A-750 Series

A-750-2100

Index 1605-C8
1105-B7

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

FEBRUARY 1998

INTERPRETATION SERVICE -BENEFIT CLAIMS
VOLUNTARY SEPARATION
Last employment, question of
MISCONDUCT
Last employment

LAST EMPLOYMENT PRIOR TO FILING

In determining separation from "last employment", the statutory definition of "employment" and its exceptions will govern the interpretation of the words "last employment". {1}

MATTER OF DAVID GRUBER, 89 NY2d 225

(Due to its length, the Court's decision has not been reprinted in its entirety here. These excerpts are relevant to the rule above.)

Claimant Gruber graduated from Mount Sinai Medical school in May 1983 and received a medical degree. He was employed as a research assistant for the New York City Department of Health from July 15, 1983 through June 13, 1984. He resigned from the City post to accept a position in a medical residency program at St. Luke's, which is a teaching hospital accredited by the AMA.

Gruber's contract with St. Luke's was executed on March 22, 1984 and covered a one-year term to commence on July 1, 1984. However, claimant received permission to begin rendering his services for the hospital at an earlier date, and began making rounds on June 18, 1984. After only several days at the hospital, claimant became emotionally ill and was hospitalized. He never returned to the residency program.

{1} For clarification of the statutory definition of "employment" refer to the "COMMENTS" section of this release.

Gruber filed a claim for unemployment insurance benefits. By initial determination, the local unemployment office concluded that Gruber's "last employment" within the meaning of Labor Law Sec. 593(1) was with St. Luke's, that he lost such employment because of illness --a non-disqualifying condition -- and thus that he was eligible to receive unemployment insurance. The office determined that claimant's employment with St. Luke's was not "covered" employment, and thus charged the City of New York for claimant's benefits under Labor Law Sec. 581(1)(e) as claimant's "last employer."

Respondent City of New York objected to the ruling, contending that...if claimant's employment with St. Luke's is deemed to be "student services" excluded from the definition of covered employment, then the City Department of Health should be deemed claimant's "last employer," but claimant should be deemed ineligible to receive benefits because he left that employment with the City to pursue his education -- a disqualifying condition.

A hearing was then held before an Administrative Law Judge (ALJ) of the New York State Department of Labor. The ALJ concluded that claimant was eligible for benefits and that claimant's employment with St. Luke's did not fall under the exception created by Labor Law Sec. 511(15) because claimant's service as a medical resident did not constitute "services rendered for an educational institution by a person who is enrolled and is in regular attendance as a student in such an institution."

On appeal taken by the Commissioner of Labor and St. Luke's, the Unemployment Insurance Appeal Board determined that claimant's services at St. Luke's did fall within the section 511(15) exception to the definition of employment, and St. Luke's was not liable for claimant's benefits. However, The Appeal Board determined that for purposes of Labor Law Sec. 593(1), "claimant's last employment was with St. Luke's and he left this employment with good cause and under nondisqualifying conditions." The board reasoned that the term "employment" as used in section 593(1) meant any employment, not only covered employment as defined in Labor Law Sec. 511. Thus, the Board concluded that the City Department of Health was primarily chargeable for claimant's benefits because that employment was "covered." The Appellate Division affirmed. We granted the City's motion for leave to Appeal, and now reverse.

In this case, the question of law is whether the words "last employment" contained in Labor Law Sec. 593(1) refer to the last covered "employment" as that term is defined in Labor Law Sec. 511, or whether in this context the phrase refers to any employment, including those not covered by the article. The Legislature has defined with precision both the underlying scheme (Labor Law Sec. 501) and the term "employment" in the Unemployment Insurance Law (Labor Law Sec. 511), and has directed that statutory definitions are to be applied to interpret the article unless the context shows otherwise (Labor Law Sec. 510)....Thus, the statutory definition of "employment" and its exceptions will govern our interpretation of the words "last employment" in section 593(1) unless the context shows a different meaning was intended.

Neither the language nor the context of section 593(1) shows that the Legislature intended to depart from the statutory definition of the term "employment" in that context. The absence of any such indication is especially significant because the Legislature has revealed its intention to include in the term "employment" work not covered by the article by expressly so providing in the text of the particular statutory sections (see e.g. Labor Law Secs. 518; 522; 593{2}). For example, in Labor Law Sec. 522, the Legislature defined the eligibility requirement of "total unemployment," as "the total lack of any employment on any day" and expressly provided within the context of that section that "the term 'employment' as used in this section means any employment including that not defined in this title" (emphasis supplied). Similarly, subdivision 2 of section 593, the provision that concerns disqualifications for refusal to accept employment without good cause and that immediately follows the provision at issue here, expressly provides that disqualification of an otherwise eligible claimant would result where the claimant "refuses to accept an offer of employment for which he is reasonably fitted by training and experience, including employments not subject to this article" (Labor Law Sec. 593{2} {emphasis supplied}). Given that the legislature used distinct language in subdivision 2 when it intended to include employments other than those included in the statutory definition of the term "employment" (Labor Law Sec. 510), the absence of similar language in the text of the immediately preceding subdivision of the same section indicates that no departure from the statutory definition of that term was intended or implied.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to the Appellate Division, Third Department, with directions to remand to the Unemployment Insurance Appeal Board for further proceedings in accordance with the opinion herein.

COMMENTS

Section 511 of the Labor Law provides a general definition of employment, as "any service under any contract of employment for hire, express or implied, written or oral", as well as specific provisions applicable to particular occupations: commission drivers, musicians and others in the performing arts, salesmen, models, agricultural laborers, shorthand reporters, and real estate agents. It also contains ten exclusions from the definition of employment, four of which involve students; i.e. Section 511.15 which was the issue addressed by the Court. In addition, other statutory exclusions are found in Section 563.2 and Section 565.2 of the Labor Law.
With specific deliberateness, the Court of Appeals concluded that "last employment" refers to employment as defined in the statute, resulting in the claimant's disqualification. This would apply equally to separations from last employment pursuant to Sections 593.1 (VQ) and Section 593.3 (MISC) of the UI Law.
Work which meets the statutory provisions of "employment" but which was performed for an employer who has not yet met a threshold for liability may still properly be considered claimant's last "employment".
Questions as to whether the "last employment" is employment as defined by statute or falls under the statutory exclusions, should be referred to Liability and Determination Unit for determination (Refer to III 3401-3409). If it is determined that the employment is excluded, no determination on the separation from such employment can be made. Local office must then resolve the separation from the "last employment" prior to the "excluded" employment. Likewise only "employment" which is defined in the statute can be used to terminate a previous disqualification from benefits.
The exception to the rule established by this decision is employment defined in another state. As a matter of Department policy, any employment defined in another state is to be considered "employment" for all purposes. This policy is consistent with the Federal Unemployment Tax Act, (F.U.T.A.), Sec. 536 of the Unemployment Insurance Law, and with interstate agreements currently in effect. It has also recently been upheld by the Appeal Board. (See A-750-2102; AB 462,249)

A-750-2101

Index 1105-D6
1205-D6
1605-D10

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

FEBRUARY 1998

INTERPRETATION SERVICE-BENEFIT CLAIMS
MISCONDUCT
Termination of disqualification
REFUSAL OF EMPLOYMENT
Termination of disqualification
VOLUNTARY SEPARATION
Effective date and termination

TERMINATION OF DISQUALIFICATION

A disqualification from benefits can only be terminated by "employment" as defined in the statute. The statutory definition of "employment" and its exceptions will govern the interpretation of the term "employment". {1}

MATTER OF KENT A. GREENE, 89 NY2d 225

(Due to its length, the Court's decision has not been reprinted in its entirety here. These excerpts are relevant to the rule above.)

Claimant Greene was simultaneously employed by the City of New York Department of Health and by the College of Staten Island as a teacher while enrolled in a Master's Degree program at the latter institution. He voluntarily terminated his employment with the City Department of Health on May 24, 1991 to pursue his education. Greene's last day of teaching was May 30, 1991, although he remained on the payroll through August 1, 1991.

{1} For clarification of the statutory definition of employment refer to the "COMMENTS" section of this release.

Greene filed an application for benefits, and the local office ruled that he was eligible. The City of New York objected and a hearing was held before a State Department of Labor ALJ. The ALJ found that claimant was eligible for benefits, concluding that "although claimant's last employment was not covered employment pursuant to section 511.15, it is nevertheless employment which should be considered to adjust the issue of who the last employ(er) (sic) was and under which circumstances the last employment came to an end * * *." The ALJ concluded that claimant's employment with the college was his last employment "and although that was not covered employment it is not self-employment and it may be counted to break the disqualification that is apparent for voluntary(ily) (sic) leaving the municipal employment."

The City appealed. The Appeal Board adopted the findings of fact and opinion of the ALJ and confirmed the ALJ's determination. The Appeal Board concluded that Greene's work as a teacher was not covered employment and should not be considered in computing his benefit rate or experience rating charges. Nonetheless, the Appeal Board concluded that claimant was eligible for benefits because his "last employment was at school and * * * it ended under nondisqualifying conditions."

The Appellate Division affirmed. The court reasoned that "although claimant's employment with the College was not 'covered' employment it was nevertheless sufficient to break claimant's prior disqualification which resulted when he left his job with the City." The court noted that "Labor Law Sec. 593(1)(a) does not specify that a claimant's 'last' employment must be 'covered' employment for purposes of disqualification." The court concluded that since claimant left his actual last employment with the College under nondisqualifying conditions, the Appeal Board's decision that claimant was eligible for benefits was supported by "substantial evidence." This Court granted the City's motion for leave to appeal, and we now reverse.

The Legislature has defined with precision both the underlying purpose of the legislative scheme (Labor Law Sec. 501) and the term "employment" in the Unemployment Insurance Law (Labor Law Sec. 511), and has directed that statutory definitions are to be applied to interpret the article unless the context shows otherwise (Labor Law Sec. 510).

Neither the language nor the context of section 593.1 shows that the Legislature intended to depart from the statutory definition of the term "employment" in that context. The absence of any such indication is especially significant because the Legislature has revealed its intention to include in the term "employment" work not covered by the article by expressly so providing in the text of the particular statutory sections (see e.g. Labor Law secs. 518; 522; 593{2}). For example, in Labor Law Sec. 522, the Legislature defined the eligibility requirement of "total unemployment," as "the total lack of any employment on any day" and expressly provided within the context of that section that "the term 'employment' as used in this section means any employment including that not defined in this title" (emphasis supplied). Similarly, subdivision 2 of section 593, the pro-vision that concerns disqualification for refusal to accept employment without good cause and that immediately follows the provision at at issue here, expressly provides that disqualification of an other-wise eligible claimant would result where the claimant "refuses to accept an offer of employment for which he is reasonably fitted by training and experience, including employments not subject to this article" (Labor Law Sec. 593{2} {emphasis supplied}). Given that the Legislature used distinct language in subdivision 2 when it intended to include employments other than those included in the statutory definition of the term "employment" (Labor Law Sec. 510), the absence of similar language in the text of the immediately preceding subdivision of the same section indicates that no departure from the statutory definition of that term was intended or implied.

Under Labor Law Sec. 593, eligible status may be restored when the previously-disqualified claimant "subsequently work(s) in employment on not less than three days in each of five weeks and earn(s) remuneration at least equal to five times his weekly benefit rate" (Labor Law Sec. 593{1-4} {emphasis supplied}). Again, nothing in the context of this section indicates that the underscored term "employment" should be given any other meaning than that defined by the Legislature. Thus, for example, a claimant's eligibility for unemployment benefits may be revived after loss of earlier covered employment without good cause when the claimant is involuntarily removed from subsequent "covered" employment.

Here, by contrast, claimant never obtained subsequent "employment" after leaving his covered employment and thus, under the scheme devised by the Legislature, did not revive his status as eligible beneficiaries of the unemployment insurance program. Sympathetic as the case of this claimant may be, he was disqualified from receiving benefits upon his voluntary departure from covered employment, and his eligibility for benefits was not revived because he left his school-related post without fault.

COMMENTS

Section 511 of the Labor Law provides a general definition of employment, as "any service under any contract of employment for hire, express or implied, written or oral", as well as specific provisions applicable to particular occupations: commission drivers, musicians and other in the performing arts, sales, models, agricultural laborers, shorthand reporters, and real estate agents. It also contains ten exclusions from the definition of employment, four of which involve students; i.e. Section 511.15 which was the issue addressed by the Court. In addition, other statutory exclusions are found in Section 563.2 and Section 565.2 of the Labor Law.
With specific deliberateness, the Court of Appeals concluded that "last employment" refers to employment as defined in the statute, resulting in the claimant's disqualification. This would apply equally to separations from last employment pursuant to Section 593.1 (VQ) and Section 593.3 (MISC) of the UI Law.
Work which meets the statutory provisions of "employment" but which was performed for an employer who has not yet met a threshold for liability may still properly be considered claimant's last "employment".
Questions as to whether the "last employment" is employment as defined by statute or falls under the statutory exclusions, should be referred to Liability and Determination Unit for determination (Refer to III 3401-3409). If it is determined that the employment is excluded, no determination on the separation from such employment can be made. Local office must then resolve the separation from the "last employment" prior to the "excluded" employment. Likewise, only "employment" which is defined in the statute can be used to terminate a previous disqualification from benefits.
The exception to the rule established by this decision is employment defined in another state. As a matter of Department policy, any employment defined in another state is to be considered "employment" for all purposes. This policy is consistent with the Federal Unemployment Tax Act, (F.U.T.A.), Sec. 536 of the Unemployment Insurance Law, and with interstate agreements currently in effect. It has also recently been upheld by the Appeal Board. (See A-750-2102; AB 462,249).

A-750-2102

Index No. 1105-D7
1205-D7
1605-D11

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

February 1998

INTERPRETATION SERVICE – BENEFIT CLAIM
DETERMINATION OF BENEFITS
MISCONDUCT
Termination of Disqualification
REFUSAL OF EMPLOYMENT
Termination of disqualification
VOLUNTARY SEPARATION
Effective date and termination

EMPLOYMENT DEFINED IN ANOTHER STATE

Employment performed in another state, which is not excluded employment in that state can be used for the purpose of terminating a prior disqualification.

A.B. 462,249

The issue of whether employment is "covered" employment is crucial to determining whether it can be used to terminate a prior disqualification. When employment is performed in another state, and it is "covered" in that state, then it is properly treated as covered employment for the purpose of terminating a prior disqualification.

By initial determination of the Out-of-State Resident Office, the claimant was held ineligible to receive benefits because his employment with the employer was insufficient to terminate a prior disqualification. The claimant requested a hearing.

The Administrative Law Judge held a telephone conference hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and of the employer. By decision filed April 19, 1996 (A.L.J. Case No. 096-11245), the Administrative Law Judge overruled the initial determination.

The Commissioner of Labor appealed the Judge’s decision to the Appeal Board. In connection with its review of this case, the Board considered the arguments contained in the written statements submitted.

A further telephone conference was held before the Board, at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant, of the employer, and of the Commissioner of Labor. At the hearing, the Board properly added the issue of whether the claimant’s employment was covered employment as defined in Section 511 of the Labor Law so as to permit such employment to be used to break the claimant’s prior disqualification.

Based on the Record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The claimant was employed by a New York employer from April 10, 1988, through January 21, 1996. He filed a claim for benefits in New York State. His benefit rate was calculated to be $300. By initial determination issued February 23, 1996, the claimant was disqualified from receiving benefits effective January 25, 1996, because of a voluntary leaving of employment without good cause. The claimant accepted employment as an insurance auditor with the employer herein and moved to South Carolina. The parties agreed that the claimant would be paid at the rate of $21 per hour for each audit hour. The claimant earned $1,776.25.

On January 31, 1996, the claimant met with the employer and received numerous assignments, forms and information on how to complete the assignments. He spent February 1, and 2, 1996, familiarizing himself with the procedures to use and the computer system, and scheduling appointments. The claimant audited the assigned cases on these dated: February 5, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, 26, 27, 28, 29, and March 7, 1996. On March 4, and 5, 1996, the claimant performed services for the employer for which he submitted vouchers for expense reimbursement. The claimant thereafter left this employment.

The employer does no business in New York and is not registered here. The employer is a registered employer in North Carolina and pays assessed sums into the North and South Carolina systems for possible unemployment insurance claims. The employer does business in North and South Carolina.

The claimant failed a claim for benefits in South Carolina on March 8, 1996. It was effective on March 4, 1996. The initial determination before us was issued on March 20, 1996.

OPINION: The credible evidence establishes that for the week ending February 4, 1996, the claimant worked the three days of January 31, February 1, and 2, 1996. For the week ending February 11, 1996, the claimant did not work at least three days. For the week ending February 18, 1996, the claimant worked in excess of three days on February 12,13,14,15, and 16, 1996. For the week ending February 25, 1996, the claimant worked in excess of three days on February 19, 20, 21, 22, and 23, 1996. For the week ending March 3, 1996, the claimant worked in excess of three days on February 26, 27, 28, and 29, 1996. For the week ending March 10, 1996, the claimant worked on the three days of March 4, 5, and 7, 1996. We hold that the claimant worked at least three days in five weeks during the period of January 31, 1996, and March 7, 1996.

The question becomes whether the claimant earned five times his benefit rate or at least $1,500. The credible evidence establishes that the claimant earned $1,776.25 during this period. We have considered the fact that the W-2 submitted by the employer shows that the claimant only earned $919.96. We are persuaded by the claimant’s contention that he was really paid $21 an hour for 84 audit hours in light of the employer’s concession that the claimant was paid at the rate of $21 an hour, the claimant had to pay his own expenses out of this and it was broken down into expenses and income for withholding purposes. We hold that the claimant worked at least three days in five weeks during the period of January 31, 1996, and March 7, 1996 and earned $1,776.25 which is in excess of the required sum of $1,500.

The question now becomes whether the claimant’s employment is covered employment, which may be used to terminate his outstanding disqualification. Labor Law Section 593(1)(a) states that no days of total unemployment shall be deemed to occur after a claimant has voluntarily separated without good cause from his last employment prior to the filing of a claim until he has "subsequently worked in employment on not less than three days in each of five weeks and earned remuneration at least equal to five times his weekly benefit rate." (emphasis supplied) If this claimant’s out-of-state work is covered employment within the meaning of Section 593, then he has accumulated enough weeks and wages to terminate the outstanding disqualification.

The general definition of "employment" is found in Labor Law Section 511(1) which provides that "Employment means any service under any contract of employment for hire, express or implied, written, or oral and any service by a person for an employer." Such employment has been construed to mean "covered employment." See Matter of Gruber, 89 NY 2d 225 at 233 (1996). Labor Law Section 510 states that "whenever used in this article, the terms defined in this title have the respective meaning set forth herein except where the context show otherwise.

At various places in the Labor Law, the Legislature has specified when it wanted the term employment to include non-covered employment. For example, Labor Law Section 522 defines total unemployment to mean, "The total lack of any employment on any day. The term ‘employment’ as used in this section means any employment including that not defined in this title."

The question arises because of the aforementioned Gruber case. Therein, the Court of appeals concluded that a claimant, who separated from covered employment from a disqualifying reason, who later worked at non covered employment and who subsequently separated from the non-covered employment under non-disqualifying circumstances, may not revive his eligibility for benefits because he never obtained subsequent "employment."

Although this is a case of first impression, a guidepost may be found in the Interstate Benefit Payment Plan of 1938, to which New York has long been a party pursuant to the authorization in Labor Law Section 536(2). This interstate compact prescribes that states act as each other’s agents in order to provide access to unemployment insurance to claimants who have moved to a different state. Under this, and similar compacts, the states are to work together to effectuate a method of payment for claimants who might otherwise be deprived of benefits because of their absence from a state in which their benefit credits had been accumulated.

In 1939, the Federal Unemployment Tax Act (FUTA) was enacted. 26 USCS Section 3304(a)(9)(A) requires a State law to provide that:

compensation shall not be denied or reduced to an individual solely because he files a claim in another State (or a contiguous country with which the United States has an agreement with respect to unemployment (compensation) or because he resides in another State (or such a contiguous country) at the time he files a claim for unemployment compensation.

In an Unemployment Insurance Program Letter dated October 5, 1995, which was enclosed with a letter dated April 15, 1996, from the U.S. Department of Labor to the New York State Commissioner of Labor, the U.S. Department of Labor has construed Section 3304(a)(9)(A) as follows:

The expressed intent of Congress is enacting this section was to remove provisions of law "Which reduce the benefits, or otherwise penalize workers who reside elsewhere than in the State in which they worked and earned their right to benefits," because such provisions "are not only inequitable to the individual claimant and injurious to the proper function of the unemployment system but inhibit among workers a very desirable mobility which is important to our economy." (H.R. No. 612, 91^st Congress 1^st Session 17).

