Section 1400

It is axiomatic that unemployment insurance benefits are to be paid only to the unemployed. In setting forth public policy at the time of enactment of the Unemployment Insurance Law, the Legislature declared that the "public good and well-being of the wage earners of this state require the enactment of this measure for the compulsory setting aside of financial reserves for the benefit of persons unemployed through no fault of their own." (Labor Law, sec. 501)

The Law provides that "Benefits shall be paid only to a claimant who is totally unemployed..." (sub. sec. 591.1). Total unemployment is defined as the total lack of any employment on any day. The term 'employment' as used in this section means any employment including that not defined in this article." (sec. 522)

Accordingly, it is incumbent upon local offices, guided by Appeal Board and court precedents, to determine whether a particular claimant is engaged in "any employment."

The issue of total unemployment is often one of the most difficult facing claims personnel. A claimant who performs services for an employer under a contract of hire and receives remuneration therefor is clearly not "totally unemployed." However, local offices must often determine whether a claimant who performs some services, but receives no remuneration, or receives some remuneration but performs no services, or has chosen to temporarily suspend the activities of a self-employment enterprise or of a corporation in which (s)he is a principal, lacks total unemployment; and, if so, whether the claimant is continually employed or employed only during certain periods. This requires a careful examination of all the circumstances surrounding the claimant's "unemployment."

When interviewing claimants regarding total unemployment, claims personnel should consult the appropriate Fact-Finding Guidecards for a checklist of questions to be explored. Determinations should be made in accordance with the principles reported in this section of the Interpretation Service Index, and the policies set forth in relevant Special Bulletins (A-710 series) and Field Memoranda.

Index 1400
Total or Partial Unemployment

1410. General

Days of rest

A claimant is totally unemployed on Sundays, holidays and other days of rest scheduled by his employer, even if an employer-employee relationship exists on such days, provided he does not work on such days and they are not days of paid vacation or other paid leave. (Administrative Interpretation 7-1, 12 NYCRR 490.5)

Leave of absence

A State employee, in the same manner as any other employee, is totally unemployed (Section 522) when on an unpaid leave or absence. (Ref. 545-150-53R; A-750-1218)

Statutory limit on earnings

A claimant who deliberately foregoes the opportunity of earning additional wages during the balance of his last day of employment to keep within the statutory limitation for partial unemployment benefits, places himself without the scope or the provisions authorizing the payment of partial benefits and hence renders himself ineligible for benefits in that week. (A.B. 73,779-60; A-750-1527; similarly, A.B. 94,506-62)

Vacation pay is not considered in determining the statutory limitation for partial unemployment benefits (Section 523). (This principle also applies to holiday pay). (A.B. 107,744; A-750-1603)

Where, pursuant to the collective bargaining agreement governing the industry, claimants receive stamps representing six per cent of their wages, redeemable in cash from the union vacation pay fund, such stamps represent vacation pay and cannot be used in determining the statutory limitation for partial unemployment benefits. (A.B. 124,517; A-750-1646).

Excluded employment

In determining "effective days" under Section 523 of the Law, all employment must be considered, including that not covered by the New York State Unemployment Insurance Law, such as railroad work. (A.B. 61,220-57; A-750-1469)

Alleged Identity Theft

A claim of identity theft cannot be accepted in the absence of persuasive evidence.(A-750-2146)

1415. Assistant of employee

Claimant who assisted wife in the performance of her duties as superintendent for which the couple received $10 to $20 per month and the use of an apartment valued at $35 per month, such claimant was not totally unemployed; for under the ruling in Appeal Board Case 148-38, claimant assisting wife in performance of her duties as superintendent with knowledge of employer was employed by employer and thus not totally unemployed. (Ref. Dec. 576-6-39R)

Where claimant and his wife undertook janitorial duties in connection with a fifteen family apartment building at a compensation of $40 per month plus a three-room apartment, with the understanding that such duties were not to interfere with the husband's employability elsewhere, claimant was held to be totally unemployed since the janitorial services were rendered almost exclusively by his wife, except for not in excess of one hour of work a day which did or would not interfere with other employment. (The Board held that the wife was the employee and the husband's work was the result of the family relationship) (A.B. 15,260-47; A-750-818).

