Special Bulletin A-710 Series
Aug. 25 1976
Benefit claims during vacation periods and Holidays.
April 10, 1978
Benefit claims before childbirth.
Application of the "Prevailing Conditions of Work" requirement and Policy on suitability of job offer.
Feb. 8, 1951
Benefit claims in resort areas.
May 3, 1951
Feb. 17, 1982
Standards for the imposition of willful misrepresentation penalties.
Nov. 17, 1981
Search for work.
Dec. 15, 1952
Dec. 3, 1999
Military reserves and national guard vs. active duty.
June 21, 1957
Jan. 9, 1978
Remuneration weeks of employment.
Oct. 19, 1983
Reduction of benefit rate due to retirement payments.
June 2, 1964
Apprentice & employer training.
Mar. 10, 1966
Claimants who move to another locality.
Sep. 15, 1976
"Provoked discharge" rules: obsolete but useful.
Sep. 16, 1988
Discharge for arrest or conviction (The Human Rights Law).
590.10 and 590.11
Special Bulletin A-7lO-l0 (Revised)
August 25, 1976
Chapter 794 of the Laws of 1963 has added a new subdivision three to Section 591 of the Unemployment Insurance Law dealing with paid vacations and holidays. The text of the new provisions is attached. The principles established by Appeal Board and court decisions under different provisions of the prior law are superseded by these new provisions which became effective on April 26, 1963. All former instructions and releases based upon the former law which are not applicable should, therefore, be disregarded.
A. ANALYSIS OF AMENDMENT
The bill repeals the present provision relating to paid vacation periods in their entirety and substitutes provisions to the following effect:
B. BASIC CHANGES
The core of the changes is as follows:
C. SPECIFIC SITUATIONS
It deserves careful attention. that, in the same manner as under the former law, a claimant is not eligible for benefits during a period for which he receives vacation pay only if the period has been designated for vacation. This requires that
It should also be kept in mind that the statutory conditions are exclusive in the sense that receipt of vacation pay w11l not render a claimant ineligible for benefits unless the statute so specifies and unless the conditions established by the new provisions are met in full.
An individual who is separated from employment temporarily or permanently, and receives vacation pay, is ineligible for benefits because of a paid vacation period only if the vacation period had previously been designated. The vacation period must be specified in accordance with the statutory conditions as stated in "1" above and then it does not matter whether the specified paid vacation period immediately follows the separation or was designated for a subsequent period. (For rules on this subject see Interpretation Service Index 1460A)
Vacation or holiday pay paid not later than 30 days following the end of a designated vacation period or holiday results in ineligibility for the period covered by the payment. Current principles are applicable: Claimants who have been paid benefits prior to the time at which the vacation or holiday pay is actually received will be held ineligible retroactively (if paid within 30 days), with the overpayment being recoverable.
Not all workers receive vacation pay for the same number of days or weeks because of varying lengths of service with the employer or for other reasons. For instance, some may receive three weeks' pay, others may receive two weeks' pay, and still others one week's pay or even less. If the employer arranges for a vacation shutdown for three weeks under such circumstances, the new statute means --and these are the same principles which were applied in the past --that a claimant shall be ineligible for that portion of the vacation shutdown for which he is given a vacation payment. A claimant who received only one week's pay would be ineligible for one week while he may be eligible for two weeks of the three weeks' vacation shutdown. (See "D" below for allocations where vacation payments are measured by percentages of earnings or on a piece-work basis)
Any statutory week which includes a period of paid vacation or holiday for which benefits would not be payable, be it entirely or partially, when the employer-employee relationship continues, represents a "week of employment" which, together with the earnings therein, is taken into consideration for determining a claimant's entitlement when he files an original claim. Similarly, any such week and earnings therein are considered in determining a claimant's Average Weekly Wage.
When "accrued" vacation or holiday pay is paid for periods after the termination of employment, such payments will not represent "weeks of employment" since during such periods there is no employee-employer relationship. However, such payments will constitute remuneration during the applicable base period since they are in effect payments for prior services .
In determining whether the employer-employee relationship continues during a layoff, essentially the same tests apply which would govern in deciding whether a voluntary quit or a refusal is involved if the worker were to fail to report for work upon recall. This means, generally, that the employer-employee relationship continues only if a definite date was set for return to work or where the claimant retains seniority rights under a union agreement and the employer is obligated to offer recall. There may be some additional cases where the pattern of work in the past shows that the employment relationship continues to exist during temporary layoffs.
A paid vacation period and paid holiday may include those for which payments are made through a fund, trustee, custodian or like medium," provided that the amount of the payment is (a) solely contributed by the employer, (b) on behalf of --that is; designated for --the claimant, and (c) paid over to the claimant in full, except for deductions authorized by law. Payments not made directly by the employer and not meeting these criteria will not render any period a "paid vacation period" or "paid holiday."
When vacation payments are made from a fund, etc., complete information should be secured for a determination as to whether the above criteria are met. The requirements of the amended law will not be met, so that receipt of vacation or holiday pay through a fund, etc., will not disqualify a claimant, under circumstances such as these:
It is expected that only a very small minority of payments channeled through funds or trustees will meet the statutory requirements.
D. ALLOCATION OF VACATION PAY
As indicated in the foregoing discussions, vacation pay will not always cover the entire period of the layoff. The length of services with the employer will often determine whether pay is granted for the entire period, or only for a part thereof. It will in most cases be obvious, be it by specific provisions in a union agreement or otherwise how many weeks or days of the period represent "paid" vacations. It will not be so obvious in other cases. Among these are the cases in which the payment is measured by percentages of previous earnings.
If vacation pay is measured by percentages of earnings which are based on the number of hours worked, a reasonable method of allocating such vacation pay would be as follows: Determine claimant's hourly rate and multiply it by the normal daily working hours to establish a regular day's pay. Divide the vacation payment by a day's pay. The quotient will indicate the number of paid vacation days. If the claimant's normal work week is five days, that number of days of vacation pay will constitute an entire week of paid vacation. Any unit of less than five days of vacation pay will constitute a week of one, two, three, or four days of paid vacation. If there remain four or more days which are not days of paid vacation in a week, the claimant may accumulate effective days.
$1.50 x 8 = 12 : Therefore, $12 is a regular day's pay. 80 divided by 12 equals 6 and 2/3. Therefore, the vacation pay covers seven work days. This means that the first week of the vacation period (five working days ) is an entire week of paid vacation. The second week of the vacation period includes two days of paid vacation. Since $60 (5 x $12) is allocated to the first week, an amount of $20 applies to the second week. The claimant had five days of unemployment in the second week, not covered by vacation pay. He may, therefore, accumulate two effective days in that week if he is available for employment and otherwise eligible. In this connection, it may be noted that under Appeal Board precedent, vacation (and holiday) pay is not considered in determining whether the earnings limitation for partial unemployment benefits has been reached.
A somewhat different situation is presented if wages are based on piece-work rather than on time worked. In such a case, the amount of a regular day's pay is determined by dividing the "average weekly wages" established for the claimant by the number of his regular weekly work days. The application of the vacation pay can then be made as in the illustrations under "1" above.
Assuming the "average weekly wage" is established at $50 and the normal work week is established as a five day week, it follows that $10 represents a regular day's pay. If the claimant receives $70 vacation pay, he receives vacation pay for seven work days. Five of these days would be allocated to a first week of a vacation period and two days to a second week of such period. The claimant could, therefore, accumulate no effective days in the first of these weeks but could accumulate two effective days in the second week.
Special Bulletin A-710-l2 (Revised 1978)
1. In the past some effort was made by local office personnel to determine whether a claimant was pregnant. All such efforts are henceforth terminated.
2. While no efforts will be made to determine whether a claimant is pregnant, nevertheless, at some point in the pregnancy of many claimants, their condition will be obvious, or the Division may learn of the pregnancy of a claimant through other means. For example, the claimant may volunteer the information or a former employer may so advise the Division. In the event that the fact of pregnancy becomes known, determinations of eligibility are to be based upon the principles set forth below.
3. The claims takers may not refer a claimant for a claims adjustment interview solely because she is pregnant. Only if a question of eligibility exists apart from a claimant's pregnant condition or in connection with the periodic interview program applicable to all claimants, may she be referred for a claims adjustment interview.
4. The fact of pregnancy is, in and of itself, not relevant to the question of eligibility; no presumptions in this respect are to be made. Specifically, it is not to be assumed or suspected that a claimant, merely because she is pregnant, does not really want to work, or cannot perform work in her usual occupation. (See paragraphs 9 and 10 of this Bulletin) Thus, her claim for benefits must be evaluated exactly as if she were not pregnant.
5. This does not mean that pregnant claimants are entitled to a preference. If, for example, a pregnant claimant has left her former job voluntarily though she could have remained and was fit and able to work, she is ineligible for benefits to the same extent as any other similarly situated claimant. The fact of pregnancy does not constitute "good cause" for voluntarily leaving a job.
6. Pregnant women encounter special problems in searching for work which must be taken into consideration in determinations of eligibility. The principles in the Search For Work Bulletin (File No. A-710-23 [Revised] February 18, 1957) should be applied in evaluating job search efforts, bearing in mind that it is the claimant's willingness to work and not the willingness of the employer to hire that is the test.(See Field Memorandum 6-74 [10/4/74]) In this connection, the claims examiner shall, where appropriate, give, or arrange for the claimant to be given, job seeking advice tailored to her particular circumstances.
7. The fact that the claimant volunteers to prospective employers that she is pregnant is not determinative. Each case must take into account all the pertinent facts, for example, distance to be traveled, stage of pregnancy, etc.
8. The claimant who searches for public contact jobs for which she is qualified by training and experience should not be ruled ineligible because her appearance makes it difficult to obtain work in her usual occupation, provided she is ready, willing and able to do such work.
9. No assumptions about the capability of a pregnant claimant to perform certain work are to be made. She is the best judge of her own capability. If, for example, a pregnant claimant has worked as a waitress and seeks such work, her capability to perform that job should mot ordinarily be questioned, nor is she to be told to look for more "suitable" work because her chance of obtaining such work is limited because of her pregnancy.
10. If, however, a pregnant claimant has physical limitations in the area of her primary skills because of pregnancy, then the same rules that apply to other partially disabled or handicapped claimants apply. That is, she must seek work in other areas of employment in which she has recent skills. If she doesn't do so or if she is physically incapable of performing work in any area of employment, she is ineligible for benefits.
Special Bulletin A-710-14 (Revised-2002) DRAFT
APPLICATION OF THE "PREVAILING CONDITIONS OF WORK" REQUIREMENT
POLICY ON SUITABILITY OF JOB OFFER
This revised edition of the Special Bulletin A 710-14 is an expanded discussion of the Department's policy on the meaning and administration of Section 593.2, and where applicable, Section 593.1(a), of the Unemployment Insurance Law. It incorporates principles articulated in Federal Unemployment Insurance Program Letter No. 41-98.
Section 593.2 of the law states in part that "No days of total unemployment shall be deemed to occur beginning with the day on which a claimant, without good cause refuses to accept an offer of employment for which he is reasonably fitted by training and experience." In addition "No refusal to accept employment shall be deemed without good cause . . . if: . . (d) the wages or compensation or hours or conditions offered are substantially less favorable to the claimant than those prevailing for similar work in the locality . . ."