The claimant worked many years in New York before losing that employment under disqualifying circumstances and moving out of state to find new employment. The question of the claimant’s separation from his out-of-state employment is not before us. It was concluded that the claimant voluntarily separated from this out-of-state employment with good cause in Administrative Law Judge decision dated August 15, 1996, in case number 096-16941. When the claimant filed a South Carolina claim effective March 4, 1996, this established a base period from March 6, 1995, to March 3, 1996. Both his New York employment and out-of-state employment were during his base period.

We are not unmindful that the aforementioned Law Section 511 also defines certain classes of employment which have a sufficient nexus to New York State to be considered covered employment so that they may be the basis of a valid original claim filed in New York State. These subsections are inapplicable here since this case does not involve the question of whether the claimant’s South Carolina employment could have been the basis of a valid original claim filed in New York. On the contrary, the question before us is whether the claimant’s South Carolina employment may be used to terminate a disqualification.

We have considered the policies inherent in the interstate compacts and believe that their spirit of providing redress throughout the country to individuals who are unemployed through no fault of their own is best effectuated by recognizing this out-of-state employment as covered employment for the purposes of terminating a disqualification. In this light, we decline to extend the Court of Appeals interpretation of "employment" in the Gruber case to this context.

We hold that the claimant’s employment in south Carolina for a registered employer in that State is covered employment in this context. To hold otherwise could have the effect of freezing a claimant’s free exercise of his right to travel and live anywhere in the United States. Since the claimant worked at least three days a week in five weeks, in covered employment, earning in excess of his weekly benefit rate, we conclude that the claimant terminated his outstanding disqualification.

DECISION: The initial determination of ineligibility to receive benefits because the claimant did not work at least three days in each of five weeks during the period January 31, 1996, through March 7, 1996, and earn at least $1,500 is overruled.

The decision of the Administrative Law Judge is affirmed.

A-750-2103

Index No. 1610.11
1190.7

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

July 1998

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Actions leaving the employer no choice
VOLUNTARY QUIT
MISCONDUCT
Other offenses

ABILITY TO INSURE

Claimant who is held to be an unacceptable risk by the employer’s insurance carrier is not subject to a voluntary quit disqualification for provoked discharge, because the employer is not without any option to seek coverage elsewhere. Instead, claimant’s behavior that led to the negative evaluation of his insurance risk should be examined to determine whether misconduct in connection with employment has arisen.

A.B. 473,758

By initial determination of the local office, the claimant was disqualified from receiving benefits, effective March 11, 1997, because of a voluntary leaving of employment without good cause. The claimant requested a hearing.

The administrative law judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There was an appearance by the claimant. By decision filed May 2, 1997 (A.L.J. Case No. 097-11134), the administrative law judge overruled the initial determination.

The Commissioner of Labor appealed the judge’s decision to the Appeal Board. In connection with its review of the case, the Board considered the arguments contained in the written statement submitted.

Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The claimant was employed as a driver by a business machine dealership for more than three years, until March 10, 1997. He worked a full-time schedule and earned $9.50 per hour. On March 7, 1997, the employer was notified that its liability insurance carrier would no longer extend coverage to the claimant because he was regarded as an unacceptable risk. At that time, the employer was informed that during his employment, the claimant had recorded against his driver's license seven moving violations, a registration and an inspection violation, and a two-month suspension in late 1996, for failure to promptly respond to numerous parking tickets. The employer was not previously aware of this suspension, because the claimant continued reporting to work and operating the vehicle assigned to him, despite the lack of a valid license. Although his license was reinstated prior to March 7, 1997, the employer discharged him rather than seek coverage for him from another insurer.

OPINION: The credible evidence establishes that the claimant was discharged after his employer’s insurance carrier announced that it would no longer assume the risk of insuring him, due to his past driving record. While the employer may have felt itself justified in dismissing the claimant, in the belief that he culpably failed to maintain an acceptable driving record, that issue is not now before the Board. The initial determination under review was issued by the local office in the mistaken belief that the claimant’s license had been revoked, thereby compelling the employer to discharge him. In fact, it is uncontested that the claimant’s license was not subject to any revocation, suspension or other restriction at the time of his discharge. Accordingly, the initial determination was properly overruled.

On appeal to the Board, the Commissioner of Labor now seeks to alter the basis for disqualification by proposing that the claimant’s conduct in acquiring his driving record, and the resulting refusal of the employer’s insurer to extend coverage to him, so provoked the employer to discharge the claimant as to be tantamount to a voluntary quit under the Unemployment Insurance Law. We do not think that the record and the law support such a conclusion.

The doctrine of "provoked discharge" is a very limited one. It provides that where a worker, by his culpable actions or omissions, leaves his employer no other choice but to discharge him, the worker may thereby be deemed effectively to have quit his job under disqualifying conditions. In such instances, an employer must be without any range of discretion and must be compelled to dispense with the worker’s services; as where a worker fails to join or maintain membership in a union, as a condition of his employment (Matter of Malaspina, 309 NY 413) or loses a license which is an essential prerequisite of his job (Matter of Lenoir, 176 AD 2d 428).

The Board has long held that there can be no benefit disqualification under the theory of "provoked discharge" where a validly licensed employee is fired solely because his employer’s insurance carrier has declined to continue covering that employee, due to his poor driving record (Appeal Board 245,749). Clearly, such an employer is not without any option but to discharge the employee, since it can seek the threatened insurance coverage elsewhere. We are aware that a later Board decision pronounced a contrary conclusion (Appeal Board 423,145; Interpretation Service Index 1610.11). We now reject the latter ruling, and its unwarranted conclusion that a worker who is denied coverage by one insurer is thereby rendered uninsurable. In an insurance market that includes assigned risk pools and apportioned liability, no licensed driver is uninsurable.

At the same time, we do not seek to minimize the inconvenience to the instant employer in having to find an alternate insurer and incur the likely expense of increased premiums. We note the contention of the employer, on appeal by the Commissioner, that it reprimanded the claimant, nearly a year prior to his discharge, about his record of driving citations and parking violations, and their negative affect on his license and the employer’s insurance premiums. For this reason, we conclude that the matter should be referred to the local office for consideration and determination of the alternate issue of whether the claimant’s behavior, following the employer’s alleged warning, rose to the level of misconduct under the law.

DECISION: The initial determination of voluntary leaving of employment without good cause is overruled.

The decision of the administrative law judge is affirmed.

The issue of whether the claimant’s actions constituted misconduct is referred to the local office for consideration and determination.

COMMENTS

Claimant’s license was in effect at the time of his loss of employment. While he may have failed to maintain a driving record acceptable to his employer, he was not prevented by law from driving. His employer could have sought insurance coverage for him elsewhere.
A disqualification for "provoked discharge" does not apply; the Appeal Board is deliberately reversing its prior analysis. The 1994 publication of the prior decision (A-750-2063) is therefore rendered obsolete. The rule is therefore deleted, and this case is substituted. However, see 3 below.
Claimant’s actions may have constituted misconduct in connection with his employment. Any discharge resulting from failure to maintain an acceptable driving record would have to be evaluated as possible misconduct, based on the terms and conditions of hire, and the nature of the violations that led to the reevaluation of claimant’s insurance risk.
Had claimant’s license been revoked, and his discharge been a result of this legal barrier to his continued employment, a "provoked discharge" analysis would apply.
The Appeal Board reached a similar conclusion in another case (AB 479,915) involving a claimant guilty of DWAI. The employer’s insurance carrier would no longer cover claimant, except at a substantially higher premium. Since the employer could have sought coverage elsewhere, the theory of provoked discharge does not apply. However, claimant’s actions constituted misconduct.

A-750-2104

Index 1590.3

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JUNE 1998

INTERPRETATION SERVICE - BENEFIT CLAIMS
MISREPRESENTATION and REDETERMINATION
Recovery of Overpayment

RECOVERABILITY OF OVERPAYMENT - EXCESSIVE BENEFIT RATE

Benefits are not accepted in good faith and the resulting overpayment is recoverable when the established benefit rate was so excessive that the claimant had doubts as to its correctness but failed to inquire at the local office about the accuracy of the rate.

AB 58,611-56

Referee's Decision: The initial determination of the local office holding that overpayments of benefits to claimant totalling $233.75 were recoverable, is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a meat counterman, was employed three days of each week at a salary of $30 per week. He was laid off because of a lack of work and filed an original claim for benefits, effective May 21, 1956. He was held to be eligible to receive benefits at the rate of $36 per week, based upon information from his former employer that he worked at least 26 weeks and earned at least $3640 during his base period.

Based upon a later investigation of the employer's books and records, an amended determination was issued crediting claimant with 47 weeks of employment and earnings of $1410 during his base period, resulting in a revised benefit rate of $19 per week. When claimant began to receive weekly benefit checks in the sum of $36 he thought it strange, in view of the fact that he had only earned $30 per week while he was employed. He discussed the matter with his former employer who felt likewise. Claimant did not bring the matter to the attention of the local office or make any inquiry thereafter with respect to the amount of his benefit checks. At the time he filed his claim for benefits, claimant received an information booklet containing rules relating to entitlement to benefits, including the amount thereof, based on prior earnings. He did not read it.

Based upon the foregoing an initial determination was issued holding that claimant was overpaid $233.75 in benefits which were deemed to be recoverable. Claimant protested the initial determination and requested a hearing. The referee overruled that part of the initial determination which held that the overpayments to claimant were recoverable and the Industrial Commissioner appealed to the Board.

Appeal Board Opinion and Decision : The referee ruled that the over-payments to claimant were not recoverable despite a doubt as to claimant's good faith in accepting benefit payments which were in excess of his weekly earnings. We do not agree with the referee's conclusion.

It is observed at the outset that in the absence of statutory authority therefor to the contrary, monies paid to one who is not entitled to receive them are recoverable ordinarily under the common law rule relative to unjust enrichment. In order to avoid undue hardship to claimants called upon to repay sums of money long after payments were made by mistake and accepted by claimants in good faith (provided they made a full and frank disclosure of relevant information which would affect the determination of their right to benefits), the legislature enacted Section 597.3 and 597.4 of the Unemployment Insurance Law. Those Sections (as amended by the Laws of 1951) read as follows:

3. Limitation on review of certain determinations. An initial determination regarding benefit rate and validity of original claim may, in the absence of fraud or wilful misrepresentation, be reviewed only within one year from the date it is issued because of new or corrected information provided that no decision on the merits of the case has been made upon hearing or appeal. Such review shall be conducted and a new initial determination issued in accordance with the provisions of this article and regulations and procedure prescribed thereunder with respect to the adjudication and payment of claims, including the right of appeal.

4. Effect of review. Whenever a new initial determination in accordance with the preceding subdivision or a decision on such new initial determination by a referee, the appeal board, or a court results in a decrease or denial of benefits previously allowed, such new initial determination or decision shall not affect the rights to any benefits already paid under the authority of the prior determination or decision provided they were accepted by the claimant in good faith and the claimant did not make any false statement or representation and did not wilfully conceal any pertinent fact in connection with his claim for benefits. (Underscoring supplied)

In order for a claimant to retain benefits already paid under the authority of a prior determination, which was erroneously made, it must appear that the benefits were accepted by claimant in good faith. Claimant's testimony before the referee establishes that there was doubt in claimant's mind as to the correctness of the amount of his benefit checks, in view of his prior earnings. Even a casual reference to the information booklet supplied to him would have resolved his doubts. He did not notify the local office, even after discussing the matter with his former employer, who likewise was of the opinion that it was strange for claimant to receive such a high benefit rate. Claimant admitted he neither said nor did anything to resolve the doubts created by this irregularity. He relied on the local office to check its mistake. All of the facts herein lead to the conclusion that claimant did not accept the benefits paid to him in good faith. The overpayments to claimants are accordingly recoverable under the section of the law above cited.

The initial determination of the local office holding that claimant was overpaid $233.75 in benefits, which overpayments were held to be recoverable is sustained in its entirety. The decision of the referee is modified accordingly, and, as so modified, is affirmed. (February 8, 1957)

COMMENTS

This decision was originally released in A-750-1448 on March 6, 1957. It was deleted from the Interpretation Service Index when the September 5, 1983 amendment to Section 597.4 made all overpayments automatically recoverable. It is reissued now due to the recent amendment to Section 597.4 which negates the 1983 amendment, and restores to the statute essentially the same provisions that were in effect prior to September 5, 1983.
The amendment to Section 597.4 applies to overpayments of benefits for weeks ending 5/24/98 or later. It provides that overpayments, except those resulting from retroactive payments of remuneration, are non-recoverable if all of the following conditions are met:

(a) The benefits were accepted in good faith.
(b) Claimant did not make any false statement or representation.
(c) Claimant did not wilfully conceal any pertinent fact in connection with his claim.

The claimant in this case failed to take steps to resolve his doubts about the correctness of the amount of benefits he was receiving. He failed to inquire of the local office, and he failed to refer to the Information booklet which he admitted having received. Since the board found this behavior to constitute lack of good faith, condition (a) above is not met and the overpayment is recoverable.

A-750-2105

Index 1590.4

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JUNE 1998

INTERPRETATION SERVICE - BENEFIT CLAIMS
MISREPRESENTATION and REDETERMINATION
Recovery of Overpayment

RETROACTIVE PAYMENT OF HOLIDAY PAY

An overpayment resulting from a retroactive payment of holiday pay is recoverable even though the claimant accepted the benefits in good faith.

AB 108,102

Referee Decision: The initial determination of the local office charging claimant with an overpayment of $34 in benefits which were ruled to be recoverable is modified to charging claimant with an overpayment of $8.50 in benefits which is ruled to be non-recoverable.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a sewing machine operator, worked a little more than a week for the employer and was laid off on the last working day in June. She was told to return to work on July 15. On July 9 claimant appeared at the local office and certified for the statutory week ending July 7. On July 10 claimant returned to work for this employer and some time subsequent thereto she was paid holiday pay for July 4. Claimant did not expect to collect holiday pay for July 4 because of the short tenure of her employment prior to the holiday.

Appeal Board Opinion and Decision: Under the provisions of Section 597.4 of the Law, as a result of a new initial determination, there is a decrease or denial of benefits, which decrease or denial is based upon a retroactive payment of remuneration, any excess benefits paid under the original initial determination is a recoverable overpayment. The question of good faith or lack thereof is not controlling therein. In view of claimant's own testimony that she received holiday pay subsequent to her return to work, it follows that the money received by claimant was retroactive remuneration. Any benefits paid to her for such period are therefore recoverable.

The initial determination of the local office charging claimant with an overpayment of $34 in benefits which was ruled to be recoverable is modified to charge claimant with an overpayment of $8.50 in benefits which is ruled to be recoverable, and as so modified, is sustained. The decision of the referee is modified accordingly, and as so modified, is sustained. (January 15, 1964)

COMMENTS

This decision was originally released in A-750-1605 on January 24, 1964. It was deleted from the Interpretation Service Index when the September 5, 1983 amendment to Section 597.4 made all overpayments automatically recoverable. It is reissued now due to the recent amendment to Section 597.4 which negates the 1983 amendment and restores to the statute a provision relating to retroactive payments of remuneration that was in effect between February 28, 1961 and September 4, 1983.
Recovery is mandatory regardless of other attendant circumstances when any overpayment results from denial or reduction of benefits because of a retroactive payment of remuneration (Section 597.4). Remuneration includes payment for "paid vacations" and "paid holidays". A redetermination under these circumstances must be made within six months from the date on which such retroactive "remuneration" is paid.
Non-retroactive payments of remuneration however, will result in recoverable overpayments in accordance with the conditions provided in Section 597.4 only if the claimant made a false statement, wilfully concealed a pertinent fact, or did not accept benefits in good faith.

A-750-2106

Index 1590.5

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JUNE 1998

INTERPRETATION SERVICE - BENEFIT CLAIMS
MISREPRESENTATION and REDETERMINATION
Recovery of Overpayment

INCORRECT ENTITLEMENT INFORMATION

An overpayment resulting from an incorrect statement by a claimant concerning the amount of his base period earnings and weeks of employment, is recoverable under Section 597.4 because such statement was false, even though it may not have been wilfully false and even though the benefits may have been received in good faith.

AB 257,498

Referee Decision: The initial determination of the local office charging the claimant, filing under the Emergency Compensation Act of 1974, with an overpayment of $983.25 in benefits, ruled to be recoverable, is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, aged 23, worked as a telephone operator at a university from July, 1974 through February 26, 1975 and again from June 23, 1975 through November 14, 1975, when he lost his job under non-disqualifying conditions. He filed an original claim for benefits effective May 24, 1976, establishing a base period of May 26, 1975 through May 23, 1976. He was requested by the local office to furnish information concerning his earnings during the base period. Claimant reported that he earned $2,694.83 during the period. Claimant had earned only $1,641.40. Based on his reported earnings of $2,694.83, claimant's benefit rate was established at $64 per week. He collected benefits at this rate through April 24, 1977. Based on his true earnings of $1,641.40, his benefit rate should have been $41. Because he received benefits at a higher rate than that to which he was entitled, claimant was overpaid $983.25 in benefits.

Opinion: The evidence establishes that claimant earned $1,641.40 during his base period, but that he reported earnings of $2,694.83 and, as a result, was overpaid $983.25 in benefits. Benefits which are overpaid as a result of a false statement are recoverable pursuant to Section 597.4 of the Law. The false statement need not have been deliberately or wilfully made (Appeal Board #228,122). It is, therefore, not material that claimant believed he was furnishing the correct information and received the benefits in good faith. Accordingly, we conclude that the overpayment of $983.25 in benefits is recoverable.

Decision: The initial determination of the local office is sustained.

The decision of the referee is reversed. (January 26, 1978)

COMMENTS

This decision was originally released in A-750-1448 on March 6, 1957. It was deleted from the Interpretation Service Index when the September 5, 1983 amendment to Section 597.4 made all over-payments automatically recoverable. It is reissued now due to the recent amendment to Section 597.4 which negates the 1983 amendment, and restores to the statute essentially the same provisions that were in effect prior to September 5, 1983.
The amendment to Section 597.4 applies to overpayments of benefits for weeks ending 5/24/98 or later. It provides that overpayments, except those resulting from retroactive payments of remuneration, are non-recoverable if all of the following conditions are met:

The benefits were accepted in good faith.

Claimant did not make any false statement or representation.

Claimant did not wilfully conceal any pertinent fact in connection with his claim.

An overpayment resulting from redetermination of a benefit rate is recoverable if the rate had originally been established on the basis of a claimant's statement containing inaccurate information concerning the amount of earnings or weeks of employment in his base period, because under these circumstances, condition (b) above is not met. This applies even if the inaccurate information is an estimate or approximation and is given in good faith.

A-750-2107

Index 1590.6

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JUNE 1998

INTERPRETATION SERVICE - BENEFIT CLAIMS
MISREPRESENTATION and REDETERMINATION
Recovery of Overpayment

LACK OF GOOD FAITH

A claimant's mere acceptance of benefits to which he knows he is not entitled, does not constitute a wilful misrepresentation, but does demonstrate a lack of good faith, justifying recoverability of the resulting overpayment.

A.B. 299,819

The claimant appeals from the decision of the administrative law judge filed October 19, 1979, insofar as it sustained the initial determination of the local office holding that he wilfully made a false statement to obtain benefits by reason of which a forfeiture of eight effective days was imposed as a penalty in reduction of his future benefit rights. No appeal has been taken from that portion of the said decision that sustained the initial determination of the local office charging the claimant with an overpayment of $360 in benefits, ruled to be recoverable.

A hearing was held before the administrative law judge at which all parties were accorded a full opportunity to be heard and at which the claimant appeared and testimony was taken. The Board considered the arguments contained in a written statement submitted on behalf of claimant on appeal.

Based on the record and testimony in this case, the Board makes the following.

FINDINGS OF FACT: The claimant filed an original claim for benefits, effective May 24, 1979, and his benefit rate was fixed at $63 a week. He was advised that this was his benefit rate. Thereafter, he received nine payments at the rate of $103 a week. He did not advise the local office that he was being overpaid $40 a week and kept the overpayment. He was charged with a recoverable overpayment of $360 which he does not contest.

OPINION: The claimant objects to the imposition of the forfeiture penalty, contending that he made no false statement or representation with respect to his claim. We agree with this contention. None of the claimant's acts in connection with this overpayment can justify the imposition of the forfeiture penalty. The overpayment is recoverable solely because he knew he was not entitled to it but kept it anyway. Therefore he did not accept it in good faith.

DECISION: The initial determination of the local office holding that the claimant wilfully made a false statement to obtain benefits, by reason of which a forfeiture of eight effective days was imposed as a penalty in reduction of his future benefit rights, is overruled.

The decision of the administrative law judge, insofar as appealed from, is reversed.

There having been no appeal therefrom, that portion of the judge's decision sustaining the initial determination of the local office charging the claimant with an overpayment of $360 in benefits, ruled to be recoverable, remains in effect.

COMMENT

This decision was rendered by the Appeal Board on January 11, 1980. The wording of Section 597.4 at that time was identical to that of the recent amendment to that section which took effect May 18, 1998. Therefore, the rule established by this decision is once again valid.

