a710

Special Bulletin A-710 Series

Special Bulletin A-7lO-l0 (Revised)

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 The principles established by Appeal Board and court decisions under different provisions of the prior law are superseded by these new provisions which became effective on April 26, 1963.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:

1. No benefits shall be paid for any day of a paid vacation period or paid holiday.



2. "Vacation period" is defined as:
   
   
   1. The time so designated in a union agreement, employment contract, or by the employer and the claimant or his representative;
   
   
   
   2. Or, in the absence thereof, "the time so designated in writing and announced ... in advance by the employer."
   
   
   
3. A "paid" vacation period or a "paid" holiday requires that the payment is given not later than 30 days thereafter.



4. The payment must be made
   
   
   1. By the employer directly, or
   
   
   
   2. Through a fund or trustee provided the amount is:
   
   
   
   1. contributed solely by the employer,
   
   
   
   2. "on behalf of the claimant," and
   
   
   
   3. paid over to the claimant in full without deductions other than those required by law.
   
   
   
5. The foregoing applies



1. Even if the payment is remuneration for prior services rendered and as an accrued contractual right, and



2. Whether or not the employment has been terminated.



6. A plant shutdown for vacation purposes, with the consent of the claimant or his union, shall not of itself be considered as a withdrawal from the labor market on the claimant's part, nor render him unavailable for employment.

B. BASIC CHANGES

The core of the changes is as follows:

1. There need not be "substantially full employment" before and after the vacation period. As a matter of fact, pay for a vacation or holiday may render a claimant ineligible even if the employment has been terminated.



2. Vacation or holiday pay which is paid more than 30 days after the vacation period or holiday does not disqualify.



3. In addition to "direct" payments by the employer, vacation or holiday pay which is channeled through a fund or trustee may under some circumstances render the claimant ineligible. (It is expected that this change will only apply in a very limited number of instances because most payments through funds will not meet the conditions.)

C. SPECIFIC SITUATIONS

1. Designation as vacation; in advance -in writing




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

1. The period is specified by date for vacations in the union agreement or employment contract, or



2. The vacation period is designated by the employer and the claimant or his union or other representative



3. If there is no union agreement or employment contract, or if such agreement or contract does not fix the vacation period, the employer has designated and announced the vacation period in advance and in writing

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.

2. Vacation pay upon separation

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)

3. Retroactive vacation payment

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.

4. Vacation pay for less than vacation layoff

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)

5. Remuneration and weeks of employment

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.

6. Payments other than "directly by the employer"

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:

1. The employer contributes currently a percentage of his payroll without identifying specific amounts as being paid for individual employees. Distribution is made later on as vacation or holiday pay under a given formula. This is not a contribution by the employer "on behalf of the claimant."



2. Employers' payments to the fund or trustee are also used to cover the administration expenses of the fund or trustee. In such cases, the amounts paid by the employer are not "paid over in full."




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.

1. Time worked basis

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.

Illustration

1. Hourly Wage Rate:     $1.50
   Daily Working Hours:   8 hours
   Normal Work Week:      5 days
   Vacation Pay:        $80.00
   

$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.

2. If only one week's vacation is involved, a similar computation applies. Assuming the facts are as stated above, except that the vacation pay amounts to $28, the claimant would be considered as receiving vacation pay for three days (28 divided by 12 equals two and one-third). He could accumulate one effective day if otherwise eligible.



3. If wages are measured by the number of weeks or other periods worked, rather than by the number of hours or days, a day's pay can be calculated by dividing the regular wages for such period by the normal number of work days falling within the period.



2. Piece-work basis

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.

Illustration

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

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:

1. An offer of work to an individual by an employer with whom the worker has never had a contract of employment.

2. An offer of reemployment to an individual by a previous employer with whom the individual does not have a contract or employment at the time the offer is made, and

3. An offer by an individual's present employer of:
   1. different duties from those the individual has agreed to perform in the existing contract of employment; or

   2. different terms or conditions of employment from those in the existing contract.

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.

