A-750 2200 Series

A-750-2128

Index 915C-1
1590-9

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

September 2009

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

 

 

             

RETROACTIVE PENSION AND RECOVERABLE OVERPAYMENT

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

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

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

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

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

 

COMMENTS

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

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

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

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

Under such circumstances, the resulting overpayment is recoverable.

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

 

   


A-750- 2152

Index 700
1450

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

February, 2015

INTERPRETATION SERVICE–BENEFIT CLAIMS
Availability and Capability
Total or Partial Unemployment
Work Without Pay

Volunteer Activities and Eligibility for Benefits

Engaging in volunteer activities, while actively seeking work, does not mandate a finding of ineligibility due to a lack of total unemployment even when the volunteer services lead to employment with the same organization or when the organization reimburses the volunteer for expenses. This decision conflicts with prior decisions on this issue. The Appeal Board will not follow those prior decisions.

A.B. 577,489

PRESENT: LEONARD D. POLLETTA, MICHAEL T. GREASON, GERALDINE A. REILLY, GEORGE FRIEDMAN, JAMES S. ALESI, MEMBERS

The Department of Labor issued the revised determinations holding the claimant ineligible to receive benefits, effective January 30, 2012 through April 22, 2012, on the basis that the claimant was not totally unemployed; charging the claimant with an overpayment of $1,218.75 in benefits recoverable pursuant to Labor Law § 597 (4); reducing the claimant's right to receive future benefits by 64 effective days on the basis that the claimant made willful misrepresentations to obtain benefits; charging the claimant with an overpayment of $780 in Emergency Unemployment Compensation (EUC08) benefits repayable pursuant to § 4005 (b) of the Federal Supplemental Appropriation Act 2008, Title IV, Emergency Unemployment Compensation (EUC08), Public Law 110-252; and reducing the claimant's right to receive future benefits by 32 effective days on the basis that the claimant made willful misrepresentations to obtain benefits. The claimant requested a hearing.

The Administrative Law Judge held telephone conference hearings at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the Commissioner of Labor. By decision filed December 6, 2013 (A.L.J. Case No. 013-29166), the Administrative Law Judge modified the revised determination holding the claimant ineligible to receive benefits, effective January 30, 2012 through April 22, 2012, on the basis that the claimant was not totally unemployed, to be effective February 29, 2012 through April 22, 2012, and, as so modified, sustained the revised determination; modified the revised determination charging the claimant with an overpayment of $1,218.75 in benefits recoverable pursuant to Labor Law § 597 (4) to be $731.25, and, as so modified, sustained the revised determination; modified the revised determination charging the claimant with an overpayment of $780 in Emergency Unemployment Compensation (EUC08) benefits repayable pursuant to § 4005 (b) of the Federal Supplemental Appropriation Act 2008, Title IV, Emergency Unemployment Compensation (EUC08), Public Law 110-252 to be $682.50 (inadvertently recited as $682), and, as so modified, sustained the revised determination; and modified the revised determinations reducing the claimant's right to receive future benefits by 96 effective days (64 effective days and 32 effective days) on the basis that the claimant made willful misrepresentations to obtain benefits to 72 effective days, and, as so modified, sustained the revised determinations.

The claimant appealed the Judge's decision to the Appeal Board, insofar as it sustained the revised determinations as modified.

Based on the record and testimony in this case, the Board makes the following FINDINGS OF FACT: The claimant filed a claim for unemployment insurance benefits effective August 22, 2011. He did not receive a claimant handbook.

Between February 29, 2012 and April 20, 2012, the claimant performed volunteer services as a clerical aide at Lincoln Hospital as a participant in its Volunteer / Internship Program. He was issued an identification badge as a volunteer upon successfully completing prerequisite tests. The claimant volunteered at Lincoln Hospital on Tuesdays through Fridays for seven to eight hours a day on various shifts from 6 am to 4:30 pm. He was not paid for his hours of service. He was provided a daily $5 meal ticket. During his one hour lunch, the claimant went every day to the Bronx Workforce office in an attempt to obtain paid employment. He would submit his resume or apply on-line for positions. The claimant told Lincoln Hospital that he would be leaving every day to go to the Bronx Workforce office or to go to job interviews. The claimant continued volunteering at Lincoln Hospital until June 12, 2012. On June 27, 2012, the claimant began working as a paid employee of the hospital.

During the period at issue, the claimant did not report his activities as work when he certified for benefits. He received the benefits at issue.