1420. Self-employment

(For Availability see Index 775 and Special Bulletin A-710-39)

Substantial activity in preparing for commencement of business may indicate not only unavailability but also lack of total unemployment, even though the venture is abandoned before it becomes operative. (A.B. 148,052; A-750-1708; see Comments)

A claimant is engaged in self-employment and therefore ineligible for benefits because he is not totally unemployed within the meaning of that term as defined by Section 522 of the Law when he devotes substantial time to a business in which he has a proprietary interest. (Matter of Emery, 281 App. Div. 2d 426; A-750-1207; see comments)

A claimant who works in his own business (3 to 4 hours on each of 3 to 4 nights weekly) is self-employed and therefore not totally unemployed, and it is irrelevant that this work in his own business does not interfere with his seeking or accepting full-time employment for wages. (Matter of Schreiber, 5 A.D. 2d 745; A-750-1471)

A claimant who, while employed, had acquired an interest in a business venture involving a nominal investment and a negligible amount of his time and who could accept regular full-time employment in his usual occupation without prejudicing his interest in the venture, was totally unemployed and available for employment. (A.B. 615-39)

The ownership of income-producing real estate did not necessarily constitute self-employment, and a person who was in fact available for regular employment such as he had in the past, received benefits although he devoted some time to preservation of his investments. (A.B. 1827-39; A-750-68)

A claimant who rents some rooms in her home is not engaged in the rooming house business and, therefore, not engaged in self-employment when, in connection therewith, she only performs the normal household duties of any housewife who is gainfully employed during the daytime. (A.B. 38,226-53; A-750-1213)

Where the operation of a rooming house is for the purpose of gaining a livelihood rather than being a mere subordinate addition to claimant's household, such activity renders claimant self-employed and, therefore, not totally unemployed. (A.B. 45,299-54; A-750-1327)

A claimant who owns and devotes substantial time to the operations of his farm on a continuous basis is self-employed and therefore not totally unemployed at all times, even though he has periods of full time employment elsewhere. (A.B. 305,280; A-750-1900)

Claimant is not totally unemployed when he assumes full responsibility for the operation of his farm (250 acres; about 40 cows) and devotes thereto a substantial portion of his time (four or five hours daily). (A.B. UCFE-243-58; A-750-1492)

Claimant, a full-time factory worker, who during hours when not so employed performs occasional work as a beautician at home by appointments, is self-employed but only on those specific days when actually engaged in such work. (A.B. 67,996-59; A-750-1513)

Claimant, a freelance business consultant, who advertised in a trade publication, maintained an office and storage space, and had a telephone answering service with a listing in the telephone directory, was not totally unemployed notwithstanding that the business was merely a sideline while regularly employed, was sporadic, involved limited investment and was not remunerative during the period for which benefits were claimed. (Matter of Carasso; 23 A.D. 2d 935; A-750-1638)

Claimant who is self-employed in a substantial continuous business, (mason contractor) is not totally unemployed during a slack period when no active operations are performed and during which time he continued to promote the interest of his business. (Operations ceased during the winter months because of inclement weather and claimant sought but was unable to procure inside jobs.) (A.B. 81,513-61; A-750-1558; similarly. A.B. 90,819-62; A.B. 119,728)

A claimant who devotes evening hours to running a gift shop is self-employed and ineligible for benefits because of lack of total unemployment. (A.B. 44,313)

A claimant may be totally unemployed despite assisting his/her spouse, a Family Care Provider, by sharing in domestic chores and lending a helping hand to the residents in their home as a matter of common courtesy. (A.B. 405,115; A-750-2037)

Although exploring the possibility of opening a business, a claimant is totally unemployed provided there is no financial commitment to the business venture nor is substantial time or effort devoted to preparing for it. (A.B. 423,599; A-750-2064)

A claimant lacks total unemployment during the period he/she is performing substantial activities, including efforts to obtain the licenses necessary to establish a business and committing money to the venture. (A.B. 413,557; A-750-2065)

A claimant who is actively engaged in operating a website business offering merchandise for sale lacks total unemployment on a continuous basis. (A.B. 509,531; A-750-2117)

Although a claimant had a potentially functioning website and anticipated claiming deductions for business expenses on her tax return, she was held to be totally unemployed because she was performing no services, was not entertaining customer inquiries through the website, and was not receiving new assignments. (A.B. 547883; A-750-2137)

