decision held that unavailability of jobs could not be held against a claimant, even if due to economic downturn. (Kohloff v. Chrysler Group LLC, No. 300801, Mich. Ct. App., Oct. 16, 2012). In such cases, expert testimony is often relied upon and thus advisable.

In the realm of employment discrimination, where mitigation of damages is required of terminated employees, “reasonable diligence in finding other suitable employment” is required. (Ford Motor Co. v. EEOC, 458 U.S. 219, 231 (1982)). The defendant/employer bears the burden of proof, however, and must show that the plaintiff failed to mitigate damages by proving: 1) that suitable work was available, and; 2) that the plaintiff failed to make reasonable efforts to acquire such work. (Dailey v. Soci't' G'n'rale, 108 F.3d 451, 456 (2d.Cir. 1997)).

Guidance from Administrative Sources

If standards such as “good faith” and “more than a token effort” are too vague, practitioners might look to their state unemployment insurance agencies. Unemployment insurance recipients are required to seek work actively in order to maintain eligibility for benefits.

Each state unemployment agency has its own standards for what constitutes an adequate work search. New York, for example, provides a list of “approved work search activities,” ranging from career counseling at its offices and occupational assessment and training to sending out resumes and interviewing for jobs. (N.Y.S. Dept. Labor, Unemployment Insurance: A Claimant Handbook 18-19 (2014), http://on.ny.gov/1HPvEcl). Pennsylvania's work search requirement for Unemployment Insurance beneficiaries includes a firm requirement of application for at least two jobs per week. (Penn. Dept. Labor & Industry, Work Search/Work Registration FAQs, http://bit.ly/1gpRp6g, then follow link for Work Search/Work Registration). Mississippi requires at least one actual job application per week. (See Miss. Dept. Employment Security, Works Search Requirements, http://1.usa.gov/1JRdNSG). Not all states, however, demand a specific quantity of applications or activities per week. (See, e.g. , Texas Workforce Commission, Unemployment Benefits Work Search Requirements, http://bit.ly/1G9g6IS).

Perhaps because government agencies are best equipped to track quantifiable activities such as completed applications or workshop attendance, most seem to focus on such job search methods. However, no government unemployment program seems to address adequately the job search methods which are, arguably, the most important these days: networking and the harnessing of social media.

It is important to understand both changes in job search standards and job search methods for different occupations in the current job market. Market factors, which vary from place to place and over time, play a role that can be difficult to quantify with specificity.

Determining diligence persuasively must examine the process of assessing job search diligence, current practice and expectations for the job search itself. While this article is intended primarily for litigators as an aid to scrutinizing a party's employability (whether defending or criticizing that individual), it may also serve as a roadmap for anyone seeking a job or new opportunities in the modern economy.

Steps to Take: Diligence As'a Matter of Time

Quantity and Quality

As a general rule or expectation, seeking employment should be close to a full-time job. Establishing a persuasive record to demonstrate diligence in a job search is best supported by maintaining a log quantifying time spent in a variety of specific job searching or career-oriented activities. It is not sufficient to spend a few hours a week perusing and responding to Internet job boards. As noted above, unemployment insurance programs require recipients to conduct adequate work searches and many state administrating agencies demand reports that describe and quantify job-hunting activities conducted by beneficiaries. Work-search logs are meant to ensure that unemployment insurance claimants make genuine efforts to mitigate their joblessness. Similarly, it is wise to provide evidence of diligent efforts to find work that is comparable to a party's earning capacity when claiming difficulty in securing employment, whether toward mitigation of damages or demonstrating a financial need in a support proceeding.

What, then, constitutes diligence? As with any full-time occupation, the diligent job-seeker is expected to establish goals and objectives to meet those goals that are executed on a daily basis with consistent, varied activity. The job-seeker's responsibilities include concrete planning to meet specific objectives to achieve those goals and then create and execute activities to meet those objectives that move the job search process forward. This is not only a responsibility, it is fundamental to a successful search for “optimal” employment. The most effective job seekers have an organized process that manages contact information and includes clear notes and dates to track activity, results, and plans for follow-up and future action.

Activities need not be ' and should not be ' limited to finding job openings and applying for them (and, hopefully, securing interviews). While Internet searches for employment (e.g., researching and responding to online job postings found on employer websites or job posting sites) should not be overlooked, the return on investment for the hours spent on online applications is often discouraging, as most applications receive no or minimal response. The reason is that the relative ease of online applications generates a very high volume of job applicants, overwhelming employers and their staffs as they sort through applicants' credentials. Customizing a resume for a specific position opening or industry improves the chances of a positive reply; however, it is a time-consuming process and should be done selectively.