OPINION: The evidence establishes the claimant performed volunteer services at Lincoln Hospital between February 29 and April 20, 2012. We have reconsidered our position concerning whether a claimant is totally unemployed while performing volunteer work and concurrently seeking employment.

In Matter of Alexander, 45 AD3d 1143, the claimant assisted relatives at their business by answering the telephone, taking messages, making copies and faxing documents. She was not paid for these activities. She used the business computer to aid her job search. The Court, in reversing the Board, found that the claimant was totally unemployed. Here, following the Court’s lead in Alexander, we do not find that the claimant’s volunteer activities constitute work. Significantly, the claimant was not paid for his hours of service; he went every day to the Bronx Workforce office in an attempt to obtain paid employment; and he submitted his resume or applied on-line for positions. We accept the claimant’s testimony that he informed Lincoln Hospital that he was going to the Bronx Workforce office or to go to job interviews.

Nor does the fact that the claimant ultimately obtained employment with Lincoln Hospital change our analysis. In Appeal Board No. 554731, aff’g A.L.J. Case No. 010-18444, the claimant, an attorney, was hospitalized from April 23, 2010 through May 13, 2010. He derived his income from work as a cab driver. While in the hospital, he did pro bono legal work on cases. We found that the performance of pro bono work while he was hospitalized did not affect his total unemployment because it was not in “gainful employment”. We so held even though the activity might lead the claimant to become employed at some future time.

Nor does the fact that the claimant received a $5 for a meal ticket alter our analysis. In Appeal Board No. 433248, the claimant, who was the president of his union, continued to perform his union-related activities including speaking with members and management about work issues. The claimant received a fixed quarterly sum of $275 from the union as reimbursement for expenses. The Board found that his union activities were in connection with the office he held with the union and that he was totally unemployed, notwithstanding that he was paid a sum for reimbursement of expenses. Similarly, in Appeal Board No. 488719, the claimant, a deputy fire coordinator, provided assistance at various fires and hazardous materials incidents. He received an annual yearly stipend of $2,566.20. The Board found that the stipend was intended to reimburse expenses incurred, rather than a wage. In the case at hand, we find that the $5 meal ticket was not intended as a wage, but as a reimbursement for a meal expense while he performed unpaid volunteer services.

Consequently, we find that engaging in unpaid volunteer services, when one is also actively seeking work, does not mandate a finding of ineligibility. In fact, engaging in such activity in this day and age is a way of obtaining employment. We find that it was not the intention of the Legislature nor the public policy of this State that unemployment benefits be denied to claimants who engage in such activity in order to improve their chances of obtaining employment (See e.g. Appeal Board No. 360187). To the extent that this decision conflicts with prior decisions that mandate a finding of ineligibility when engaging in volunteer services and subsequently obtaining employment with that organization, the Board will no longer follow those decisions. Accordingly, we conclude that the claimant was totally unemployed.

As the claimant was totally unemployed, we further conclude that the claimant was not overpaid unemployment benefits. We further conclude that the claimant’s certifications do not constitute willful misrepresentations.

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

COMMENTS

1.     In this decision the Appeal Board has overruled its prior decisions on this issue, holding that volunteer activities that improve a claimant’s chances of employment are consistent with the intent of the Labor Law to assist individuals who are “unemployed through no fault of their own” (Section 501). It should be noted that the Appeal Board’s decision extends this principle beyond volunteering for charitable and civic purposes to work activities with for profit and not-for-profit employers with, or without, highly structured environments. However, if the volunteer activity includes a contract of hire by guaranteeing employment upon completion of training, then the volunteer training program is still considered employment. (See A-710-45, “Apprentice & Employer Training,” Section B).

2.     This Appeal Board decision is also consistent with the principles set forth in Unemployment Insurance Program Letter (UIPL) No. 16-12, “Payment of Unemployment Compensation to Individuals who are Volunteering” (April 19, 2012). The purpose of this UIPL is “to strongly encourage states to both promote volunteerism in their communities, and interpret state law to not disqualify individuals from receipt of Unemployment Compensation (UC) as a result of volunteer activities. It should be noted that the Appeal Board’s decision extends this principle beyond volunteering for charitable and civic purposes to work activities with for profit and not-for-profit employers.