A-750-2108

INDEX 1590-7

NEW YORK STATE DEPARTMENT OF LABOR

UNEMPLOYMENT INSURANCE DIVISION

ADJUDICATION SERVICES OFFICE

JUNE 1998

INTERPRETATION SERVICE-BENEFIT CLAIMS
MISREPRESENTATION AND REDETERMINATION
Recovery of Overpayment

EFFECTIVE DATE

The revision to Section 597.4, providing for non-recoverable overpayments under certain circumstances, does not apply to benefits paid for weeks ending May 17, 1998 and earlier, but only to benefits paid for weeks ending May 24, 1998 and later, regardless of the date on which such benefits were released.

AB 356,801

The claimant appeals from the decision of the administrative law judge filed June 27, 1984 sustaining the initial determination of the local office dated April 17, 1984, charging the claimant with an overpayment of $602 in benefits, ruled to be recoverable.

A hearing was held before the administrative law judge at which all parties were accorded a full opportunity to be heard and at which claimant and a representative of the Commissioner of Labor appeared and testimony was taken.

Based on the record and testimony in this case, the Board makes the following

Findings of Fact: Claimant filed an original claim for benefits effective July 4, 1983. By initial determination effective April 25, 1983 she was disqualified because of voluntary leaving of employment without good cause. That determination was issued prior to the claimant's having received any benefit payments. She requested a hearing and as a result of said hearing received a decision overruling the initial determination issued by an administrative law judge on September 7, 1983. By virtue of the judge's decision, the claimant was thereafter paid $602 in benefits. The judge's decision was eventually reversed and the initial determination sustained on March 15, 1984 in Appeal Board #349,892. In regard to the benefits which claimant received, $448 were for statutory weeks ending July 17 through September 4, 1983 and the remaining $154 were for statutory weeks ending September 11 through September 25, 1983.

Opinion: There is no dispute that claimant received all of the benefit payment in question. Further, all of these benefits represent an overpayment in view of the fact that the initial determination disqualifying claimant was sustained by the Appeal Board in Appeal Board #349,892. However, we disagree with the judge's conclusion that since the actual payment of benefits was made to the claimant on or after September 5, 1983 that all the benefits are recoverable. We conclude that the effective date of September 5, 1983, established by Chapter 415 of the Laws of 1983, Sections 9 and 26 pertain to the statutory weeks of entitlement and not to the check release or payment date. To construe that all payments are recoverable based merely on the fortuity of a check release date fails to recognize the fact that many determinations, decisions and benefit payments are substantially delayed because of protracted litigation and clerical or administrative inefficiency when the original periods of entitlement in issue may have far predated September 5. We see no legislative intent to reach back and upset such cases, or to reach such an inequitable result. The Board concludes that there is no statutory authority for the recoverability of those benefits paid for the statutory weeks ending prior to September 5, 1983. We have so held in the past (Appeal Board #351,675).

Decision: The initial determination of the local office charging claimant with an overpayment of $602 in benefits ruled to be recoverable is modified to hold $448 to be non-recoverable and the remaining $154 in benefits to be recoverable and, as so modified, is sustained.

The decision of the administrative law judge is modified accordingly and, as so modified, is affirmed.

COMMENT

This decision, released by the Board on October 2, 1984, was brought about by the September 5, 1983 amendment to Section 593.4. The Board determined that benefits paid for statutory weeks prior to the effective date of the amendment, should be governed by the statutory provisions in effect at that time. The Board specifically rejected the idea that the date on which benefits were released should determine which statutory rules should be applied to resolve questions of recoverability.

A-750-2109

Index No. 1152.9

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

November 1999

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
MISCONDUCT
Drugs

HAIR SAMPLE TESTING

When reliable procedures are used, testing of hair samples for evidence of use of illegal drugs provides adequate proof. When this evidence indicates that claimant ingested an illegal drug during his probationary employment period, in violation of the employer’s rule, claimant’s discharge from employment is due to misconduct.

A.B. 479,408

The local office issued an initial determination disqualifying the claimant from receiving benefits, effective July 22, 1997, because claimant lost employment through misconduct in connection with such employment. The claimant requested a hearing.

The Administrative Law Judge held telephone conference hearings at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and the employer. By decision filed November 24, 1997 (A.L.J. No. 097-28880), the Administrative Law Judge overruled the initial determination.

The employer appealed the Judge’s decision to the Appeal Board. The Board held further telephone conference hearings at which all parties were accorded a full opportunity to be heard and which testimony was taken. There were appearances on behalf of the claimant, the employer, and the Commissioner of Labor. The Board considered the arguments contained in the written statements submitted on behalf of the claimant and the employer.

Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The claimant, a union member, was employed as a probationary police officer for this municipal employer from June 30, 1995 through July 21, 1997. On May 8, 1997, the claimant (along with other probationary officers) was called to provide hair samples for his end-of-probation drug test. On this date, the claimant completed the Medical History End-of-Probation questionnaire, in which he identified various medications he took during the past three months. Also, a police officer took three samples of claimant’s head hair, approximately 60 strands per sample. The first and the second (safety net) samples were sent to the laboratory, used by the employer, for drug testing. The third (reserve) sample was kept by the employer. Another police officer, a sergeant, verified and otherwise supervised the collection of the hair samples and their shipment to a private outside laboratory that specializes in drug testing.

Initially, the laboratory places hair samples on the internal chain of custody form. Thereafter, a portion (or an alloquat) of a sample to be tested undergoes a washing procedure. The alloquat is first washed with isopropyl alcohol in an isolating water bath, which moves the hair back and forth 100 times per minute for 15 minutes. After removing the alcohol-water solution, the alloquat of hair undergoes three separate phosphate buffer washes, each buffer wash at 100 cycles per minute lasting for 30 minutes. The wash cycles are performed to eliminate contamination from external sources.

The laboratory utilizes Radiommunoassay (RIA) and Gas Chromatograph/Mass Spectrometry (GC/MS) to detect ingested illegal drug (drugs of abuse) in fair samples. The RIA and the GC/MS have been developed since the 1960’s and the 1950’s, respectively, and it has been long accepted by the scientific community as sound techniques. The RIA is used as a preliminary (screening) test and the GC/MS is considered the standard confirmatory (main) test to detect drugs of abuse. A negative RIA test result is reported negative and no confirmatory GC/MS test is performed. If the test result is positive under RIA, then the GC/MS test is used to confirm the positive result. All the laboratory technicians have Bachelor of Science degrees, and a number of them working with GC/MS have Ph.D. degrees.

The laboratory received the two hair samples from the employer on May 9, 1997. After completing the internal chain of custody form, an alloquat of the first sample under went the wash routine. Then the alloquat was tested for the detection of five drugs of abuse, which resulted in a positive finding of cocaine use. The laboratory repeated its washes and tests using another alloquat from the first sample and conformed its positive result. The laboratory performed a third set of washes and tests using an alloquat from the safety net sample which reconfirmed the positive finding for cocaine use.

Throughout the testing process from May 9 through May 24, 1999, the laboratory staff followed all internal chain of custody and other security measures. On June 10, 1997, the positive test results were reviewed and confirmed by the laboratory’s safety net committee, which included the quality assurance director. Based on the positive drug test, the employer suspended the claimant from employment on June 10, 1997 and later terminated his employment on June 21, 1997.

The employer’s expert witness, having a Ph.D. and who was the vice president of laboratory operations at the laboratory, testified that both he and the laboratory were certified by the New York State Department of Health to perform tests to detect drugs of abuse on various body hair samples, including head and underarm hair. The witness has been a member of various societies, including the Society of Forensic Toxicology (SOFT). He had testified in numerous civilian and military cases regarding hair testing for drug use. In the professional opinion of the employer’s expert witness, RIA and GC/MS techniques to detect drug abuse are sound; his laboratory staff carefully following the established testing procedures and techniques; and the claimant’s hair samples tested positive for cocaine use a direct result of cocaine ingestion.

On August 8, 1997, the claimant, on his own initiative, had a sample of his underarm hair taken for cocaine testing at a different laboratory. By report dated August 19, 1997, this laboratory detected no cocaine use. At any given time, approximately 50 percent of underarm hair and approximately 10 percent of head hair is dormant. During the non-growth period, the dormant hair does not accumulate any drugs of abuse ingested by the individual. The director of laboratory operations at this laboratory testified that there may not have been "enough drug use to cause the underarm hair to be positive", but that there could have been "enough drug use to cause the head hair to be positive."

The claimant’s expert witness, the Chief Toxicologist for the Nassau County Medical Examiner’s office, is also a member of SOFT. He has performed various drug tests, but has not performed any drug tests using body hair. He testified, in his professional opinion, that RIA hair testing, without proper control and ensuring no external contamination, is not reliable.

OPINION: The evidence establishes that the hair testing utilized by the outside laboratory utilized by the employer to detect drug use is reliable. In United States v. Medina, 749 F Supp 59 (ED New York 1990), the Court laid out three criteria under which hair analysis test results should be accepted: (1) the hair sample was properly obtained; (2) the laboratory technique used was sound; and (3) the laboratory was careful and accurate in its use of that technique.

Here, the claimant’s hair samples were obtained under the supervision of a sergeant and then sent to the laboratory. Regardless, the claimant does not dispute the chain of custody of his hair sample. Also, the laboratory washed the hair samples three times to remove any external contamination. Furthermore, the employer’s expert witness produced sufficient evidence that the laboratory techniques used were sound and that these techniques were carefully followed to obtain the claimant’s positive test result for cocaine use. The laboratory not only performed a RIA, but it also found a positive result using the established GC/MS technique. Accordingly, we hold that the hair testing to detect drugs at the laboratory utilized by the employer is reliable and hold valid the positive test results.

Although the claimant contends, and the Administrative Law Judge held, that hair testing is not reliable, we note that the record fails to establish such finding. The claimant’s expert witness did not testify that hair testing is not reliable. Rather, he merely stated that hair testing may be reliable if certain precautions are taken, including the removal of external contamination. Here, the record establishes that all control precautions were taken and that any possible external contamination was removed. We also note that the record does not support the Judge’s holding that certain societies had rejected hair testing as unreliable.

Alternatively, the claimant wishes the Board to rely on hair testing to prove that he did not ingest cocaine based on the negative underarm test result. We do not find such subsequent test result to be controlling. Here, the claimant’s witness provided evidence that a negative cocaine test result on the claimant’s underarm hair is not inconsistent with a positive cocaine test result on the claimant’s head hair because of the different dormancy periods between the two types of hair.

We note that the Appellate Division, First Department, has upheld hair testing in a similar case involving a probationary police officer who was terminated after failing a similar hair test for drug use. See, In re Brown, __AD2d__ (May 28, 1990). Under the entire circumstances of this case, we conclude that the evidence establishes that the claimant ingested cocaine during his probationary employment as a police officer. Therefore, he was properly disqualified from receiving benefits because he lost his employment due to misconduct.

DECISION: The decision of the Administrative Law Judge is reversed.

The initial determination, disqualifying the claimant from receiving benefits, effective July 22, 1997, because the claimant lost employment through misconduct in connection with such employment, is sustained.

The claimant is denied benefits, with respect to the issue decided herein.

COMMENTS

In this en banc decision (signed by all five members of the Board), the Appeal Board describes in detail the circumstances under which testing of a hair sample for evidence of ingestion of drugs is acceptable.
The key to being successful in these cases lies in establishing that a "chain of custody" was followed. A "chain of custody refers to any established procedure to insure the proper custody of the evidence: that a sample was collected, properly labeled, kept from tampering, and that the test results are tied to the particular sample. This evidence is established by the employer at the hearing, with a witness and documentation from the laboratory processing the testing.

Local office fact finding should establish that the employer has a procedure to ensure the validity of the test, and that the procedure was followed.

Hair sample testing does not establish that identified substances were ingested during work hours, or that the person was "under the influence of" the substance during work hours. Such a conclusion may not be necessary to establish misconduct, depending on the employer’s rule.
The employer’s rule broadly prohibited use of illegal substances, regardless of whether this was done during or outside the hours of work. Based on reliable evidence that claimant ingested cocaine during his probationary employment as a police officer, claimant’s discharge was for misconduct in connection with this employment.

NOTE: A longer publication is being prepared reviewing relevant decisions by the Appeal Board and courts on drug testing. Expected publication will be early next year.

A-750-2110

INDEX 1605 C2

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

NOVEMBER 1999

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY QUIT
Last Employment/Controlling Separation

Voluntary Leaving - Question of Controlling Separation

No determination on voluntary leaving of employment can apply when claimant has worked in subsequent employment and has earned more than five times the benefit rate prior to filing a claim for benefits.

A.B. 492,237

The Department of Labor issued the initial determination holding the claimant eligible to receive benefits, effective April 19, 1999. The employer requested a hearing and objected contending that its account should not be charged for benefits paid to the claimant because the claimant voluntarily separated from employment without good cause.

The administrative law judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the employer and the Commissioner of Labor. By decision filed July 28, 1999 (A.L.J. Case No. 099-12349), the Administrative Law Judge overruled the employer's objection and sustained the initial determination.

The employer appealed the Judge's decision to the Appeal Board.

Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The claimant was employed by the objecting employer for approximately two months, first during June and July 1998, and again during September and October 1998. The claimant did not file a claim for benefits after leaving the objecting employer on either occasion. The claimant was also employed by another employer until April 1999, when she was separated from employment under circumstances not at issue. While working for her subsequent employer the claimant earned $860 during the third quarter of 1998, $2,497 during the fourth quarter of 1998, and $2,244 during the first quarter of 1999.

The claimant filed a valid claim for benefits effective April 19, 1999. Her weekly benefit rate was established at $110 per week.

OPINION: Pursuant to Labor Law Section 593(1), as amended, a claimant will not be eligible for unemployment benefits following a voluntary separation from employment until the claimant has worked in employment and earned remuneration at least equal to five times his or her benefit rate. The credible evidence establishes that the claimant earned a total of $5,601 following her last separation from employment with the objecting employer. As the claimant earned remuneration well in excess of $550, the amount she would need to break a disqualification, we conclude that she has broken any potential disqualification which might have existed as a result of her separation from employment with the objecting employer and is now deemed eligible for benefits.

As to the employer's contention that its account should not be charged for benefits paid to the claimant, Labor Law Section 581.1(e) provides that an employer's account shall not be charged for benefits paid to a claimant "after the expiration of a period of disqualification from benefits following a final determination that the claimant lost employment with the employer through misconduct or voluntary separation of employment without good cause." However, the claimant never filed a claim for benefits following her separation from employment with the objecting employer, hence no such determination was ever made. Therefore, no basis exists for relieving the objecting employer from being charged. Accordingly, we conclude that the employer's objection was properly overruled.

DECISION: The decision of the Administrative Law Judge is affirmed.

The employer's objection, that its account should not be charged for benefits paid to the claimant because the claimant voluntarily separated from employment without good cause, is overruled.

The initial determination, holding the claimant eligible to receive benefits, effective April 19, 1999, is sustained.

COMMENTS

In this case, a base period employer objected to charges to its account for benefits paid to the claimant, because claimant had voluntarily quit this employment. Since Unemployment Insurance Reform, the statute no longer limits possibly disqualifying circumstances to only the claimant's last employment prior to filing. However, a disqualification would only apply until "... (claimant)has subsequently worked in employment and earned remuneration at least equal to five times his or her weekly benefit rate." This claimant had already done so prior to filing.
Field Memo 3-99 discussed the concept of "Controlling Employers"; this decision affirms the Commissioner of Labor's analysis.
The local office/TCC must notify an objecting employer that no determination can be made regarding a voluntary leaving of employment after which claimant has subsequently worked and earned five times the benefit rate, and that the employer is not entitled to relief charges under Section 581.1(e).
This rule replaces the prior Index entry at 1605 C2, which has been rendered obsolete and is deleted.

A-750-2111

Index No. 1645 B.8

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

December 1999

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
VOLUNTARY QUIT
Follow Spouse
After a Delay

DELAY TO INSURE THAT SPOUSE’S JOB IS SECURE

A claimant may have good cause to delay following a spouse who has relocated to begin new employment on a trial basis, until the spouse’s job is secure.

A.B. 492,947 A

The Appeal Board, on its motion pursuant to Labor Law Section 534, has reopened and reconsidered its decision filed October 23, 1997 (A.B. Case No. 477,899A), which adhered to the prior decision of the Board filed August 29,1997 (A.B. Case No. 470,358), which reversed the decision of the Administrative Law Judge. The decision of the Administrative Law Judge overruled the initial determination disqualifying the claimant from receiving benefits, effective November 2, 1996, on the basis that the claimant voluntarily separated from employment without good cause.

Upon consideration of the entire record, the Board makes the following

FINDINGS OF FACT: The claimant worked as a secretary for a communications firm for approximately seven years, until October 25, 1996. In October of 1995, the claimant’s husband, who had extensive work experience in management for a fast food chain, was offered a job in that field in Nevada. He accepted the job offer in December of 1995 and relocated to Nevada in February of 1996 to commence working on a trial basis. The claimant retained her job and remained in New York with their children, because she wanted to be sure that her husband's new job would work out before relocating the family to Nevada. In June of 1996 the claimant's husband and his new employer expressed mutual satisfaction with his continued employment. At that point, the claimant and her husband determined to relocate their family to Nevada, at which time they put their house up for sale. A buyer was subsequently found and the closing took place on October 31, 1996. The claimant thereupon separated from her employment and, on November 2, 1996 moved to Nevada with her children and reunited with her husband.

OPINION: In our original decision, we concluded that the claimant had failed to demonstrate a compelling reason for having waited four months after her husband had relocated to Nevada and commenced employment before determining to move there with her children. Upon reconsideration, we now disagree with that conclusion. The credible evidence establishes that the claimant quit her job for a valid reason namely, to join her husband in Nevada, where he had secured employment. We further conclude that it was not unreasonable for her to have waited until June of 1996, at which time it first became certain that her husband’s continued employment in his new job was assured, before making the final decision to sell their house and move the rest of the family to join him. Accordingly and in view of all of these circumstances, we now conclude that the claimant left her job for a compelling reason and with good cause under the law.

DECISION: The prior decisions of the Appeal Board are rescinded.

The decision of the Administrative Law Jude is affirmed.

The initial determination, disqualifying the claimant from receiving benefits, effective November 2, 1996, on the basis that the claimant voluntarily separated from employment without good cause, is overruled.

The claimant is allowed benefits with respect to the issues decided herein.

COMMENTS

This decision arises from a reopening of the case previously published as A 750-2096, and it reverses that decision, and renders the prior publication obsolete. The rule of this release replaces the rule previously listed at Index 1645.B8.
The Appeal Board still holds to its prior analysis that it is reasonable to delay relocation for a period of time, to ensure that the spouse’s job is secure. The Board is changing the strict time limit set in its prior decision, and is no longer holding to a maximum of two months delay in beginning preparations to follow a spouse who relocated to accept employment.
In another case, A.B. 492,355 (not published), the Board definitively states: "We cannot conclude that a two year period to determine whether new employment will provide financial stability is, by any means, a reasonable time period.
Between two months as a minimum, and two years as a maximum, there is no absolute line drawn by the Board as the limit of what is held to be "reasonable." The Board’s reversal of its own decision is the clearest evidence that this is no simple matter.
In the findings of fact, the Board did identify factors that help indicate a point at which it is reasonable to expect the relocation process to be started. The claimant’s spouse had accepted this job on a trial basis in February. It was not until June that the claimant’s spouse and the spouse’s employer expressed mutual satisfaction with the employment. At that point, the claimant’s preparation for relocation began: it was at that point that the family home was offered for sale.
Fact finding regarding the reasons for any delay in relocation to follow a spouse must identify not only the reasons for the delay, but also the timing of the decisions and the steps taken in the process. If the spouse’s job is on a trial basis, or a probation must be completed, then a delay until the job is secure is reasonable. If, on the contrary, a contract of hire is unconditional, then no delay is needed to ascertain that the job is secure.

A-750-2112

Index No. 1010.12

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

February 2000

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
HEARINGS AND APPEALS
Timeliness

HEARING REQUEST RECEIPT DATE

The timeliness of a hearing request must be measured by the date it was filed with the Commissioner of Labor, and this is established by the date that it is received.

A.B. 492,371A

The Department of Labor issued the initial determination holding the claimant eligible to receive benefits, effective January 11, 1999. The employer requested a hearing and objected contending that the claimant should be disqualified from receiving benefits because the claimant lost employment through misconduct in connection with that employment.

The Commissioner of Labor objected that the hearing request was not made within the time allowed by statute.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There was an appearance by the employer. By decision filed April 29, 1999 (A.L.J. Case No. 199-02270), the Administrative Law Judge sustained, effective January 1, 1999, the employer’s objection and overruled the Commissioner of Labor’s timeliness objection and the initial determination.

The claimant applied to reopen the decision of the Administrative Law Judge filed April 29, 1999. Upon due notice to all parties, a telephone conference hearing was held at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the employer. By revised decision filed June 8, 1999 (A.L.J. Case No. 199-02892), the Administrative Law Judge granted the application to reopen and sustained, effective January 1, 1999, the employer’s objection and overruled the Commissioner of Labor’s timeliness objection and the initial determination.