Section 593.1(a) of the law states in part that "In addition to other circumstances that may be found to constitute good cause, voluntary separation from employment shall not in itself disqualify a claimant if circumstances have developed in the course of such employment that would have justified the claimant in refusing such employment in the first instance . . ."
The first step in adjudicating a question of eligibility when a claimant has refused work, is to determine the correct statutory issue. The key to distinguishing the statutory issue is to determine whether the work that was offered would constitute "new work" under Federal guidelines. Under Federal Program Letter definition, "new work" can be any of the following:
In the adjudication of a refusal of an offer of work, or of a change in the existing conditions of one's current employment, there is a sequence of questions that need to be addressed. In this sequence of considerations, differing subsequent questions will develop, and different concepts analyzed.
I. The first "threshold" question is "Is it new work?" When an unemployed claimant for benefits is offered work, the issue that arises is Refusal. However, when a currently employed worker is asked to accept a change of assignment there is an issue of whether the offer would constitute "new work". Under Section 593.1(a), new work is evaluated under the same criteria used in adjudicating the issue of Refusal.
If there is no material change in the terms and conditions, it is not "new work", and any suitability or prevailing conditions objections are waived. It is crucial to determine which criteria are to be used, because the questions that arise in an issue of Refusal are different from the questions that arise in an issue of Quit of continuing employment.
II. No disqualification from benefits may be imposed if the wages or compensation or conditions of the work offered are substantially less favorable to the claimant than those prevailing for similar work in the locality. The factors to consider in making this evaluation are discussed: Prevailing Wages, Travel, Fringe Benefits and other conditions of Work, such as its temporary nature.
III. At what stage is the claimant in this claim for benefits, and which provisions of Section 593.2 apply? Is this job offer going to be evaluated under the criteria of "Suitability", or under the claimant's "Capability to Perform" it? What makes work "reasonably fitted to a claimant's training and experience", or "Suitable"?
I. IS IT NEW WORK?
What constitutes "new work"?
Recent Federal program letters have addressed the definition of "new work". The statutory issue to be considered depends on the following circumstances.
The following are examples of offers of "new work" by the employer for whom an individual is working at the time of the offer:
Is there a continuity of employment?
One crucial consideration in connection with point 3 above, is whether there was a continuity of work, with merely a change of assignment, or there had been a break in the employment relationship. If there is continuity of employment, without a material change in the duties or terms, the statutory consideration is Voluntary Quit. The question of what constitutes continuity of work is important. If a temporary agency gives a new assignment to the worker before the end of one assignment, this is continuous work.
Additionally, when one assignment comes to an end, if the worker is laid off for a specific period of time, but given a definite date of callback, or a definite date for the beginning of a new assignment, with no material change of duties, it is a Voluntary Quit, effective the callback date, if the worker declines the new assignment.
When one assignment obtained through a temporary employment agency comes to an end, the employer-employee relationship ceases, and any offer made after the end of the prior assignment is an offer of "new work". There is no obligation on the part of the worker to contact the temporary agency to obtain another assignment, even if there is an agreement between the parties to this effect. Failure to call in for a new assignment does not constitute a Voluntary Quit.
II. DOES IT MEET PREVAILING CONDITIONS?
The phrase "conditions of employment" refers to the express and implied provisions of the employment agreement and the physical conditions under which the work is performed. UI Law states that a claimant may refuse a job and still receive benefits if:
". . . the wages or compensation or hours or conditions offered are substantially less favorable to the claimant than those prevailing for similar work in the locality, or are such as tend to depress wages or working conditions . . ."
Evaluating the Conditions of Work
An individual may not be denied unemployment insurance benefits for refusal of work if the wages, hours, or any other material condition or combination of conditions is "substantially less favorable than those prevailing in the locality for similar work". It would be inappropriate to categorically disregard any of these factors when investigating a "prevailing condition" issue, if raised by a claimant in the refusal of an offer of employment.
The Department has a duty to assure that an offer meets the "prevailing conditions" requirement before denying benefits, if:
Prevailing Wage 1/
Section 593.2 gave rise to the phrase "prevailing wage", and provides a monetary standard for evaluating employment offers.
In addition, other provisions of New York's statute establish good cause for a claimant's refusal of an offer of employment if the employment is at an unreasonable distance from his residence, or travel to and from the place of employment involves expense substantially greater than that required in his former employment unless the expense be provided for.
Although the statute uses the term "unreasonable distance", as a practical matter it is often the travel time to and from the job, rather than the distance, that is actually measured. Furthermore, "normal" or "reasonable" travel time varies with the method of transportation and the locality. Therefore based in part on case law, and in part on the department's best understanding of common commuting patterns, reasonable travel time is considered to be:
A claimant is justified in refusing any job for which the door to door travel time, (claimant's door to employer's door), exceeds these standards. Conversely, a claimant is expected to accept a reasonable commute.
Fringe Benefits 2/
The concept of "prevailing conditions" also encompasses fringe benefits such as health insurance, paid leave, provisions for leaves of absence and holiday leave, pensions, annuities, and severance pay. It also encompasses job security and reemployment rights, training and promotion policies, wage guarantees, unionization, grievance procedures, work rules, physical conditions such as heat, light and ventilation, shifts of employment and permanency of work.
In order to obtain labor market information regarding prevailing fringe benefits, claims adjudicators should use sources such as DOES records, unions, or the Bureau of Labor Statistics.
The temporary nature of work is a condition of employment that is evaluated in determining whether an offer of work is "substantially less favorable to a claimant than those prevailing for similar work in the locality" (Section 593.2(d)).
Temporary work is not per se unsuitable under the prevailing condition requirement. If, for example, the norm for a particular occupation in a locality is temporary work, then temporary work is the prevailing condition of such work.
Also, the short duration of temporary work may be a voluntary or favorable condition for some individuals. If fact finding establishes that this is the case for an individual, by examining the claimant's work history, then the offer of temporary work is not "less favorable to the individual".
As another example, when temporary help firms are involved, an individual so desiring may work continuously. The State must collect the necessary facts to determine the specifics in each case.
A claimant whose recent work history includes temporary work is not justified in refusing an offer of otherwise suitable work merely because it is temporary work. A recent preference for only permanent positions does not constitute good cause, where the claimant's prior recent employment has shown claimant's willingness to accept temporary work.
III. SUITABILITY CRITERIA vs. "CAPABLE OF PERFORMING"
After establishing that an offer of new work passes the threshold of "not substantially less favorable than prevailing in the locality for similar work", it must still be evaluated as being appropriate for this particular worker. If offered as new work to a currently employed worker or to a claimant for benefits, the work must be reasonably fitted to the claimant's prior training or experience or "suitable".
In other specific circumstances, it may be work that the claimant is "capable of performing". Following the discussion of Suitability is a section that discusses the application of the conditions under the UI Reform Law amendment to Section 593.2, "Capable of Performing".
Reasonably fitted by Training and Experience (Suitability)
Section 593.2 of the Unemployment Insurance law states that a person who is unemployed shall lose his right to benefits if he "refuses to accept an offer of employment for which he is reasonably fitted by training and experience . . ."
This section of the statute expresses a concept, which over the years has come to be referred to as "suitability". In other words, in unemployment insurance parlance, a job is "suitable" if it fits the claimant in relation to his training and experience.
Capable of Performing 3/
It remains true that a claimant in the first thirteen weeks of his claim will not be denied benefits for refusing a job for which he is not fitted by training and experience. However, the UI Reform law of 1999 adds a new dimension to the question of what types of employment a claimant must be willing to accept. Claimant who has been unemployed for more than 13 weeks will in many cases be required to adhere to a much broader notion of what constitutes acceptable employment.
The statute as amended contains the following provisions:
"claimants who are not subject to a recall date or who do not obtain employment through a union hiring hall and who are still unemployed after receiving thirteen weeks of benefits shall be required to accept any employment proferred that such claimants are capable of performing, provided that such employment would result in a wage not less than eighty percent of such claimant's high calendar quarter wages received in the base period and not substantially less than the prevailing wage for similar work in the locality ..."
It is necessary to ascertain whether to apply to the offer the criteria of "suitability" and "prevailing wage", or to apply the standards implied by the new statutory phrase: "capable of performing".
To preserve his eligibility for benefits, a claimant in the latter half of his claim, with no recall date, and no rights to the services of a union' s hiring hall, must be willing to accept any work he is capable of performing if it meets the prevailing conditions requirements. For a claimant in this circumstance, the following principles apply:
The principles discussed in this special bulletin are not new; this publication serves to draw these considerations together, and give a broader perspective on the questions involved. While conditions of work continue to evolve, and issues like fringe benefits or contingent work take increasing prominence in labor relations, our analysis of cases is still grounded in these basic concepts. These principles continue to serve as guidelines to direct our determination making, in this sometimes-complex issue. If questions arise in the adjudication of unique or particularly complex cases, please consult the Adjudication Services Office, Interpretation and Central Services Unit.
Special Bulletin A-7lO-l6
Close attention must be given to the following principles regarding benefit determinations in cases of claimants who file for benefits in resort areas.
Any claimant who moves to a resort area must meet the requirements which apply whenever a claimant removes his residence to another locality.
The moving of a claimant into a resort area for a temporary period is practically conclusive evidence that he has done so for vacation purposes and that he is unavailable for employment, unless he is engaged in an occupation for which there are customarily reasonable employment opportunities in the area for such temporary (seasonal) period.
Such claimant should only be held to be eligible for benefits if he demonstrates unusual circumstances which overcome this evidence. The principles set forth above under " A " will, in addition apply.
A special situation is discussed in the release dealing with lay-offs in vacation periods. (A-710-10).
Repeated temporary residence in a resort area during the resort season in past years without a work history is strong evidence of unavailability, even if the claimant is ordinarily engaged in an occupation for which reasonable employment opportunities exist in the area. A claimant should under such circumstances be held unavailable unless he explains satisfactorily the lack of such work history and demonstrates that he did not act unreasonably in moving again temporarily to the resort area.
A permanent resident of a resort area whose work history is confined to employment during the resort season should be held unavailable for employment during the off-season, unless he demonstrates a sincere and consistent effort in searching for work. If there is any accessible labor market, it may be advisable to counsel the claimant in that respect and to record such counseling together with information on job opportunities, transportation, etc.
In evaluating compliance with the "searching for work" requirements, the following is to be noted: A work pattern covering several years, showing no work during the off-season, is strong evidence to the effect that a claimant is not seeking work during the off-season period.
Such claimant should be considered unavailable for work if he would not be able to accept otherwise obtainable work because of the lack of transportation facilities which exist only during the resort season.
Painstaking and exhaustive investigations are essential, if the work history during the season is confined to employers who are related to the claimant by blood or marriage, or to corporations which are owned or controlled by persons so related to him. The probabilities are in such event that a family enterprise is conducted in such a manner that the members of the family perform gainful employment during the resort season and forego it during the off-season, without any intention of performing other employment.
There is also, in some instances, reason to believe that the wages reported by the employer are in excess of those actually earned. Cases of this nature should be promptly reported for appropriate investigation.
If the claimant is an officer of the employer corporation or its holding corporation, the fact that apparently no wages are paid for the off-season should not be accepted on face-value. Wages paid during or at the end of the season may actually represent wages covering the entire year.