Moreover, Internet applications are less successful for the longer-term unemployed, those reentering the workplace after an extended absence and those with fewer current skills.

Nonetheless, there are many other facets to a comprehensive job search. Consultations with career advisers, who can assist with creating and critiquing resumes, are certainly valid and valuable activities for the job seeker. Taking classes and participating in workshops and other educational programs that add to a candidate's skill set or credentials demonstrate effort to improve one's employability. Participating in seminars and webinars to improve job search skills and tools is helpful, especially for those who have not sought employment for an extended time period or who are experiencing poor response or success. Critiquing, creating or strengthening one's online presence is an important activity. This can include establishing a LinkedIn account, improving the job seeker's profile or carefully editing the publicly visible portions of a Facebook or Google+ profiles and adding a photo that reflects a professional image.

Networking in a Digital Era

Networking remains a critical ' though sometimes difficult to quantify ' component of job searching and career development, but is often underestimated in the digital economy. Like any job search activity, networking efforts should be tactically organized and cataloged. If used wisely, online services can and should be harnessed as a powerful tool in today's employment marketplace.

Networking has long been emphasized as an important source for finding employment. This is not new, of course: “It's not what you know but who you know” is an old mantra. Richard Bolles talked about the importance of harnessing contacts in the earliest editions of his iconic career change and job search book, What Color Is Your Parachute?, and his wisdom has been echoed through the decades by many sources, including The Wall Street Journal, Forbes, The New York Times, and countless career advice columns.

The difference these days is not only the increasing number of organizations that individuals can use to expand their networks, but the ubiquitous resources and groups available through the Internet in general and on social media in particular. As part of their process, career advisers and executive coaches today help clients identify and expand their networks and learn how to use them properly to make connections that can lead to a successful hire. It is critical to make concerted efforts to cross paths with current, past and potential colleagues and members of one's community because these can lead to a personal referral, to an open position, or to someone who can make a helpful introduction.

Unfortunately, the Internet, with its ease of use and seemingly endless means of communicating or virtually interacting, can mislead job hunters into believing that it is the sole gateway to networking success in these digital times. Social media sites can lull users into a sense of accomplishment, feeding suggestions for connections or “friends” that result in a robust looking list of contacts. However, a vast list of cursory associations with whom the job seeker interacts minimally, if at all, adds little to no value to one's employment prospects. Mindlessly clicking “invite” on the profile of each of the “people you may know” can appear as indiscriminate and unfocused, or even potential spamming behavior. It also diminishes the time spent in face-to-face meetings ' which can increase a sense of isolation and discouragement.

Savvy harnessing of social media sites, however, can further relationships established the old-fashioned way ' with a handshake, even a phone call ' and lead to genuine opportunity. The purpose of these contacts, however, is to create trusted relationships with conversations and in person meetings. An expert networker is certain to leave any function ' be it a community service project, volunteer activity, social gathering, a trade association luncheon, chamber of commerce dinner, industry event ' with an invitation to receive and offer contact info or business cards. Ideally, this is followed up the very next day with a message to learn more about each other and find commonalities that can lead to mutual referrals and opportunities.

Networking and use of social media sites can be especially daunting for parties who are unemployed, either recently or who have a longer term absence from the workforce, as is most common in matrimonial matters. It can be difficult to know how to assess personal networks for their professional or employment potential, particularly when the job-seeker is not even sure what s/he wants to do ' or is capable of ' doing. To this end, self-assessment is absolutely vital.

Self-Assessment

As a first step, an individual should demonstrate that s/he has analyzed her/his personal employment assets and weaknesses and identified employment sectors and positions that might best fit. Many unemployed people find this difficult and may feel paralyzed in this process. It is wise to seek guidance from a neutral professional who can honestly assess if one's skills and credentials are current and in demand and help identify ways to improve or update skills where necessary.

Advice is available ' often at no charge ' from career counselors and advisers found in a variety of places, such as non-profit organizations, government agencies, alumni programs at schools, colleges and universities, and professional associations. Also not to be overlooked are professional career coaches and recruiters. If individuals are considering a career change, they should carefully research its potential in the local labor market and its realistic potential to achieve the earning capacity they need and return on investment if further training is required. Such research should be conducted with people who work directly in that career as well as with various organizations and Internet resources and career consultants.