The claimant appealed the Judge’s decision to Appeal Board, insofar as it overruled the initial determination holding the claimant eligible to receive benefits, effective January 11, 1999, and sustained the employer’s objection. The Board considered the arguments contained in the written statements submitted by the claimant and on behalf of the employer. By decision filed August 18, 1999 (Appeal Board Case No. 491,083), the Board overruled the Commissioner of Labor’s timeliness objection, sustained the employer’s objection effective January 1, 1999 and overruled the initial determination.

The claimant applied to the Appeal Board pursuant to Labor Law Section 534 for a reopening and reconsideration of its decision filed August 18, 1999 (Appeal Board Case No. 491,083), which affirmed the reviewed decision of the Administrative Law Judge.

The Board considered the arguments contained in the written statements submitted by the claimant and on behalf of the employer.

Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The initial determination of eligibility was mailed to the employer on March 4, 1999, holding that the claimant was eligible to receive benefits effective January 11,1999. The employer received the determination sometime in March. The employer’s objection letter was postmarked and mailed by an employee of the employer’s representative through its mailroom and taken to the post office on Wednesday, March 31, 1999. The employer’s objection letter was received by the local office in Schenectady, New York and date stamped April 7, 1999.

OPINION: The credible evidence establishes that the employer received the initial determination dated March 4, 1999 sometime in March and requested a hearing by letter dated and postmarked March 31, 1999. The employer’s letter was filed on April 7, 1999 with the local office in Schenectady, New York. Pursuant to Matter of Levine (253 AD 2d 954), Labor Law Section 620(2) must be measured by the date it was filed with the Commissioner of Labor rather than the date it was mailed. Accordingly, as the employer’s objection letter was filed three days after the 30-day limitation period under the statute, we must conclude that the employer’s hearing request is untimely. Accordingly, we further conclude that the Administrative Law Judge and the Board are without jurisdiction to address the merits of the employer’s objection to the claimant’s eligibility.

DECISION: The decision of the Board filed August 18, 1999 (A.B. Case No. 491,083) is rescinded.

The decision of the Administrative Law Judge, insofar as appealed from, is reversed.

The Commissioner of Labor’s timeliness objection is sustained.

The initial determination of eligibility, effective January 11, 1999, is continued in effect.

The claimant is allowed benefits with respect to the issues decided herein.

COMMENTS

Section 620 of the Unemployment Insurance Law limits the amount of time that a party has to request a hearing on a determination, to thirty days. However, neither the statute nor applicable regulations define the method by which compliance with the time limit is measured.
In the Matter of Levine, cited by the Appeal Board in this decision, the Court ruled that the mere mailing of a hearing request within the allowed time period was insufficient to meet the statutory requirement. In order to be timely, the request must be "filed with the Commissioner of Labor" within thirty days.
This decision by the Appeal Board establishes that a request for a hearing is "filed" on the date it is received by the Commissioner. The evidence of receipt is the in-stamp date marked on the letter by the local office. This is the date to be entered as the hearing request date on the "Hearing Request Information" screen

UPDATED COMMENT

Although Matter of Levine is current case law, recent Appeal Board decisions (not published) have pointed out that the instruction on notices of determination states: "request must be made in person or by mail NOT LATER THAN 30 DAYS from the mail date on this notice." Therefore, for claimants and employers who have relied on those instructions, and mailed hearing requests within 30 days of the date of the determination, the Appeal Board has held that it would be unfair, and a denial of due process, to find such hearing requests untimely.

A-750-2113

INDEX 1215 C7

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JULY 2001

INTERPRETATION SERVICE - BENEFIT CLAIMS
REFUSAL
What Constitutes

MAILED NOTICE FROM A FORMER EMPLOYER

When a claimant fails to contact a former employer after receiving a mailed notice from the employer offering him employment, the claimant's failure to respond to the offer prevents the employer from providing further information, and is tantamount to a refusal of employment.

A.B. 499,444

The Department of Labor issued the initial determination holding the claimant eligible to receive benefits. The employer requested a hearing and objected contending that the claimant should be disqualified from receiving benefits because the claimant refused an offer of suitable employment without good cause.

The administrative law judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There was an appearance on behalf of the employer. By decision filed February 15, 2001 (A.L.J. Case N. 001-00525), the administrative law judge overruled the employer's objection and sustained the initial determination.

The employer appealed the judge's decision to the Appeal Board. The Board considered the arguments contained in the written statements submitted on behalf of the employer.

Based on the record and testimony in this case, the Board makes the following:

FINDINGS OF FACT: The claimant was employed by the employer herein, a security agency, as a security guard on two occasions, the last of which ended on April 29, 2000, under conditions not at issue here. In November 2000, the employer was notified by the Department of Labor that the claimant had applied for unemployment insurance benefits. On November 22, the employer mailed a letter to the claimant offering him full time work as a security guard at the current prevailing wage and advising the claimant to immediately report to the personnel department for assignment. The claimant signed acknowledging receipt of the letter on November 24. The claimant did not contact the employer concerning the offer of employment. The employer had a full time position as a security guard immediately available for the claimant at the prevailing wage of $7.84 per hour.

OPINION: The credible evidence establishes that the claimant failed to respond to an offer of employment made by a former employer for the same type of position in which the claimant had previously worked. Although the offer of employment may not have included details such as to the specific hours and location of the assignment or the specific wage, the offer clearly put the claimant on notice that immediate, full time work was available as a security guard at the prevailing wage. The claimant's failure to respond to the offer forestalled the employer from providing further information concerning the proffered employment and was tantamount to a refusal of employment under the Unemployment Insurance Law. Accordingly, we conclude that the claimant refused an offer of employment without good cause and is, therefore, disqualified from receipt of benefits.

DECSION: The decision of the administrative law judge is reversed.

The employer's objection that the claimant should be disqualified from receiving benefits because the claimant refused an offer of suitable employment without good cause, is sustained, effective November 24, 2000.

The initial determination holding the claimant eligible to receive benefits, effective October 30, 2000, is overruled.

The claimant is disqualified from receiving benefits, effective November 24, 2000, until the claimant has subsequently worked in employment and earned remuneration at least equal to five times the claimant's weekly benefit rate. Self-employment and earnings therefrom will not count.

The claimant is denied benefits with respect to the issues decided herein.

COMMENTS

An issue of refusal arises when a claimant fails to contact a former employer who had notified the claimant of a potential job assignment, even if the employer does not provide any details about the job offer.
Claimant conceded receipt of the employer's mailed notice. The Appeal Board held that the claimant, having received the offer, was put on notice that there was work available, even though the notice did not include all the specific information about the offer. Claimant's failure to respond forestalled the employer from providing further information.
When an issue such as this is adjudicated, the criteria of suitability must be evaluated. Since the job offer in this case was for work the claimant previously and recently performed, it was presumed suited to claimant's training and experience. In addition, because the employer had been unable to obtain the precise prevailing rate, he simply stated in the letter that he would pay the claimant the prevailing rate. Therefore the job offer satisfied the statutory threshold in that it offered a wage which was not substantially below the prevailing wage. In similar cases additional fact finding regarding suitability, prevailing wage, or other factors might be necessary. In all such cases, fact finding from the employer to establish that a bona fide position existed will complete the necessary evidence.

A-750-2114

Index 1715.7

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JANUARY 2002

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY SEPARATION
School or Training Course, quit to attend

VOLUNTARY REDUCTION OF WORK SCHEDULE

Claimant's decision to reduce his/her days of employment in order to attend school, even when agreed to by the employer, is a voluntary leaving without good cause.

A.B. 500,889

The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective March 12, 2001, on the basis that the claimant voluntarily separated from employment without good cause. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant, on behalf of the employer, and the Commissioner of Labor. By decision filed June 8, 2001 (A.L.J. Case No. 301-02758), the Administrative Law Judge overruled the initial determination.

The employer and the Commissioner of Labor appealed the Judge's decision to the Appeal Board. The Board considered the arguments contained in the written statements submitted on behalf of the employer and the Commissioner of Labor.

Based on the record and testimony in this case. The Board makes the following:

FINDINGS OF FACT: The claimant worked as a service desk clerk for the employer since December 28, 1994. The claimant worked an average of four to five days a week until January, 2001. At about this time, the claimant enrolled in a program to do student teaching. The claimant spent at least 40 hours a week doing such student teaching, preparing lesson plans and doing grading. The claimant and other enrollees were advised by the administrator of this school program to quit all employment. The claimant also enrolled in at least one additional college course. Therefore, the claimant had the employer change her work schedule to one day a week. Continuing work had been available four to five days a week. On about March 12, 2001,the claimant filed a claim for unemployment insurance benefits. The claimant resumed her four to five days a week work schedule shortly before the date of the hearing held on June 7, 2001.

OPINION: The issue before the Board is whether the claimant's decision to unilaterally reduce her four to five days a week work schedule to one day a week constituted a voluntary separation without good cause. Significantly, the claimant had enrolled in a full time school program of at least forty hours a week and had taken at least one additional college course, so that she no longer was available to work her regular four to five days a week schedule. In effect, the claimant had severed her preexisting employment relationship to create a substantial reduction in the terms and conditions of her regular employment relationship. Furthermore, continuing work, four to five days a week, was available.

The Court has held that terminating the employment relationship upon the employer's refusal to approve a claimant's request for part time work in order to attend school constitutes a voluntary separation without good cause (see Matter of Manning, 59 AD 2d 818). It is not dispositive of the issue before the Board, that the claimant had been allowed to continue working one day a week. Considering the totality of circumstances, we conclude that the claimant is disqualified from receiving benefits because she voluntarily separated from her employment without good cause.

DECISION: The decision of the Administrative Law Judge is reversed.

The initial determination disqualifying the claimant from receiving benefits effective March 12, 2001, on the basis that the claimant voluntarily separated from employment without good cause, is sustained.

The claimant is denied benefits with respect to the issues decided herein.

COMMENTS

The Court has long held that terminating employment in order to attend school constitutes a voluntary leaving of employment without good cause. In this case, the fact that claimant was allowed to continue to work one day a week does not change the voluntary nature of claimant's unilateral decision. As the "moving party" claimant voluntarily caused her unemployment.
In another case, the Board ruled that a claimant who obtained a reduction to his work schedule was disqualified from partial benefits, since claimant "voluntarily left his employment, or a substantial portion of it." (A.B. 469,802, not published)
The effective date of this disqualification from benefits is the effective date of the claim.
Additional determinations regarding claimant's ineligibility to accrue effective days, or unavailability due to a restriction to such a limited work schedule may also be appropriate. Claimant would not be eligible for Section 599 approval due to the outstanding disqualification for voluntary leaving without good cause, notwithstanding the other criteria for training approval.

A-750-2115

INDEX 1290 B.11

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JULY 2002

INTERPRETATION SERVICE-BENEFIT CLAIMS
REFUSAL
Wages-Prevailing rate

CLAIMANT'S RESPONSIBILITY TO REQUEST PREVAILING WAGE INFORMATION

Where a job offer is made to the claimant directly by an employer, the claimant's lack of knowledge of Prevailing Wage data prior to the refusal of employment does not provide good cause, since the Claimant Information Handbook advises claimant that such Prevailing Wage information is available through the DoES offices and is also on the Department of Labor's public Internet site.

A.B. 502,938 A

The employer and the Commissioner of Labor applied to the Appeal Board pursuant to Labor Law §534 for a reopening and reconsideration of its decision filed November 16, 2001 (Appeal Board No. 500899), which modified the decision of the Administrative Law Judge by overruling the initial determinations disqualifying the claimant from receiving benefits, effective February 2, 2001, on the basis that the claimant refused an offer of suitable employment without good cause and charging the claimant with an overpayment of $2,340.50 in benefits recoverable pursuant to Labor Law § 597 (4) and sustaining the initial determination reducing the claimant’s right to receive future benefits by eight effective days on the basis that the claimant made a wilful misrepresentation to obtain benefits but reducing the forfeit penalty to four effective days. The decision of the Administrative Law Judge sustained all the initial determinations.

Upon due deliberation on the application, the Board has reopened and reconsidered its decision.

The Board considered the arguments contained in the written statements submitted on behalf of the employer and the Commissioner of Labor.

Now, based on all of the foregoing and on the entire record, the Board makes the following

FINDINGS OF FACT: The claimant filed an original claim for benefits effective December 11, 2000. Upon filing, the claimant received the claimant information handbook. The handbook included the following information:

You are required to look for and be prepared to accept employment that pays the prevailing wage for similar work even if this is less than you earned on your last job or less than the salary you would like to receive. Your Community Service Center can advise you on prevailing wage information for a particular occupation.

The claimant looked through the handbook but did not read it through.

On February 2, 2001, the claimant was contacted by an employment agency from which he had previously obtained work at certain financial institutions. He was offered a long-term position as a turret telephone operator at a financial institution. The position involved forwarding calls to the financial institution’s traders on the trading floor and it paid $16.00 per hour. The claimant declined the offered position because he was seeking a position which paid $20.00 per hour. The claimant had previously accepted a similar position from the employment agency.

The Department of Labor, which maintains statistics on the prevailing wage for different job classifications, includes the job offered to the claimant in the classification of Brokerage Clerk. The prevailing wage for this classification is $16.78 per hour, and the prevailing wage cut-off is $15.10 per hour.

When the claimant certified for benefits for the statutory week ending February 4, 2001, he indicated that he had not refused any offers of employment during that week. Prior to the redetermination of his claim, the claimant received $2,340.50 in unemployment insurance benefits.

OPINION: Pursuant to Paragraph 9 of the Consent Judgment entered into in MLC v Sitkin and subsequent stipulations, the Department of Labor is obligated to promulgate and enforce procedures which will ensure that claimants are made aware of the requirements necessary to maintain their eligibility for benefits. This includes providing information regarding what wages a claimant is required to accept on offers of employment.

Upon further consideration of the facts in this case, we hold that our prior decision was in error and that the claimant was provided with the necessary information. Our prior decision did not distinguish between jobs which are referred to the claimant by the Department of Labor and jobs which are offered directly to the claimant by an employer. When the job is referred to the claimant by the Department, the claimant must be advised of the prevailing wage if the claimant declines a referral because of dissatisfaction with the wages before the claimant can be disqualified by reason of the refusal. However, when the job is offered directly to the claimant by an employer, the burden is on the claimant to contact the Department to obtain prevailing wage information if the claimant has been properly advised to do so. The evidence in this case establishes that the claimant was advised, through the medium of the information handbook, that he was required to accept jobs which paid the prevailing wage and that prevailing wage information for a particular occupation could be obtained at the Community Service Center. The claimant received the handbook and is charged with constructive knowledge of its contents, regardless of whether he actually read the entire handbook.

The claimant was offered a suitable job which paid more than the prevailing wage cut-off and his preference for a higher wage does not provide him with good cause to refuse the offer. It was the claimant’s responsibility to contact the Department of Labor to ascertain whether the job met the prevailing wage standard and his failure to do so does not excuse him from accepting the offer. As the claimant refused an offer without good cause, he was properly disqualified from benefits.

As the claimant is disqualified, the benefits he received constitute an overpayment. As he certified that he had not refused an offer of employment, the overpayment is recoverable. Further, as his wilful misrepresentation, sustained in our prior decision, resulted in the overpayment of benefits, the appropriate forfeit penalty is eight effective days.

DECISION: The decision of the Appeal Board is rescinded.

The decision of the Administrative Law Judge is affirmed.

The initial determinations, disqualifying the claimant from receiving benefits, effective February 2, 2001, on the basis that the claimant refused an offer of suitable employment without good cause; charging the claimant with an overpayment of $2,340.50 in benefits recoverable pursuant to Labor Law § 597 (4); and reducing the claimant’s right to receive future benefits by eight effective days on the basis that the claimant made a wilful misrepresentation to obtain benefits, are sustained.

The claimant is denied benefits with respect to the issues decided herein.

COMMENTS

1. This decision affirms the Department of Labor's policy distinguishing the circumstances involved with job offers made by the Department from offers made by an employer directly.

2. The claimant's information booklet puts the claimant on notice that (among other things) s/he is "required to look for and be prepared to accept employment that pays the prevailing wage..." It further states that the Community Service Center can advise the claimant on the prevailing wage information for a particular occupation.

3. Prevailing Wage information is also publicly available via the Internet. The web site address is http://www.labor.state.ny.us/business_ny/employer_responsibilities/prevwage/index.htm.

4. Stipulations related to the MLC Consent judgement define the Commissioner of Labor's duty to advise claimants of the applicable Prevailing Wage information and other criteria of suitability when making job referrals. (See Field Memorandum 1-2001). However, if an offer is made directly by an employer, the burden is on the claimant to obtain the prevailing wage data by requesting it from the Community Service Center. (Division of Employment Services)

A-750-2116

Index 1590.8

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JULY 2002

INTERPRETATION SERVICE-BENEFIT CLAIMS
Recovery of Overpayment

CLAIMANT'S DUTY TO IDENTIFY AN ERROR

When a claim is invalidated as a result of a correction to erroneous monetary information, benefits that were overpaid are recoverable from a claimant who failed to bring the obvious error on the Notice of Determination to the attention of the Department of Labor.

A.B. 505,205

The Department of Labor issued the initial determination holding the claimant was not entitled to receive benefits, effective August 6, 2001, on the basis that the claimant was unable to file a valid original claim because the claimant had insufficient earnings to requalify for a subsequent original claim pursuant to Labor Law §527.6 in that since he filed a valid original claim on 7/31/00 he did not work and receive remuneration equal to at least five times his weekly benefit rate through the date he again filed for benefits, August 6, 2001; and charging the claimant with an overpayment of $1,552 in benefits recoverable pursuant to Labor Law §597 (4). The claimant requested a hearing.

The administrative law judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the Commissioner of Labor. By decision filed April 2, 2002 (A.L.J. Case No. 002-05005), the administrative law judge sustained the initial determination.

The claimant appealed the judge's decision to the Appeal Board. The Board considered the arguments contained in the written statement submitted by the claimant.

Based on the record and testimony in this case, the Board makes the following

Finding of Fact: The claimant last worked on June 30, 2000 for employer DR. After his employment with DR ended, the claimant filed a claim for benefits effective July 31, 2000. The claimant was held eligible to receive benefits, and thereafter received 26 weeks of unemployment benefits. Still without work and with medical bills to pay, the claimant filed another claim for benefits effective August 6, 2001. The claimant reported his employment with DR and that he last worked on June 30, 2000. The Department processed the claimant's claim. Through some error, the claimant was credited with having worked for employer TSE during the second quarter of 2001, earning $5,058.76 and with having worked for employer DR during the first quarter of 2001, earning $2,917.82. Claimant did not work for employer TSE and did not work for employer DR from June 30, 2000 through August 6, 2001. Based on the error crediting claimant with work he did not have, the Department set claimant's weekly benefit rate at $194. A determination dated August 22, 2001 was sent to the claimant notifying him of his benefit rate. The determination indicated that the benefit was based on claimant's employment and earnings with DR and TSE. The claimant received his determination and noted that the employer TSE was listed on the determination, but he did not report to the Department that he had not worked for employer TSE. The claimant was held eligible to receive benefits, and received $1,552 in benefits before his claim was redetermined.

Opinion: The credible evidence establishes that the claimant did not have any employment from the time he filed his claim on July 31, 2000 through the time he filed his subsequent claim on August 6, 2001. Without employment during this period, the claimant cannot file a valid original claim effective August 6, 2001 pursuant to Section 527.6 of the Labor Law because to file a subsequent claim the claimant must establish that he worked and received remuneration worth five times his benefit rate during the period between the two claims. Accordingly, we conclude that the claimant was not entitled to the $1,552 in benefits he received. Further, we conclude that such overpayment is recoverable because the claimant upon receiving the determination listing TSE as one of his employers concealed from the department the fact that he had not worked for TSE. The claimant had an obligation to bring such an obvious mistake to the attention of the Department.

Decision: The decision of the administrative law judge is affirmed.

The initial determinations are sustained.

The claimant is denied benefits with respect to the issues decided herein.

COMMENTS

The claimant received a Notice of Determination of Entitlement containing information he knew to be erroneous. It listed earnings from an employer for whom the claimant never worked. The claimant made no effort to address this mistake to the Department of Labor.
As a result of an employer's objection, the error was discovered and the claim was redetermined to be invalid. The redetermination was therefor retroactive, under Section 597.2 (c) of the Unemployment Insurance Law. There was no determination of Wilful Misrepresentation, since the claimant had never made any statement claiming to have had this employment.
The Commissioner of Labor held that the claimant's receipt of benefits was not in good faith, and that claimant concealed his knowledge of the mistake on the determination. The Appeal Board held that the claimant had an obligation to bring such an obvious mistake to the attention of the Department.

A-750-2117

Index 1420.17

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JANUARY 2003

INTERPRETATION SERVICE- BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Self-employment

WEBSITE BUSINESS

A claimant who is actively engaged in operating a website business offering merchandise for sale lacks total unemployment on a continuous basis.