Similar situations may present themselves even if the claimant is not an officer of a corporation but there is reason to believe that the employer-employee relationship continues, with arrangements being made for the payment of cash compensation only during or at the end of the resort season.
All the surrounding facts should be explored in such cases. That includes findings as to the claimant's activities, obligations, or responsibilities during the off-season regarding the employer's business. It also includes findings as to the furnishing of advantages, such as room and board, by the employer during the off-season.
Special Bulletin A-710-18
Employment in an illegal enterprise for the performance of activities which constitute a violation of law is void; such "employment" cannot form the basis for rights to benefits.
The general thoughts are these: Work which consists of the performance of illegal acts is not employment within the meaning of the Unemployment Insurance Law. Employment within the meaning of the law requires a valid contract which, on the one hand entails the obligation of rendering services in a master-servant relationship and, on the other hand, the obligation to pay wages. One of the attributes of a valid contract is the enforceability of the mutual obligations. However, the payment of "wages" for illegal "employment" could not be enforced in any Court of the country. There is language in decisions of the New York Court of Appeals which is even more definite. In one decision (283 NY. 274), the Court referred to such illegal contracts as, void and indicated that "the relationship of employer and employee never existed".
It is suggested that cases in which it is not obvious that illegal employment is involved be referred to Adjudication Services Office - Interpretation and Central Services, 345 Hudson Street, New York City 10014, before a determination is issued. This will rarely, if ever, be necessary if patently illegal activities are involved, such as gambling or bookmaking.
The opinion and Decision of a Referee’s Decision of June 8, 1950 (OSR-1100-5OR), affirmed by the Appeal Board on November 15, 1950 (Case No. 24,154-50) includes the following in support of holding the claimant unavailable:
"The claimant’s entire efforts in securing employment were by application to persons engaged in an illegal enterprise. Although gambling may exist in a resort area, it is, nevertheless, unlawful to be so employed. The claimant sought work only in an unlawful type of employment."
Special Bulletin A-710-21 (Revised)
The attached revised Special Bulletin A-710-21 replaces Special Bulletin A-710-21 dated October 12,1976, which should be discarded.
The basic penalties under "I" have been expanded to include the additional category of flagrant fraud. This category contains cases involving aggravating circumstances, i.e., those in which claimant obtains or attempts to obtain benefits fraudulently by arranging for or permitting an impostor to report for him to certify for benefits in his name (A.B. 299,751; A-750-1895); and those in which a claimant, alone or in collusion with others, contrives to create an "employed" status to satisfy the weeks qualification to establish entitlement (A.B. 316,533A; A.B. 310,188; not reported) or to terminate a prior disqualification (Matter of Goggin, 79 AD 2d 1057; A.B. 308,127A; not reported). Also changed is the distinction between separate offenses and a single offense in self-employment activities as set forth in "II". Previously, self-employment was characterized as a "status situation, " with repetition of the same false statement (certifying each week to having done no work in employment or self-employment) considered a single offense for which only one penalty applied. This distinction is no longer made and each such false statement is now a separate offense for which separate penalties apply (A.B. 315,823; A-750-1902).
Another change pertains to alterations in a claimant's insurance booklet. Previously, alteration of a Job Service date was a "special circumstance" requiring a penalty of 8 or 12 effective days. The penalty for altering any other official entry was 4 or 8 effective days. This distinction is now eliminated. Any alteration in claimant's booklet of a Job Service or Insurance Office reporting date, day, time or other official entry or the unauthorized insertion of a new or different date, or time is a "special circumstance" for which the penalty is 8 or 12 effective days.
If a claimant made a wilful false statement to obtain benefits on a single occasion, the number of effective days to be imposed as a penalty is set forth under "I" below. If he made wilful false statements on more than one occasion, the number of effective days to be imposed depends on whether the several false statements are separate offenses or whether they constitute repetitions relating to one single offense. This is discussed under"II" below.
An overriding principle stated under "III" below applies if the claimant volunteers the truth after a wilful misrepresentation. Provisions are also made under "IV" below for deviations from the standards.
The penalty is a forfeiture of
8 effective days, if no overpayment results from the offense; or
12 effective days, if an overpayment results from the offense.
If claimant makes false statements with respect to only some of the job efforts, the penalty set forth under "IA" above pertains.
the penalty is a forfeiture of 80 effective days.
During the course of a continued claim, claimant conceals employment on four different dates of certification (February 3, February 10, February 17 and February 24, 1981) with respect to four different weeks (weeks ended February 1, February 8, February 15 and February 22, 1981) and receives benefits each week. On February 20, 1981, claimant quit this concealed employment but did not file an additional claim. Claimant would be subject to the following penalties:
Total penalty 40 effective days
When imposing penalties for more than one false statement, it is necessary to distinguish between
SEPARATE OFFENSES are involved if a claimant on different occasions conceals employment or self-employment in different weeks. Employment or self-employment in one week is not the same fact as employment or self-employment in another week (A.B.315,823; A-720-1902; A.B. 326,354). There are also separate offenses when a claimant on different occasions makes alterations in his reporting book, with each alteration being a different fact.
A SINGLE OFFENSE occurs when a claimant repeats on different occasions false statements of a one-time occurrence, such as the reason for separation from employment or a "status". For example, false statements regarding domestic responsibilities, although made in different weeks, relate to the same fact, that is, a circumstance bearing on claimant’s availability.
Standards for separate offenses are set forth under "1" below; standards for repetition of the same false statement, representing a single offense, are discussed under "2" below.
These penalties are cumulative.
If an overpayment results from some of these offenses but not others, the penalty will consist of a combination of 4 and 8 effective days.
If claimant is paid benefits as a result of each of these 22 offenses, the penalty is 264 effective days. If no benefits were paid as a result of any of these offenses, the penalty would be 176 effective days.
If an overpayment results from some of these offenses but not others, the penalty will consist of combinations of 8 and 12 effective days.
Repetition of the same false statement represents a single offense. Section 594 of the Unemployment Insurance Law provides for a range from 4 to 80 effective days for each offense. The penalty to be imposed in the event of repetition of the same false statement is to be related to the number of effective days for which benefits were received. When the general basic penalty conditions in IA apply:
When the special basic penalty conditions in IB apply, the penalty is 8 effective days if no overpayment results from the offense, 12 effective days if an overpayment of not more than 12 effective days results from the offense and is equal to the number of effective days for which benefits were received, with a maximum of 80, if an overpayment of more than 12 effective days results from the offense.
A penalty of 4 effective days applies.
A penalty of 16 effective days applies.
The penalty is 8 effective days.
If an overpayment of 12 effective days or less resulted, the penalty is 12 effective days.
If an overpayment of 40 effective days resulted, the penalty is 40 effective days.
If an overpayment of 104 effective days resulted, the penalty is 80 effective days.
The penalty is calculated in the same manner as in illustration 3 above.
In the event a claimant voluntarily discloses a prior wilful false statement, the penalty standards set forth previously do not apply, but are superseded as follows:
The penalty is 4 effective days if a claimant, after having made a wilful false statement or statements, voluntarily, on his own initiative, without having been challenged, discloses the truth and at such time, returns the benefit check or repays the benefits received. If several false statements representing "separate" offenses were made, the penalty under the above mentioned circumstances is 4 effective days for each such offense cumulatively.
Deviations from the standards by increasing or decreasing the number of forfeit days for each offense and within the statutory range from 4 to 80 days may be made within the discretion of local offices if aggravating or extenuating circumstances exist. The former would include cases in which a penalty for a similar previous offense had been imposed and the claimant, after having been so penalized, commits a new offense, or if there is a conspiracy.
Although the insurance office manager's written approval of the maximum penalty is not mandatory (Section 594; A.B. 299,751; A-750-1895 and A.B. 325,078; not reported), as an internal control, such deviations should be reviewed by the manager and a statement of the reason therefor recorded.
There is a two year limitation for serving a forfeiture penalty. The period during which a penalty may be imposed is computed from the last date on which the offense is committed. This rule applies whether the wilful misrepresentation involves separate offenses or a repetition of a single offense (A.B. 129,036; A-750-1650). Therefore, it is essential that all dates of the wilful misrepresentation(s) be entered on the notice of determination (LO 412.2). Although more than two years may have passed since the occurrence of an offense, a determination of wilful misrepresentation may be made, but a penalty no longer applies.
Special Bulletin A-710-23 (Revised)
SEARCH FOR WORK
To determine whether a claimant is available for work is often a troublesome problem, especially when the issue to be resolved is the adequacy of a claimant's job search. Prior Special Bulletin A-710-23 (1957) is revised herein because of the need for clarification, illustrations and references.
No benefits shall be payable to any claimant who is not capable of work or who is not ready, willing and able to work in his usual employment or in any other for which he is reasonably fitted by training and experience."
The requirement of an active, diligent, sincere and realistic search for work even though not expressly set forth in the law, has long been a criterion to test a claimant's availability within the meaning of Section 591.2 /1
/1 (Matter of Natoli, 27 AD 2d 972); (Matter of Steiner, 31 AD 2d 669; aff'd 25 NY 2d $19); (A.B. 67,211-58)
/2 (Matter of Dayson 47 AD 2d 701)
/3 (A.B. 206,847)
Availability for employment has frequently been said to be a state of mind, to be evidenced by a claimant's activities in seeking work. It can also be evidenced by a claimant's attitude towards obtaining a job as deduced from his statements and reaction toward offers of employment. /4 These evaluations may be meaningful only if the claimant is informed, that is, knows he is expected to seek work on his own initiative, and also knows how to proceed to do so in his particular circumstances. Similarly, a claimant's occupation, personal circumstances and experience will be determinative of what and how much information need be imparted in the process of making him informed.
/4 (A.B. UCFE-2101)
The process of informing a claimant begins when his initial benefit claim is filed at which time he is given the "Claimant's Information Booklet". This booklet contains a wealth of information concerning a claimant's rights and obligations and instructions with respect to the requirements for a job search and the records to be kept. This information should be supplemented, as early as possible, with specific advice tailored to fit the individual claimant's situation. This may be done through the development of a work search plan at the initial eligibility review interview /5 or as part of a claims adjustment interview.
/5 Procedure III 5060
In addition, consideration should be given to Job Service counseling where appropriate. In commenting on the need for such guidance and advice to claimants for whom it is deemed necessary, the Appeal Board has held: "It is quite evident that the normal experiences of the average claimant in contact with the insurance and employment service offices and the precise formal language of referee decisions is a poor substitute for the close personalized advice and guidance contemplated by the directive (A-710-23, dated February 18, 1957)". /6
/6 UC~2101; A.B. 215,032)
/7 (A.B. 133,945)
/8 (A.B. 155,115)
/9 (A.B. 147,978A)
/10 (A.B. 154,488)
/11 (Matter of Posselt 3 AD 2d 881)
Special Bulletin A-710-32 (Revised 1972)
The standards for determining prevailing wages were set forth by the Court of Appeals in Matter of Marsh (Index 1290B-1; A-750-1570). The principles stated below are guides in determining whether offered wages are "substantially less favorable to the claimant than those prevailing for similar work in the locality."
If 40% or more of the workers in the entire range of wages for an occupation are paid the same wage rate, then such rate is prevailing.
If there is no concentration as described above, the prevailing rate of wages for an occupation is the weighted average of the wages received by the middle 50% of workers in the occupation.