1430. Corporate officers

An officer and stockholder of a corporation who renders appreciable services is not totally unemployed, even though, because of economic reasons, no salary is drawn. (A.B. 53,995-56; A-750-1419)

A corporate officer-stockholder is not totally unemployed during a slack period when operations are not fully suspended and the work is arbitrarily allocated to another employee. (Matter of DeVivo. 51 AD 2d 619; A-750-1837)

A salaried officer who reported daily during period of negotiation to terminate his stock interest in corporation was neither totally unemployed nor available for employment until negotiations were completed and he resigned his office. (A.B. 776-.39)

Nominal officer of corporation, not owning stock therein and performing only manual work therefor, was found totally unemployed and available during slack periods where the evidence established that during the slack periods he received no wages from the corporation and was ready, willing and able to take other work. (A.B. 9672-43, A.B. 9675-43; A-750-558)

A claimant devoting one hour per day to a real estate brokerage in which (s)he is a corporate officer is not totally unemployed even though there were no sales. (Matter of Huller. 50 A.D. 2d 1005)

A corporate officer who solicits business for the firm during the off season is not totally unemployed. (Matter of Perry. A.D. 77-27, Jan. 27, 1977, not officially reported.)

An officer and principal stockholder performing the activities necessary to maintain a business while operations are temporarily suspended due to fire. is not totally unemployed. (A.B. 388,138; A-750-1995)

A corporate officer is not totally unemployed when the business of the corporation is seasonally closed if the corporation has not ceased to exist and the business is expected to reopen for the upcoming season. (A.B. 393,056; A-750-2016)

When a business entity is no longer viable having given up the business premises, having liquidated the inventory, and having no accounts receivable, claimant's limited and sporadic activities to pay the accounts payable do not render the claimant ineligible due to lack of total unemployment. (A.B. 424,288; A-750-2068).

1440. Work on commission basis

Where amounts received as commissions were entirely exhausted for meeting expenses, claimant was still not deemed totally unemployed. (A.B. 77-38)

Where the contract of employment continued, commission salesman was not totally unemployed in a period during which he did no canvassing and earned no commissions. (A.B. 762-39)

Claimant, continuously employed as a commission salesman was not totally unemployed irrespective of the amount of commissions earned during any particular period of title. (Matter of Katz, 268 App. Div. 1075; A-750-611)

A real estate salesman is employed (as differentiated from self-employment) and, therefore, not totally unemployed where an employer-employee relationship exists as evidenced by "leads" being given, by a requirement of regularity with respect to hours devoted to obtaining business, and by compliance with rules established by employer in the conduct of business; commissions earned are allocable to the entire period of employment. (A.B. 27,111-51; A-750-1127)

Where claimant performed no services but received commissions on orders obtained prior to termination of employment, he was totally unemployed. (A.B. 7,658-42; A-750-378)

1450. Work without pay

Claimant who was actually available for employment was totally unemployed within the meaning of the Law although he rendered occasional and gratuitous services to his brother. (A.B. 1862-39; A-750-70)

A claimant who renders substantial services (devoting several hours almost every day and all day Saturday) assisting in the operation of a business owned by the spouse is not totally unemployed even though no pay is received therefor. (A.B. 146.813; A-750-1705)

An officer and stockholder of a corporation who renders appreciable services is not totally unemployed. even though, because of economic reasons, no salary is drawn. (A.B. 53,995-56; A-750-1419)

A claimant who throughout the year is active in the management of a seasonal, corporate family enterprise is not totally unemployed during periods when the business is closed, even though he is neither an officer nor stockholder and receives no remuneration during the slow periods. (Matter of Deutsch; 33 A.D. 2d 579; A-750-1718)

1460. Payments without work

Vacation pay

(See also Special Bulletin A-710-10)

Where a vacation agreement calls for a specific two week plant shut down and provides that all vacations shall begin on the first Monday, a paid vacation for one week must be allocated to the first week. (A.B. 79,941-61; A-750-1552)

The first week in July is held to be the time designated for vacation by a union agreement when it not only prescribes that the first week vacation pay each year shall be paid during the first week in July, but also provides that an employee may request, before the July vacation period, a one week's leave of absence without pay, which shall be granted either one week before or after the vacation (Matter of Friedman, 27 A.D. 2d 473; A-750-1674)

