EMPLOYERS AND UNEMPLOYMENT INSURANCE

Most of my cases involve claimants who seek a hearing after being denied unemployment insurance benefits for alleged misconduct, etc. as a result of an investigation by the Department of Labor. I am now seeing cases with claimants who, after have been determined by the Department of Labor to be entitled to unemployment insurance benefits despite the allegations of misconduct, etc. by the employer, are being brought into hearings by the employer. I have one case where the employer is seeking to appeal an adverse determination it received after a hearing. Some employers will put up a strong fight to get out of paying unemployment insurance. Remember, if you are receiving benefits, an employer who is affected by the determination can ask for a hearing. Under the law, charges for benefits are shared by all employers of the claimant in the base period. That is why employers who are not the last employer may also ask for a hearing. If a claimant receives a Notice of Hearing, he or she should attend to preserve any rights to benefits.

FILING FOR HEARING ON UNEMPLOYMENT BENEFITS

A case came to me yesterday wherein a person was requesting a hearing on an adverse determination; however, the adverse determination was made about 7 months ago and the client claimed it was never received although each week a claim was put in and no monies received. Let's examine the law on this. According to the NYS Department of Labor FAQ page: "You may request a hearing on any determination affecting your rights to benefits by writing a letter to NYS Department of Labor, P.O. Box 15131, Albany, NY 12212-5131. The request must be postmarked or otherwise proven to have been filed within 30 days after the mailing or personal delivery of the determination. Absent proof to the contrary, a determination shall be deemed to have been mailed on the date recited on it and received by a party to whom it is addressed no later than five business days after the date on which it is mailed. Make sure you include your Social Security number on your hearing request and the reasons you disagree with the determination. You will be notified of the date, time and place of the hearing by the Administrative Law Judge section after your request has been processed." Here are some cases on the issue: 1. The 30 day statute of limitation. on hearing requests does not apply when a determination was mailed to the last known address of a person who was not then a claimant, but he did not receive it because he had moved. (A.B. 202,436; A-750-1850) 2. Claimant's failure to request a hearing within 30 days of the initial determination is not excused by claimant's incarceration, since claimant was not prevented by physical condition or mental incapacity from filing a hearing request. (A.B. 455,1691; A-750-2080) 3. When claimant' s need for Spanish language material is clearly evident, a notice of determination sent without it is defective and cannot be the basis for holding a hearing request untimely. (A.B. 429,1731; A-750-2067) 4. A claimant who did not request a hearing from a written determination of unavailability within the statutory appeal period but continued to certify to unemployment thereafter, may be heard on the question of availability for the period 30 days prior to the date on which request for a hearing is filed. (A.B. 21,562-49; A-750-938)....there is more case law, but based on the above, how would you decide?

WILLFUL MISSTATEMENTS WHEN COLLECTING UNEMPLOYMENT BENEFITS

A break from Powers of Attorney, as this was a case presented to me and it highlights the importance of notifying the Department of Labor of all full-time and/or part-time employment you were engaged in, on the books or not, while you are applying for a benefits. They can find out so don't hide it. Section 594 of the Unemployment Insurance Law provides that "a claimant who has willfully made a false statement or representation to obtain any benefit ... shall forfeit benefits for at least the first four but not more than the first eighty effective days following discovery of such offense ...". It further provides that the claimant shall be deemed to have received benefits for such forfeited effective days", and that "A claimant shall refund all moneys received because of such false statement ...". Not every false statement subjects a claimant to the penalties provided in sub. sec. 594. A claimant may provide information (s)he believes to be true, which ultimately proves to be incorrect. In such instances no penalty applies. However, if it is established that the claimant was aware of the true situation, but gave false information, or purposely failed to fully disclose the facts, a determination of willful misrepresentation should be made. As the courts have held, "'willful' as used here does not imply a criminal intent to defraud but means 'knowingly' , 'intentionally' , 'deliberately' to make a false statement. (Matter of Vick, 12 AD 2d 120) Thus, for example, a claimant who places "N" in the calendar insert and certifies that "I did not work in employment or self-employment although (s)he knew (s)he had worked two days and received pay is subject to the penalty for willful misrepresentation notwithstanding that the claimant honestly misinterpreted the law and believed the work had no effect on benefit rights (Matter of Vick, 12 AD 2d 120) ". The following is a link to the Department of Labor Standards for making willful misrepresentations:
http://www.labor.state.ny.us/ui/aso/A710.htm#71021

MORE ON UMEPLOYMENT INSURANCE BENEFITS

He is a common issue I am getting from clients who are fighting to obtain unemployment benefits: were they fired or did they leave voluntarily? This can be a murky issue especially when an employee and the employer have a meeting where they both agree, for whatever reason, that it would be best if employment was terminated. According to the NYS Department of Labor: "You must meet the conditions set by law to receive unemployment insurance...You will be disqualified from receiving unemployment insurance if: You quit a job without good cause; or You quit a job due to marriage;...and You have not subsequently worked and earned five times your benefit rate. A disqualification for the above reasons lasts until you work and earn at least five times your benefit rate. You must be out of work again through no fault of your own."