After having established the prevailing wage rate, it must be determined r whether the offered wages are "substantially less favorable" to the claimant than such rate. The solution of this question is governed by the following:
If Wages are as a rule "substantially less favorable" to the claimant than such rate if their dollar amount is more than 10% below that rate.
There may be special situations where offered wages must be considered as "substantially less favorable to the claimant than those prevailing for similar work in the locality" although their amount satisfies the standard as set forth under "1" above.
Thus, the statutory requirement would not be satisfied by wages which are
(a) below the entire wage range for the occupation
(b) below minimum wages under a State or Federal wage law or wage order.
Sometimes it is not feasible to establish prevailing wages by the usual methods because there are no typical or predominant wages for the work in question. This may be due to the varied and complex nature of the duties performed and will apply particularly to professional, managerial, unique, or exceptional occupations or to cases where a claimant performs mixed duties none of which is sufficiently controlling so that his job does not lend itself to a recognized occupational classification.
Since prevailing wages cannot be established in such situations by means of a survey, a judgmental approach is necessary in determining whether offered wages will satisfy the statutory requirement. No rigid principles apply in such cases, and determinations should rest upon a rule of reason. An Appeal Board case is an illustration of this approach. An electronic engineer without an academic degree was offered a job in a related field at a starting wage of $115. No comparable wage data were obtainable because of the characteristics, of the offered job. In most of his prior jobs, the claimant was paid a salary of $120 per week with very brief periods at $135 to $140 per week. The Board decided that the claimant refused the job offer without good cause and held that "wages earned by the claimant in previous employments may be some indication of the prevailing rate for a person with his qualifications."
"Middle 50% of Workers and Average Wage
The "middle 50% of workers" in an occupation is found by listing the workers in the ascending order of their wage rates, then excluding 25% of the workers at the lowest end and 25% of the workers at the highest end. If several workers receive the same rate, each of them is nevertheless separately listed.
The example below is based upon a wage distribution of 20 workers. Of these, 25% -- 5 workers -- are excluded at either end to give the "middle 50% of workers" which is made up of 10 workers.
Wage rate All workers Middle 50%
$1.85 1.85 1.86 1.88 1.90 1.90 $1.90 1.90 1.90 1.91 1.91 1.93 1.93 1.95 1.95 1.95 1.95 1.96 1.96 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.00 2.02 2.05
The average wage received by workers in the middle 50% group is calculated by adding up their wages and dividing this sum by the total number of workers in the group, as follows: $19.50/10 = $1.95.
Note: If wage data are in wage intervals -- 54 workers earning $1.90-$2.00; 96 workers earning $2.00 to $2.10; etc. -- an adjusted method is used to exclude the lowest and the highest 25%. In calculating the average wage of the middle 50% group, the mid-values of each wage interval are used.
Special Bulletin A-710-36 (Revised)
MILITARY RESERVES AND NATIONAL GUARD:
MONTHLY DRILLS, TRAINING & ACTIVE DUTY
This revised Special Bulletin was necessitated by a Court of Appeals decision, Matter of Gruber and Greene, cited within, and reported in A-750-2100 and A-750-2101. In stating that a period of active duty in the reserves cannot break a disqualification, it represents a reversal of rules contained in the Interpretation Service A-750-1907 which reported them, should be marked obsolete. Field Memo 9-99 also discusses this topic; any additional inquiries should be addressed to Adjudication Services Office.
Members of the reserve components of the armed forces of the United States and the New York State National Guard are to be treated alike in determining whether participation in drill sessions or active duty training exercises constitutes a lack of total unemployment or renders them unavailable for work. However, the two types of service are not usually treated alike for entitlement purposes. The UCX Law governs claims for benefits by reservists. Section 565.2(c) of New York's Unemployment Insurance Law generally governs entitlement and coverage questions raised by service with the NYS National Guard, with an exception explained in Section B below.
Participation in such training sessions is not employment, and the pay received therefrom is not remuneration (A.B. 344,489-344,490). A claimant is totally unemployed while so engaged. Thus, the payments are not to be considered in determining whether a claimant has exceeded the statutory limit on earnings, nor may the service be used to establish benefit rights, terminate a disqualification, or determine the last employer.
Military regulations with respect to this kind of training are designed to give the participant as much freedom of choice as possible regarding time, and the manner or method of compliance. Participation in such sessions therefore would not render a claimant unavailable for work, unless the session consisted of a combination of both "active" and "inactive" duty training, or was of unusually long duration, or involved substantial travel outside the claimant's local area. Questions in this regard can be directed to the Federal Programs Unit.
A claimant ordered to active duty for training in either the reserves or in the National Guard is not totally unemployed. However, service in the state national guard or air National Guard, (except service by a regular state employee), is specifically excluded from the definition of employment by Section 565.2(c). For this reason, the period of active national guard duty and the earnings therefrom cannot be used to terminate a disqualification, nor can it be used as the last employment prior to filing for separation purposes (Matter of Gruber and Greene, 89 NY 2d 225), unless it qualifies as UCX employment.
Similarly, annual field training by a reservist could neither be used to terminate a disqualification, nor could it be the last employment prior to the filing of a claim, unless such training could be considered UCX employment. Service in the National Guard or the Reserves is only employment if the term of service was for at least 90 days of continuous service, and if the service met all other criteria for employment set forth in the U.C.S. Law. (See Procedure III 22200 – III 22013 & Temp. Procedure III 22990-2.)
Field training entails duty at armed forces installations such as training camps, aboard ships, etc. The claimant is required to be available for training at the same time that all other members of the unit are called for duty. Under these circumstances the claimant is not available for work, and a determination of unavailability for the period is proper.
Special Bulletin A-710-39
The settings within which these Court decisions were rendered and the reasoning contained therein have, in conjunction with evaluations of subsequent Appeal Board and Referee decisions, led to the adoption of the criteria stated below which are somewhat different from those established originally when the Court decision in Matter of Emery was reported. This Bulletin therefore supersedes the "Comment" of the release on the Emery decision to the extent that there may be conflicts with these criteria.
On the other hand, occasional transactions, and certainly one-time occurrences, cannot be classified as constituting a business enterprise. It seems also proper to conclude that "self-employment" can be found only if conditions are such that they reflect something which is akin to a status. This means that the circumstances must be of such a nature that the claimant would retain the status of a "self-employed" individual during days or short periods when he does not physically perform work in his business. It is difficult to conceive that a person could be engaged in a self-employment business one day but not the next, and then return to it on the day thereafter, although a pattern may exist peculiar to a particular activity.
On the other hand, self-employment need not be permanent in order to be recognized as such for unemployment insurance purposes; it may be temporary or seasonal. This is one of the most troublesome aspects of the problem. Should a tradesman, such as a carpenter be considered as engaged in self-employment if he undertakes jobs on an independent basis, not regularly or continuously but while laid off by his employer? It would appear that such an individual is not "in the business" of doing independent carpentry work. From a practical viewpoint, there is no real need for any other conclusion since, while doing this independent work, he should be considered unavailable as a rule so that he is ineligible for unemployment benefits for that reason. The circumstance that he might not have taken on this work if an employer would have had a job for him as an employee, or that he would have discontinued or postponed it in this event, does not detract from the conclusion that the claimant was, in fact, unavailable while engaged in the independent work unless it was done outside the customary working hours.
Special Bulletin A-71O-42 (Revised 1978)
REMUNERATION AND WEEKS OF EMPLOYMENT
Section 524 of the Unemployment Insurance Law defines a week. of employment as "a week in which a claimant did some work in employment for an employer liable for contributions or for payments in lieu of contributions...".
Regulation 2(g) of the Industrial Commissioner expands on the above definition to include as a week of employment "any statutory week during any part of which an employee is on paid vacation or other paid leave of absence even though no actual work is performed".
From the above it is clear that a week which falls within the period of a leave without pay is not a week of employment, and cannot be used for entitlement purposes. However, the definition of "paid vacation or other paid leave of absence" has been the subject of Appeal Board and court interpretations, which are explained in this Bulletin.
Section 517.1 of the Unemployment Insurance Law defines remuneration as "every form of compensation for employment paid by an employer to his employee; whether paid directly or indirectly by the employer, including salaries, commissions, bonuses, and the reasonable money value of board, rent, housing, lodging, or similar advantage received," and the value of gratuities received. Excluded by this Section from the definition of remuneration are certain payments, which are discussed in parts C, D and E of this Bulletin.
Principles for the handling of cases involving paid and unpaid vacations or paid holidays are set forth in Special Bulletin A-710-1O.
Any statutory week which includes one or more days of paid vacation or paid holiday for which benefits would not be payable, when the employment relationship continues, is a week of employment for entitlement purposes. Similarly, both the vacation pay and holiday pay constitute remuneration.
When accrued vacation or holiday pay is paid for periods after the termination of employment, such payments will not represent weeks of employment since during such periods there is no employer-employee relationship. However, such payments constitute remuneration during the applicable base period since they are in effect payments for prior services.
Payments for holidays and vacations made through a fund, trustee , custodian, etc., must meet certain statutory criteria to render any period a paid vacation period or paid holiday, and therefore potentially a week of employment as described under B1 above. (See Special Bulletin A-710-10). However, in all cases, whether or not the statutory criteria are met, and whether or not the employment relationship continues, such payments constitute remuneration.
Section 517.2(a) excludes from the definition of remuneration "any payment made to, or on behalf of, any employee...under a plan or system established by an employer which makes provision for his employees generally...on account of retirement, or sickness or accidental disability ...".
The Appeal Board has held that a week for which no remuneration is received, cannot be considered a week of employment. (Interpretation Service release A-750-1843). Therefore, a week for which a claimant receives payment for illness or disability, under a plan established by an employer for his employees generally, is not a week of employment, and the money so received, whether from the employer, a fund, or an insurance company, is not remuneration. Neither such week nor such money may be used for entitlement purposes.
When an employee on sickness or disability leave receives payments from his employer, made not under a plan for employees generally, but arranged specifically for him, he is on a "paid leave of absence". The money so received is remuneration and the weeks for which it is paid are weeks of employment for entitlement purposes.
Such payments may be equal to the employee's regular salary or may be at a reduced amount, and may be in addition to payments received which are not remuneration, such as money paid under the Workmen's Compensation Law, the Disability Benefits Law or any other plan set up for employees generally.
Section 517.2(d) excludes from the definition of remuneration
"Any payment on account of sickness or accident disability, or medical or hospitalization expenses in connection with sickness or accident disability, made by an employer to, or on behalf of, an employee after the expiration of six calendar months following the last calendar month in which the employee worked for such employer".
This means that sick leave payments which otherwise would constitute remuneration under the principles discussed in C 2 above, do not constitute remuneration after such six months. Also, following the reasoning of the Appeal Board discussed in C 1 above, any week occurring after such six months is not a week of employment. Neither such week nor such money may be used for entitlement purposes.
Most cases of employees retired by the employer from active service and receiving payments from him can be resolved on the principle that the employment is terminated and that the payments received constitute a pension or other retirement pay. Whenever it is established that the employer-employee relationship has been terminated at a given point of time, the period which follows does not include weeks of employment and the pension or other retirement pay does not constitute remuneration.