Where the employer, prior to a vacation shutdown which was posted at the plant while the claimant was on temporary layoff, sent the claimant his vacation check whose stub showed the period of the vacation, the statutory requirement of designation in writing and announcement in advance is met. (A.B. 112,250; A-750-1613)

Advance oral notification of plant shutdown for vacation. even though not in writing. to which claimants or their representatives have acquiesced. satisfies the requirement of Section 591.3 (b) so that claimant was ineligible because of paid vacation.. (A.B. 100,658; A-750-1596)

A specific agreement between the employer and an employee on the time for vacation, although not in writing, satisfies one of the conditions of Section 591.3 so that there may be a "vacation period" during which a claimant is ineligible for benefits. (A.B. 68,256-59; A-750-1505; similarly A.B. 128,171)

A claimant is ineligible for benefits for a properly designated paid vacation period, or paid holiday, even though his employment was terminated prior thereto. (A.B. 160,995; A.B. 161,000; A-750-1730)

Lump-sum "terminal leave" payments to a Federal civilian employee, even if given with reference being made to a specific period of time following separation, do not represent the designation of such time as a "paid vacation period" within the meaning of Section 591.3 (A.B. UCFE-1196; A-750-1604) (But see A-750-1608)

The employer's allocation of vacation pay to a period following termination of employment is insufficient to establish a paid vacation period within the meaning of Section 591.3 when a specific time for vacation was neither agreed upon nor designated by advance announcement to the employee. (A.B. 105,581; A-750-1606)

A statement (in the Employer's Manual) informing the workers that, in the event of separation from employment, "you are paid any unused earned vacation credit" is not the designation of a vacation period as required by Section 591.3 of the Unemployment Insurance Law. (A.B. 132,006; A-750-1659)

If the period for vacation had not previously been designated for a claimant, an accrued vacation payment made by the employer upon discharge is severance pay and, therefore, in such instance, a period following the discharge cannot be a "paid vacation period" within the meaning of Section 591.3 of the Law. (Matter of Faccio. 31 N.Y. 2d 702; aff'g 37 A.D. 2d 633; and A.B. 165,431A; A-750-1744) (Note: Such vacation money is "remuneration" for determining benefit rate. See Special Bulletin A-710-42)

The time designated as a vacation period by letter to a laid-off employee enclosing a check for same, is not a paid vacation period within the meaning of the Law, when the collective bargaining agreement does not provide for any means of designating a vacation period other than bidding by the employee for a specific time, and claimant had not done so. (A.B. 216.724; A-750-1808)

A claimant is ineligible for benefits during a properly designated vacation period even though complete payment for such period is made in advance and no additional compensation will be received at the time of the vacation period. (A.B. 331,000; A-750-1924)

When an employer's regulations or by-laws contain a formula for denoting the period to which accumulated vacation time is to be allocated, such period constitutes a designated vacation period. A claimant is ineligible for benefits during such a period although it occurs after the employment relationship has ended. even if the claimant had worked for another employer in the interim. (A.B. 328,242; A-750-1926)

A provision in an employer's manual providing for the lump sum payment of accrued vacation upon an employee's termination and the allocation of the payment to the period following the last day of employment is not a designation of a paid vacation period within the meaning of Section 591.3 of the Unemployment Insurance Law. (A.B. 352,269A; A-750-1951)

Where a collective bargaining agreement provides that each employee may elect, as a vacation period either the annual plant shutdown or another period of the individual's own choosing, and a claimant on layoff status is not offered the opportunity to make such choice, the claimant's receipt of vacation pay for the period of the plant shutdown is not a designation of paid vacation period within the meaning of Section 591.3 of the Unemployment Insurance Law. (A.B. 354,517A; A-750-1958)

When an agreement negotiated between the employer and the claimant's union assigns the payment of vacation pay to a specific period following the last day of work, that time is a designated vacation period within the meaning of Section 591.3(b) of the Labor Law. It is not significant that the agreement was made in settlement of disciplinary proceedings seeking claimant's discharge. This is distinguished from situations where the employer unilaterally seeks to allocate the accrued vacation credits to the period following the claimant's last day of work. (A.B. 402,926; A-750-2035)