We conclude this article in next month's issue.

Rona Wexler , a Diplomate of the American Board of Vocational Experts, is a vocational evaluator, career consultant, executive recruiter and business consultant. Reach her at 646-335-5236, or [email protected].

Enter the term “Employability” into the search engine of any legal database, and you find that the issue arises in a broad array of matters. It is a frequent factor in matrimonial matters, particularly with respect to spousal maintenance and child support, and in tort and employment cases with respect to mitigation of damages. Referring to such matters, if a plaintiff in a discrimination case or a recipient spouse in a divorce action, is unemployed or under-employed and seeking compensation or maintenance, that party's employability must be ascertained in order to determine a fair and just award. Frequently, this requires consultation with, or testimony by, a vocational or employability expert.

When evaluating a party's assertion of limited income potential, courts will take relevant factors into consideration, including the efficacy of that party's efforts to secure full employment. Practitioners must consider what will persuade the court that a client (or opposing party) has, or has not, conducted a diligent search for work. Evidence of a party's willingness to work lends credibility to arguments regarding employability or its limitations, while a credible showing of a person's lack of effort toward full employment can undermine a claim. Either result affects imputation of income in matrimonial matters.

There are a number of challenges inherent to evaluating diligence in the job search process, insofar as it matters to a court of law (or, as the case may be, a mediator or arbitrator): 1) The case law on this topic is not particularly extensive and few legislative guidelines exist; 2) Incomplete (and, arguably, inadequate) answers can be found in administrative law, and 3) Market forces, including changing technology and shifting economies, influence outcomes.

The first part of this article reviews some of these challenges, with a view toward enabling practitioners to argue this issue successfully, whether representing a payor or payee ex-spouse. The second part discusses steps an individual can ' and should ' take to secure employment.

Legal Standards Regarding'a Diligent Job Search

Legal standards with respect to the diligence of a job search vary from jurisdiction to jurisdiction. For example, Massachusetts legislation expressly includes “employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary” as a factor in alimony determinations. (Mass. Gen Laws Ch. 208, ' 53 (2011)). In contrast, as an example (it is beyond the scope of this article to review the statutes and case-law of all 50 states), California makes no mention of job-search efforts with respect to alimony recipient employability, looking only at ” … marketable skills … the job market for those skills… time and expenses required … to acquire the appropriate education or training to develop those skills … the possible need for retraining or education to acquire other, more marketable skills or employment” and vaguely expressing the “ goal that the supported party shall be self-supporting within a reasonable period of time.” (Cal. Fam. Code ' 320 [subd. (a)(1)) & subd. (2)(l)]). But California courts appear reluctant to reduce alimony as a punitive measure against recipients whose job searches apparently fall short. Just last year, in the unpublished case (Laughman v. Laughman), the appellate court held that the ex-wife was not obligated to demonstrate anything more than good faith in attempting to become employed. (No. B251863, Cal. Ct. App., Aug. 28, 2014). In contrast, New York courts require “more than a token effort,” and will order a special hearing to assess job search efforts. ( Szalapski v. Schwartz , 35 Misc. 3d 1219, 951 N.Y.S.2d 84 (N.Y. Sup. Ct. 2011).)

Since case law on the subject of job search diligence is not copious in many jurisdictions, other areas of law may provide persuasive reasoning. In the context of Workers' Compensation cases, Michigan courts set out a four-pronged test for a prima facie showing of disability that includes a requirement for claimants to prove what jobs, if any, they are trained for and capable of performing. ( Stokes v. Chrysler LLC ' 750 NW 2d 129, 138 (Mich. 2008). While avoiding absolute requirements, the court provided numerous suggestions on how to prove a case, including consultation with career counselors and job placement agencies. The decision essentially advised claimants that it is in their interest to provide evidence of as thorough a job search as possible (Id. at 138-139). Significantly, and relevant to the discussion below, a more recent appellate decision held that unavailability of jobs could not be held against a claimant, even if due to economic downturn. (Kohloff v. Chrysler Group LLC, No. 300801, Mich. Ct. App., Oct. 16, 2012). In such cases, expert testimony is often relied upon and thus advisable.