There are, however, some cases of superannuated employees who are kept on the payroll without currently performing services. This method is, generally speaking, confined to cases of employees in executive positions. Yet, it may also occur in other cases. The employer employee relationship may not be broken in such event. It is not broken if future services in some form are anticipated. These employees are, in effect, on a paid leave, and the principles outlined under A apply. It is broken if no future services are considered. The payment is in the nature of a pension in such cases, and not remuneration.
Furthermore, the provisions of Section 517, sub. 2 (g) of the Law, which apply after an employee has reached the age of 65, exclude from the definition of remuneration:
"Any payment, other than vacation or sick pay, made to an employee after the month in which he attains the age of sixty-five, if he did not work for the employer in the period for which such payment is made".
Consequently, such periods and payments made therefor will not be considered in determining a claimant's entitlement.
The Unemployment Insurance Law excludes "dismissal payments" from the definition of remuneration. Consequently, dismissal payments cannot be considered in determining entitlement. The employer-employee relationship ends upon separation. There are, therefore, no "weeks of employment" after the separation date.
Whenever any period, under the principles here outlined, represents a period of employment, the claimant is not totally unemployed in that period.
If it is determined that a claimant receiving regular salary and benefits under an employer's wage continuation plan continues in employment although performing no services and is "not totally unemployed," then such weeks of employment and remuneration are to be used in determining future benefit rights.
Special Bulletin A-710-44 (Revised)
Subdivision 7 of section 600 of the Unemployment Insurance Law was amended by Chapter 895 of the Laws of 1980 and is the only operative subdivision of section 600. Its text follows:
Alternative condition. (a) When a reduction for retirement payments is required by the federal unemployment tax act as a condition for full tax credit, in which event the provisions of subdivisions one through six of this section shall not be operative, the benefit rate of a claimant who is receiving a governmental or other pension, retirement or retired pay, annuity, or any other similar periodic payment 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, except for payments made under the social security act or the railroad retirement act of 1974, 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, retirement or retired pay, annuity, or other similar periodic payment.
(b) If the claimant made no contribution for the pension, retirement or retired pay, annuity, or other similar periodic payment, his benefit rate shall be reduced by the largest number of whole dollars which is not more than the pro-rated weekly amount of such payment. It the claimant was the sole contributor for the pension, retirement or retired pay, annuity, or other similar periodic payment, no reduction shall apply. If the claimant's contributions for the pension, retirement or retired pay, annuity, or other similar periodic payment were less than one hundred percentum, the commissioner shall determine the amount of the reduction by taking into account the claimant's contributions to the maximum extent permitted under the federal unemployment tax act.
(c) 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.
All claims in effect on or after November 7, 1980 are affected. 1/
1/ Subdivision seven was added to §6OO of the Unemployment Insurance Law by Chapter 362 of the Laws of 1980 and affects all claims filed, or in effect, between April 3, 1980, and November 2, 1980. Should a claim involve that limited period, the issue should be referred to the Interpretation Section of the Adjudication Services Office. Subsequently Chapter 895 of the Laws of 1980 amended subdivision seven effective November 3, 1980 to its present text.
A. Analysis of the Provisions
2/ The method of taking a claimant's contribution into account was changed effective April 11, 1983. Previously benefit rates were reduced by one half Social Security and Railroad Retirement benefits.
B. Method or Reduction
C. Specific Conditions
D. Deduction Of Unemployment Benefits from Pension
Some pension systems provide for the deduction of unemployment benefits from the amount of the pension. The effects of such condition regarding the pension amount are as follows:
The reduction of a benefit rate to zero if a pension equals or exceeds that rate ("b" above) requires no further explanation. However, reduction by a pension less than the benefit rate results in all events in a positive benefit rate.
The resulting unemployment benefits would then be deductible from the pension, leaving a smaller pension amount which, in turn, requires that the benefit rate be reduced by such smaller amount. This process will repeat itself until the pension is completely absorbed by benefits so that no pension is payable. As the end result, the benefit rate is not reduced. As can be seen, the claimant will always receive the highest possible sum, either in the form of the unreduced pension (and a zero benefit rate) or in the form of unreduced unemployment benefits.(and no pension payment)
Special Bulletin A-710-45
APPRENTICE AND PROSPECTIVE EMPLOYER TRAINING PAYMENT OF BENEFITS
A new policy statement has been formulated with respect to benefit payments to claimants who participate in an apprentice training course, other than on-the-job training, to the following effect:
ready, willing and able to work;
prepared to discontinue the training course if a suitable job opportunity is offered to him; and
is making reasonable job efforts on his own initiative.
The same principle as above should be applied to claimants who undergo unpaid pre-employment training with a prospective employer. Such training is generally of short duration (a limited number of weeks) without "remuneration" nor is the training under a contract of hire. The training with the prospective employer mayor may not result in actual employment.
Special Bulletin A-710-46
March 10, 1966Interpretation Service - Benefit Claims
STATEMENT OF POLICY CONCERNING CLAIMANTS WHO REMOVE THEIR RESIDENCE TO ANOTHER LOCALITY*
Over the years, the case law has resulted in the following generally-accepted principle:
"A person who moves to another labor market area must have a reasonable opportunity of obtaining work in the new locality."
Thus, it has been a long-established policy under the Unemployment Insurance Law that a claimant who removes his residence to another locality must meet the following requirements:
Thus, it should be the policy that no benefits shall be payable and no rights to benefits shall accrue with respect to any claimant who leaves the labor market area in which he was last employed and enters a labor market area where there is no reasonable opportunity of obtaining work for which he is reasonably fitted by training and experience or which the community has to offer. This policy shall apply whether or not a person is returning home or going to a new area or to a resort area.
*Approved by the State Advisory Council on Employment and Unemployment Insurance
Special Bulletin A-710-49 (Revised)
September 15,1976Interpretation Service -Benefit Claims
A. Court of Appeals decision. Matter of James
The Court of Appeals by its decision of July 11, 1974 in Matter of James virtually outlawed the "provoked discharge" disqualification, declaring there was no statutory authority for it. At the same time, it broadened the concept of "misconduct", so that in practically all cases where in the past a provoked discharge disqualification was imposed, a disqualification for misconduct is warranted. This includes any case where the claimant was discharged for a volitional act or omission, on or off the job, which was detrimental to his employer's interests.
B. "Involuntary discharge"
If a claimant was discharged from his employment, generally the only issue is misconduct. The only exception would be instances where the voluntary act of an employee compels his employer to discharge him. The Court characterized such a separation as an "involuntary discharge" and cited as an example Matter of Malaspina (A-750-1286, revised). In that case, claimant's loss of employment was compelled by his failure to join a union as required by the collective bargaining agreement and was held to be a voluntary leaving without good cause. The employer had no choice. Another example would be refusal to fill out a personnel security questionnaire required by the Federal Department of Defense and which is a condition to continuance in employment. (A-750-1367). Still another example would be refusal of a police officer's request to take a chemical test for intoxication, resulting in revocation of operator's license and consequent loss of employment as cab driver (A-75O-1720). In instances such as these, the issue is voluntary leaving and if a disqualification is indicated, as it was in the three cases cited, the correct disqualification is voluntary leaving of employment without good cause.
C. Use of rules for reference purposes only
Although most of the provoked discharge rules are obsolete, the principles they stand for are generally valid guidelines for deciding whether to impose a misconduct disqualification. On the whole, when in the past it was concluded that the actions of the claimant which prompted the employer to discharge him constituted a disqualifying provoked discharge, the same actions would now be considered misconduct in connection with employment. This is supported by Appeal Board decisions issued after Matter of James.
Many of the rules listed in the original Special Bulletin A-710-49 have been dropped from this revised edition because they have been replaced by new rules in the "misconduct II section of the Interpretation Service , Index 1100 to 1199, based upon recent Appeal Board or court decisions. The remaining rules in Special Bulletin A-710-49 may be continued to be used as a source of reference, until they too are replaced.
It is cautioned that the rules in Special Bulletin A-710-49 should not be cited in support of a determination, and the phrase "provoked discharge" or its equivalent should not be used on a Notice of Determination when the issue is misconduct.
1. Refusal to comply with employer's request to obtain a conventional haircut. It was not a provoked discharge warranting disqualification since claimant's hair, being well groomed and neat, did not hamper his efficiency or adversely affect the employer's business. (A.B. 135,9343; A-750-1666) Conversely, voluntary quit disqualifications were sustained in A.B. 1147,553 when permission to grow long hair was revoked because customers complained; and in A.B. 181,343 when employer for hygiene reasons ordered a food service worker to get a haircut or wear a hairnet.)
2. If at time of hire appearance was made a condition of employment, termination for refusal to comply with the employer's reasonable standards is a disqualifying provoked discharge. (Meter reader grew hair to shoulder length and refused to cut it.) (App. Div. Matter of Gladstone, 1971; A-750-1736)
3. Claimant, a Federal employee and a conscientious objector, who was discharged when he refused to report for civilian work at a State hospital as directed by his draft board is subject to a voluntary leaving disqualification since he failed to comply with a reasonable condition of employment in that he violated his oath of loyalty to the U.S. Government executed at the time of hiring. (A.B. UCFE-2067 (resettled); A-750-1684)
4. Although claimant was discharged for using profane language to his foreman, it was held that such conduct was not tantamount to a voluntary leaving of employment without good cause since the evidence failed to establish that claimant had any reason to believe that his conduct might lead to his discharge. The evidence indicated that (1) it was customary for the supervisors and the employees to use profane language promiscuously, (2) no rules were promulgated by the employer nor were any signs posted in the plant prohibiting the use of profane language and 3) no employee, except claimant, was ever penalized or discharged for indulging in profanity. (A.B. 22,473-50; A-750-927)
5. A chronic alcoholic, absent from work and unaware of events while under the influence of intoxicants, who is discharged because he violated the employer's rule against being absent without notice, is not subject to a disqualification for voluntary leaving since chronic alcoholism is a sickness and his absence was caused by circumstances beyond his control. (A.B. 55,732-56; A-750-1426 Rev.)
6. Claimant's discharge because his license to drive a taxicab was suspended because of violation of police regulations is tantamount to voluntary leaving of employment without good cause. (A.B.56,025-56; A-750-1429) (Similarly, A.B. 60,251-57) (Similarly, 77-335-60. Appeal Board in no position to review action by Police Dept.) Similarly, A.B. 75,389, 129,411A & 131,959: claimant's actions resulted in suspension of longshoreman's registration number).
7. Discharge from employment requiring the operation of a motor vehicle, because claimant's drivers license was revoked, is considered a voluntary leaving of employment without good cause when the claimant should have Known that his action (speeding) could result in such revocation of license, even though he committed the offense while operating his own automobile in personal business. (A.B.69,737-59; A-750-1506) (Similarly, A.B. 78,694-61).
8. Discharge because of failure to shape up constitutes voluntary leaving of employment where such method of assignment to work is the employer's established policy and had in the past generally assured the claimant of steady employment. (A.B.63,800-58; A-750-1481)
9. Discharge upon claimant's refusal to accept a change in schedule requiring work on some Saturdays during the year is not a disqualifying provoked discharge, if at time of hire (as a salesperson in a retail establishment) the employer agreed not to require Saturday work. (A.B. 160,022; A-750-1729).
Special Bulletin A-710-50 (Revised)
Attached is a revised page one for Special Bulletin A-710-50 dated June 28, 1977. This page should be substituted for the current page one, which should be discarded.