A.B. 509,531

The Department of Labor issued the initial determinations holding the claimant ineligible to receive benefits, effective December 26, 2001 through March 3, 2002, on the basis that the claimant was not totally unemployed; charging the claimant with an overpayment of $810 in benefits recoverable pursuant to Labor Law 597 (4); and reducing the claimant's right to receive future benefits by 32 effective days on the basis that the claimant made wilful misrepresentations to obtain benefits. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the Commissioner of Labor. By decision filed November 7, 2002 (A.L.J. Case No. 002-26681), the Administrative Law Judge sustained the initial determinations

The claimant appealed the Judge's decision to the Appeal Board.

Based on the record and testimony in this case, the Board makes the following:

FINDINGS OF FACT: In November 2000 the claimant and his girlfriend purchased the domain name of Cartersbazaar.com. Each month the claimant paid the server charge for the web site, totaling $1,200. The web site displayed items for sale. Each day the claimant would check his e-mail to see if there was an e-mail prompt to check the site. This arose out of activity on the web site. If a customer purchased an item, the claimant would contact the wholesaler and arrange to have the item shipped to the customer. He would pay the wholesaler. In May 2002, the claimant closed the site. During its operation, there were five sales totaling about $141.75.

The claimant filed an original claim for benefits effective December 10, 2001. Subsequently, the claimant received $810 in benefits. As part of the claim filing process, the claimant was asked whether he had engaged in any business activity which may produce any income and he answered no.

OPINION: The credible evidence establishes that the claimant was actively engaged in operating a web site through which he offered items for sale. In furtherance of this, the claimant monthly paid the server fee and daily checked his e-mail for updates on the site. A few sales were made, with the claimant arranging for the wholesaler to ship the items to the customers and the claimant paying the wholesaler. On these facts, we are not persuaded that this is a "hobby" as contended by the claimant but rather, it is a business. Accordingly, we conclude that the claimant lacked total unemployment for the period at issue.

It follows, and we so conclude, that the benefits the claimant received are an overpayment. The claimant answered he was not engaged in any business activity which may produce any income. Given the extent of the claimant's involvement in the business, this is not only a factually false statement but it is also an intentionally false statement. As a result of the factually false statement, we conclude that the overpayment is recoverable. Since the statement is an intentionally false statement, we conclude that this is a wilful misrepresentation. The record is devoid of any evidence that the claimant made any subsequent, weekly certifications. As a result, the penalty is modified to eight effective days for the one wilful misrepresentation.

DECISION: The decision of the Administrative Law Judge is modified as follows and, as so modified, is affirmed.

The initial determinations, holding the claimant ineligible to receive benefits, effective December 26, 2001 through March 3, 2002, on the basis that the claimant was not totally unemployed; and charging the claimant with an overpayment of $810 in benefits recoverable pursuant to Labor Law ' 597 (4), are sustained.

The initial determination reducing the claimant's right to receive future benefits by 32 effective days on the basis that the claimant made wilful misrepresentations to obtain benefits is modified to be effective 8 effective days because the claimant made a wilful misrepresentation to obtain benefits and, as so modified, is sustained.

The claimant is denied benefits with respect to the issues decided herein.

COMMENTS

Features of this decision provide guidance for determination making in this type of case. Claimant established the website with the specific purpose of selling merchandise. He paid a monthly fee to the server for the site. Claimant checked the site daily.
The fact that the claimant failed to make a profit is not controlling. There were sales made.
The Appeal Board rejected the claimant's statement that his activities were a "hobby", in light of the above.
The claimant failed to disclose this activity. His negative answer to the question in the "Original Claim" process "Do you have a business or are you engaged in any other activity that brings in or may bring in income?" was a wilful misrepresentation.
It is interesting to note that the claimant's business was detected by the TCC through a web site address on a piece of correspondence from the claimant dealing with a separate matter. When such details are discovered, they should always be investigated.

A-750-2118

Index 2020.2

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JANUARY 2004

INTERPRETATION SERVICE - BENEFIT CLAIMS
SECTION 599
Training Facility

SELF-PACED TRAINING

Self-paced, CD based training does not meet the criteria of the Commissioner of Labor’s regulations for approval under Section 599, since there is no external control of the hours claimant participates, nor is there an instructor available to answer questions about the material.

A.B. 515,084

The Department of Labor issued the initial determination denying the claimant approval for career and related training under Labor Law Section 599(1). The claimant requested a hearing.

The administrative law judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There was an appearance by the claimant. By decision filed September 4, 2003 (A.L.J. Case No. 003-22574), the administrative law judge overruled the initial determination.

The Commissioner of Labor appealed the judge’s decision to the Appeal Board. The Board considered the arguments contained in the written statement submitted on behalf of the Commissioner of Labor.

Based on the record and testimony in this case, the Board makes the following

Findings of Fact: The claimant filed a claim for benefits effective April 21, 2003. She applied for approval of training pursuant to Labor Law Section 599 in order to increase her knowledge about computer applications. On June 12, 2003, she commenced training. She reported to a facility approximately three hours a day, generally five days per week. If she was unable to appear on a certain day, she would make up the time. The training is self-paced. At the facility, she had a textbook and a computer that plays a CD that has an instructor explaining a certain lesson. There is no instructor at the facility to answer questions about the material. If the claimant had any questions, she reviewed the material. At the conclusion of the lesson, an administrative staff person at the facility provides the claimant with a test that she takes to demonstrate her knowledge of the material. The claimant also does her job search at the facility.

Opinion: Section 482.2 of the Department of Labor’s regulations promulgated under Labor Law Section 599 defines an approved training course, in part, as being one which has a defined curriculum of appropriate duration to impact the intended skills and knowledge, and is taught by competent instructors.

The credible evidence establishes that the training program in which the claimant was a participant did not meet the criteria set forth in the regulations. Significantly, the program is self-paced and the claimant could determine the hours of the program. Moreover, no instructors were available at the facility to answer questions about the material. She only received instructions contained in the CD. She also performed her work search at the facility. The Board has held that time spent in a computer center that was not scheduled, supervised, nor had a minimal time requirement, did not meet the criteria of the Commissioner’s regulations (See A.B. No. 447,576). Accordingly, we conclude that the claimant was properly denied benefits pursuant to Labor Law Section 599.

Decision: The decision of the administrative law judge is reversed.

The initial determination, denying the claimant approval for career and related training under Labor Law Section 599(1), is sustained.

The claimant is denied benefits with respect to the issues decided herein.

COMMENTS

The Commissioner of Labor’s regulations for the approval of training under Section 599 clearly define the conditions applicable to both the training program and the training agency. (See Section 482 of the regulations, which is available through the NYSDOL Internet website at

http://www.labor.state.ny.us/business_ny/unemployment_insurance/uiemplyr/reg482.htm#482x2

This decision by the Appeal Board clearly explains the characteristics of the type of self-paced training that fails to meet approval criteria. Technology based training is not categorically excluded from approval, but it must meet the conditions required by the regulations. Self-paced, independent study in which lessons are learned only by using a compact disc on a personal computer, does not constitute approvable training.
Regardless of the technology used to deliver training, an important factor to consider for approval under Section 599 is whether or not the program provides, in real time, competent instructors who are available to the participants as they take the course, both to answer questions and to monitor student progress. The training course must also have defined beginning and ending dates that apply to all participants; individuals cannot be allowed to set the duration of their training.

A-750-2119

Index 1645.1

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

MARCH 2004

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY QUIT
Following Spouse or Domestic Partner

QUIT TO FOLLOW A DOMESTIC PARTNER TO ANOTHER LOCALITY

The existence of a marital relationship is not necessary for the claimant to show good cause to follow a domestic partner to another locality. Where it is shown that the partner had good cause to move, maintaining an emotionally and financially interdependent committed relationship with a partner constitutes good cause for voluntarily leaving one’s employment to relocate.

A.B. 513,233A

APPEAL BOARD DECISION: The Appeal Board, on its motion pursuant to Labor Law §534, has reopened and reconsidered its decision filed April 26, 2002 (A.B. Case No. 504,293), which affirmed the decision of the Administrative Law Judge. The decision of the administrative law judge sustained the initial determination disqualifying the claimant from receiving benefits, effective November 30, 2000, on the basis that the claimant voluntarily separated from employment without good cause.

The Board considered the arguments contained in the written statement submitted by the claimant and on behalf of the employer.

Upon consideration of the entire record, the Board makes the following

FINDINGS OF FACT: The claimant worked as a Technical Support Representative for the employer herein for one year. She has been in a relationship with a domestic partner for four and a half years, as of the date she filed for unemployment insurance benefits. The claimant had previously moved with her partner in November 1999, when they relocated to Rochester from California. The claimant and her partner live a life of mutual emotional and financial interdependence, sharing household chores and living expenses, and commingling finances. The claimant and her partner have co-owned two homes. They share bank and money market accounts, and an ATM/Visa card. They have registered as domestic partners with the claimant’s partner’s employer and the claimant has been and continues to be covered by her partner’s employer health insurance. The claimant and her partner are beneficiaries on each other’s life insurance, they have prepared wills naming each other as beneficiaries, and have executed documents granting each other power of attorney and power to make health care decisions for the other. The claimant and her partner hold themselves out to be a committed monogamous couple.

The claimant’s partner was offered a job in the state of Virginia and, in November 2000, she accepted the definite offer of employment as an Information Technology Project Manager with a large banking institution. At that time the claimant submitted her resignation to her employer in order to move with her partner to Virginia. Her last day of work was November 29, 2000. The claimant and her partner moved to Virginia on or about December 2, 2000. The claimant’s partner started her new job on December 4, 2000.

OPINION: Section 501 of the New York State Labor Law sets forth the legislative policy underlying the state’s unemployment compensation system. It provides financial support to workers who are unemployed "through no fault of their own", recognizing that involuntary unemployment is "a subject of general interest and concern which requires appropriate action by the legislature to . . . lighten its burden, which now so often falls with crushing force upon the unemployed worker." The statute provides that persons who voluntarily separate form employment without good cause shall not be eligible for benefits (Section 593 (1)(a).) Since the inception of the New York State unemployment law, there has been no statutory definition of what constitutes "good cause". The broad and indefinite language of the statute indicates that the legislature sought to provide standards flexible enough to insure effective application of legislative policy to changing circumstances. Although, in the past, the Board has previously found good cause to exist in similar cases only when the claimant was relocating with a spouse who secured a definite offer of employment in another location, we now hold that the presumption that attaches to marital status is not the exclusive means of demonstrating "good cause" to leave one’s employment to move to a new area. We now conclude that it is unfair to deny a nonmarital partner the right to prove, without benefit of the marital presumption, that his or her reasons for leaving employment were also with good cause.

The credible evidence establishes that the claimant quit her employment in order to move with her domestic partner, who accepted and started a new job in the state of Virginia, with the intention to preserve their partnership. The credible evidence further establishes that the claimant and her partner demonstrably maintain an emotionally and financially interdependent committed relationship. Though no single factor is solely determinative, as it is the totality of the relationship which should control, it is significant that the claimant has established that she and her partner have an exclusive and long term relationship, co-own property, maintain joint bank an credit accounts, share household chores and duties, have named each other as beneficiaries on insurance policies and wills, have registered as domestic partner, and hold themselves out as a committed couple. Under these circumstances, it would be good cause to quit one’s job to move with one’s partner in order to maintain their relationship when it is shown that the partner had good cause to move in the first instance. As the definite offer of a job in Virginia gave the claimant’s partner good cause to move, the claimant had good cause to resign from her own job to relocate with her partner. Accordingly, we conclude that the claimant voluntarily left her employment with good cause. The claimant is, therefore, not subject to the disqualification imposed.

DECISION: The decision of the Appeal Board is rescinded.

The decision of the Administrative Law Judge is reversed.

The initial determination, disqualifying the claimant from receiving benefits, effective November 30, 2000, on the basis that the claimant voluntarily separated from employment without good cause, is overruled.

The claimant is allowed benefits with respect to the issues decided herein.

COMMENTS

As articulated by the majority opinion in this case, the Appeal Board previously found good cause to exist for voluntarily leaving employment to follow a spouse to another locality, when the reason for the relocation was compelling under case law. In this case, while the claimant was not married to her partner, the Appeal Board recognized the existence of a committed relationship, as demonstrated by a combination of several factors. Given the existence of this committed, emotionally and financially interdependent relationship, the Appeal Board found that the claimant quit her job with good cause to relocate with her partner.
All the entries in the Interpretation Services Index that apply to a voluntary leaving to follow one’s spouse will henceforth be applied to cases involving voluntary leaving to follow one’s domestic partner. At this time, it is not necessary to amend all the relevant releases.
Guidelines on evaluating the evidence of domestic partnership will be issued shortly, in another publication. Any questions regarding fact-finding should be directed through ordinary supervisory channels to Adjudication Services Office in New York City.

A-750-2120

Index 1710.11
Index 1635 D1

NEW YORK STATE DEPARTMENT OF LABOR

UNEMPLOYMENT INSURANCE DIVISION

ADJUDICATION SERVICES OFFICE

October 2006

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY QUIT

Safety

Domestic Violence

When evaluating whether claimant’s voluntary separation from employment occurred “as a consequence of circumstances directly resulting from the claimant being a victim of domestic violence” the totality of circumstances must be evaluated. No single factor is determinative.

Matter of Loney, 287 AD 2d 846

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 26, 2000, which ruled that claimant was disqualified from receiving unemployment insurance benefits because she voluntarily left her employment without good cause.

Claimant worked as a swim instructor for seven years and had a good work record. However, due to her husband’s escalating verbal and mental abuse, claimant, who was pregnant and suffering from poor weight gain and sleeplessness, resigned from her employment and relocated with her five-year-old son to a domestic violence shelter, a decision supported by claimant’s obstetrician. The Unemployment Insurance Appeal Board ruled that claimant was disqualified from receiving unemployment insurance benefits because she voluntarily left her employment without good cause. Claimant appeals, arguing that the proof shows that her resignation was for good cause. Upon review of the record, we agree with claimant. The Board’s decision denying the claimant is not supported by substantial evidence herein. This record establishes that claimant’s voluntary separation occurred “as a consequence of circumstances directly resulting from the claimant being a victim of domestic violence” (Labor Law § 593 [1] [a].

COMMENTS

1. The court’s ruling reversed the Appeal Board’s decision, finding that claimant’s voluntary separation did occur as a consequence of circumstances directly resulting from claimant being a victim of domestic violence.

Since the Court’s decision does not reflect all the details contained in the Administrative Law Judge and Appeal Board decisions, significant factors are described here: The claimant who was pregnant was subjected to verbal abuse by her husband, who would scream, curse, yell, and bang on the walls on a daily basis. The claimant was in fear for herself and her 5 year old son.

The claimant’s fear for her safety and the safety of her child lead her to separate from her abusive husband, and to plan to relocate to another state, to be close to family members. Her health was being adversely affected, she was suffering from poor weight gain and sleeplessness, and her decision was supported by her obstetrician. She made a decision to leave her husband to relocate with her son to a domestic violence shelter in Massachusetts, in order to be closer to her sister.

She had not sought an Order of Protection, nor had she taken steps to safeguard her job.

She gave her employer three weeks notice of her intent to leave.

While the facts show that she was not physically abused, nor was she threatened at her workplace by her husband, her fear was genuine and reasonable. She was able to give some advance notice of her plan to relocate, but she did not request a transfer, since she was concerned that her husband would be able to find her had she done so. She did not move in with her sister, but lived in a domestic violence shelter.

2. See Review Letter 1-2006 on Domestic Violence

A-750-2121

Index 1710.12
Index 1635 D2

NEW YORK STATE DEPARTMENT OF LABOR

UNEMPLOYMENT INSURANCE DIVISION

ADJUDICATION SERVICES OFFICE

October 2006

INTERPRETATION SERVICE-BENEFIT CLAIMS
Voluntary Leaving

Safety

Domestic Violence

Stalking by an abusive ex-spouse

When claimant is stalked near her place of employment by an ex-husband who has a history of violence toward her and her children, she has a reasonable fear for her safety, and good cause to quit her job to relocate.

A.B. 530403

The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective October 29, 2005, on the basis that the claimant voluntarily separated from employment without good cause. The claimant requested a hearing.

The Administrative Law Judge held a telephone conference hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the employer. By decision filed February 10, 2006 (A.L.J. Case No. 005-31093), the Administrative Law Judge sustained the initial determinations.

The claimant appealed the Judge’s decision to the Appeal Board

Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The claimant was employed as an administrative assistant at an accounting firm for just over two years, until October 28, 2005. During the first week of October 2005 the claimant saw her ex-husband standing by the train station near her place of employment. When married to him for the period from 1987 to 1995, the claimant was the victim of domestic violence, including his knocking out her teeth, burning her, and throwing her down a flight of stairs. Her children were also subjected to his abuse. The husband had also attempted to kidnap their daughter. In 1995 the claimant divorced her husband and moved to Florida. From 1995 to 2005, there were no incidents involving her ex-husband, as he did not know where she lived. The claimant moved back to New York in October 2003. When her ex-husband found out where she was living, she moved to Jersey City. Shortly thereafter she discovered that the ex-husband was also living in New Jersey, so in April 2004 the claimant moved to Brooklyn. The claimant had not seen her ex-husband for some time until that first incident in October 2005. On October 12, 2005 the claimant again observed him near her place of employment, as well as outside her place of residence. The claimant asked for a week off from work and went to Florida hoping that her ex-husband would think that she did not live in New York. She returned to New York and again observed him lingering near her place of employment, as well as outside of her place of residence. The claimant called her local police station, but the police told her that there was nothing that they could do until her ex-husband engaged in an overt act. She tried to alter her work schedule, coming in earlier and leaving earlier, but she still observed her ex-husband in the vicinity of her employment, watching her. She made the decision to resign from her employment and relocate for her safety and that of her children. She moved to Florida in November 2005.

OPINION: The credible evidence establishes that the claimant voluntarily resigned from her position because she was being stalked by her ex-husband, by whose hand she had been the victim of domestic violence. The claimant made every attempt to avoid contact with him, moving twice after her return to New York, notifying the police of his malingering, and altering her work schedule, to no avail. Her ex-husband was repeatedly found to be lurking both at her place of residence and at her place of employment. In an effort to secure her safety as well as the safety of her children, the claimant chose to resign and move out of state. Before doing so, the claimant took action on several levels in an effort to preserve her employment, to no avail. The aforementioned circumstances clearly establish that the claimant had a compelling reason to resign from her employment. Accordingly, we conclude that the claimant was separated from her employment under non-disqualifying conditions. The decision of the Administrative Law Judge should be reversed.

DECISION: The decision of the Administrative Law Judge is reversed.

The initial determination disqualifying the claimant from receiving benefits effective October 29, 2005, on the basis that the claimant voluntarily separated from employment without good cause is overruled.

The claimant is allowed benefits with respect to the issues decided herein.

COMMENTS

1. In this case, a claimant quit her job after having been repeatedly stalked at her place of employment by her violent abusive ex-husband, who had assaulted her and abused her children. She had been divorced from him for ten years and had moved to Florida, during which time there had been no contact because he did not know where she relocated.

She relocated back to New York, and thereafter observed him in the vicinity of her employment. She notified the police of his stalking; she tried to alter her work schedule, but still observed him stalking her. She quit to relocate out of state, in an effort to secure her safety and the safety of her children.

2. See Review Letter 1-2006 on Domestic Violence

A-750-2122

Index 1710.13
Index 1635 D3

NEW YORK STATE DEPARTMENT OF LABOR

UNEMPLOYMENT INSURANCE DIVISION

ADJUDICATION SERVICES OFFICE

October 2006

INTERPRETATION SERVICE-BENEFIT CLAIMS
VOLUNTARY QUIT
Safety
Domestic Violence

ORDERS OF PROTECTION

A claimant who failed to seek an Order of Protection before quitting to relocate in order to remove herself from a dangerous domestic situation is not subject to disqualification when other evidence established that she acted from genuine fear for her personal safety and the safety of her children.

A.B. 529594A

The Appeal Board, on its motion pursuant to Labor Law §534, has reopened and reconsidered its decision filed January 7, 2005 (A.B. Case No. 523323A), which adhered to the prior decision of the Board filed November 26, 2004 (A.B. Case No. 521864), which affirmed the decision of the Administrative Law Judge. The decision of the Administrative Law Judge sustained the initial determination disqualifying the claimant from receiving benefits, effective April 1, 2004, on the basis that the claimant voluntarily separated from employment without good cause.

Upon consideration of the entire record, including the arguments contained in the written statement that was submitted on behalf of the claimant in connection with the reopening, the Board makes the following:

FINDINGS OF FACT: The claimant worked as a patient care technician at a large medical center in the Bronx, for approximately six years until March 31, 2004. The clamant and her two children lived in the Bronx with the claimant’s fiancé and his seventeen year old son. The claimant’s fiancé had physically assaulted the claimant on at least one occasion in 2002. On March 3, 2004, the claimant’s fiancé severely beat his seventeen year old son, which caused the claimant to fear for her own safety, and for that of her children. The claimant notified the police, who arrived at the claimant’s residence, just as the claimant was about to leave with her children.