3.     While claimants who engage in volunteer activities may now be, based on this Appeal Board decision, totally unemployed, there is still the possibility that they may not be available for work. “A claimant doing genuine volunteer work…who is willing to reschedule or drop the work should it conflict with regular employment, and who is free to make and is making a diligent effort to find employment, is eligible for benefits” (Field Memo, 11-82 “Volunteer Work”). However, if the claimant refuses suitable employment in favor of the volunteer activities, he/she is subject to disqualification. If the claimant is not actively searching for work, then he/she is subject to disqualification.

4.     Due to the Appeal Board’s decision, the following publications will be revised: Work Without Pay-Lack of Total Unemployment (Review Letter, 1-2005); Search for Work (Special Bulletin, A-710-23); Apprentice & Employer Training (Special Bulletin A-710-45): and Volunteer Work (Field Memo, 11-82). The following publications are still valid: AmeriCorps Volunteers (Field Memo, 1-2012) and MLC Consent Judgment (Field Memo, 1-2001).




A-750- 2153

Index 700
1450

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

February, 2015

INTERPRETATION SERVICE–BENEFIT CLAIMS
Availability and Capability
Total or Partial Unemployment
Work Without Pay

Pro Bono Activities and Eligibility for Benefits

A claimant, who is an attorney, does not necessarily lack total unemployment or is unavailable for work, while performing pro bono legal services.

A.B. 577,763

The Department of Labor issued the initial determinations holding the claimant ineligible to receive benefits, effective October 15, 2012, on the basis that the claimant was not totally unemployed; charging the claimant with an overpayment of $9,315 in benefits recoverable pursuant to Labor Law § 597 (4); and reducing the claimant's right to receive future benefits by 204 effective days on the basis that the claimant made willful misrepresentations to obtain benefits. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances on behalf of the claimant, the employer, and the Commissioner of Labor. By decision filed April 1, 2014 (A.L.J. Case No. 114-02604), the Administrative Law Judge granted the claimant’s application to reopen A.L.J. Case Nos. 113-09973 and 113-06042, modified the initial determination holding the claimant ineligible to receive benefits, effective October 15, 2012, on the basis that the claimant was not totally unemployed, to be effective October 27, 2012, November 7, 2012, November 19, 2012, November 20, 2012, November 26, 2012, December 4, 2012, December 14, 2012, December 28, 2012, January 4, 2013, January 8, 2013, January 18, 2013, February 4, 2013, February 26, 2013, March 6, 2013, March 11, 2013, March 14, 2013, March 18, 2013, March 19, 2013, March 20, 2013, March 26, 2013 and April 3, 2013, and as so modified sustained the initial determination of lack of total unemployment, and referred the amounts of the recoverable overpayment and the forfeiture penalty for willful misrepresentation to the Department of Labor for recalculation in accordance with the decision.

The claimant appealed the Judge's decision to the Appeal Board, insofar as it sustained the initial determinations of lack of total unemployment, recoverable overpayment and willful misrepresentation as modified by the Judge’s decision. The Board considered the arguments contained in the written statement submitted on behalf of the claimant.

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

FINDINGS OF FACT: The claimant, a licensed attorney in the State of New York, worked as a municipal executive from January 2008 until May 15, 2012 when she lost her employment in September 2012 under circumstances not at issue. Since 2008 she ended her activities for her private law practice which was based in her home. She did not keep a legal calendar for that period. She did not deduct anything from the law firm on her personal income taxes in 2010, 2011 or 2012. She was listed in official publications as an attorney specializing in municipal planning.

On October 15, 2012, she filed an original claim for benefits online. While receiving benefits, she continued to provide free legal services for two churches she had dealt with in her former city executive capacity. The first church, represented by its own counsel, was scheduled for demolition. The claimant gave assistance on how to use the media to try to halt this. She addressed the municipal zoning board of appeals. She made telephone calls, created e-mails and produced some legal documents for a dispute involving sale of the church’s property. The second church was scheduled to be closed by its religious authority. The claimant assisted members of the congregation to articulate and publicize their opposition to this decision. She counseled a long-time, former real estate client, to reduce the asking price to facilitate the sale of his business. She advised an energy entrepreneur trying to open an energy company. Had he succeeded, the claimant may have been hired as a corporate official, not as an attorney. She counseled a long-time female friend who did not have the resources to hire an attorney for her post-divorce, domestic abuse problems. This person was not yet ready to take legal action. The claimant did not receive remuneration for these efforts. On average, she spent an hour or less on these matters for two days a week. She spent several hours on days when she was drawing up legal paperwork for the churches. During the benefit period, she checked two e-mails addresses for her law firm twice a week. She handed out business cards with her contact information in order to generate the possibility for new business. She did not advertise her legal services. Her pro bono efforts did not produce new business for the law firm because of the impact of the circumstances of her separation from her last employment. She continued to seek work as a municipal official without success. During the benefit period the claimant had three illnesses that reduced her activity level. As of January 2014, the legal matters she was involved in were no longer active and remained incomplete. The claimant acknowledged that on the following days she provided pro bono legal services to the foregoing entities and individuals: October 27, November 7, November 19, November 20, November 26, December 4, December 14, December 28 of 2012; January 4, January 8, January 18, January 28, February 4, February 26, March 6, March 11, March 14, March 18, March 19, March 20, March 26 and April 3 of 2013.