This revision states more accurately the exceptions to the provision that makes it an unlawful discriminatory practice to question a prospective employee about or discharge a current employee because of an arrest or criminal accusation.
The only exceptions are situations where such questions are required or permitted by another statute. Employers affected by this exception include stock brokerage firms and those such as law enforcement, guard or detective agencies when required to provide information concerning prospective or current employees pursuant to the licensing activities of governmental bodies in relation to the regulation of guns, firearms and other deadly weapons. This exception would not apply to employees such as unarmed personnel employed by these agencies.
Article 15 of the New York State Executive Law, known as "The Human Rights Law", was recently amended by adding two new subdivisions (Sections 296.14 and 296.15), making it unlawful generally to discriminate against a person because he was arrested or convicted of a crime.
This Special Bulletin discusses the effect of the new provisions in cases where a claimant has been discharged because of an arrest or conviction, or because he concealed either or both from his employer.
Cases which cannot be readily resolved may be submitted through channels to the Interpretation Section of the Adjudication Services Office for an opinion.
The new provisions state that, except where required or permitted by other statutes, it is an unlawful discriminatory practice for an employer to:
(Subject of the revision): Under certain circumstances an employer may ask questions of an employee or prospective employee about prior arrests or criminal accusations. Evidence of prior arrests and/or criminal accusations could result in an employee's discharge. This would apply to such employers as:
A stock brokerage firm
A law enforcement agency, guard or detective agency, when required to provide information relevant to the licensing activities of governmental bodies in the regulation of guns, firearms or other deadly weapons.
Under the new provisions, it is not unlawful for an employer to inquire whether an individual has-ever been convicted of a crime. However, it is unlawful to discharge an employee for that reason, unless either-of the following can be shown:
The law also provides that in making & determination regarding the above, an employer must also consider the public policy of the state to encourage employment of ex-offenders, how long ago the offense occurred, the person's age at the time, the seriousness of the offense, and evidence produced by the person in regard to his rehabilitation and good conduct.
In addition, any person, who has been convicted of a crime and who has been discharged from his employment, must be furnished by the employer, if requested, a written statement setting forth the reasons for discharge.
The new provisions are silent on the question of pending criminal charges, but the State Division of Human Rights has issued an interpretation indicating that it is not unlawful for an employer to inquire if such charges exist or to discharge an employee if they do, and he is not required to justify the discharge as in the case of convictions, outlined in IB above.
The new provision prohibiting discrimination against an individual who has been arrested or accused but cleared, applies to the state and city governments and subdivisions, and private employers.
The new provision prohibiting discrimination against a person who has been convicted of a crime (an "ex-offender") applies to the above public employers, and private employers of 10 or more persons.
Neither of the new provisions, nor the State Human Rights Law of which they are a part, apply to federal employment.
However, for the purpose of adjudicating claims for unemployment insurance, the principles set forth in this Special Bulletin should be applied to separations from all employers, public (including federal) or private, and regardless of the number of their employees.
Since it is generally unlawful to discharge an employee because of an arrest or accusation, when such arrest or accusation terminated in favor of the accused, a discharge under these circumstances is generally not disqualifying.
A discharge because of a criminal conviction occurring either before or after commencement of the employment, is unlawful and therefore not disqualifying, unless either of the exceptions listed under 18 above can be shown to exist.
However, even if either exception is shown by the employer to exist, and the discharge is lawful, a disqualification for misconduct cannot be imposed unless the acts for which claimant was discharged were in connection with his employment within the meaning of the unemployment insurance law. Acts which occurred prior to commencement of the employment generally would not meet this test. On the other hand, behavior off the job may in some instances be misconduct in connection with employment: see Interpretation Service Index 1130.
Since it is not unlawful to discharge an employee because of a criminal charge pending against him, a discharge for such reason may, be disqualifying if the acts charged were in connection with employment, within the meaning of the unemployment insurance law. As noted in the preceding paragraph, acts which occurred prior to commencement of the employment generally would not meet this test. On the other hand, behavior off the job may in some instances be misconduct in connection with employment.
The new provisions impose restrictions on the right of an employer to inquire about, or discharge an employee for, an arrest or conviction record. Except for this, they do not interfere with his right to discharge any employee who commits an act, dishonest or otherwise, in the course of his employment, which is prejudicial to the employer's interests. In such case the disqualification for misconduct under Section 593.3 of the unemployment insurance law should be imposed; and if the act also constitutes a felony, or results in criminal proceedings following an indictment, benefits should be withheld in accordance with Section 593.4, the "criminal acts" provision. (See Interpretation Service, Index 113O, 1150, and 1195; and Manual of Procedure III 6226)
The rule at Index 1150A-3 (A-750-1300) should be marked obsolete.
(The text of Sections 296.14 and 296.15 of Article 15 of the New York State Executive Law, and pertinent provisions of Article 23A of the New York State Correction Law, are attached.)
New York State Executive Law, Article 15
It shall be an unlawful discriminatory practice, unless specifically required or permitted by statute, for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to make any inquiry about, whether in any form of application or otherwise, or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual, as defined in subdivision two of section 160.50 of the criminal procedure law, in connection with the licensing, employment or providing of credit or insurance to such individual; provided, however, that the provisions hereof shall not apply to the licensing activities of governmental bodies in relation to the regulation of guns, firearms and other deadly weapons.
It shall be an unlawful discriminatory practice for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to deny any license or employment to any individual by reason of his having been convicted of one or more criminal offenses, or by reason of a finding of a Lack of "good moral character" which is based upon his having been convicted of one or more criminal offenses, when such denial is in violation of the provisions of article twenty-three-a of the correction law.
New York State Correction Law, Article 23A
Unfair discrimination against persons previously convicted of one or more criminal offenses prohibited
No application for any license or employment, to which the provisions of this article are applicable, shall be denied by reason of the applicant's having been previously convicted of one or more criminal offenses, or by reason of a finding of lack of "good moral character" when such finding is based upon the fact that the applicant has previously been convicted of one or more criminal offenses, unless:
Factors to be considered concerning a previous criminal conviction; presumption
1. In making a determination pursuant to section seven hundred fifty-two of this chapter, the public agency or private employer shall consider the following factors:
2. In making a determination pursuant to section seven hundred fifty-two of this chapter, the public agency or private employer shall also give consideration to a certificate of relief from disabilities or a certificate of good conduct issued to the applicant, which certificate shall create a presumption of rehabilitation in regard to the offense or offenses specified therein.
Written statement upon denial of license or employment
At the request of any person previously convicted of one or more criminal offenses who has been denied a license or employment, a public agency or private employer shall provide, within thirty days of a request, a written statement setting forth the reasons for such denial.
Special Bulletin A-710-52 (Revised)
The attached revised Special Bulletin A-710-52 replaces Special Bulletin A-710-52 dated May, 28, 1982 which should be discarded.
This Bulletin has been revised to reflect the United States Department of Labor's interpretation of §3304(a)(14)(A) of the Federal Unemployment Tax Act (FUTA) regarding the eligibility of aliens for unemployment compensation. The major change is in Section III A 3 concerning "Permanently residing in the United States under color of law." Under the new interpretation the Immigration and Naturalization Service (INS) not only must be aware of claimant's presence in the country, but also must provide the alien with official assurance that deportation is not planned.
Interpretation Service release A-750-1912 currently reported under Indices 795-15 and 925 A-1 is contrary to the new interpretation and should be marked obsolete and replaced with a reference to this Special Bulletin
In determining the eligibility for benefits of an alien claimant, local offices are confronted with two issues: (1) May the claimant's base year employment and remuneration be used to establish benefit rights pursuant to §590.9 of the Unemployment Insurance Law?; and (2) May a claimant be held unavailable for work because of his or her alien status?
9. Benefits based on employment performed by illegal aliens. (a) Weeks of employment and remuneration received by a claimant who was an alien at the time such remuneration was earned shall not be taken into consideration for the purpose of establishing rights to benefits under this article unless the claimant was then lawfully admitted for permanent residence in the United States, was then lawfully present for purposes of performing such service or was then permanently residing in the United States under color of law, including a claimant lawfully present pursuant to sections 203(a)(7) or 212(d)(5) of the federal immigration and nationality act.
(b) A determination that benefits are not payable to a claimant because of the claimant's alien status shall be made only upon a preponderance of the evidence, and shall be effective only if it is in conformity with section 3304(a)(14) of the federal unemployment tax act.
An alien lawfully admitted to the United States as an immigrant is included in this category. Immigrant aliens are afforded many of the rights and protections enjoyed by United States citizens 1/ and are permitted to work in, this country. Indeed, they may lose their immigrant status if they become public charges. 2/ Immigrant aliens will usually possess an alien registration card (green card), and presentation of this card will suffice to establish authorization to work at least as of the date of issuance.
Certain Canadian citizens are also considered to be lawfully admitted for permanent residence although they continue to reside in Canada and commute to work. 3/ Their alien registration cards must be renewed every six months, and they lose immigrant status if unemployed more than six months. 4/ Local offices should note the alien registration card expiration date on these claimant's records.
While possession of an alien registration card will establish a claimant's immigrant status, the inability to produce such a card is not conclusive evidence that the claimant is not an immigrant. For instance, the card may have been lost, stolen, or mutilated, but the claimant's status remains unchanged. Other documents such as an immigrant visa in the claimant's passport, proof of filing an application for a duplicate card, or a letter from the Immigration and Naturalization Service confirming the claimant's status may be accepted to establish entitlement.
The second category under which an alien's employment may be used to establish benefit rights will be met by immigrant aliens, and by those non-immigrants given express authorization to work by the Immigration and Naturalization Service. These may include persons admitted as temporary visitors for business, 5/ persons whose admission to the United States has been certified by the Secretary of Labor to have no adverse effect on domestic workers, 6/ or persons, such as certain students, who are authorized to work part-time although primarily admitted to the United States for other purposes. 7/ These non-immigrant, aliens may have been authorized to work only to fill a specific job, or for a limited period of time, or within certain other restrictions. An alien whose base period employment was of a type other than that authorized was not lawfully present for the purposes of performing such services.
These claimants should have in their possession immigration and Naturalization Service Form I-94 on which "employment authorized is stamped. The I-94 will also have a letter-number code to indicate the conditions under which the claimant may work. If an explanation of a code is needed, the local office may contact the Immigration and Naturalization Service. A letter from that agency explaining the claimant's status should be accepted.
The status of each alien in the United States is determined, pursuant to the Immigration and Nationality Act (INA) and its implementing regulations, by the Immigration and Naturalization Service (INS). This discretionary authority was recently confirmed by the Supreme Court. 8/ Under this discretionary authority some aliens who have not been officially authorized to work may, nonetheless, be credited with weeks and wages to qualify for unemployment insurance benefits. For example, in the case of Holley v. Levine, a Canadian citizen with six children who are United States citizens received a letter from the INS stating that she would not be deported at least until her children were grown. 9/ This person would not be ineligible for unemployment insurance benefits under §590.9. Although the INS was aware claimant was present in the United States, she was issued a letter assuring her that she would not be deported. The U.S. Department of Labor has stated:
For informal action to authorize an alien's residence under "color of law, " the INS must know of the alien's presence, and must provide the alien with official assurance that enforcement of deportation is not planned. If the INS issues a letter or other document to the alien stating that departure will not be enforced, the alien is present under color of law. 10/
It should be noted that in the Holley case claimant is eligible even though she may be deported at a later date. This claimant is still considered "permanently residing" in the United States because she was granted a status allowing her to remain in the United States for an indefinite period of time. The INA 8 USC §1101(a)(31) defines "permanent" as follows:
The term "permanent" means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the insistence either of the United States or of the individual, in accordance with the law.