Holiday pay

Holiday pay is not considered in determining the statutory limitation for partial unemployment benefits (Section 523)

(a) If a claimant, pursuant to a union agreement, receives pay for a holiday such as New Year's Day, that day is the "paid holiday" for the purposes of Section 591.3 of the Law, even though it falls on a Sunday and the next day thereafter is then the "public holiday" under the General Construction Law. (A.B. 136,551)
(b) However, if the union agreement requires that designated holidays are to be "observed" and the plant is accordingly closed on another day, the latter day is the "paid holiday" for the purposes of Section 591.3. (A.B. 156,164) (A-750-1672; Revised)
Employees who merely receive a specified sum above their normal hourly rate of pay for each hour of actual work during a holiday week are not paid for the holiday and, therefore, such a day is not a "paid holiday" within the meaning of Section 591.3 of the Law. (A.B. 115,194A; A-750-1619)

A Federal employee (UCFE) is not totally unemployed on days for which he receives holiday pay even though such days follow the date on which the federal services of the claimant terminated. (A.B. UCFE-1533; A-750-1634)

Payment for a holiday is considered to have been made within the 30 days required by Section 591.3 (c) in order to constitute a "paid holiday" even though not collected by the claimant within that period. if the employer was prepared and ready to make the payment within the 30 days had the claimant called for it as was customarily done by the employees. (A.B. 140,622; A-750-1685)

A paid holiday falling within a "paid vacation period" (Sec. 591.3) does not extend such vacation period. (Ref. 45-78-67; A-750-1692)

A claimant is ineligible for benefits for a properly designated paid vacation period, or paid holiday, even though his employment was terminated prior thereto. (A.B. 160,995 A.B. 161,000; A-750-1730,)

Separation-related payments

Claimant is totally unemployed following discharge although he is kept on the payroll as a bookkeeping device to receive payments in the nature of separation wages. (Ref. 510-633-54R; A-750-1342; similarly, A.B. 185,661)

If a claimant is discharged, with the effective date of the discharge set in the future, the employer-employee relationship continues and the claimant is not totally unemployed during the intervening period for which wage payments and fringe benefits continue, even though he is not obligated to render any services in that period. (A.B. 183,096; A-750-1765; similarly, A.B. 318,345).

State employee carried on the payroll in order to liquidate accumulated leave time (annual, personal and overtime) is not totally unemployed during such period. (Ref. 3-7-65; A-750-1635)

If a federal employee is on terminal leave status but the federal agency finds that he is not separated from federal service until such leave is liquidated, he is not totally unemployed and, therefore, not eligible for benefits during the period of such terminal leave. (Such terminal leave represents accumulated annual, personal and overtime leave) (A.B. UCFE-1178; A-750-1608)

An employee of the City of New York is not totally unemployed during the period prior to the effective date of retirement in which he is kept on the payroll to liquidate annual leave and terminal leave credits. (Matter of Berger, 41 N.Y. 2d 1065; A-750-1831)

An employee of the City of New York who receives a lump sum payment for accumulated annual leave prior to the effective date of retirement, is not totally unemployed for the duration of the accumulated time. (A.B. 269,775)

If a claimant’s employment is terminated by the employer, but pays the claimant until the effective date of the termination which is set at a future date, the employer-employee relationship continues in effect to the effective date of the separation, which is considered to be the last day of employment. (A.B. 581,056; A-750-2154)

The fact that the claimant signed a separation agreement purporting to waive any claims against the employer that can be waive, does not preclude a finding that the payment upon separation constitutes dismissal pay, provided that there is no evidence of any existing lawsuit or potential lawsuit that the claimant agreed not to pursue under the terms of the agreement and in exchange for the severance amount paid to him or her. (A.B. 580,782; A-750-2155)

When determining whether an initial payment of dismissal pay is made more than thirty days from the last day of the claimant’s employment, the payment will be considered to have been made on the check date or the date the delivery was attempted. (A.B. 580,740; A-750-2156)

If a claimant receives a payment which includes both dismissal pay and a stay bonus and there is no indication how much of the payment is allocated to each, then the entire amount should be considered dismissal pay when determining eligibility for benefits (A.B. 579,726; A-750-2157)