The clamant moved out of her residence and went to live, temporarily, with a friend. The claimant’s ex-fiancé thereafter repeatedly telephoned the claimant at work, came, in person, at the claimant’s place of work and issued threats against her. Among other things, the ex–fiancé threatened, on more than one occasion to “choke” the claimant. The claimant thereupon determined to relocate to the Albany area, in order to remove herself from what she perceived to be a dangerous situation. She left her employment as of March 31, 2004 and moved upstate, with her children, on April 3, 2004.

The claimant appeared at Bronx Family Court on May 7, 2004, in connection with an action that had been filed by her ex-fiancé, for visitation rights to one of her children, of which he was the father. On that date, the ex-fiancé again threatened claimant. Consequently, the claimant filed, on May 10, 2004, for an order of protection against him.

OPINION: The credible evidence establishes that the claimant quit her job and moved from New York City to the Albany area, in order to get away from her ex-fiancé, who had a history of violence had, on at least one occasion, physically assaulted the claimant and had engaged in an ongoing pattern of harassment and threats against the claimant at the claimant’s place of work, including specific threats to “choke” the claimant. Upon further consideration, we now conclude that the claimant’s fear for her personal safety, as well as for that of her children, was a legitimate one and provided her with a compelling reason to leave her employment.

We do not agree with the reasoning of the Administrative Law Judge that the claimant’s failure to immediately seek an order of protection against her ex-fiancé should serve as a basis for disqualification. Such a document clearly provides no guarantee of continued safety from an individual with a proven history of violence and intimidation, such as the claimant’s ex-fiancé. The claimant’s decision to remove herself from the locality was, thus, both reasonable and prudent. We, therefore, conclude that the claimant’s employment ended under non-disqualifying conditions.

DECISION: The decisions of the Appeal Board filed November 26, 2004 and January 7, 2005 are rescinded.

The decision of the Administrative Law Judge is reversed.

The initial determination, disqualifying claimant from receiving benefits, effective April 1, 2004, on the basis that the claimant voluntarily separated from employment without good cause is overruled.

The Claimant is allowed benefits with respect to the issues decided herein.

COMMENTS

In this case, the claimant had not sought an Order of Protection prior to leaving the area in response to her fear for her personal safety and the safety of her children, due to domestic violence. The failure to seek an Order of Protection should not be construed as disproving the threat, nor does it mean that the claimant’s actions were unreasonable.

An “Order of Protection” against an abuser can serve as corroboration of domestic violence, but it is not the only evidence that might be produced.

See Review Letter 1-2006 on Domestic Violence.

A-750-2123 Index 1530.1

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

November 2008

INTERPRETATION SERVICE-BENEFIT CLAIMS
WILFUL MISREPRESENTATION
Claimant Handbook

Claimant Information HANDBOOK
Having received the information handbook, it is incumbent on the claimant to read it, and he is charged with the knowledge of its contents.
A.B. 535961

The Department of Labor issued the initial determinations holding the claimant ineligible to receive benefits, effective July 21, 2006 through July 23, 2006, on the basis that the claimant was not available for employment, charging the claimant with an overpayment of $303.75 in benefits recoverable pursuant to Labor Law § 597.4; and reducing the claimant’s right to receive future benefits by eight effective days on the basis that the claimant made a wilful misrepresentation to obtain benefits. The claimant requested a hearing.

The administrative law judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There was an appearance by the claimant. By decision filed January 24, 2007 (A.L.J. Case No. 006-25964), the administrative law judge sustained the initial determinations.

The claimant appealed the judge’s decision to the Appeal Board, insofar as it sustained the initial determination reducing the claimant’s right to receive future benefits by eight
effective days on the basis that the claimant made a wilful misrepresentation to obtain benefits.

Based on the record and testimony in this case, the Board makes the following

Findings of Fact: The claimant was separated from employment and filed a claim for unemployment benefits effective June 26, 2006. He received, but did not read, the claimant information handbook sent by the Department of Labor, which includes the information that to be eligible for benefits, a claimant must be available for work and demonstrate that availability by actively seeking employment while he is claiming benefits.

The claimant left for a vacation in England on July 21, 2006 and did not return until July 30, 2006. On July 26, 2006, the claimant certified via the internet for benefits for the previous week, indicating that he was available for work.

Opinion: It is the law of the case that the claimant was not available for employment from July 21 through July 23, 2006, and that he received $303.75 in unemployment insurance benefits, recoverable because he made a factually false statement that resulted in the receipt of those benefits.

The claimant received an information handbook, explaining the requirement that a claimant be available for employment, and what constitutes availability. Having received the information handbook, it was incumbent upon the claimant to read it, and he is charged with the knowledge of its contents. The term “wilful” as used by the Labor Law does not imply a criminal intent to defraud, but simply means “knowingly”, “intentionally”, “deliberately” (see Matter of Vick, 12 AD 2d 120). As the claimant knew or should have known from the handbook that he was not available for employment, his certification on July 26 was wilfully made.

The Department of Labor has established standards for the imposition of penalties when a claimant has made a wilful misrepresentation. These standards impose a basic forfeit penalty of four effective days if no overpayment has resulted from the offense, and eight effective days if an overpayment has resulted. As the claimant received overpaid benefits as a result of his wilful misrepresentation, the eight day forfeit penalty was properly imposed.

Decision: The decision of the administrative law judge, insofar as appealed from, is affirmed.

The initial determination, reducing the claimant’s right to receive future benefits by eight effective days on the basis that the claimant made a wilful misrepresentation to obtain benefits, is sustained.

The clamant is denied benefits with respect to the issues herein.

COMMENTS

While this is not a new concept for Unemployment Insurance Division staff, it was not previously included in the Interpretation Service or its Index.

In two other decisions issued by the Appeal Board on the very same date, this principle was explicitly articulated in support of a determination of wilful misrepresentation regarding lack of total unemployment related to the claimant’s failure to disclose paid training (AB 536039) and a determination of failure to comply with certification requirements (AB 535106).

This principle has been repeatedly affirmed by the Appellate Division as well (Matter of Karpien 297 AD 2d 855; Matter of Luongo 276 AD 2d 996; Matter of Sharon 12 AD 3d 1018).

Evidence of possible wilful misrepresentation should not be ignored, and claimants should always be asked during fact finding on wilful misrepresentation whether they received the Claimant Handbook.

A-750-2124 INDEX 1530.2

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Division

November, 2008

INTERPRETATION SERVICE-BENEFIT CLAIMS
MISREPRESENTATION AND REDETERMINATION
Claimant Handbook

ON-LINE INFORMATION HANDBOOK

A claimant who files an original claim for benefits online is made aware of the on-line information handbook, and is properly charged with the knowledge contained in it, despite non-receipt of the printed information booklet.

Matter of Jamie L. Nigro, 47 AD 3d 1040

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 1, 2006, which, among other things, ruled that claimant was ineligible to receive unemployment insurance benefits because she was not totally unemployed.

Claimant filed an application for unemployment insurance benefits effective December 5, 2005. On February 22, 2006, she formed a corporation for the purpose of selling vending machines and, in the ensuing weeks, she performed various tasks in preparation of actually operating the business. She received benefits totaling $1, 320, with her last check covering the week ending April 2, 2006. Her certifications for the weeks ending April 9, 2006, April 16, 2006, April 23, 2006 and April 30, 2006 were held by the Department of Labor. The Unemployment Insurance Appeal Board subsequently ruled that, due to the activities that she performed on behalf of the corporation, claimant was not totally unemployed and, therefore, was ineligible to receive benefits. The Board also charged her with a recoverable overpayment pursuant to Labor Law § 597 (4) and reduced her right to receive future benefits by 48 days on the basis that she made willful misrepresentations to obtain benefits. Claimant appeals.

Initially, we note that activities performed in connection with starting a new business have rendered claimants ineligible to receive unemployment insurance benefits based upon a lack of total unemployment (see e.g. Matter of Donaghy [Commissioner of Labor], 264 AD2d 883 [1999]; Matter of Murak [Sweeny], 244 AD2d 751 [1997]). Even where such activities were minimal, the key factor was whether the claimant stood to benefit financially from the existence of the business (see Matter of Siegel [Commissioner of Labor], 43 AD2d 1224, 1224-1225 [2007]). In the case at hand, claimant filed a certificate of incorporation, obtained a federal tax identification number, registered for unemployment insurance withholding, loaned the corporation money, established a business Web site, placed an order for business telephone lines and wrote checks from the business checking account, all while she was receiving unemployment insurance benefits. Inasmuch as she performed such tasks in furtherance of the business and in anticipation of obtaining a financial benefit from its operation, substantial evidence supports the Board’s finding that claimant was not totally unemployed.

The record also supports the Board’s imposition of a recoverable overpayment and forfeiture penalty. Although claimant acknowledged two days when she was engaged in self-employment activities, she had pursued her new business before obtaining her federal tax identification number on March 24, 2006 and continued to certify for benefits for five weeks thereafter. This evidence, together with proof that claimant was aware that she could have, but admittedly failed to, read the unemployment insurance handbook available on-line, where she applied for benefits, is sufficient to establish that she willfully misrepresented her activities during the time that she was receiving benefits (see Matter of Bowlby [Commissioner of Labor], 31 AD2d 939, 940 [2006]; Matter of Raspallo [Commissioner of Labor], 10 AD2d 751, 751-752 [2004]).

Cardona, P.J., Mercure, Rose, Lahtinen, and Kane, JJ., concur.

ORDERED that the decision is affirmed, without costs.

COMMENTS

Although the claimant in this case did not receive a paper copy of the Claimant's Information Handbook, the information contained in it was readily available to the claimant when she filed her original claim for benefits online, and at any time thereafter. The Court notes that claimant was aware that she could have read the unemployment insurance handbook available on-line, yet she failed to do so. The Appeal Board made similar findings in two recent cases, (see AB 535506 & AB 527739).

The claimants in all three cases filed on-line Original Claims and were advised in the course of filing that the Information Book was available on-line and that they should read it carefully. The claimants in these cases had only to click on one of several links to ascertain if their activities would in any way affect their benefits. They were charged with the knowledge contained in the handbook, as it was their responsibility to make themselves familiar with such information.

A-750-2125 Index 920 C.16

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Division

June, 2009

INTERPRETATION SERVICE-BENEFIT CLAIMS
Employees of Educational Institutions
Reasonable Assurance

PER-DIEM TEACHERS – COMPUTERIZED CENTRAL REGISTRY

A per-diem substitute teacher in a school system that uses a computerized central registry for its substitutes, has reasonable assurance if the number of days of work offered by the central registry in the prior school year was at least 90% of the number of days worked in the prior school year, and the employer has assured the claimant that it intends in the next year to offer the claimant employment through the central registry for at least the same number of days.

A.B. 544293

The Department of Labor issued the initial determination holding the claimant, a professional employee of an educational institution, ineligible to receive benefits, effective July 14, 2008, between two successive academic terms on the basis that the claimant had reasonable assurance of performing services at the educational institution in the next academic term pursuant to Labor Law § 590 (10). The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant and the employer. By decision filed November 19, 2008 (A.L.J. Case No. 008-19111), the Administrative Law Judge overruled the initial determination.

The employer appealed the Judge’s decision to the Appeal Board. The Board considered the arguments contained in the written statement submitted on behalf of the employer.

Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The claimant worked during the 2007-2008 school year as a substitute teacher for the New York City Department of Education. The claimant worked 72 days out of the 180 days in a school year. She was paid for 65 days as a per diem substitute, and the balance as a session substitute. The claimant earned $154.97 a day as a per diem substitute, and a lesser amount for partial days as a session substitute. The New York City School Board utilizes a computerized Sub Central registry system for contacting substitute teachers during the school year. The claimant’s name is registered in the Sub Central system. The claimant’s classification is common branch. A teacher or an administrator contacts the Sub Central registry and indicates the need for a teacher for a certain class. The registry notifies the listed substitute teacher by order of classification, location, and whether the teacher is on a preferred or priority list for that school. The registry may make several offers of employment to a substitute teacher per day. The claimant was offered 126 days of work during the 2007-2008 school year. The claimant accepted five assignments from the registry and was administratively assigned three additional assignments, totaling 65 days of work.

The New York City Department of Education sent the claimant a letter, dated June 13, 2008, which advised the claimant that her name would be included in the Sub Central registry for the 2008-2009 school year and that it was expected that the claimant would be contacted at least as often as in the prior year and that the terms and conditions of employment would be substantially the same. The Department of Education does not expect any changes which will affect the need for substitutes in the 2008-2009 school year.

OPINION: Reasonable assurance, pursuant to Labor Law Section 590(10), exists when the employer expresses a good faith willingness to place the claimant’s name on a list from which substitutes are called to teach and the employer will, in good faith, consider the possibility of offering per diem work to the claimant and the economic terms and conditions in the new school year are not expected to be substantially less favorable than in the prior school year.

It is the responsibility of the employer to demonstrate with competent testimony from knowledgeable witnesses concerning the employer’s personnel practices in hiring procedures that these basic conditions have been met. In the case at bar the employer’s witness, the operator for the Sub Central Registry system, offered competent first-hand testimony as to the inclusion of the claimant’s name on the registry list and how the registry is operated. The witness produced the computerized printouts listing the claimant’s name and classification preferences, as well as a list of calls and offers of work made to the claimant in the 2007-2008 school year. She also competently testified that the department expected to hire more per diem substitutes in the 2008-2009 school year because of an increase in enrollment of children, and increase in the number of teachers employed, and an increased number of school buildings. The employer has thus established that the claimant would, in good faith, be considered for per diem work in the 2008-2009 school year.

We now need to examine whether the offer of employment for 2008-2009 will be substantially the same as that of the 2007-2008 school year. Competent testimony would need to establish that the terms and conditions for the 2008-2009 school year would be at least 90% of that earned in 2007-2008. The claimant worked 72 days of employment in the prior school year. The claimant was called by the Sub Central registry to work 126 days during the prior year. It is not controlling that the claimant did not accept all of her employment form the registry. It is also not dispositive that the claimant chose not to obtain the six credit hours needed to renew her certification before the 2008-2009 school year. The burden is on the employer to establish the offer of employment was made not that the offer was accepted, and not that the claimant would choose to renew her certification in time for the next school year. As the employer offered the claimant more than 90% of the number of days worked, and as the employer through competent testimony has established that it intends to offer the claimant employment for at least the same number of days as in the prior year, there has been a good faith offer of reasonable assurance. As reasonable assurance is established through the registry there is no need to consider whether claimant received reasonable assurance from the individual schools who hired her from their preferred lists. Accordingly, we conclude that the claimant received reasonable assurance of continuing, substantially similar employment for the 2008-2009 school year, effective July 14, 2008.

DECISION: The decision of the administrative Law Judge is reversed.

The initial determination, holding the claimant, a professional employee of an educational; institution, ineligible to receive benefits, effective July 14, 2008, between two successive academic terms on the basis that the claimant has reasonable assurance of performing services at the educational institution in the next academic term pursuant to Labor Law § 590 (10), is sustained.

The claimant is denied benefits with respect to the issues decided herein.

COMMENTS

The rule of this release is applicable to any school system that utilizes a computerized central system to list and contact per-diem substitute teachers. However, in this case, (and in AB544125 & AB 544128, referred to below), the employer limited the evidence it presented to assurance that the central registry would offer the claimant employment in the next year. The employer presented no evidence regarding whether individual schools gave the claimant any reasonable assurance. Such evidence, if presented, would need to be evaluated in conjunction with evidence regarding the central registry.

In a similar ruling in AB 544125, where the claimant worked 117 days out of 180 in the school year, 29 of which were assignments accepted from the registry, and the remainder of which were assignments he accepted from individual school administrators, the Board held that the controlling fact was that the registry offered 145 days of employment to the claimant, which constituted more than 90% of the days worked. Therefore the employer’s assurance of at least the same number of calls from the Registry in the next year, established reasonable assurance.

In a contrasting case, AB 544128, the Board ruled in the claimant’s favor because the evidence with respect to the Sub-Central Registry was insufficient to establish reasonable assurance, even though the claimant was sent a reasonable assurance letter. The claimant had worked 115 days in the prior school year, but was offered only 53 days of work from the Sub-Central Registry. Since the Registry called the claimant for less than 90% of the days the claimant worked in the prior year, assurance from the employer that the Registry would call the claimant in the coming year for at least as many days as it had in the prior year did not constitute reasonable assurance.

A-750-2126

Index 915 A.11

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDUCATION SERVICES OFFICE

July 2, 2009

INTERPRETATION SERVICE-BENEFIT CLAIMS
Reduction due to pension
Pension or Retirement Payment: Definition

NON BASE PERIOD EMPLOYER PENSION

A claimant in receipt of a pension from a plan financed by an employer for whom the claimant last worked prior to the beginning of the base period, who receives a back pay award from that employer during the base period that increases the monthly pension amount, is not subject to pension reduction because the employer is not a base period employer.

AB 540,634 A

The employer applied to the Appeal Board pursuant to § 534 for a reopening and reconsideration of its decision filed January 8, 2008 (A.B. 539,238), which reversed the decision of the Administrative Law Judge, insofar as it had been appealed from, and overruled the initial determinations reducing the $405 benefit rate of the claimant by $405 to $0 per week, effective March 26, 2007, pursuant to Labor Law § 600(7); and charging the claimant with an overpayment of $708.75 in benefits recoverable pursuant to Labor law § 597 (4). In doing so, the Board inadvertently overruled the initial determination reducing the claimant’s right to receive future benefits by eight effective days on the basis that the claimant made a willful misrepresentation to obtain benefits, which was not before it on appeal. The decision of the Administrative law Judge had granted the claimant’s application to reopen A.L.J. Case No. 007-12019, had overruled initial determination reducing the claimant’s right to receive future benefits by eight effective days on the basis that the claimant made a willful misrepresentation to obtain benefits, and had sustained the initial determinations reducing the $405 benefit rate of the claimant by $405 to $0 per week, effective March 28, 2007, pursuant to Labor Law § 600 (7); and charging the claimant with an overpayment of $708.75 in benefits recoverable pursuant to Labor Law §597 (4).

Upon due deliberation on the application, the Board has reopened and reconsidered its decision.

The Board considered the arguments contained in the written statement submitted on behalf of the employer.

Upon consideration of the entire record, the Board makes the following:

FINDINGS OF FACT: The claimant worked as a municipal firefighter from April 30, 1997 through January 26, 2005, with a retirement date of January27, 2005. He was a member of a union in contractual relations with the employer. During his employment, the employer contributed at least 94 percent of payments to the claimant’s pension. The earnings from the claimant’s last year of employment affected the value of his pension. The claimant received $4,965 a month from this pension, which is 90 percent of his pension benefit. As a result of contract negotiations between the employer and the union, the claimant received a $7,436.94 back pay award in four installments spread over the first and second calendar quarters of 2006. This award included money allotted to 2004-2005 and will impact the last year of his earnings. The claimant did not work for this employer in these quarters. At some point, the employer will finalize the claimant’s pension factoring in this award. The claimant filed an original claim for benefits on April 18, 2007. His base period is composed of the four quarters of 2006. He subsequently received $708.75 in benefits.

OPINION: There being no appeal therefrom, it is the law of the case that the claimant established good cause to reopen the prior administrative law judge decision and that he did not make a willful misrepresentation. Labor Law §600(7)(a) states, in part

The benefit rate of a claimant who is receiving a governmental . . . pension . . . which

is based on his previous work, shall be reduced as hereinafter provided, if such

payment is made under a plan maintained or contributed to by his base period employer

and . . . the claimant’s employment with, or remuneration from, such employer after the

beginning of the base period affected his eligibility for, or increased the amount of, such

pension. (Emphasis supplied)

We must now consider what employer is a base period employer. The term base period employer is not defined in the Labor Law. However, the term “employer” is defined to include governmental entities (Labor Law §512); and “base period” is defined as four completed calendar quarters (Labor Law §520). Further, the term “remuneration” is defined in Labor Law §517 to include, “every form of compensation for employment paid by an employer to his employees.” Also, the term “employment” is generally defined in Labor Law §511 to mean “(a) any service under any contract of employment for hire, express or implied, written or oral.” Lastly, we note that in order to be able to file a valid original claim, a claimant is required, in part to have “been paid remuneration by employers liable for contributions or for payments in lieu of contributions under this article, other than employers from whom the claimant lost employment under conditions which would be disqualifying pursuant to subdivision three of section five hundred ninety-three of this article, for employment during at least two calendar quarters of the base period.” (Labor Law §527(1)(d) and (2)(a)). (Emphasis supplied)

The employer has contended that by virtue of the back pay award, made during the base period, it is a base period employer. We begin our analysis by noting that the employer, perhaps inadvertently, has misquoted Labor Law §600(7)(a) to state, “the claimant’s employment with or remuneration from such employer affected his eligibility . . . or increased the amount of such pension . . .” (See statement p. 2). The statute, actually states, “the claimant’s employment with, or remuneration from, such employer after the beginning of the base period affected his eligibility for, or increased the amount of, such pension.” (Emphasis supplied).