After she filed her claim for benefits, the claimant accessed, printed and read the Claimant Information Handbook (hereinafter Handbook). On page 9, she read the section entitled, “What is considered work” which stated, “You must report all the work that you perform whether it is for yourself, a friend, a relative, an employer, or in connection with a public office that you hold. Any activity that brings in or may bring in income at any time must be reported. You are considered employed on any day when you perform any services, even an hour or less, in self-employment, on a freelance basis, or for someone else. It makes no difference whether this work is in covered employment or whether you get paid for that day….” On page 10, she read the section entitled, “What if I do volunteer work?” which stated, “You may be eligible for unemployment insurance benefits while volunteering, providing the volunteer work meets the following criteria: volunteer work is for a charitable, or religious, or special organization and you do not receive payment in any form for your volunteer work; if the volunteer work is not a precondition to being hired or rehired into a paid position; and your volunteer duties do not interfere with your ability to search for work and do not affect or limit the number of days and hours you are going to work. You may be considered employed on any day or any part of a day when you perform even minor duties or favors for a friend or relative’s business whether you get paid or not. You should call the TCC [Telephone Claims Center] and give all details before claiming benefits.” In November 2012, the claimant spoke to a Department of Labor representative in the Division of Employment Services office in Troy, New York (hereinafter DOES) about her certification situation. She was concerned about the effect of the advice she provided to her friend, the energy entrepreneur on her eligibility. The claimant did not expect to be hired by him until the fall of 2013. The claimant was advised that the possibility of work for any company she may have formed was so remote that her services for him would not be considered work for unemployment insurance purposes. She was not verbally advised to call the TCC for information on certification for benefits. She did not expect and was not paid for her pro bono work. For each week during her benefit period, the claimant certified to having done no work in reliance on the criteria articulated in the section entitled, “What if I do volunteer work?” As a result of her weekly certifications, she received $9,315 in regular unemployment insurance benefits.

OPINION: As the granting of the claimant’s application to reopen A.L.J. Case Nos. 113-09973 and 113-06042 has not been appealed, it remains the law of the case that the claimant had good cause not to proceed in the prior hearings.

The credible evidence establishes that during the claimant’s benefit period, starting on October 15, 2012 through April 29, 2013, the claimant provided occasional free legal services to individuals and religious organizations. We disagree with the Judge’s conclusion that the claimant should have known from the written advice in the Handbook under the section “What is considered work?” that her occasional pro bono activities constituted work for unemployment insurance purposes simply because she had an extant though inactive law firm. We find that the claimant’s activities fall squarely within the guidelines described in the section “What if I do volunteer work?” Although she handed out her business cards with contact information during these pro bono activities and checked e-mails, neither the cards nor her free services enhanced her ability to generate new business on behalf of her defunct law firm. Significantly, she did not advertise on behalf of the law firm. She made no court appearances. She earned no money. She also continued her search for work in her chosen field of municipal service. This set of facts stands in contrast with those in Matter of Moreira-Brown (36 AD3d 987). That attorney was in the start-up phase of a law firm and expended substantial efforts to acquire legal work. Notably, none of his activities involved rendering free legal services. In the case now before us, we have an inactive law firm which has not generated any income in years since 2008. The Court in Matter of Haseltine, 30 AD3d 938, held that a claimant who ceased operating her construction business, stopped performing services because she was working for her employer and had only not terminated the certificate of doing business was held not to stand to gain financially from her defunct business. There was no evidence that she performed substantial activities on behalf of that business while collecting benefits. The same applies to the instant case where the claimant handed out her business card while performing pro bono work but had no success getting any business for her defunct law firm while looking for work as a municipal executive without success. The claimant’s free legal activities did not resurrect her law firm as an active, functioning law practice capable of growing and providing an income. As there was no ongoing business, we further conclude that the claimant did not stand to gain financially from her law firm (Compare Matter of Restivo, 24 AD3d 1007 wherein that claimant performed minimal activities for an ongoing business and was held to lack total unemployment). Finally, we also note that as an ethical matter, attorneys are now encouraged and may be required to perform such free legal services for individuals and organizations with no means to pay for them.