Back pay awards
1. Total unemployment did not exist during the period for which "back pay" awards were made by the National Labor Relations Board. (A.B. 6435-41; A-750-304; similarly, Matter of Skutnick, 268 App. Div. 357)
2. Claimants retroactively reinstated to employment with full pay following arbitration are not totally unemployed for the period of the arbitrator's award. (Matter of Stewart. 279 App. Div. 500)
3. "Total unemployment" did not exist for a period covered by a settlement on an arbitration of a claim of wrongful discharge regardless of the fact that the agreement provided for a waiver of reinstatement; a contention that such monies, under the circumstances, were a dismissal payment was not accepted. (A.B. 41,516-53; A-750-1254)
4. An award in settlement of a claim for wages lost because of wrongful discharge, which takes into account the amount of unemployment insurance benefits received by the claimant during the period, does not affect his rights to such benefits. (Matter of Cohen, 44 A.D. 2d 286; A-750-1772)
5. When claimant, after discharge by the employer, is reinstated by order of an arbitrator with an award for lost time but such award does not correspond to the full amount of wages for the period between discharge and reinstatement, claimant is considered not "totally unemployed" for only such length of his unemployment after the discharge which is represented by the amount of the award as measured by his customary wage rate with the employer. (A.B. 31,113-52; A-750-1125)
6. When claimant, separated from his employment, subsequently receives a back pay award which is not equal to all of his lost wages for the period of his unemployment, he is not totally unemployed for that part of the period of unemployment, commencing immediately after the separation which is represented by the number of weeks for which he received back pay. The number of weeks to which the award is allocated is determined by dividing the award by the claimant's average weekly wage. (A.B. 278,823; A-750-1888)
7. A claimant is not totally unemployed for the period covered by a back pay award (retroactive payment of remuneration) despite an agreement between the claimant and the employer to have the employer use part or all of the award to repay unemployment benefits received for the period covered by the award. If the amount used to repay the unemployment benefits is insufficient to repay fully the overpayment resulting from the back pay award, the claimant is obligated to complete repayment of the balance. (A.B. 339,118; A-750-1935)
Guaranteed wage plans

If a claimant, under a plan guaranteeing 2,000 hours of work per annum, receives from the employer payments covering a period in which no actual work is performed, the claimant is considered on a paid leave of absence and not totally unemployed during such period. (A.B. 44,916-54; A-750-1331)

Claimants receiving payments from an employer under a guaranteed work plan which provides that they "will be paid for 70 hours" for each month in which they perform no work, such 70 hours representing the equivalent of two 35-hour weeks of work, are not totally unemployed during periods covered by the payments but are credited with two statutory weeks of total unemployment during each such month. (A.B. 25,713-50; A-750-1080)

Where claimant, under an agreement between his employer and his union, received fifty per cent of his regular weekly salary during weeks for which no work was available to him from his employer, such payments constituted remuneration and claimant was not totally unemployed during these weeks. (Claimant was prohibited from working for any other employer during these slack periods) (A.B. 8808-43; A-750-447)

A claimant is totally unemployed even though he receives weekly payments during a lay-off in consideration for a promise to return to the job when needed by the employer, provided he is not required to render any services and is free to seek other employment during such period. (The payments were about 25% of claimant's weekly earnings). (A.B. 60,159-57; A-750-1462)

Employment contracts

Professional athletes hired on an annual basis for an annual salary are not totally unemployed within the meaning of the Law during the off season although not actually engaged in any activities for the employer. The fact that the employer may elect to permit them to be absent from active duty during all or part of the off season, or does not object to their doing other work at such times, does not alter their legal status as employed, for they must hold themselves in readiness and are paid therefor. (Matter of Bell, 284 App. Div. 635; A-750-1178 rev; similarly, Matter of Kaftan, 283 App. Div. 759)

A professional or non-professional full-time employee of an educational institution, compensated on an annual basis, is not totally unemployed throughout the year, including the summer months and all other recess periods. (Matter of Jacobs. No.77-194. App. Div., 3rd Dep't., July 12, 1977, not reported; Matter of Shafonda. No.77-216. App. Div., 3rd Dept., Aug. 4, 1977, not reported; A-750-1844)

An instructional employee and a non-instructional employee, both on annual salaries, were not totally unemployed during the summer recess even though their salaries were paid in a ten-month period. (A.B. 277,272; 278,084)