1. an offer of work by an employer with whom a worker has never had a contract of employment: if such an offer occurs while the claimant is in benefits the issue is Refusal of employment.
2. an offer of reemployment by a previous employer with whom a worker does not have a contract of employment at the time the offer is made: if such an offer occurs while the claimant is in benefits, the issue is Refusal of employment.
3. an offer by the present employer of either different duties or different terms and conditions: where such an offer is declined, and this causes the end of the employment, the Voluntary Quit is adjudicated under all the criteria used to evaluate a Refusal, and if the claimant would have been justified in refusing such an offer, the voluntary quit is with good cause.

The following are examples of offers of "new work" by the employer for whom an individual is working at the time of the offer:

• A worker employed as a carpenter is offered work as a carpenter's helper as an alternative to lay-off.

• A bookkeeper is transferred to a job as a typist.

• The hours of work of a factory worker employed for an 8-hour day are changed to 10 hours a day.

• A worker employed with substantial fringe benefits is informed that he will no longer receive such benefits.

• A worker employed at a wage of $9 an hour is informed that he will thereafter receive only $6 an hour.

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.

1. Was there a definite lay-off?

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.

2. Was there an indefinite lay-off?

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:

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:

1. the claimant raises the issue; or
2. the claimant objects on any grounds to the suitability of wages, hours or other offered conditions of new work; or
3. facts appear at any stage of the adjudication of the issue which identifies that the conditions of the new work may be substantially less favorable to the claimant than those prevailing for similar work in the locality.

Prevailing Wage 1/

Section 593.2 gave rise to the phrase "prevailing wage", and provides a monetary standard for evaluating employment offers.

1. Where the work offered is reasonably suited to the claimant's training and experience, the offer is suitable when it is made at the wage which prevails for similar work in the locality. Consideration of the wage which prevails for similar work in the locality requires a comparison of the wage on the job offered to the claimant, with the wage on the jobs in the locality similar to that offered to the claimant.
   • The fact that the job offered pays less than the claimant earned at his former employment does not necessarily justify claimant's refusing the position.
   • Similarly, claimant's refusing a job solely because it affords lesser opportunities for added earnings by way of overtime or bonuses than did the claimant's former employment, would not be justified.
   • Where different rates prevail for the occupation which is offered, depending on skill and experience, the offer, to be proper, must be at that rate which fits with the claimant's training and experience.

2. Where there is evidence that a job is offered at a wage which is such as to tend to depress wage standards, a refusal should not disqualify claimant.

Travel

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:

1. Up to one and one half hours by public transportation, or
2. Up to one hour by car.

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.

1. Under the law, it is the claimant's own training and experience which control in determining the suitability of the job offer.
   • A decision that an offer is or is not suitable must be based on a comparison of the job duties claimant's training and experience qualify him to perform with the duties called for by the job offered.
   • The fact that an employer is willing to hire the claimant is not enough by itself to make the job offer suitable.
   • The fact that the job requires so little specialized skill that almost anybody can fill it does not make the offer suitable for a claimant with specialized training at higher skills.

2. Where labor market conditions show no reasonable prospect for employment at the claimant's top skills, it is proper to offer a job utilizing the claimant's closest comparable or related skills.
• Benefits must not be denied on the basis of haphazard referrals of claimants; there must be assurance of a careful fitting of the claimant's training and experience with the requirements of the jobs that are open.
• Where there is evidence that the job offer is such as tends to depress wages or working conditions, a claimant's refusal would not be disqualifying.

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:

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".

• At the time of the offer of employment, had the claimant received fifty-two effective days of benefits in this benefit year?
• Is the claimant subject to a definite date of recall to work?
• Does the claimant obtain work through a union hiring hall?

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 phrase "capable of performing" should be construed in a simple plain-language manner. Consideration must be given to any physical or mental limitations a claimant may have.
A claimant's total lack of experience in a particular type of work would not, in and of itself, justify claimant's refusal.
• The fact that a claimant's acceptance of a job may cause a diminution of skills will not be a relevant consideration.
• In order for a disqualification to be justified, the offer must be for employment that would result in a quarterly wage not less than eighty percent of the claimant's high calendar quarter base period wages, and not substantially less than the wage prevailing for similar work in the locality.

SUMMARY

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.

1. To Establish Permanent Residence 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.

   1. Such claimant, in order to meet the test of availability, must show sincere, concerted and substantial efforts in search of work and a desire to accept obtainable work under employment conditions prevailing in the locality to which he moved.
   