We recently reconsidered our prior holdings on the matter of performing volunteer services in the context of total unemployment while receiving unemployment benefits and looking for work (See Appeal Board No. 577489). The claimant performed services as a clerical aide for a hospital during his benefit period. As that claimant searched for work, got reimbursed $5 for meal expenses and received no pay, the Board found that his volunteer work did not interfere with his search for work. The Board cited a case involving an attorney who usually drove cabs for his living, performed pro bono immigration law work on his laptop while in the hospital (See Appeal Board No. 554731). We concluded that the performance of such pro bono work did not affect his total unemployment because it was not in gainful employment, even if the activity might lead the claimant to become employed at some future time. We also concluded that it was neither the intention of the Legislature nor the public policy of this State that unemployment benefits be denied to claimants who engage in such activity in order to improve their chances of obtaining employment (See Appeal Board No. 360187). Therefore, under the facts of this case we conclude that the claimant reasonably interpreted the Handbook to infer that her pro bono legal services constituted volunteer work which fell within the stated guidelines. Accordingly, we further conclude that the claimant was totally unemployed and was eligible to receive the benefits she received. It follows and we so conclude that there is no overpayment of benefits.

The credible evidence further establishes that, based upon the foregoing analysis, the claimant accurately certified that she performed no work while searching for work, performing pro bono services and receiving benefits during the period at issue. We note that the claimant asked about the certification process when she reported to the DOES office in Troy. Since the claimant read the pertinent sections in the Handbook, asked for advice at the DOES office, believed that she met the criteria under the section, “What if I do volunteer work?” while diligently looking for work, her weekly certifications that she did not work the previous week were accurate. There was no reason why she should have doubted the advice she received when read in conjunction with the Handbook. Thus, while the claimant could have called the TCC for advice, there was no apparent reason under these facts to do so. Accordingly, we conclude that the claimant did not make willful misrepresentations in order to receive benefits and that the 204 effective day forfeiture penalty shall not be imposed.

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

The initial determinations, holding the claimant ineligible to receive benefits, effective October 15, 2012, on the basis that the claimant was not totally unemployed; charging the claimant with an overpayment of $9,315 in benefits recoverable pursuant to Labor Law § 597 (4); and reducing the claimant's right to receive future benefits by 204 effective days on the basis that the claimant made willful misrepresentations to obtain benefits, are overruled.

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

COMMENTS

1.     This Appeal Board decision is consistent with the principles set forth in Unemployment Insurance Program Letter (UIPL) No. 16-12, “Payment of Unemployment Compensation to Individuals who are Volunteering” (April 19, 2012). The purpose of this UIPL is “to strongly encourage states to both promote volunteerism in their communities, and interpret state law to not disqualify individuals from receipt of Unemployment Compensation (UC) as a result of volunteer activities.

2.     This Appeal Board decision is consistent with the Appeal Board’s decision in AB 577,849. In that case the Appeal Board held that engaging in volunteer activities, while actively seeking work, does not mandate a finding of ineligibility due to a lack of total unemployment even when the volunteer services lead to employment with the same organization or when the organization reimburses the volunteer for expenses. It should be noted that the Appeal Board’s decision in AB 577,849 extends this principle beyond volunteering for charitable and civic purposes to work activities with for profit and not-for-profit employers as well as for individuals.

3.     While claimants who engage in volunteer activities may now be, based on this Appeal Board decision, be totally unemployed, there is still the possibility that they may not be available for work. “A claimant doing genuine volunteer work…who is willing to reschedule or drop the work should it conflict with regular employment, and who is free to make and is making a diligent effort to find employment is eligible for benefits” (Field Memo, 11-82 “Volunteer Work”). However, if the claimant refuses suitable employment in favor of the volunteer activities he/she is ineligible for benefits. If the claimant is not actively searching for work then he/she is not eligible for benefits.

4.     In the instant matter the claimant’s “pro bono” legal activities, which can be characterized as “genuine volunteer work,” did not interfere with her “diligent” efforts to find employment.