As we read the aforesaid sections of the Labor Law, the thread running through them is the requirement that a claimant actually render services and this claimant rendered no services to this employer during the base period. Since the term base period employer is undefined in the Labor Law, we construe it to mean an employer for which the claimant rendered services during the base period. Any other reading converts into a “base period employer” any employer for which a claimant worked many years ago. Further, we note that if the legislature had intended that a relevant pension plan could be maintained by any employer, as opposed to a base period employer, the legislature would have stated this. It did not. As such, we hold that this employer is not a base period employer. In support of this, we note that on a fact pattern similar to that herein, the Board recently concluded that the employer herein was not a base period employer. (See A.B. 538,367, aff’d A.B. 539,615A).

In support of its contention, the employer has presented A.B. 524,260 and A.B. 521,256. In A.B. 524,260, on the same fact pattern as is present herein, the Board concluded the claimant’s benefit rate was properly reduced because of the receipt of the pension. We decline to follow this case because it does not take into consideration what a base period employer is.

With regard to A.B. 521,256, we note that it arises in the context of the charging of an employer’s account. Since it arises in an entirely different context, we leave for another day the question of whether, in light of Labor Law §516 (wages or remuneration are deemed “paid” on the date such payment is made) and Labor Law §581.1(e)(2) (manner in which an employer’s account is charged) remuneration received from an employer during a base period, but for which the claimant did not work during the base period, requires that the employer’s account be charged.

We are aware of Matter of Hall, 162 A.D. 2d 96, wherein a claimant received a pension from a union fund to which a prior employer had contributed. The claimant subsequently worked for to other employers who also contributed toward the pension fund. When the claimant filed a claim, the base period encompassed his employment with these two employers. The issue was whether the claimant’s benefit rate should be reduced by the entire amount of the pension or by the increased amount attributable to the claimant’s additional work during the base period. The Court wrote

The dispute in this case essentially centers on what is encompassed by “base period

employer.” Although “base period” and “employer” are statutorily defined by the

Unemployment Insurance Law (see Labor Law §§512, 520), there is no such definition

of “base period employer.” Because this State’s statutory language mirrors a Federal

statute (see, 26 USC §3304[a][15] and was adopted to ensure New York’s continued

participation in a Federal reimbursement system for unemployment insurance

benefits (see, Matter of Cullen [Roberts], 93 AD 2d 907), we have no hesitancy to

consider the Federal law’s statutory background to resolve the meaning of “base

period” employer” (see, supra). In this regard, we note that Congress clearly intended

this phrase to refer to “any employer who paid wages on which the [unemployment

insurance] eligibility of the claimant and the amount and duration of unemployment

benefits is [sic] based” (HR rep No. 538, 96^th Cong, 1^st Sess 5; see, Watkins v

Cantrell, 736 F2d 933, 938, n5). (ld. at 98).

While construing the prior codifications of Labor Law §527(1)(d) (base period) and Labor Law §590(2) (average weekly wage), the Court wrote, “there can be no doubt that claimant’s work for the employers which contributed toward his pension fund during his base period affected his eligibility for an amount of unemployment insurance . . . as such, these employers satisfy the definition of “base period employer” as used in the statute.” (ld. at 99). We point out that the Court concluded the employers were base period employers because the claimant had worked for them in the base period not because he had received a back pay award arising from employment before the base period.

Penultimately, we note that the Department’s own interpretation of Labor Law §600(7), as embodied in Special Bulletin A-710-44 (revised), states, “(A)(4), if the payment is from a plan maintained or contributed to by any base period employer and if claimant’s employment in the base period affected claimant’s eligibility for or increased the amount or the payment, then al benefits received during the ensuing benefit year are reduced.”

Lastly, although 26 USC §3304 (15)(A)(i) is not before us, since the employer’s appellate contentions particularly that it is a chargeable employer and the relevance of this, are based on it, we note that on its face it states, in part, “such pension . . . is under a plan maintained . . . by abase period employer or chargeable employer (as determined under applicable law), and . . . services performed for such employer by the individual after the beginning of the base period (or remuneration for such services) affect eligibility for, or increase the amount of, such pension.” (Emphasis supplied).

For the foregoing reasons, we are not persuaded by the employer’s contentions. Since this employer is not a base period employer, Labor Law §600(7) is inapplicable because this is not a plan maintained or contributed to by a base period employer. The claimant thus falls outside the purview of said section of the Law. Accordingly, we conclude that the claimant is not subject to a pension reduction under Labor Law §600(7). We, thus, also conclude that the benefits the claimant received do not constitute an overpayment.

DECISION: The decision of the appeal Board is rescinded.

The decision of the Administrative Law Judge, insofar as appealed from, is reversed.

The initial determinations, reducing the $405 benefit rate of the claimant by $405 to $0 per week, effective March 26, 2007, pursuant to Labor Law §600(7); and charging the claimant with an overpayment of $708.75 in benefits recoverable pursuant to Labor Law §597(4), are overruled.

The claimant is allowed benefits with respect to the issues decided herein.

COMMENTS

This decision reflects a new analysis of the statutory language. Prior decisions (not published) held that if the employer who financed the pension had paid remuneration to the claimant in the base period, and that remuneration increased the amount of the claimant’s pension, the claimant would be subject to a pension reduction. Overruling the determination in this case, the Appeal Board distinguishes between the payment of remuneration and the absence of actual employment. This analysis clarified that since the claimant had not actually worked for this employer in the base period, this employer was not a “base period employer”, as provided in the statutory language in § 600(7).

Although the Appeal Board in its decision chose to “…leave for another day…” the question of whether remuneration received from an employer during a base period, but for which the claimant did not work during the base period, requires that the employer’s account be charged, it remains the policy of the department to charge an employer’s account based upon such remuneration.

A-750-2127 Index 960.1

NEW YORK STATE DEPARTMENT OF LABOR

UNEMPLOYMENT INSURANCE DIVISION

ADJUDICATION SERVICES OFFICE

August 2009

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS

Unemployment Compensation for Ex-Service Members (UCX)

UCX CLAIMS - NARRATIVE REASON FOR SEPARATION

A claimant who did not complete the first full term of military service which he agreed to serve may not use such service to establish an Unemployment Compensation for Ex-Service Members (UCX) claim unless the narrative reason for separation as shown on his form DD214 matches one of the acceptable narrative reasons for separation pursuant to 5 USC § 8521.

AB 544932

The Department of Labor issued the initial determination denying claimant (an ex-service member filing under 5 USC §§ 8521-8525) Unemployment Compensation for Ex-Service Members (UCX) benefits on the basis that the claimant did not complete the first full term of active service which he agreed to serve. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There was an appearance by the claimant. By decision filed January 23, 2009 (A.L.J Case No. 308-08430), the Administrative law Judge granted the claimant’s application to reopen A.L.J. Case No. 308-06688, and overruled the initial determination.

The Commissioner of Labor appealed the Judge’s decision to the Appeal Board, insofar as it overruled the initial determination.

Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: During 2005, the claimant enlisted in the US Army. At the time of his enlistment, the claimant agreed to serve for a term of four years of active duty and four years of reserve service. The claimant left active duty on or before August 15, 2008. The Certificate of Release or Discharge from Active Duty form, or DD214, stated that the claimant was released prior to completing his first full term of service. The narrative reason for separation listed on DD 214 was “Enter Officer Training Program”.

OPINION: Chapter 85, title 5 of the US Code, Public Law 97-362, excludes a claimant’s time spent and money earned while in military service from use in establishing a claim for benefits if the claimant did not complete his first full term of service from which he initially agreed to serve, unless he was discharged for: (1) the convenience of the government under an early release program; (2) because of medical disqualification, pregnancy, parenthood, or any service-incurred injury or disability; (3) because of hardship; or (4) because of personality disorders or inaptitude. 5 USC §§ 8521.

The credible evidence establishes that the claimant failed to complete his first full term of active service which he agreed to serve. Information contained in a military document shall constitute findings which are final and conclusive for all purposes of the unemployment compensation program as to whether the ex-serviceman has performed federal military service; the beginning and ending dates of military service and days lost during such periods; type of discharge or release; pay grade at the time of discharge or release; the narrative reason or other reason for separation from active service; and whether or not an individual has met any condition specified by 5 USC §§ 8523; 20 CFR 614.21; Deaner v. Unemployment Compensation Board of Review, 78 Pa Commw. 431 [Pa. Commw. Ct. 1983]). Therefore, information contained in the military document constitutes federal findings which are final and conclusive. A state unemployment compensation agency does not have the expertise to determine the ex-service member’s discharge status to be contrary to that contained in a military document,, and it would be singularly inappropriate for it to attempt to do so (Strother v. District of Columbia Dep’t of Employment Services, 499 A 2d 1225 [D.C. 1985]). Here, the military document, DD214 explicitly states that the claimant did not complete his first full term of active service which he agreed to serve.

As the claimant is deemed not to have completed his first full term of active service which he agreed to serve, we must now examine if his reason for discharge fall under one of the exceptions listed under 5 USC §§ 8521. Significantly, the narrative reason for the claimant’s discharge listed on the military document DD214 is “Enter Officer Training Program”. It should be noted that “Enter Officer Training Program” is not a permitted exception under federal statute to the requirement that a claimant complete his first full term of service to allow his military time/wages to be used in calculating unemployment insurance benefits. Accordingly, the claimant is ineligible for UCX unemployment benefits.

DECISION: The decision of the Administrative Law Judge, insofar as appealed from, is reversed.

The initial determination denying the claimant (an ex-service member filing under 5 USC §§ 8521-8525) Unemployment compensation for Ex-Service Members (UCX) benefits on the basis that the claimant did not complete the first full term of active service which he agreed to serve, is sustained.

The claimant is denied benefits with respect to the issues decided herein.

COMMENTS

The Appeal Board in its decision recited the four acceptable narrative reasons for separation contained in the federal statute. However, these four “reasons” are actually broad categories of acceptable reasons. The specific acceptable narrative reasons change periodically. Handling acceptable reasons in this manner enables the military to adapt UCX eligibility to policy and program changes without the need for amendments to UCX law. There are at present 45 specific acceptable narrative reasons, each of which falls into one of the four broad statutory categories. The full list of current acceptable reasons is found in UI Program Letter (UIPL) # 03-95, Change 4. The link to this publication is: http://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=2333

Under the heading FOR THE CONVENIENCE OF GOVERNMENT UNDER AN EARLY RELEASE PROGRAM, the UIPL lists ten acceptable reasons including ‘To Attend School’. In the above case the Administrative Law Judge incorrectly held that the narrative reason given on the claimant’s form DD-214, ‘Enter Officer Training’ was equivalent to the acceptable narrative reason, ‘To Attend School’. However, as UIPL # 27-06 states, “The language of the narrative reason must exactly match the language provided on the USDOL ‘acceptable’ list of reasons for the ex-service member to use his/her military wages to establish a claim”. Accordingly, hearing officers have no discretion in interpreting the narrative reasons for separation on DD-214s.

A claimant who disputes information contained on the DD214 may ask his/her branch of the service to issue a correction (form DD215). Additional instructions regarding DD-214 information are contained in UI Program Letter No. 27-06. The link to this publication is http://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=2253.

A claimant who has completed his first full term of service, as shown on his DD-214 with the term ‘Expiration Term of Enlistment’ (ETE) or ‘Expiration Term of Service’ (ETS), has qualifying service for UCX purposes.

A-750-2128 Index 915 C-1
1590-9

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

September 2009

INTERPRETATION SERVICE-BENEFIT CLAIMS
     DETERMINATION OF BENEFITS
        Due to Pension
         Retroactive Pension
           MISREPRESENTATION & REDETERMINATION
            Recovery of Overpayment

RETROACTIVE PENSION AND RECOVERABLE OVERPAYMENT

Pursuant to Section 600.7 (c) of the Unemployment Insurance Law, a claimant who receives a retroactive pension payment may be held subject to a retroactive benefit rate reduction and recoverable overpayment despite the fact that the claimant was not at fault and had made a full disclosure to the department regarding the pension shortly after filing the original claim.

Matter of Rita J. Sanchez, 56 A. D. 3d 846 (2008)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 24, 2007, which, upon reconsideration, among other things, charged claimant with a recoverable overpayment of unemployment insurance benefits.

Claimant applied for unemployment insurance benefits on July 3, 2006, and a weekly benefit rate was established. When claimant was interviewed by a Department of Labor representative in early August 2006, she indicated that she had applied for her pension from the employer. Claimant received her first pension check on August 25, 2006, retroactive to July 1, 2006, and promptly notified the Department. Prior to that time, claimant had received unemployment insurance benefits in the amount of $2,430. Because the prorated weekly amount of claimant’s pension exceeded her weekly benefit rate, the Unemployment insurance Appeal Board reduced claimant’s weekly benefit rate to zero and charged her with a recoverable overpayment. Upon reconsideration, the Board adhered to its prior decision, prompting this appeal by claimant.

Substantial evidence supports the Board’s decision reducing claimant’s benefit rate to zero and charging her with a recoverable overpayment of benefits. The record reflects that claimant is receiving a pension that is fully funded by her former employer and that the prorated weekly amount of her pension exceeds her weekly unemployment insurance benefit rate. Under such circumstances, the Board properly reduced claimant’s benefit rate to zero (see Matter of Ziegler [Commissioner of Labor], 28 AD3d 895, 895-896 [2006], lv denied 7 NY3 708 [2006]; Matter of Hosenfeld [Commissioner of Labor], 280 AD2d 738 [2001]; Matter of Hammer [Commissioner of Labor], 263 AD2d 608 [1999]; see also Labor Law § 600 [7]). Similarly, although claimant indeed disclosed her pension and receipt of those benefits to the Department, the conditional payment of unemployment insurance benefits prior to verification of the details of a claimant’s pension is subject to review and recovery of an overpayment (see Labor Law § 597 [3], [4]). Thus, claimant was properly charged with a recoverable overpayment even though she was not at fault (see Labor Law § 597 [3], [4]; § 600 [7] [c]; Matter of Hosenfeld [Commissioner of Labor], supra; Matter of Hammer [Commissioner of Labor], supra).

COMMENTS

1. When the claimant in this case filed an original claim on 7/03/06, she stated that she had neither applied for nor was receiving a pension. On 8/06/06 however, she disclosed that she had applied for a pension, but that she did not know when she would receive it, or how much it would be. The claimant’s benefits were properly released and she was advised to inform the Department when the first pension payment was received. Claimant did so, and as the statute specifically addresses this factual situation, the proper determinations were issued.

2. Section 600.7 (c) states: “If, at the time benefits are payable, it has not been established that the claimant will be receiving such pension, retirement or retired pay, annuity or other payment, benefits due shall be paid without a reduction, subject to review within the period and under the conditions as provided in subdivisions three and four of section five hundred ninety-seven with respect to retroactive payment of remuneration”. Sections 597.3 & 597.4, taken together state in effect that a claimant’s eligibility may be redetermined within six months of a retroactive payment of remuneration and that any resulting overpayment is recoverable, provided no decision has been rendered upon the merits of the case.

3. Thus, a retroactive pension payment is handled in the same manner as a retroactive payment of remuneration. A claimant’s rate may be reduced provided:

a) there has been no decision (hearing or appeal) rendered on the merits; and
b) the conditions enumerated in Section 600.7 (a) and (b) have been met; and
c) the matter is reviewed and a redetermination issued within six months of the retroactive pension payment.

Under such circumstances, the resulting overpayment is recoverable.

4. Although not applicable to the above case, it remains true that if a claimant falsely states that he or she has not applied for or is not receiving a pension such statement is both factually and willfully false. A wilful false statement gives the Commissioner the right to review the matter and issue a redetermination with no time limitation. Both the factually false statement and the wilfully false statement constitute a basis for the recovery of any overpayment caused by the false statement.

A-750-2129 Index 1535.7

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

September 2009

INTERPRETATION SERVICE-BENEFIT CLAIMS
MISREPRESENTATION & REDETERMINATIONS
Reason for Separation

DISCHARGED – UNABLE TO MEET PERFORMANCE OR PRODUCTION STANDARDS

A claimant’s statement on his application for unemployment insurance benefits that he was discharged because he was unable to meet his employer’s performance or production standards is a willful misrepresentation when the claimant knew he was terminated for violating company policy and could have made a truthful statement on his application by choosing the option “fired”, applicable when an employee is terminated for violating a company policy.

Matter of John M. Healy, 65 A.D. 3d 730

Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 23, 2007, which ruled, among other things, that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Claimant worked as a residential counselor in a foster care group home for troubled adolescents. He was placed on administrative leave pending an investigation after residents expressed concern over his use of profanity and complained that he drove at excessive speeds when transporting them to school. Claimant subsequently admitted to performing both activities in violation of employer’s policies and his employment was terminated. On his application for unemployment insurance benefits, however, claimant stated that he was discharged because he was unable to meet his employer’s performance or production standards and he was initially awarded benefits. The Unemployment Insurance Appeal Board subsequently determined that claimant’s termination for misconduct rendered him ineligible to receive benefits, charged him with a recoverable overpayment and imposed a forfeiture penalty as a result of its finding that he made a willful misrepresentation to obtain benefits. Claimant appeals.

We affirm. Although claimant admits that he was terminated for misconduct, he asserts that the Board improperly assessed a recoverable overpayment and maintains that he did not make a willful misrepresentation to obtain benefits. Here, the on-line application for unemployment insurance benefits offers five options in response to the question regarding why an applicant is no longer working for his or her most recent employer. One option is entitled “discharged/let go” and is applicable when an employee fails to meet performance standards or does not possess sufficient qualifications for employment. A second option is entitled “fired” and is applicable when an employee is terminated for violating a company policy. At a hearing, claimant acknowledged that he was terminated for violating his employer’s policies and expressly denied ever being informed that he was discharged for not meeting performance standards. Despite such an awareness, he selected the “discharged/let go” option after admittedly considering the “fired” option. Thus, substantial evidence supports the Board’s findings that claimant made a willful misrepresentation and that he should be charged with a recoverable overpayment (see Labor Law § 597 [4]: Matter of Strader [Commissioner of Labor], 49 AD3d 1120, 1121 [2008]). Accordingly, we decline to disturb the Board’s decision.

COMMENTS

1. The central fact of this case is claimant’s awareness of the true reason for his termination. As the Court pointed out, he knew he was fired for several violations of company policy and not because of any failure to meet performance or production standards. Thus, in any case involving possible willful misrepresentation regarding the reason for separation, the claimant’s knowledge of the reason for discharge must be established. In those situations where an employer gives a claimant a vague reason for discharge, or no reason at all, the claimant’s choice of “discharged/let go” may, under such circumstances, be reasonable, regardless of whether the claimant was actually fired for some kind of misconduct. There is no willful misrepresentation unless the claimant knows his or her statement is false.

2. The two options referred to by the Court appear as follows in the on-line application for benefits:

Discharged/Let Go:
You were discharged because you were unable to meet employer performance or production standards, or you were unable to meet employer’s qualifications for the job.

Fired:
You were fired for a violation of company policy, such as absenteeism, theft, insubordination, drug or alcohol use or a criminal act.

If a claimant chooses ”Discharged/Let Go”, but had clearly been informed that he or she was terminated due to a violation of company policy, a determination of willful misrepresentation is proper. Such a determination would be supported by a copy of the employer’s handbook, manual, or policy.

A-750-2130 Index 1010.13

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

September 2009

INTERPRETATION SERVICE-BENEFIT CLAIMS
HEARINGS AND APPEALS
Timeliness

In the absence of proof to the contrary, a determination is deemed mailed on the date recited on the initial determination and deemed received by the party to whom it is addressed within five business days. A hearing request is timely if such request is postmarked within 30 days of the appealing party’s receipt of the determination, or if there is other proof of filing of same with the commissioner within thirty days of receipt.

A.B. 545591

The Department of labor issued the initial determinations disqualifying the claimant from receiving benefit, effective September 19, 2008, on the basis that the claimant voluntarily separated without good cause; charging the claimant with an overpayment of $1134 in benefits recoverable pursuant to Labor Law § 597 (4); and reducing the claimant’s right to receive future benefits by eight effective days on the basis that the claimant made willful misrepresentations to obtain benefits. The claimant requested a hearing. The Commissioner of Labor objected that the hearing request was not made within the time allowed by statute.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the employer. By decision filed March 16, 2009 (A.L.J. Case No. 109-00348), the Administrative Law Judge overruled the Commissioner of Labor’s timeliness objection and overruled the initial determinations.

The Commissioner of Labor appealed the Judge’s decision to the Appeal Board. The Board considered the arguments contained in the written statement submitted on behalf of the Commissioner of Labor.

Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The claimant worked as a direct support professional for an agency which provides housing for developmentally disabled adults from September, 2007 until September, 2008. The claimant lost her employment and filed an original claim for benefits. The department issued the determination referenced above and mailed those determinations to the claimant on November 26, 2008. The claimant received the determinations approximately one week later. The determinations contained a notice that the claimant could request a hearing no later than 30 days after the mail date of the determination. The claimant wrote her request for a hearing on December 31, 2008. The envelope containing the request was postmarked January 8, 2009 and received by the Department on January 9, 2009. There is no allegation that the claimant suffers from any mental or physical disability.

OPINION: Labor Law Section 620(1) requires that a request for a hearing be made within thirty days of the date of the determination. The statute provides for an extension of this thirty day period only upon evidence that the claimant’s physical or mental incapacity prevented the claimant from making a timely request. The Appeal Board through its published rules and regulations, as amended, provides that a hearing request be deemed to have been timely made if the request is postmarked within thirty days of the receipt of the determination. Absent any proof to the contrary a determination shall be held to have been mailed on the date recited on the determination and received five business days after the mailing of the determination. (see 12 NYCRR § 461.1)

The mailing date of this determination was November 26, 2008. As claimant has no date certain for receipt, an additional five business days is added to designate the date of receipt. The claimant thus is deemed to have received the determination on December 4, 2008. Thirty days from this date was January 3, 2009. January 3rd was a Saturday. Thus the latest claimant’s request could have been postmarked was Monday, January 5, 2009. The claimant’s request was postmarked January 8, 2009. There is no allegation that the claimant has a mental or physical incapacity that prevented her from making her request in a timely manner. The claimant’s request was therefore late and we conclude that her request was untimely. As the claimant’s request was untimely, the determinations cannot be decided on the merits and must continue in effect.

DECISION: the decision of the Administrative Law Judge is reversed.

The Commissioner of labor’s timeliness objection is sustained.

The initial determinations are continued in effect.

The claimant is denied benefits with respect to the issues decided herein.

COMMENTS

1. This decision illustrates important changes in the way the timeliness of a hearing request is to be measured, brought about by recently enacted rules of the Appeal Board.
For this reason the rule at 1010.12, as well as A-750-2112 from which it is derived, are now obsolete. The Appeal Board’s new rules provide guidelines by which the Commissioner, the Administrative Law Judge and the Appeal Board can make consistent finding of fact pertinent to the issue.

2. First, in the absence of proof to the contrary, the date on the face of the initial determination will be deemed the date the determination was mailed. Second, in the absence of proof to the contrary, the determination will be deemed to have been received by the claimant or employer no later than five business days after it was mailed. Third, a hearing request is timely filed if it is postmarked within 30 days of the receipt of the determination by the party requesting the hearing.

3. The date on the face of the determination in this case was 11/26/08. Since the claimant simply alleged that he received it a week later, the Board deemed it to have been mailed on 11/26/08 and received five business days later, 12/04/08. Since the 30th day after receipt fell on a Saturday, the 30 day deadline was extended to Monday, January 5 (see Interpretations Service Index 1010.1). However, the request was postmarked January 8th and was therefore untimely.

A-750-2131 Index 1105 E#1

NEW YORK STATE DEPARTMENT OF LABOR

UNEMPLOYMENT INSURANCE DIVISION

ADJUDICATION SERVICES OFFICE

August 2010

INTERPRETATON SERVICE-BENEFIT CLAIMS

MISCONDUCT

General

Non-Controlling Discharge

NON-CONTROLLING DISCHARGE

A claimant who is discharged for alleged misconduct, and who earns five times his or her benefit rate in subsequent employment without first having filed a claim, shall not be denied benefits due to the alleged misconduct with the prior employer. Further, the remuneration received from the prior employer that falls within any of the applicable calendar quarters shall be included when calculating his or her benefits.

AB 546793

The Department of Labor issued the initial determination holding the claimant eligible to receive benefits, effective May 19, 2008 and holding the employer’s account chargeable under Labor Law § 581 (1) (e). The employer requested a hearing and objected contending that its account should not be charged because the claimant lost employment through misconduct in connection with that employment and that the wages paid to the claimant by such employer should not count in determining whether the claimant files a valid original claim in the future.

The Administrative Law Judge held a telephone conference hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the employer and the Commissioner of Labor. By decision filed May 27, 2009 (A.L.J. Case No. 108-9257), the Administrative Law Judge sustained the employer’s objection and overruled the initial determination.

The Commissioner of Labor appealed the Judge’s decision to the Appeal Board. The Board considered the arguments contained in the written statements submitted on behalf of the employer and the Commissioner of Labor.

Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: Claimant worked for the objecting employer, a staffing company, from May 2007 through September 14, 2007. He was discharged from that employment.

He did not immediately file a claim for benefits. The claimant had subsequent employment with a different employer, CN. When the employment with CN ended, the claimant filed a claim for unemployment insurance benefits effective May 19, 2008, and established a benefit rate of $134 per week based on a base period from January 1, 2007 through December 31, 2007. In that base period he had the following earnings: $1561.16 with employer D in the first quarter of 2007; $1136.85 with the objecting employer herein in the second quarter; $2,209 with the objecting employer in the third quarter, and $3305.10 and $46.48 with employers CN and CP, respectively, in the fourth quarter.

OPINION: This case presents the question of whether an employer, who employed a claimant in the base period, may be charged for benefits paid to that claimant when the claimant subsequent to that employment, but before filing a claim for benefits, earned remuneration at least equal to five times the claimant’s benefit rate without the necessity of a final determination as to whether the claimant lost that employment through misconduct in connection therewith.

Pursuant to § 520 of the Labor Law, a “claimant’s base period is one of the following: 1. For the purposes of subdivision one of section five hundred twenty-seven of this article, the term base period shall mean the first four of the last five completed calendar quarters ending with the week immediately preceding the filing of a valid original claim. 2. For the purposes of paragraph (a) of subdivision two of section five hundred twenty-seven of this article, the term base period shall mean the last four completed calendar quarters ending with the week immediately preceding the filing of a valid original claim.”

In pertinent part, § 527.1 of the Labor Law states: “’Valid original claim’ is a claim filed by a claimant who meets the following qualifications”’… (d) has been paid remuneration by employers liable for contributions or for payments in lieu of contributions under this article, other than employers from whom the claimant lost employment under conditions which would be disqualifying pursuant to subdivision three of section five hundred ninety-three of this article, for employment during at least two quarters within the base period, with remuneration of one and one-half times the high calendar quarter earnings within the base period and with at least one thousand six hundred dollars [$1600] of such remuneration being paid during the high calendar quarter of such base period…” (emphasis supplied).

In pertinent part, § 527.1 of the Labor Law states: “Alternate condition. (a) An individual who is unable to file a valid original claim in accordance with subdivision one of this section, files a valid original claim by meeting the qualifications enumerated in paragraphs (a), (b) and (c) of subdivision one of this section and by having been paid remuneration by employers liable for contributions or for payments in lieu of contributions under this article, other than employers from whom the claimant lost employment under conditions which are disqualifying pursuant to subdivision three of section five hundred ninety-three of this article, for employment during at least two quarters within the base period, with remuneration of one and one-half times the high calendar quarter earnings within the base period and with at least one thousand six hundred dollars {$1600} of such remuneration being paid during the high calendar quarter of such base period….” (emphasis supplied).

Labor Law § 593 (3) states: “Misconduct. No days of total unemployment shall be deemed to occur after a claimant lost employment through misconduct in connection with his or her employment until he or she has subsequently worked in employment and earned remuneration at least equal to five times his or her weekly benefit rate” (emphasis supplied).

Labor Law § 581.1(e) provides, in pertinent part: “’Experience rating charge’ means a debit to an employer’s account reflecting a payment of benefits. (1) Whenever benefits are paid to a claimant, experience rating charges shall be debited to the appropriate account. The commissioner shall notify each employer not more frequently than monthly as to each experience rating charge which is being made to the employer’s account. Such notice shall be a determination of the propriety of such charge and of the payment of benefits on which such charge was based. (2) Benefits payable to any claimant with respect to the claimant’s then current benefit year shall be charged, when paid, to the account of the last employer prior to the filing of a valid original claim in an amount equal to seven times the claimant’s benefit rate. Thereafter, such charges shall be made to the account of each employer in the base period used to establish the valid original claim in the same proportion that the remuneration paid by each employer to the claimant during that base period bears to the remuneration paid by all employers to the claimant during the base period… (3) An employer’s account shall not be charged, and the charges shall instead be made to the general account, for benefits paid to a claimant after the expiration of a period of disqualification from benefits following a final determination that the claimant lost employment with the employer through misconduct or voluntary separation of employment without good cause within the meaning of section five hundred ninety-three of this article and the charges are attributable to remuneration paid during the claimant’s base period of employment with such employer prior to the claimant’s loss of employment with such employer through misconduct or voluntary separation of employment without good cause…(emphasis added)”.

Initially, we note that in cases where a claimant voluntarily leaves his or her employment but earns remuneration at least equal to five times his or her weekly benefit rate, the Court has found that the employer’s account was properly charged under Labor Law § 581.1(e) because the claimant had not applied for benefits immediately after leaving employment and no final determination had been made by the Commissioner (See Matter of Daley, 42 AD3d 839).

After the amendment of Labor Law § 527.1 in 1998, the Commissioner interpreted the statute as prohibiting the use of wages earned with employers during a claimant’s base period where separation from employment was due to circumstances that constitute misconduct, even in cases where the claimant earned five times his or her benefit rate in subsequent employment prior to filing a claim for benefits. Consequently, in such cases, a “final determination” was made and the employer was not charged for any benefit payments pursuant to Section 581.1(e) (3)

On appeal, the Commissioner contends that it has misinterpreted Labor Law § 527 with respect to situations where a claimant was discharged by a base period employer and earned five times his or her benefit rate in subsequent employment prior to filing a claim for benefits. The Commissioner contends that an employer’s account should be charged under Section 581.1(e) (3), akin to the situation in which a claimant voluntarily leaves his or her employment and subsequently earns five times his or her benefit rate prior to filing a claim for benefits.

In support of this position, the Commissioner cites Labor Law § 530 which provides: “The commissioner shall administer this article and for such purpose he shall have power to make all rules and regulations and, subject to the regulations of the civil service, to appoint such officers and employees as may be necessary in the administration of this article.”

It is well settled that the construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld (See Matter of Howard, 28 NY2d 434).

In order to fully examine the question before the Board, it is important to review both Labor Law § 581.1(e) and Labor Law § 527(1) (d). The former section refers to both misconduct and voluntary separation from employment without good cause. The latter refers only to misconduct in describing remuneration from employment that cannot be used by a claimant to file a valid original claim for benefits.

Whereas § 527.1 refers to “…employers from whom the claimant lost employment under conditions which would be (emphasis supplied) disqualifying pursuant to subdivision three of section five hundred ninety-three”, as amended in 2003,

§ 527.2 (a) has retained its reference to “employers from whom the claimant lost employment under conditions which are (emphasis supplied) disqualifying…”. There is no indication in the legislative history as to the reason for the disparity in the language of the two subsections of the law. Given this, the legislative intent is not clear as to the reason for this amendment of § 527.1. We, therefore, do not conclude that the legislature intended that the Commissioner be required to make a “final determination” in situations in which a claimant has broken any possible disqualification for misconduct as a result of having earned five times his or her benefit rate in subsequent employment.

We also observe that Labor Law § 593.4 provides, in pertinent part: “No days of total unemployment shall be deemed to occur during a period of twelve months after a claimant loses employment as a result of an act constituting a felony in connection with such employment…In addition, remuneration paid to the claimant by the affected employer prior to the claimant’s loss of employment due to such criminal act may not be utilized for the purpose of establishing entitlement to a subsequent valid original claim. The provisions of this subdivision shall apply even if the employment lost as a result of such act is not the claimant’s last employment prior to the filing of his or her claim.” This section of the law pertaining to criminal acts reflects a clear intent to prevent claimants from receiving benefits even if the loss of employment was from an employer other than the last employer. Had the legislature clearly intended such a penalty for misconduct other than acts constituting a felony, it could have included such language in Labor Law § 593.3 rather than only providing for earning remuneration equal to or greater than five times the benefit rate as the determinative factor. Accordingly, there is no reason to interpret § 527 as contemplating the same penalty that exists in § 593.4 in situations where a claimant has earned the necessary subsequent remuneration.

Applying these principles to the facts of this case, the credible evidence establishes that the claimant earned more than five times his benefit in subsequent employment after he was discharged from the employer herein. As the claimant earned sufficient remuneration to break any potential disqualification, he may not be disqualified from benefits due to misconduct. The Commissioner therefore is not required by statute to exclude the remuneration earned from the employment in question and a final determination of the issue of misconduct under these circumstances need not be made. This interpretation is also rational and reasonable given the public policy of the State to provide unemployment insurance benefits to persons who are unemployed through no fault of their own (See Labor Law § 501). As the Commissioner’s position that no final determination on the issue of misconduct had to be made in this case is not only rational but also consistent with public policy, the employer’s account was properly charged pursuant to § 581.1(e) (3).

DECISION: The decision of the Administrative Law Judge is reversed.

The employer’s objection, that its account should not be charged because the claimant lost employment through misconduct in connection with that employment and that the wages paid to the claimant by such employer should not count in determining whether the claimant files a valid original claim in the future, is overruled.

The initial determination, holding the claimant eligible to receive benefits, effective May 19, 2008, is sustained.

The claimant is allowed benefits with respect to the issues decided herein.

EILEEN M. LONG CHELALES, MEMBER

GERALDINE A. REILLY, MEMBER

COMMENTS

1. The Board held that the Commissioner's interpretation of Labor Law § 527.1 is both rational and reasonable given the public policy of the State to provide unemployment insurance benefits to persons who are unemployed through no fault of their own pursuant to Labor Law § 501.

2. The Board held that Labor Law § 527.1 does not require the Commissioner to make a “final determination” pursuant to Section 581.1(e) in situations in which a claimant has broken any possible disqualification for misconduct as a result of having earned five times his or her benefit rate in subsequent employment.

3. The Board cited as persuasive authority Matter of Daley, 42 AD3d 839 which applied the above principle to a separation based on voluntarily leaving employment without good cause where the claimant had broken the potential disqualification. See also Interpretations Service Index 1605 C #2, A-750-2110.

4. In its interpretation of the statutory intent of Labor Law § 593.1, the Board observed the absence of specific language in § 593.1 compared to the express language in Labor Law § 593.4, that remuneration paid to a claimant who lost employment as a result of an act constituting a felony in connection with such employment cannot be used for "establishing entitlement to a subsequent valid original claim. The provisions of the subdivision shall apply even if the employment lost as a result of such act is not the claimant's last employment prior to the filing of his or her claim." (emphasis added). The Board found there is no reason to interpret § 527 as contemplating the same penalty that exists in § 593.4 in situations where a claimant has earned the necessary subsequent remuneration.

5. A loss of employment as a result of a felony constitutes an exception to the rule of this release due to the specific language of § 593.4 cited above. A felony disqualification is applicable to any base period employment regardless of subsequent earnings. Thorough fact finding must therefore be done with respect to any loss of employment due to an alleged criminal act. The matter should then be referred to the Criminal Acts Unit of the Adjudication Services Office.

A-750-2137

Index 1420.18

NEW YORK STATE DEPARTMENT OF LABOR

UNEMPLOYMENT INSURANCE DIVISION

ADJUDICATION SERVICES OFFICE

March, 2011

INTERPRETATION SERVICE – BENEFIT CLAIMS

TOTAL OR PARTIAL UNEMPLOYMENT

Self Employment

CLAIMANT WEBSITE

Although a claimant had a potentially functioning website and anticipated claiming deductions for business expenses on her tax return, she was held to be totally unemployed because she was performing no services, was not entertaining customer inquiries through the website, and was not receiving new assignments.

A.B. 547883

The Department of Labor issued the initial determination holding the claimant ineligible to receive benefits, effective March 9, 2009, on the basis that the claimant was not totally unemployed. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the Commissioner of Labor. By decision filed August 3, 2009 (A.L.J. Case No. 009-11030), the Administrative Law Judge sustained the initial determination.

The claimant appealed the Judge’s decision to the Appeal Board.

Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The claimant is a commercial photographer who had established her business as of October 2001. She did not incorporate, but instead, in 2004, the claimant filed with New York State to obtain a “doing business as” (hereinafter “d/b/a”) designation which required yearly renewal. The claimant did not renew her d/b/a after February 2005. The claimant separated from her full-time employment as of March 11, 2009, and her claim was deemed effective on March 9, 2009.

The claimant had worked primarily with commercial photographic clients, but had photographed weddings for friends. The claimant had gone so far as to advertise her photographic services on a bridal website in 2007, but had booked no jobs from such advertising and did not renew the advertising after 2008. The claimant operated her photographic business from a home office, and owns her own photographic equipment and a computer. She had insured the photographic equipment but had allowed the business/liability insurance to lapse as of March 2009.

The claimant had established a business checking account in 2005. However, as of late, the claimant instead used the same bank account for both business and personal expenses. The claimant also relies upon the same credit cards, her own personal e-mail address and her personal telephone line for both her business and personal needs and receives business mail at her home address

The claimant has a website, which includes her home telephone number and her personal e-mail address, which she used to solicit business. The website was established in 2005, for which the claimant paid $29.95, and which was effective, thereafter, for a period of seven years. She had received no inquiries through her website after October 2008, and had last updated the website in December 2008. The claimant does no other advertising and relies upon word of mouth for business. If someone did e-mail the claimant with an inquiry, the claimant would respond but the claimant has not actively solicited new business because she is seeking a full-time position with benefits.

In 2008, the claimant had done six photographic assignments. The claimant’s payment for her last job, which was completed in December 2008, was not immediately forthcoming. Instead, the client paid in increments and full payment was not made until April 2009. Consequently, the claimant then paid the subcontractors with whom she worked on that final assignment late, with the last payment having been made to a subcontractor in October 2009. In both 2007 and 2008, the claimant deducted business expenses on her federal tax returns. The claimant anticipated listing business income on her 2009 federal income tax returns, due to the late payment from her last assignment.

OPINION: The credible evidence establishes that the claimant was totally unemployed at the time that she filed for benefits in March 2009. In so concluding, we note that the claimant was performing no services on behalf of her business after December 2008, and in particular, after March 2009, when she filed for unemployment insurance benefits. We note that, as of 2009, the claimant had obtained no new photographic assignments, was not actively soliciting business, and, at best, was simply making outstanding payments to vendors from a prior assignment. At best, her actions, in making outstanding payments in 2009, constituted de minimus activity on behalf of her former photography business, which was insufficient to render the claimant employed for the purposes of establishing eligibility for unemployment insurance benefits. (See Appeal Board Case No. 537836). We further find that while the claimant may have anticipated including deductions on her 2009 tax return for the costs of this business and/or depreciation on her equipment, the Appeal Board has repeatedly held that a tax advantage, without more, is insufficient to support a finding that the claimant is employed as contemplated by statute. (See Appeal Board Case No. 537836, 534263). And, we reject the Commissioner of Labor’s contention that the mere existence of the website rendered the claimant employed. Unlike the claimant in the Appeal Board Case No. 518965, cited by the Commissioner of Labor as dispositive, the claimant herein had not entertained customer inquiries through the website as of October 2008, and more significantly, did not employ any individuals to sell products through her website, nor is there any evidence that the claimant’s website even allowed for such a possibility. (See Appeal Board Case No. 518965). Thus, as the claimant had ceased all operations of her photography business when she performed no substantial activities on behalf of the business after March 2009, we conclude that the claimant was totally unemployed and therefore eligible for unemployment insurance benefits.

DECISION: The decision of the Administrative Law Judge is reversed.

The initial determination, holding the claimant ineligible to receive benefits, effective March 9, 2009, on the basis that the claimant was not totally unemployed, is overruled.

The claimant is allowed benefits with respect to the issues decided herein.

COMMENTS

1. The Appeal Board’s ruling in this case is consistent with principles discussed in Review Letter 2-2009, CORPORATE OFFICERS, BUSINESS PRINCPALS AND LACK OF TOTAL UNEMPLOYMENT because there was no “on-going“ business as described in the Review Letter. There was no activity of the kind that would generate income for the business – the claimant had no new photographic assignments and was not actively soliciting assignments. The minimal activity of paying a few bills, coupled with a small tax advantage, does not render the claimant ineligible.

2. The Board’s ruling also conforms to Field Memo 1-2003, WEB-SITE BUSINESSES AND LACK OF TOTAL UNEMPLOYMENT. The discussion of claimant’s website in this case establishes that it functioned as claimant’s on-line resume, rather than as a business. As is stated in FM 1-2003, “The mere existence of a web site that obviously advertises or promotes the claimant for the purposes of work is not sufficient evidence that a claimant is active in self-employment, or even actively seeking self-employment”. Thus, in the absence of evidence of customer inquiries or the purchase of products through the website, the Board held the claimant to be totally unemployed.