A-750-2152
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.
The revised determinations are overruled.
The claimant is allowed benefits with respect to the issues decided herein.
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).