   
   
   2. If there is no reasonable opportunity of obtaining employment for which he is fitted by training and experience, such claimant should be he1d unavailable for employment unless he is ready, willing, and able to perform other work, as similar as possible to his usual occupation for which reasonable employment opportunities exist in the area.
   
   
   
   3. If it becomes apparent that such claimant has no reasonable employment opportunities of any kind in the area under the aforestated principles, he should be he1d unavailable for employment.
   
   
   
2. To Establish Temporary Residence in Resort Areas



1. General

   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).

2. Repeated Residence Without Work History.

   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.

1. General

   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.

2. Lack of Transportation

   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.

3. Family Enterprise
   1. Investigation

      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.

   2. Corporate Officers and Other Continuing Employment

      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

1. Numerous benefit claims have been filed during recent weeks in several Local Offices throughout the State by individuals who lost their work at gambling establishments. Other such claims may be filed in the future. The following principle has been established and should be applied to such cases:

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".

2. A differentiation must be made between services which involve the performance of illegal acts, and services which do not involve illegal acts although rendered for a principal who is engaged in an illegal enterprise: The latter represent valid employment contracts. The principle here discussed applies, therefore, only if the activities of the claimant represented a violation of law. He must have participated in the activities which constitute the violation of law. Consequently, a waiter who waited on tables at a restaurant operated by the employer would be entitled to benefits, even though the restaurant may be in proximity to the place where the employer operates a gambling establishment. Similarly, a checkroom attendant or kitchen helper, who has nothing to do with the gambling activities, would be entitled to benefits.



3. Whenever a Local Office becomes aware of the fact, or has reason to believe that the employment and the earnings during the base year on which the right to benefits is based relate to work of an illegal nature as here described, a full investigation should be made. If the facts, as ascertained, show that illegal employment is involved, the Local Office should recalculate the claimant’s entitlement to benefits and his rate by excluding the employment and earnings in question, make a determination to this effect, and issue it to the claimant. This determination should be promptly reported to the U.I. Accounts Bureau.

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.

4. There is also always the question whether a claimant who was engaged in such illegal activities and who is seeking employment in the same or related fields, is available for employment within the meaning of the Law. A finding in this respect will be of importance if the claimant had other employment in his base year which did not involve illegal activities and which is sufficient to qualify him for benefits. Illegal employment which the claimant is seeking must be disregarded in establishing whether he meets the test of readiness and willingness to work.

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.

1. BASIC PENALY



1. General. Generally, the basic penalty is a forfeiture of
   
   4 effective days if no overpayment results from the offense; or
   
   8 effective days if an overpayment results front the offense.



2. Special circumstances. If the misrepresentation consists of



1. concealment of the identity of the last employer by a false answer to a question on a Division form or when specifically asked; or



2. alteration in the claimant's booklet of Insurance Office or Job Service reporting day, date, time or other official entry or the unauthorized insertion of a new or different date, day, time; or



3. false statements as to each of the specific independent job efforts, if the claimant did not make any of the alleged efforts during the period covered by the interview.

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.

3. Flagrant Fraud. If the misrepresentation consists of
   1. obtaining or attempting to obtain benefits fraudulently by arranging for or permitting an impostor to report for claimant to certify for benefits in claimant's name (A.B. 299,751; A-750-1895); or
   
   
   
   2. creating an "employed" status, contrived solely to enable claimant to be credited with sufficient weeks of employment and/or remuneration to
   
   
   
   1. file a valid original claim under the basic or alternative condition [Section 527.1(d) and (e) or Section 527.2] (A.B. 316,533A; A.B. 310,188; not reported); or
   
   
   
   2. terminate a prior disqualification (Matter of Goggin, 79 AD 2d 1057; A.B. 308,127A; not reported), or avoid disqualification.

   the penalty is a forfeiture of 80 effective days.