Two elements must exist before claimant can be considered to be "Permanently residing in the United States under color of law. "The Immigration and Naturalization Service:
Inaction by the INS, although it is aware of the alien's unauthorized presence is insufficient to establish that the alien is present under "color of law." 11/ Thus, an alien who enters the United States illegally and then applies to the INS for a change in status does not become a person "residing in the United States under color of law" simply because the INS does not move to deport him/her. Only affirmative action by the INS can confer such status.
The case reported in Interpretation Service Serial A-750-1912 is now obsolete and should no longer be followed.
This case no longer applies because no finding was made as to whether the INS had taken affirmative action to inform this claimant that enforcement of deportation was no planned. Absent such a finding such claimant cannot be considered eligible for benefits.
B. Section 590.9(b) requires that "a determination that benefits are not payable...shall be made only upon a preponderance of the evidence. ..". It is clear that the law is not intended to impose an automatic disqualification on non-citizen claimants. Unemployment Insurance personnel are not expert in Immigration law, and should not assume that a claimant is ineligible for benefits solely because (s)he cannot produce an alien registration card or I-94 form. Local offices have an affirmative duty to attempt to establish the claimant's legal status before denying a claim for benefits. There are many aliens for whom no record of admission exists, yet who are presumed to have been lawfully admitted to this country. 12/ Others, such as parents, spouses and children of citizens 13/ may have a statutory right to work without being aware of it. Still others may be included under the terms of a settlement of a class action suit which they were unaware. 14/
It is imperative that when a claimant is unable to furnish an alien registration card or an I-94 form, the local office ascertain as much information as possible about the circumstances under which the claimant entered the country, including the claimant's country of citizenship, date and port of entry, relationship to American citizens or immigrant aliens at the time of entry and at the present time, and the results of any contacts with the INS. Local offices should then contact the INS for clarification of the claimant's legal standing.
If local office investigation clearly establishes that the claimant did not satisfy any of the categories for entitlement (lawfully admitted for permanent residence, lawfully present for the purposes of performing such services or permanently residing in the United States under color of law) during the base period, the employment may not be used to establish benefit rights and the appropriate determination should be issued. Doubtful cases may be referred to the Adjudication Services Office for a determination.
The second issue to be resolved when an alien files a claim for benefits is that of availability for employment.
In most cases an alien claimant who has established entitlement to benefits will also be available for work under the same conditions as any other claimant. There are some exceptions, however, just as there are some circumstances under which an alien claimant will be available for work yet be unable to establish entitlement pursuant to Section 590.9.
It is a long-standing principle that an alien claimant who lacks authorization to work cannot meet the statutory requirement that (s)he be "ready, willing and able to work. " 15/ This interpretation is still valid, but in view of the court and Appeal Board cases cited above, the manner of its application will require modification.
A claimant with individual authorization or a statutory right to work should not be held unavailable for work because of his or her alien status, nor should a claimant who lacks specific authorization to work, but who can establish that (s)he is "permanently residing under color of law." Such a claimant is presumed to be working with the INS consent.
Some claimants, especially those "lawfully admitted for purposes, ..." of employment may have had a temporary work authorization which has since expired. If the claimant has petitioned the INS for an extension or for immigrant or permanent resident status, and has been informed that enforcement of deportation is not planned, (s)he should be held available for work. A Canadian citizen residing in Canada whose immigrant visa has expired but who is seeking work in Canada is available for work.
In resolving the issue of availability local offices should remember that authorization to work is only one consideration. While a lack of authorization will render a claimant unavailable, the existence of authorization, express or implied, alone, is insufficient to establish availability. Alien claimants must meet all the normal conditions imposed upon benefit claimants, including job search requirements.
1/ 42 USCA §1982 Guerra v. Manchester Terminal Corp. D.C. Tex 1972, 350F. Supp. 529, affirmed in part, reversed in part on other grounds 498F. 2d 641, rehearing denied 530 F. 2d 567
2/ 8 USCA §1251(8)
3/ 8 CFR § 211.5(a) This regulation also applies to Mexican citizens.
4/ 8 CFR. § 211.5(b)
5/ 8 USCA §1101(a)(15)
6/ 8 USCA §1182(a)(14)
7/ 8 CFR §214.2(f)(6)
8/ Immigration and Naturalization Service v. Rios Pineda U.S.105S. Ct 2098(1985)
9/ Holley v. Lavine, 533F 2d 845, cert. den. sub. nom. Shang v. Holley, 435US947
10/ Unemployment Insurance Program Letter No. 1-86 page 7
11/ ibid page 8
12/ 8 CFR 101.1-101.3
13/ 8 USCA §1182(a)(14); §1151
14/ For example, certain claimants from western hemisphere countries were protected for a time by a temporary restraining order issued by the U.S. District Court Northern District of Illinois, Eastern Division in the case of Refugio Silva, et. al. v. Edward Levi, et al
15/ Matter of Alhanek, 44 AD 2d 908, aff'g. A.B. 187,346 (Labor Law §591.2)
Special Bulletin A-710-53 (Revised February, 1989)
In determining the entitlement of employees of educational institutions to unemployment insurance benefits, local offices must consider the provisions of Sections 590.10 and 590.11 of the Unemployment Insurance Law (Article 18, N.Y.S. Labor Law).
I. The Law
A. Section 590.10
Benefits based on professional employment with educational institutions. If a claimant was employed in an instructional, research, or principal administrative capacity by an institution of education, or performed services in such an institution in such capacity while employed by an educational service agency, the following shall apply to any week commencing during the period between two successive academic years or terms, or during a similar period between two regular but not successive terms when the contract provides therefor instead, provided the claimant has a contract to perform, or there is a reasonable assurance that the claimant will perform, services in such capacity for any such institution or institutions for both of such academic years or such terms, and to any week commencing during an established and customary vacation period or holiday recess, not between such academic terms or years, provided the claimant performed services for such institution immediately before such vacation period or holiday recess and there is a reasonable assurance that the claimant will perform any services described in this subdivision or subdivision eleven of this section in the period immediately following such vacation period or holiday recess:
"Educational service agency" means a governmental agency or governmental entity which is established and operated exclusively for the purpose of providing to one or more educational institutions services mentioned under this subdivision or subdivision eleven of the section.
B. Section 590.11
Benefits based on non-professional employment with certain educational institutions. If a claimant was employed in other than an instructional, research or principal administrative capacity by an educational institution, or performed services in such an institution in such capacity while employed by an educational service agency, the following shall apply to any week commencing during the period between two successive academic years or terms provided there is a reasonable assurance that the claimant will perform services in such capacity for any such institution or institutions for both of such academic years or terms, and to any week commencing during an established and customary vacation period or holiday recess, not between such academic terms or years, provided the claimant performed services for such institution immediately before such vacation period or holiday recess and there is a reasonable assurance that the claimant will perform any services described in this subdivision or sub-division ten of this section in the period immediately following such vacation period or holiday recess:
"Educational service agency" means a governmental agency or governmental entity which is established and operated exclusively for the purpose of providing to one or more educational institutions services mentioned earlier under this subdivision or subdivision ten of this section."
II. Educational Institutions
For the purpose of Sections 590.10 and 590.11, an educational institution is an organization established for the purpose of operating a school, schools, or alternative educational experience offering a program of instruction in academic, technical or vocational subjects, which is certified by, under contract to or subject to the regulations of the Commissioner of Education.
At the elementary or secondary level, a pupil's attendance must comply with the requirements of the Education Law regarding the compulsory education of minors. Educational programs established for children in full-time residential care in homes or facilities operated or supervised by the, Division for Youth, Department of Mental Hygiene or social services districts do comply with such requirements and are educational institutions. Programs of higher education must offer a curriculum leading to a certificate, diploma or degree recognized by the Board of Regents as showing completion of an approved course of study. Most institutions of higher education require a high school diploma or its equivalent as a condition of admittance. Business schools offering a certificate program and professional schools offering a course of study necessary for professional licensing by the Board of Regents are educational institutions: apprenticeship programs and most trade schools are not.
Adult education programs, cooperative educational services programs (B.O.C.E.S.), high school equivalency diploma courses, etc. sponsored by boards of education or other educational institutions fall within the purview of Sections 590.10 and 590.11. Learning exchanges, dance studios, martial arts centers and similar "schools" are not educational institutions even if they must register with the Commissioner of Education.
Nursery schools and kindergartens are educational institutions, although registration with the Commissioner of Education is voluntary, but day care centers which essentially provide only childcare services are not (Matter of Nierenberg, 48 AD 2d 729, Matter of Sherwin, 48 AD 2d 733; A-750-1793). A nursery school or kindergarten has been defined as a school organized to educate six or more children under the age of seven under the supervision of qualified teachers, providing an adequate pro- gram of learning activities and maintaining good standards of health and safety. (Commissioner of Education's Regulation Sect. 125.1(a))
An educational service agency is defined by statute as "a governmental agency or governmental entity which is established and operated exclusively for the purpose" of providing services to one or more educational institutions. No educational service agencies have been identified in New York State.
III. "Professional" and "Non-Professional" Employment
Section 590.10 pertains to any claimant who was employed "in an instructional, research or principal administrative capacity by an institution of education, or performed services in such an institution in such capacity while employed by an educational service agency…" (Underscoring supplied)
Section 590.11 pertains to any claimant who was "employed in other than an instructional, research or principal administrative capacity by an educational institution, or performed services in such an institution in such capacity while employed by an educational service agency ..."
To determine whether a claimant is subject to §590.10 or §590.11, the job duties, not the title, are controlling.
To be subject to the provisions of §590.10 or §590.11 during the period between academic years or terms, the claimant's work must be in the same capacity ("instructional, research or principal administrative," or "other than ...") before and after the between terms period. However, a claimant employed in either capacity before a customary an established vacation period or holiday recess, who has reasonable assurance of any educational employment after the school break is subject to the provisions of whichever section pertains to the earlier period of employment.
Teacher's aides or teacher's assistants generally are not engaged in an instructional capacity if teaching activity is only incidental to their duties of attending to the children, and is rendered pursuant to the teacher's direction and instructions. Whether an aide or assistant has education or training as a teacher, and is licensed to teach, may be significant. Regardless of an employee's title or license, the determining factor will be the kind of services rendered. Thus, a licensed teacher working as a school secretary will not be considered as having worked in an instructional capacity.
During the period between the Fall and Spring semester, the claimant was not subject to either §590.10 or §590.11, as his employment in the first term was in a different capacity (§590.11) than the employment (§590.10) for which he had reasonable assurance. During the period between academic years, the claimant is subject to §590.10, but may use the employment as a teacher's aide to establish entitlement.
The claimant is subject to §590.10 during the between year periods. Although her prospective position differs from her previous employment, they are both in a capacity subject to §590.10.
IV. Reasonable Assurance
Sections 590.10 and 590.11 require that a claimant have a "reasonable assurance" of employment. Thus a claimant need not have an absolute guarantee of employment or a contract to be subject to the provisions of these sections. "Reasonable assurance" exists when an employer has expressed its intention to employ a claimant and will make a good faith effort to do so, and when the economic terms and conditions of the job offered for the new semester or term are not "substantially less" than the terms and conditions of the job in the prior semester or term (AB 379,090-A).