In the realm of employment discrimination, where mitigation of damages is required of terminated employees, “reasonable diligence in finding other suitable employment” is required. ( Ford Motor Co. v. EEOC , 458 U.S. 219, 231 (1982)). The defendant/employer bears the burden of proof, however, and must show that the plaintiff failed to mitigate damages by proving: 1) that suitable work was available, and; 2) that the plaintiff failed to make reasonable efforts to acquire such work. ( Dailey v. Soci't' G'n'rale , 108 F.3d 451, 456 (2d.Cir. 1997)).

Guidance from Administrative Sources

If standards such as “good faith” and “more than a token effort” are too vague, practitioners might look to their state unemployment insurance agencies. Unemployment insurance recipients are required to seek work actively in order to maintain eligibility for benefits.

Each state unemployment agency has its own standards for what constitutes an adequate work search. New York, for example, provides a list of “approved work search activities,” ranging from career counseling at its offices and occupational assessment and training to sending out resumes and interviewing for jobs. (N.Y.S. Dept. Labor, Unemployment Insurance: A Claimant Handbook 18-19 (2014), http://on.ny.gov/1HPvEcl). Pennsylvania's work search requirement for Unemployment Insurance beneficiaries includes a firm requirement of application for at least two jobs per week. (Penn. Dept. Labor & Industry, Work Search/Work Registration FAQs, http://bit.ly/1gpRp6g, then follow link for Work Search/Work Registration). Mississippi requires at least one actual job application per week. (See Miss. Dept. Employment Security, Works Search Requirements, http://1.usa.gov/1JRdNSG). Not all states, however, demand a specific quantity of applications or activities per week. (See, e.g. , Texas Workforce Commission, Unemployment Benefits Work Search Requirements, http://bit.ly/1G9g6IS).

Perhaps because government agencies are best equipped to track quantifiable activities such as completed applications or workshop attendance, most seem to focus on such job search methods. However, no government unemployment program seems to address adequately the job search methods which are, arguably, the most important these days: networking and the harnessing of social media.

It is important to understand both changes in job search standards and job search methods for different occupations in the current job market. Market factors, which vary from place to place and over time, play a role that can be difficult to quantify with specificity.

Determining diligence persuasively must examine the process of assessing job search diligence, current practice and expectations for the job search itself. While this article is intended primarily for litigators as an aid to scrutinizing a party's employability (whether defending or criticizing that individual), it may also serve as a roadmap for anyone seeking a job or new opportunities in the modern economy.

Steps to Take: Diligence As'a Matter of Time

Quantity and Quality

As a general rule or expectation, seeking employment should be close to a full-time job. Establishing a persuasive record to demonstrate diligence in a job search is best supported by maintaining a log quantifying time spent in a variety of specific job searching or career-oriented activities. It is not sufficient to spend a few hours a week perusing and responding to Internet job boards. As noted above, unemployment insurance programs require recipients to conduct adequate work searches and many state administrating agencies demand reports that describe and quantify job-hunting activities conducted by beneficiaries. Work-search logs are meant to ensure that unemployment insurance claimants make genuine efforts to mitigate their joblessness. Similarly, it is wise to provide evidence of diligent efforts to find work that is comparable to a party's earning capacity when claiming difficulty in securing employment, whether toward mitigation of damages or demonstrating a financial need in a support proceeding.

What, then, constitutes diligence? As with any full-time occupation, the diligent job-seeker is expected to establish goals and objectives to meet those goals that are executed on a daily basis with consistent, varied activity. The job-seeker's responsibilities include concrete planning to meet specific objectives to achieve those goals and then create and execute activities to meet those objectives that move the job search process forward. This is not only a responsibility, it is fundamental to a successful search for “optimal” employment. The most effective job seekers have an organized process that manages contact information and includes clear notes and dates to track activity, results, and plans for follow-up and future action.

Activities need not be ' and should not be ' limited to finding job openings and applying for them (and, hopefully, securing interviews). While Internet searches for employment (e.g., researching and responding to online job postings found on employer websites or job posting sites) should not be overlooked, the return on investment for the hours spent on online applications is often discouraging, as most applications receive no or minimal response. The reason is that the relative ease of online applications generates a very high volume of job applicants, overwhelming employers and their staffs as they sort through applicants' credentials. Customizing a resume for a specific position opening or industry improves the chances of a positive reply; however, it is a time-consuming process and should be done selectively.

Moreover, Internet applications are less successful for the longer-term unemployed, those reentering the workplace after an extended absence and those with fewer current skills.