   3. For the single offense of quitting concealed employment during a continued claim, and when an additional claim was not filed, the penalties are
   
   
   
   1. 4 effective days for each false certification to total unemployment if no benefits were paid or 8 effective days if benefits were paid and
   
   
   
   2. an additional penalty of either 4 or 8 effective days for the week in which claimant quit the concealed employment, for a total of 12 effective days if no overpayment resulted, or 16 effective days if an overpayment resulted from the voluntary leaving. (A.B. 256,651; A-750-1849)

   Illustrations

   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:

   1. Wilful misrepresentation on February 3, February 10 and February 17 as to total unemployment in weeks ended February 1, February 8, and February 15, 1981. 24 effective days
   
   
   
   2. Wilful misrepresentation on February 24, 1981 as to total unemployment and concealment of voluntary quit in week ended February 22, 1981. 16 effective days

   Total penalty 40 effective days

2. DISTINCTION BETWEEN SEPARATE OFFENSES AND SINGLE OFFENSES



1. Differentiation

When imposing penalties for more than one false statement, it is necessary to distinguish between

1. cases in which false statement relates to different facts and, therefore, represents a "separate" offense for each period; and



2. cases of repetitions of false statements relating to the same facts where the several false statements constitute a "single" offense, although they concern certifications to different periods.

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.

2. Application

   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.

   1. Separate Offenses:
      1. A penalty of 8 effective days (Basic Penalty, IA) or 12 days (Special Circumstances, IB) applies to EACH false statement representing a separate offense if an overpayment results from the offense.
      
      
      
      2. A penalty of 4 or 8 effective days, respectively, applies to EACH such offense if no overpayment results.

      These penalties are cumulative.

      Illustrations

      1. A claimant who concealed employment or self-employment on three different occasions with respect to 3 different weeks, and was paid benefits for each week, will be penalized by the imposition of 24 effective days. If there are 11 such separate offenses, the penalty is 88 effective days. If no benefit payments were made, the penalty would be 12 and 44 effective days, respectively.

      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.

      2. A claimant failed to report to the Job Service on the date assigned to him by the local office. He then stamped that date in that part of his reporting book reserved for Job Service entries and assigned himself 21 additional dates to report to the Job Service, date stamping and writing initials next to each of these entries. Claimant committed 22 separate offenses, each an unauthorized addition to an official record, claimant's reporting book (Matter of Colello, 53 AD 2d 770.)

      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.

   2. Single Offense: Repetition of the Same False Statement Concerning One-Time Occurrence or Status

   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:

   1. The penalty is 4 effective days if no overpayment results from the offense.
   
   
   
   2. The penalty is 8 effective days if an overpayment of 8 or less effective days results from the offense.
   
   
   
   3. If an overpayment of more than 8 effective days results from the offense, the penalty is equal to the number of effective days for which benefits were overpaid, with a maximum of 80 effective days.
   
   
   

   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.

   Illustrations

   1. A claimant falsely asserted on numerous occasions of successive reporting that he was discharged because of lack of work. In truth, he quit voluntarily. No overpayment resulted from the offense.

   A penalty of 4 effective days applies.

   2. A claimant was questioned on the occasions of different certifications regarding dependent care. Each time the claimant stated that arrangements with a relative had been made. These statements were false. An overpayment of 16 effective days resulted from the offense.

   A penalty of 16 effective days applies.

   3. A claimant furnished false information on several occasions regarding the identity of his last employer. No overpayment resulted.

   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.

   4. While certifying for benefits, a claimant presented his reporting book in which he had altered his Job Service reporting date. On a subsequent summary of interview (LO 413) he denied altering the date.

   The penalty is calculated in the same manner as in illustration 3 above.

3. VOLUNTARY DISCLOSURE BY CLAIMANT

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.

4. DEVIATIONS FROM STANDARDS

   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.

5. STATUTE OF LIMITATIONS

   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-710-32 (Revised 1972)

PREVAILING WAGES

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."

1. THE PREVAILING WAGE RATE



1. Concentration of 40% or more of workers

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.

2. Weighted average of wages of the middle 50% of workers

   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.

2. SUBSTANTIALLY LESS FAVORABLE

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:

1. General

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.

2. Special Situations

   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.

3. PREVAILING WAGES IN UNUSUAL CASES

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.

1. Drill Sessions or Inactive Duty for Training - Also known as "unit training activity" in the case of the Air Force Reserves, these sessions are usually conducted on a monthly basis for a weekend. However, this type of training can also be performed on an individual basis, that is, without the entire "unit", and it need not occur only on weekends. It can take place in three, four or five day increments, at the unit's home location or at another military installation.

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.

2. Active Duty for Training – Reservists and members of the national guard must serve between 12 to 15 days of "active duty for training" each year. Unlike the training described in Section A this requires the issuance of formal orders at some command level. It is also distinguishable by the fact that the pay for such training includes all the extra entitlements that anyone on active duty would receive.

   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.

3. Active Duty – reservists and members of the national guard who are ordered to active duty, for example in a civil or military emergency, are not totally unemployed, nor are they available for work. Their service is to be treated in the same manner as that of claimants on active training duty in "B" above.

Special Bulletin A-710-39

SELF-EMPLOYMENT

1. The unemployment Insurance Law provides in Section 591 that benefits "shall be paid only to a claimant who is totally unemployed." Section 522 of the law defines total unemployment as "the total lack of employment on any day" and specifies that such employment includes "that not defined" in the Unemployment Insurance Law. This last mentioned specification has been interpreted by the Courts to mean that a self-employed claimant is not totally unemployed within the meaning of Section 522 of the law. This principle has been established by the Court in Matter of Emery (A-750-1207) and reiterated in Matter of Bunzl (A-750-1404). Following these Court decisions, it has been applied in rendering benefit determinations and in Appeal Board and Referee decisions. Thus, for the purposes of determining whether a claimant is totally unemployed, but for this purpose only, self-employment has the same significance as employment (as an employee) under a contract of hire.
2. Neither these Court decisions nor the law define what is meant by "self- employment." Does it include any gainful work which an individual performs while not in an employer-employee relationship, however casual and sporadic such activity might be, including one-time undertakings, or however minute the effort and time which he devotes to it? Or does it require that the characteristics be present which commonly identify the existence of a going business, such as a physical establishment, continuous operations, sustained solicitation of customers, etc.? Is it necessary that a person, to be "self-employed" in this sense performs work in connection with the business or does it suffice that he is an owner or co-owner?

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.

3. A person will be considered engaged in self-employment, rendering him ineligible for unemployment benefits while so engaged, if the following conditions exist:



1. There must be sustained operations of a business in an industry, trade profession, service occupation or other undertaking as distinguished from isolated, sporadic or occasional transactions.



2. The business must be operated for profit by the claimant as an individual or in partnership with others.



3. The claimant must perform work in such business on a continuous and regular basis.



4. Such work must be productive or consist of performing a normal business function as distinguished from incidental activities which are performed only to protect investments.



4. It will not always be easy to establish whether the above listed criteria are met. There will sometimes be doubt whether a given set of circumstances falls within their framework. To assure full understanding of the underlying thoughts, further explanation is needed.



1. The existence of a "sustained business" does not require that there be a physical establishment nor that there be a business listing in directories, registration as a business, or similar outward indications. Yet, if there are such indications, including the use of business cards, advertising, sign boards or other typical business devices, they would constitute ready evidence of the existence of a business enterprise.

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.

2. The business must be operated for profit. This does not mean that the business operations must actually have resulted in income. It suffices that they are conducted with a view towards profits. On the other hand, the accrual of occasional or incidental income from an undertaking which is not conducted for profit purposes would not suffice. An illustration my be the case of a "subsistence" farmer, that is, an individual who owns and cultivates land and maintains livestock for the use of his own household and not with the intent of selling the products. He would not be considered to be engaged in farming as a "business for profit" even though he may sell some surplus products from time to time.



3. A claimant, in order to be considered self-employed, must perform actual work in connection with the business. Mere ownership or co-ownership would not be enough. Such work must not be limited to occasional or sporadic participation in the conduct of the business. There must be regularity and continuity. Circumstances must be such that the claimant performs essential duties in a consistent manner. The amount of time he spends is of secondary significance. The test, therefore, is qualitative rather than quantitative.