In defining what constitutes "substantially less" use the same ten percent criterion used for determining if a job offer is substantially less favorable to the claimant than the prevailing wage (Section 593.2).
In addition to salary, another major economic consideration is fringe benefits. These should be considered in determining whether the economic terms of employment are substantially less than those in the job for the earlier period (AB 123,66A and 131,684A; A-750-1656).
For the purpose of establishing reasonable assurance, for a regular full-time employee, the comparison is between the salary and fringe benefits received on the prior job and those offered on the new job.
The same criteria would apply to a regular full-time employee offered placement on a substitute list. As a first and expeditious step, the number of school days in the school year should be ascertained. If this figure multiplied by the daily rate of pay is at least ten percent less than claimant's prior salary, then no further fact finding is required. Claimant cannot be said to have reasonable assurance.
If, following the suggestion in step one, the claimant's maximum possible earnings as a substitute are within ten percent of his prior year's earnings, determine the number of days claimant could reasonably expect to be employed and apply the ten percent rule to this figure. If this establishes reasonable assurance then the comparison of fringe benefits must be made.
Ordinarily "reasonable assurance", aside from its economic considerations, requires an affirmative act on the part of the employer; for example, a letter of intent to rehire, or a verbal assurance that the employee is to return the following term or year. A history of rehire by itself is not sufficient to establish reasonable assurance. However, if a claimant has tenure, or a contract requiring that notification be given in advance if a position is to be eliminated then absent a definite layoff notice, the claimant has a reasonable assurance of employment.
The fact that the claimant's employment is contingent upon the fulfillment of certain preconditions, such as enrollment, etc. does not negate the reasonable assurance when circumstances demonstrate that the condition is not likely to affect the claimant.
The claimant's refusal to accept the proffered employment does not negate the existence of reasonable assurance. What creates reasonable assurance is the employer's willingness to employ the claimant, not the claimant's willingness to accept the job.
B. Per diem employees
A letter informing an employee that (s)he will be placed on a substitute list does not, in and of itself, establish reasonable assurance of employment. A claimant who has received such a letter has reasonable assurance of employment only if it has been established that the claimant's name will be or is listed, that the list is used for placing substitutes in jobs, that there is a rational expectation that substitute positions will become available, that the claimant will, in good faith, be considered for per diem work, and that claimant can expect to earn at least 90% of claimant's earnings in the prior term or year .
Ordinarily, a per diem employee will not know in advance when (s)he will be called or where (s)he will be assigned. This uncertainty is a condition of per diem employment and does not affect the existence of "reasonable assurance" during the period between academic terms or years unless it can be determined that claimant can be expected to earn less than 90% of his/her salary in the prior year or term.
C. Multiple Employers
A problem arises when claimant has employment with more than one educational institution in the prior school year or term and does not receive reasonable assurance from all of them. In considering the application of Section 590.10, the Appellate Division stated that it was intended to alleviate the financial burden on school districts which would be imposed upon them if they were required to finance unemployment insurance for employees traditionally unemployed during the summer. (Matter of Miller 78AD 2d 561).
In order to reconcile these conflicting demands in cases involving Section 590.10 or 590.11, proceed as follows:
D. Vacation and Holiday Periods
Reasonable assurance exists for weeks commencing during customary vacation periods or holiday recesses when (s)he worked at least one of the seven days immediately preceding the recess, and has been placed on a priority list consisting only of those employees who worked during this pre-recess period. Under these circumstances no individual notice need be given, providing the educational institution will use this seniority list to call substitutes for employment during the seven days immediately following the recess period(AB 360,620) .In the case of a customary holiday or recess period that begins after Monday, the provisions of Sections 590.10 and 590.11 would not apply until the following Monday, if at all. For instance Election Day, which by Law is on a Tuesday, or Thanksgiving Day Holiday, a Thursday, do not involve weeks which commence during their holiday period.
The claimant is subject to §590.11 effective Monday, August 6. A history of rehire does not, in and of itself, establish reasonable assurance. The claimant had no reasonable assurance until the employer specifically notified him that he was to return and the first week to commence after his reasonable assurance on August 2 was August 6.
The claimant does not have a reasonable assurance of employment. The letter does not represent a bona fide offer of employment, as the employer was aware that the claimant cannot commute for per diem work and did not intend to employ him during the next school year as shown by its failure to offer him work after he moved.
The Law speaks of "any week commencing during the period between two successive academic years or terms".
Since the Law permits the comparison of school terms, there is no economic disadvantage between the Spring term and the prior Fall term. Conversely, if the claimant had worked per diem in the Fall term and as a full-time substitute in the Spring term, and the employer could offer only per diem work for the upcoming Fall term, claimant would be eligible for benefits.
Claimant does not have reasonable assurance because there was a substantial reduction in the economic terms of employment.
V. Periods of Applicability
A. The Provisions:
Section 590.10 applies to "any week commencing during the period between two successive academic years or terms, or during a similar period between two regular but not successive terms when the contract provides therefor instead. .."
Section 590.11 applies to "any week commencing during the period between two successive academic years or terms ..."
Sections 590.10 and 590.11 both apply to "any week commencing during an established and customary vacation period or holiday recess, not between such academic terms or years. .."
This provision applies only to claimants subject to §590.10.
Sections 590.10 and 590.11 pertain even to one day holidays; however, they have no effect unless the holiday occurs on a Monday, as the week must commence during an established and customary holiday recess.
Snow days or other emergency closings are not "customary and established" vacation or holiday periods.
If no dates are specified in the academic calendar or collective bargaining agreement, the new term begins on the earliest date school personnel are required to report for work and ends on the last day. The beginning and ending dates of the term are the same for all employees, even if the periods of employment vary.
A claimant who worked for more than one educational institution is "between terms" as soon as any employing institution has ended its year or term and until all institutions with which the claimant has reasonable assurance of employment have begun the new year or term. Thus, it is possible that a claimant will be between academic years or terms and subject to §590.10 or §590.11 even though still employed at one or more institutions.
The claimant is subject to §590.10 effective Monday, August 13 the first Monday following the giving of reasonable assurance.
The claimant may receive benefits without being subject to §590.11 for the period June 18 through Sunday, July 1, 1984. Although she is not working, the school system for which she worked was still in the midst of an academic term.
The claimant is subject to §590.11 from July 2, 1984, the first Monday following the end of the school year, through September 3, 1984. The academic term begins September 4, 1984, and the claimant is no longer between academic years or terms. The academic term is fixed, even if certain classes of employees work for a different period of time.
The claimant is subject to §590.10 during the period between the first and third terms, including the entire second term.
The claimant is subject to §590.10 as she is between academic years, notwithstanding that she chose to work part time during a mini-session scheduled during her regular summer vacation.
The claimant is not subject to §590.11 as the examination week is neither a period between academic terms, nor a vacation period or holiday recess. The claimant is an hourly worker, and is totally unemployed that week.
VI. Disregard of weeks and wages: (See also Per Diem Employees)
A claimant subject to §590.10 or §590.11 is not necessarily ineligible for benefits. These sections provide only that certain types of employment are to be disregarded when determining whether the claimant has sufficient base year employment to file a valid original claim and, if so, what the benefit rate is.
This redetermination is made in the same way as the determination regarding the original claim discussed above. Neither the benefit year nor the base year is altered by §590.10 or §590.11. Employment during the benefit year may not be considered in determining whether the claimant may receive benefits, or in what amount (s)he may receive them.
A claimant who lacks entitlement on a day because (s)he is subject to §590.10 or §590.11 may not use such day as a qualifying or effective day. For example, if the school term begins on a Thursday (s)he will receive benefits for only one effective day.
The claimant may file a valid claim under the alternate condition (PAC) based on her employment and wages with the accounting firm. She may not use the employment as a library assistant, or wages therefrom, for entitlement purposes.
The claimant is subject to §590.10; therefore, neither his base nor pre-base year employment in an instructional capacity may be used to establish entitlement. Although the claimant has 18 weeks of non-educational employment, he is unable to establish a valid original claim under either the basic or alternate condition.
The claimant is entitled to benefits based on his weeks of employment and wages earned as a school secretary. The claimant is subject to §590.10 but may use any employment other than employment in an instructional, research or principal administrative capacity to establish entitlement.
The claimant is subject to both §590.10 and §590.11 during the December holiday recess period, even though she does not have reasonable assurance of returning to work as a Secretary. During an established and customary vacation period or holiday recess not between academic years or terms, §590.11 applies provided the claimant has a reasonable assurance of employment in any capacity described in §590.11 or §590.10.
The claimant is subject to §590.11 through Wednesday, September 5. However, as the first three days of total unemployment in a week are not effective days, but are "qualifying days, " the claimant is entitled to a full four effective days at her usual benefit rate -i.e. the rate based on all base year employment .
VII. Retroactive Payments of Benefits: Section 590.11 (See Procedure III 3504)
A claimant who was denied benefits solely because of the provisions of §590.11, but who "was not offered the opportunity to perform services for the educational institution for the second" academic year or term may receive benefits "for each week for which he filed a timely claim for benefits". This is true even if the reasonable assurance was bona fide, and extended in good faith at the time it was given.
If the reasonable assurance was established as a result of an offer of permanent employment which is subsequently withdrawn, the claimant's eligibility for retroactive benefits is established based on that withdrawal. If the original offer is withdrawn before the start of the second academic year or term and the employer offers the claimant the opportunity for per diem employment, a separate reasonable assurance is created and a new determination is to be issued based on the later offer. Of course, the employer must establish that it will make a good faith effort to use the claimant's services on a per diem basis.
If the claimant's reasonable assurance is for per diem work, it may not be possible to determine whether the claimant is eligible for retroactive benefits until the second academic year or term ends. The fact that the claimant is not offered per diem assignments at the beginning of the school term does not mean (s)he will not be offered such work at a later date. There may be unusual circumstances, however, where it becomes apparent that the educational institution has no intention of using a particular claimant's services. In such instances retroactive payments may be made as soon as it is determined the claimant will not be offered employment. This may occur, for example, where the specific program under which the claimant was employed is not funded, or where a claimant has received extremely poor evaluations or has been the subject of serious disciplinary proceedings during the prior academic year or term and has been told (s)he will not be rehired.
If the claimant had reasonable assurance of employment in a non-professional capacity with more than one academic institution, none of which offers the claimant work, the claimant is eligible for retroactive benefits. If one or more of the institutions, but not all, offer the claimant work, the local office will have to determine the earliest date the claimant had reasonable assurance with an institution which actually offered employment and redetermine the effective date of the §590.11 determination accordingly.
A claimant who is offered work by an educational institution with which (s)he had a reasonable assurance of employment but who refused to accept it is not entitled to retroactive benefits.
A claimant who fails to report to the local office during the between terms period is deemed to have "filed a timely claim for benefits" if the failure to report has been excused, and may receive retroactive benefits.
section 590.10 does not make similar provisions for the payment of retroactive benefits.
VIII. Additional Determinations:
When assessing the eligibility for benefits of school personnel, the local office must be alert to a number of potential issues. In addition to §590.10 and §590.11, the following issues may be present: