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November 20, 2014

An individual serving in a major nontenured policymaking or advisory position within the meaning of Labor Law §565(2)(e) is ineligible for unemployment insurance benefits


An individual serving in a major nontenured policymaking or advisory position within the meaning of Labor Law §565(2)(e) is ineligible for unemployment insurance benefits
Matter of Birnbaum (Commissioner of Labor), 2014 NY Slip Op 07719, Appellate Division, Third Department

Julian R. Birnbaumserved as the Deputy Commissioner for Division Initiated Investigations and Complaints with the New York State Division of Human Rights (DHR) in a “nontenured position classified as management/confidential and served at the discretion of the Commissioner of Human Rights as well as the Governor.

When Birnbaum’s employment ended, he applied for unemployment insurance benefits.

The Department of Labor issued an initial determination finding that Birnbaum was not entitled to receive benefits because his base period employment was in a major nontenured policymaking or advisory position that was excluded under Labor Law §565(2)(e).

An Administrative Law Judge, however, overruled the initial determination and found that Birnbaumwas entitled to receive benefits. On appeal, the Unemployment Insurance Appeal Board rescinded the ALJ's decision and remanded the matter for another hearing to further develop the record. The resulted in the ALJ‘s sustaining the Department of Labor’s initial determination, which determination was subsequently upheld by the Board Birnbaum appealed the Board’s ruling.

The Appellate Division sustained the Board’s decision, explaining that for purposes of determining a claimant's eligibility for unemployment insurance benefits, Labor Law §565(2)(e) excludes from employment "services rendered for a governmental entity by . . . a person in a major nontenured policymaking or advisory position." Whether this exclusion applies typically presents a mixed question of law and fact, and the Board's determination in this regard will be upheld if it has a rational basis.

According to the decision, Birnbaum’s position had three primary functions: (1) to investigate patterns of discrimination involving violations of the Human Rights Law appropriate for filing an administrative complaint by DHR, (2) to oversee the prosecution of complaints brought on behalf of individuals, and (3) to evaluate DHR's issuance of exemptions for certain housing providers and, in addition, participated in other agency functions.

The Appellate Division noted that Birnbaum reported directly to the Commissioner, had meetings with the Commissioner on a variety of matters and made recommendations on the implementation of agency policies. Although Birnbaum did not independently establish agency policy, he was involved in the process and his advice was solicited by the Commissioner.

Under these circumstances, said the court, there is a rational basis for the Board's decision that Birnbaum held a major nontenured policymaking or advisory position excluded under Labor Law §565(2)(e).

The decision is posted on the Internet at:


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