4. The work performed must not be limited to activities designed to protect investments, or to incidental activities for the prime purpose of merely preserving that which normally flows from ownership. Thus, an owner of real estate would not be considered self-employed if his activities require only a small part of his time and are confined to matters such as collecting rents, ordering repairs, keeping books, making tax returns, etc. unless they acquire such proportion that he is, in fact, engaged in the business of managing real property.
5. It deserves reemphasis that independent work which a claimant performed but which does not place him into the class of "self-employment" will often be of such a nature that it renders him unavailable for employment within the meaning of the Unemployment Insurance Law for the periods during which he was engaged in such work. It is suggested that this issue be fully explored in such cases. A solution along these lines will in many instances obviate the need for reaching conclusions on the question of self-employment which is beset with many doubts in this type of situation. If a claimant is held to be "unavailable" for a given period, it is relatively unimportant whether there could be a second basis for his ineligibility on the ground that he lacks total unemployment because of self-employment.
6. The introductory paragraph of this memorandum explained the rationale which leads to the conclusion that a claimant who is engaged in self-employment is not totally unemployed. This rationale limits the impact to the statutory definition of total unemployment and does not carry over into another provisions of the law. Wherever the law speaks of "employment" outside of Section 522, self-employment is not included. Obviously, work in self-employment would not count towards the 20 weeks of employment requirement for entitlement purposes. Similarly, self-employment earnings do not count toward the earnings limit established by Section 523 of the Law which provides that a claimant my not accumulate effective days in a week in which he is paid "compensation" exceeding the specified amount. Compensation, under the language of Section 517 of the Unemployment Insurance Law, is "compensation for employment paid by an employer to his employee." Clearly, earnings in self-employment cannot be in this category.

Special Bulletin A-71O-42 (Revised 1978)

REMUNERATION AND WEEKS OF EMPLOYMENT

1. DEFINITIONS



1. Week 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.

2. Remuneration

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.

2. VACATION AND HOLIDAY PAY

Principles for the handling of cases involving paid and unpaid vacations or paid holidays are set forth in Special Bulletin A-710-1O.

1. No termination of employment

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.

2. Termination of employment

   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.

3. Payments other than directly by the employer

   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.

3. SICK LEAVE
   1. Payments under a plan for employees generally

      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.

   2. Payments not under a plan for employees generally

      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.

   3. The six month limit

      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.

4. RETIRED WORKERS

   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.

5. OTHER PAYMENTS
   1. A lump-sum payment at the conclusion of a fiscal period for services rendered represents compensation for the entire period and should be allocated accordingly. This principle is reflected in an Appeal Board decision involving a corporate stockholder. (A.B. 33,349-52; not reported in the Interpretation Service.)
   
   
   
   2. Dismissal pay

      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.

6. EFFECT ON "TOTAL UNEMPLOYMENT"

   Whenever any period, under the principles here outlined, represents a period of employment, the claimant is not totally unemployed in that period.

   
   
   
7. "WAGE CONTINUATION PLAN" (December 17, 1984 Addendum)

   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

1. Sections 600.1 through 600.6 became inoperative effective April 7, 1980 the date by which Federal Law (26 U.S.C. 3304(a)(15); Internal Revenue Code Federal Unemployment Tax Act required State Laws to provide for a reduction for retirement payments as a condition for full tax credit.



2. The reduction applies to any "pension, retirement or retired pay, annuity or other similar periodic payment" the claimant receives from a plan maintained or contributed to by a base period employer, provided the claimant's base period employment affected the claimant's eligibility for, or increased the amount of, the payment. A lump sum payment will reduce a benefit rate only if it is paid as a result of retirement or the claimant has the option of taking a lump sum or periodic payments effective the same time as the lump sum. Social Security and Railroad Retirement benefits do not result in a reduction because of the manner in which the claimant's contributions are taken into account in calculating the reduction. 2/




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.

3. It is no longer relevant that the payment results from disability or is paid through a fund.



4. If the payment is from a plan maintained or contributed to by any base period employer and if claimant's employment in the base period affected claimant's eligibility for or increased the amount or the payment, then all benefits received during the ensuing benefit year are reduced, even if they are chargeable to some base period employers who did not maintain or contribute to the plan.



5. The amount or the reduction is the pro-rated weekly amount in whole dollars (excluding cents) or the periodic payment after the claimant's contributions are taken into account as described in section B, below. The reduction is based solely on the employer's contribution.



6. Contingent benefit payments without reduction are provided while the right to the pension has not as yet been established, subject to review within six months following payment or the pension, with recovery or any resultant overpayment.