Nonetheless, there are many other facets to a comprehensive job search. Consultations with career advisers, who can assist with creating and critiquing resumes, are certainly valid and valuable activities for the job seeker. Taking classes and participating in workshops and other educational programs that add to a candidate's skill set or credentials demonstrate effort to improve one's employability. Participating in seminars and webinars to improve job search skills and tools is helpful, especially for those who have not sought employment for an extended time period or who are experiencing poor response or success. Critiquing, creating or strengthening one's online presence is an important activity. This can include establishing a LinkedIn account, improving the job seeker's profile or carefully editing the publicly visible portions of a Facebook or Google+ profiles and adding a photo that reflects a professional image.

Networking in a Digital Era

Networking remains a critical ' though sometimes difficult to quantify ' component of job searching and career development, but is often underestimated in the digital economy. Like any job search activity, networking efforts should be tactically organized and cataloged. If used wisely, online services can and should be harnessed as a powerful tool in today's employment marketplace.

Networking has long been emphasized as an important source for finding employment. This is not new, of course: “It's not what you know but who you know” is an old mantra. Richard Bolles talked about the importance of harnessing contacts in the earliest editions of his iconic career change and job search book, What Color Is Your Parachute?, and his wisdom has been echoed through the decades by many sources, including The Wall Street Journal, Forbes, The New York Times, and countless career advice columns.

The difference these days is not only the increasing number of organizations that individuals can use to expand their networks, but the ubiquitous resources and groups available through the Internet in general and on social media in particular. As part of their process, career advisers and executive coaches today help clients identify and expand their networks and learn how to use them properly to make connections that can lead to a successful hire. It is critical to make concerted efforts to cross paths with current, past and potential colleagues and members of one's community because these can lead to a personal referral, to an open position, or to someone who can make a helpful introduction.

Unfortunately, the Internet, with its ease of use and seemingly endless means of communicating or virtually interacting, can mislead job hunters into believing that it is the sole gateway to networking success in these digital times. Social media sites can lull users into a sense of accomplishment, feeding suggestions for connections or “friends” that result in a robust looking list of contacts. However, a vast list of cursory associations with whom the job seeker interacts minimally, if at all, adds little to no value to one's employment prospects. Mindlessly clicking “invite” on the profile of each of the “people you may know” can appear as indiscriminate and unfocused, or even potential spamming behavior. It also diminishes the time spent in face-to-face meetings ' which can increase a sense of isolation and discouragement.

Savvy harnessing of social media sites, however, can further relationships established the old-fashioned way ' with a handshake, even a phone call ' and lead to genuine opportunity. The purpose of these contacts, however, is to create trusted relationships with conversations and in person meetings. An expert networker is certain to leave any function ' be it a community service project, volunteer activity, social gathering, a trade association luncheon, chamber of commerce dinner, industry event ' with an invitation to receive and offer contact info or business cards. Ideally, this is followed up the very next day with a message to learn more about each other and find commonalities that can lead to mutual referrals and opportunities.

Networking and use of social media sites can be especially daunting for parties who are unemployed, either recently or who have a longer term absence from the workforce, as is most common in matrimonial matters. It can be difficult to know how to assess personal networks for their professional or employment potential, particularly when the job-seeker is not even sure what s/he wants to do ' or is capable of ' doing. To this end, self-assessment is absolutely vital.

Self-Assessment

As a first step, an individual should demonstrate that s/he has analyzed her/his personal employment assets and weaknesses and identified employment sectors and positions that might best fit. Many unemployed people find this difficult and may feel paralyzed in this process. It is wise to seek guidance from a neutral professional who can honestly assess if one's skills and credentials are current and in demand and help identify ways to improve or update skills where necessary.

Advice is available ' often at no charge ' from career counselors and advisers found in a variety of places, such as non-profit organizations, government agencies, alumni programs at schools, colleges and universities, and professional associations. Also not to be overlooked are professional career coaches and recruiters. If individuals are considering a career change, they should carefully research its potential in the local labor market and its realistic potential to achieve the earning capacity they need and return on investment if further training is required. Such research should be conducted with people who work directly in that career as well as with various organizations and Internet resources and career consultants.

We conclude this article in next month's issue.

Rona Wexler , a Diplomate of the American Board of Vocational Experts, is a vocational evaluator, career consultant, executive recruiter and business consultant. Reach her at 646-335-5236, or [email protected].