Non-instructional employees were permanent civil service employees, becoming such on the effective date of their appointments and remain such until 'they leave 'the civil service by resignation, retirement, discharge, abolition of position or death, existence or absence of an annual contract or collective bargaining agreement is irrelevant and immaterial. The Civil Service Law establishes their status as permanent employees and no contract can alter or eliminate such status. (A.B. 281,591)

A part-time college instructor whose employment contract specifies the dates of teaching sessions and the compensation therefor. is employed on such days and any other days on which he performs substantial services in connection therewith. such as preparing for the lecture or counseling students. but is totally unemployed on all other days during the contract period. (A.B. 217,480; A-750-1820)

A teacher with an employment contract covering twelve months, who chooses to spend the year on sabbatical leave at half pay, is not totally unemployed throughout the twelve months, even though he selects the option of receiving full pay for the first six months and none thereafter. (A.B. 270,852; A-750-1863)

A teacher, excessed at or before the end of the school year, is totally unemployed during the subsequent summer recess, only when the employment contract does not set forth a specified period of employment at a specified salary for such period. (A.B. 304,493A; A-750-1903)

Teachers who are permanent state civil service employees and employed on an annual basis, are paid under an annual contract pursuant to Section 136.2 of the Civil Service Law and are not totally unemployed during the summer recess. That they are not required to render services for the employer during the summer recess or that their total salary is paid during the ten- month school year is immaterial. (A.B. 318,409A; A-750-1906)

Other employer payments

The week in which a filmed television commercial is used or reused, or the week in which payment therefor is made, and which follows the week of the actual filming is not a week of employment as defined by Section 524 of the Law, and the receipt of payments for such use and re-use does not render the claimant employed in such week. (A.B. 61,788-57; A-750-1474; similarly, Matter of Price, 9 A.D. 2d 561)

Fur dressers, who work as a group under a rotation system, such system having been established for an equal distribution of work in the employer's shop, are totally unemployed on days when they are not actually working, even though they receive a proportionate share of the total earnings of the entire group on such days. (A.B. 42,227-53; A-750-1302)

A claimant who does not render actual services is totally unemployed although he receives "shape-up" or "stand-by" pay for reporting or standing by at the employer's premises for possible work assignment. (A.B. 78,848-61; A-750-1543; similarly, A.B. 133,760)

A construction worker was totally unemployed although he was paid for travel time to a job site, when he was not put to work. (A.B. 273,296)

A claimant is totally unemployed even though he receives weekly payments during a lay-off in consideration for a promise to return to the job when needed by the employer, provided he is not required to render any services and is free to seek other employment during such period. (The payments were about 25% of claimant's weekly earnings.) (A.B. 60,159-57; A-750-1462)

Where claimant, under an agreement between his employer and his union, received fifty per cent of his regular weekly salary during weeks for which no work was available to him from his employer, such payments constituted remuneration and claimant was not totally unemployed during these weeks. (Claimant was prohibited from working for any other employer during these slack periods.) (A.B. 8808-43; A-750-447)

A claimant is totally unemployed despite the receipt of fully paid sick leave pursuant to an employer plan, since such weeks of sick leave would not be considered remuneration or weeks of employment for the purpose of establishing claimant's future entitlement. (Matter of Mark Rappaport, 144 AD 2d 141; A-750-1997)

Strike and other union benefits

The receipt of strike benefits from a union fund does not render a claimant ineligible for benefits when the payments are not contingent upon the rendition of services during the strike. (A.B. 72,802-60 et al; A-750-1516 (See Adm. Interpretation No.2, 12 NYCRR 490.2)

1470. Volunteer Activities

Engaging in volunteer activities, while actively seeking work, does not mandate a finding of ineligibility due to lack of total unemployment even when the volunteer services lead to employment with the same organization or when the organization reimburses the volunteer for expenses. This decision conflicts with prior decisions on this issue. The Appeal Board will not follow those prior decisions. (A.B. 577,489 ; A-750-2152
A claimant, who is an attorney, does not necessarily lack total unemployment or is unavailable for work, while performing pro bono legal services. (A.B. 577,763; A-750-2153

1480. Miscellaneous activities

Public officials

A public official should be held employed on a continuous basis only if such fact is unequivocally established and if it is not possible to assign his services to specific days or other periods. (Unemployment Insurance Division policy)