B. Method or Reduction

1. The amount or the benefit rate reduction is determined by the portion or the claimant's contribution to the fund from which payments are made. The claimant's contribution is that percentage remaining after measuring the employer. s contribution. The employer's contribution includes not only the value or cash payments and other transfers (e.g. securities and other property) made by the employer to the fund on behalf or the claimant, but also any non-funded benefits for which the employer is obligated to pay.



2. To calculate the amount or reduction the following guidelines apply:



1. If a claimant made no contribution to the plan, the benefit rate is to be reduced by 100% or the pension, retirement or retired pay annuity or other similar periodic payment.



2. If the claimant contributed less than 50% the benefit rate is to be reduced by 50% or the pro-rated weekly amount.



3. If the claimant contributed 50% or more, no reduction is to be made.

C. Specific Conditions

1. Lump sum payment: If a claimant retires, is retired or must apply for retirement in order to receive payment under the employer's plan, then the payment to claimant is retirement or retired pay. If such claimant receives a lump sum payment, the claimant's benefit rate is subject to reduction, even if there is no provision for a periodic payment. However, if a claimant becomes unemployed for reasons not related to retirement and does not have to "retire" to qualify for payment, then no reduction applies unless the claimant is eligible for a periodic payment to begin at the same time as the lump sum payment. The amount or reduction is based on the periodic equivalent or the lump sum amount the claimant received. If a periodic amount cannot be ascertained from the employer, it is calculated on an actuarial basis.



2. Deferment of Pension: If a claimant has deferred the effective date of periodic pension payments, no benefit rate reduction applies during the period of such deferment. The claimant is not entitled to receive pension benefits for that period. The above does not apply to a claimant who, in lieu of periodic pension payments, is to receive a lump sum, even if in installments, since the total benefits the claimant will receive remains the same. The claimant may not avoid a benefit rate reduction by deferring a lump sum payment or its installments. In such cases, paragraph C1 applies.

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:

1. If such pension is less than the benefit rate, the claimant will be eligible for a full benefit rate without reduction. (The claimant will then not receive any pension payment.)



2. If the reducible portion of such pension equals or exceeds the benefit rate, the rate is reduced to zero. (The claimant will then receive the full amount of the pension)

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

1. APPRENTICE TRAINING

   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:

   1. Claims for benefits by persons participating in apprentice training courses, other than on-the-job training, will be determined in accordance with Section 599 of the Unemployment Insurance Law to the maximum extent possible. (The general requirement that a claimant must be ready, willing and able to work is waived during attendance at a course approved under Section 599.)
   
   
   
   2. If Section 599 cannot be applied because its conditions are not met, participation in an apprentice training course, other than on-the-job training, will not render the apprentice ineligible for unemployment benefits if he is:

   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.

   3. Payments given to a trainee in consideration of his participation in a training course, other than an on-the-job training program, will not affect his benefit rights since, in such instances, there will be no contract of hire for the rendering of services so that such payments do not constitute "remuneration" within the meaning of the Unemployment Insurance Law.
   
   
   
2. PROSPECTIVE EMPLOYER TRAINING

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-710-49 (Revised)

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.

1. The new provisions



1. Arrest

The new provisions state that, except where required or permitted by other statutes, it is an unlawful discriminatory practice for an employer to:

1. Inquire on an employment application or otherwise, whether an individual has ever been arrested or accused of a crime, or



2. Discharge an employee because of an arrest or accusation, when such arrest or accusation terminated in favor of the accused.

(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


or


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.

2. Conviction

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:

1. There is a direct relationship between the offense and the employment; that is, the nature of the criminal conduct for which the employee was convicted has a direct bearing on his fitness or ability to perform any of the duties or responsibilities of the job, or

2. Continuing the employment would involve an unreasonable risk to property or to the safety or welfare of any person or the general public.

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.

3. Criminal charges pending

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.

2. Employers covered by the new provisions

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.

3. Application of the new provisions



1. False statements to employer
   1. Since it is generally unlawful to inquire whether a person has ever been arrested or accused of a crime, a false reply to such question generally is not misconduct under the unemployment insurance law. (Some exceptions where an employer may make such inquiry are given under IA).
   2. Since it is lawful to inquire whether a person has ever been convicted of a crime or has a criminal charge pending against him, a false reply to either question is misconduct under the unemployment insurance law, and a claimant who is discharged solely because of such false answer may be subject to the statutory disqualification.
   
