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February 12, 2014

A public official employed in a major nontenured policymaking or advisory position is ineligible for unemployment insurance benefits based on such service


A public official employed in a major nontenured policymaking or advisory position is ineligible for unemployment insurance benefits based on such service
2014 NY Slip Op 00721, Appellate Division, Third Department

§527(1) of the Labor Law sets out the qualifications that an Unemployment Insurace claimant must satisfy in order to file a valid original claim entitling him or her to receive unemployment insurance benefits. §527(1)(d) requires that the claimant must be "paid remuneration by employers liable for contributions . . . for employment during at least two calendar quarters of the base period.
In this appeal the issue was whether an individual [Claimant] appointed to a position of Deputy Commissioner by the Governor who applied for unemployment insurance benefits after her term of office ended was “paid remuneration by employers liable for contributions.”

Initially the Department of Labor denied the claim, finding that Claimant, as a Deputy Commissioner, [1] held a major nontenured policymaking or advisory position while employed by the State, and [2] such service could not be used as base period employment for purposes of establishing a valid original claim for unemployment insurance benefits.

Although this determination was overruled by an Administrative Law Judge, ultimately the Unemployment Insurance Appeal Board sustained the initial determination and ruled that Claimant was not eligible to receive unemployment insurance benefits.

The Appellate Division affirmed the Appeal Board’s decision explaining that [1] Labor Law §527(1) sets out the qualifications that a claimant must meet in order to file a valid original claim entitling him or her to receive unemployment insurance benefits and [2] Labor Law §527[1][d] requires that the claimant must be "paid remuneration by employers liable for contributions . . . for employment during at least two calendar quarters of the base period."

The decision then points out that Labor Law §565(2)(e) provides that services rendered for a governmental entity by a person “in a major nontenured policymaking or advisory position" is not employment for the purposes of establishing eligibility for Unemployment Insurance benefits.

The issue to be resolved, said the Appellate Division, is whether the Labor Law §565(2)(e) exclusion applies with respect to Claimant employment during the applicable base period.

Finding that “… the performance standards applicable to [Claimant’s] position supported the Appeals Board’s determination that Claimant held a "major nontenured policymaking or advisory position," the Appellate Division ruled that there was a rational basis for the Board's finding that Claimant’s service during the period in question “could not be used as base period employment for purposes of establishing a valid original claim” and dismissed the appeal.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_00721.htm
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