Services rendered on the local school board, with duties confined to thirteen evenings during the year, for which an annual stipend is paid, was not employment of a continuous nature and claimant, therefore, was employed only with respect to the actual evenings worked. (A.B. 26,805-51; A-750-1065)

Services rendered as an appointed village tax assessor at a salary of $500 per annum with an understanding that duties are to be performed within a set four months' period, is not employment of a continuous nature during the entire year and claimant, therefore, is not "employed" by the village outside the four months' period. (A.B. 29,690-51; A-750-1099)

A village trustee, receiving $100 per annum for performance of duties by attending meetings of the Village Board, is employed only on those occasions when he actually attends meetings since it did not appear that he was performing services from day to day of a continuous nature. (AB 47,365-54; A-750-1338)

An elected member of the Town Board and justice of the peace, who receives an annual salary of $850 but whose services are not of a continuing nature, is ineligible for benefits because of "employment" only on those specific days when he attended meetings of the Town Board or performed functions as justice of the peace. (A.B. 48,967-55; A-750-1376)

Chief of police receiving $10 per month for expenses was totally unemployed where his position as chief of police did not interfere with regular full-time employment. (A.B. 19-38)

A city commissioner of safety, on call 24 hours a day, is continuously employed and ineligible for benefits. (A.B. 245,496)

Officials of organizations (union and other)

An elected member of a grievance committee of a maritime union, whose duties involved traveling to various piers and the holding of hearings for which he received as reimbursement for expenses, such as transportation cost and meals, an amount of $6 per day, which corresponded to that paid by employers in the industry to union members on travel status, was held to be totally unemployed since the services rendered were solely in the furtherance of membership interest and no remuneration was paid. (Claimant's availability for employment had been conceded under the circumstances of the case.) (A.B. 25,230-50; A-750-1020)

Union officials, performing during working hours specific duties on behalf of their union for which they are compensated by the union on an hourly basis, and during such time do not receive wages from the employer, are employees of the union; and such employment, and the compensation therefrom, are considered in determining their base period employment and earnings. (A.B. 47,579-54; A-750-1356).

Military service

(For availability see Index 730)

A member of the National Guard who receives $4.16 for drilling one evening a week is totally unemployed within the meaning of the Law on such day. (Ref. 22-16-52R; A-750-1098)

Obsolete as per A-710-36

Members of the Reserve Component of the Armed Forces of the United States are totally unemployed while engaging in weekly drill sessions. Participation in and pay received for such drills are neither employment nor remuneration, and may not be used to terminate a disqualification. (A.B. 344.489; A.B. 344,490; A-750-1949)

Clients of social service agencies

Services rendered to the Salvation Army as a "client" (reconditioning furniture for resale) in return for room and board and small grants totaling not more than $3.35 per week did not come within the definition of employment as defined in Section 511 and 522 since the payments made to the claimant were merely assistance during a period of need as distinguished from wages for employment, the services rendered were incidental to such relief, and the claimant could have left any time to accept employment. (A.B. 20,543-49; A-750-897)

Other

Claimant, a musician and organist, was not totally unemployed on the days she performed services as a church organist since she received wages for her services at the rate of $7.00 to $10.00 per day under a contract of hire. (A.B. 11,422-44; A-750-633)

Where claimant received $750 annually at the rate of $62.50 each month from a theatre society for handling mail ticket applications, publicity, etc., for stage plays which came to her community each year, such work being performed at her home, held not totally unemployed only with respect to those days when she actually performed service. (A.B. 25,335-50; A-750-1019)

Claimant who, after referral by the Office of Vocational Rehabilitation, participates in a training program of short duration operated by a non-profit organization, designed to assist in overcoming claimant's disability and improve claimant's chances of obtaining work, is totally unemployed despite the receipt of a minimal cash payment. Such payment should be regarded as an incentive designed to encourage the improvement of claimant's skills. Attendance at such training does not result in being held unavailable for work. (A.B. 360,187; A-750-1966)

A claimant may be totally unemployed despite assisting his/her spouse, a Family Care Provider, by sharing in domestic chores and lending a helping hand to the residents in their home as a matter of common courtesy. (A.B. 405,115; A-750-2037)