   
   
2. Arrest which terminated in favor of accused

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.

3. Conviction

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.

4. Criminal charges pending

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.

4. 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.

5. Illustrations



1. An armed guard was discharged because of a false reply to a question on his employment application as to whether he had ever been arrested. It was discovered that he had once been arrested for felonious assault but the charges were dismissed. Guard agencies are permitted by law to ask such question. Misconduct disqualification applies.



2. Same facts as in 1 above except that claimant was an assembler in an auto parts factory. The employer is not permitted by law to ask such question. No disqualification.



3. A tester in an electronics plant falsified his employment application by showing incorrect dates in his work history in order to omit a period of employment which ended in discharge for theft. He had never been arrested or prosecuted. He was discharged because of the omission. Misconduct disqualification applies.



4. A brokerage clerk was discharged because it was discovered he had once been convicted of possession of marijuana. Although he had denied any prior arrests or convictions on his employment application, he was not discharged for such denial. Employer was unable to show justification for the discharge as described under IB above. No disqualification.



5. A presser in a sportswear factory was discharged because of a pending criminal charge of rape, not connected with his employment. Although the discharge was not unlawful, no disqualification applies.



6. A bookkeeper for a wholesale bakery was discharged when it was discovered she had been convicted of an embezzlement charge filed by a former employer. No employment application had been required by the bakery, but it was able to show justification for the discharge as described under IB above. No disqualification applies, since there was no misconduct in connection with claimant's employment at the bakery .



7. A supermarket cashier was discharged for attempting to leave the premises with a can of coffee for which she had not paid. No charges were pressed by the employer. Disqualification for misconduct applies.




(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.

Section 296.15

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:

1. there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought; or
2. the issuance of the license or the granting of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

Section 753

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:

1. The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.



2. The specific duties and responsibilities necessarily related to the license or employment sought.
3. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
4. The time which has elapsed since the occurrence of the criminal offense or offenses.



5. The age of the person at the time of occurrence of the criminal offense or offenses.
6. The seriousness of the offense or offenses.



7. Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.
8. The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.

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.

Section 754

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-710-53 (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

II. Educational Institutions

III. "Professional" and "Non-Professional" Employment

IV. Reasonable Assurance

V. Periods of Applicability

VI. Disregard of weeks and wages: (See also Per Diem Employees)

VII. Retroactive Payments of Benefits: Section 590.11 (See Procedure III 3504)

VIII. Additional Determinations:

IX. Summary:

1. Section 590.10 pertains to claimants employed in an instructional, research or principal administrative capacity by an institution of education or educational service agency.

2. Section 590.11 pertains to claimants employed in other than an instructional, research or principal administrative capacity by an educational institution or educational service agency.

3. In determining whether a claimant is subject to §590.10 or §590.11, the claimant's job duties are controlling.

4. During the period between academic years or terms the claimant must have reasonable assurance of employment in the same capacity (i.e. subject to §590.10 or §590.11) in the successive term as (s)he had in the preceding term to be subject to §590.10 or §590.11.

5. During an established and customary vacation period or holiday recess, the reasonable assurance may be in any capacity.

6. Reasonable assurance exists when an employer has expressed its intention to employ a claimant and will make a good faith effort to do so.

7. Section 590.10 applies to weeks commencing during the period between two academic years or terms, or during a similar period between regular but not successive years or terms when the claimant's contract calls therefor instead, or during an established and customary vacation period or holiday recess.

8. Section 590.11 applies to weeks commencing between successive academic years or terms, or during an established and customary vacation period or holiday recess.

9. The provisions of Sections 590.10 and 590.11 are effective the first Monday of the period between academic years or terms (or the first Monday of an established and customary vacation' period or holiday recess) or the first Monday following the giving of reasonable assurance, whichever is later. The provisions no longer apply as of the first day of the next academic year or term (or the resumption of class after the vacation recess).

10. A claimant subject to §590.10 or §590.11 may use any employment not described in the pertinent section of the law to establish entitlement to benefits.

11. A claimant subject to §590.11 may receive retroactive benefits if (s)he is not actually offered the opportunity to perform services for the educational institution.

12. In resolving issues arising under §590.10 and §590.11, local office personnel should be alert to other claims issues which may arise.