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December 11, 2017

Unless the employer provides the educator with a reasonable assurance of continued employment following a holiday recess a per diem educator is eligible for unemployment insurance


Unless the employer provides the educator with a reasonable assurance of continued employment following a holiday recess a per diem educator is eligible for unemployment insurance
Matter of Papapietro (Commissioner of Labor), 2017 NY Slip Op 08596, Appellate Division, Third Department

The Appellate Division reversed a decision by the Unemployment Insurance Appeal Board that held that a per diem teacher was ineligible to receive unemployment insurance benefits because it found that he had a reasonable assurance of continued employment following a holiday recess.

John Papapietro was a per diem substitute teacher for the Rochester City School District. In the week immediately prior to a holiday recess at the end of December 2015 Papapietro had worked at least three days. However, his application for unemployment insurance benefits due to a "lack of work" related to the recess was denied by the Department of Labor. Although an administrative law judge had reversed the Department's decision, the Unemployment Insurance Appeal Board vacated the Administrative Law Judge's decision, holding, among other things, that Papapietro had received a reasonable assurance of employment after the recess and that, as a result, he was not entitled to the benefits he had applied for.
Papapietro appealed the Board's ruling and the Appellate Division held that the Board's interpretation of Labor Law §590(10) was inconsistent with the plain language of that provision's requiring a reasonable assurance of continued employment from an employer and reversed the Board's decision.

Citing Matter of Scott [Commissioner of Labor], 25 AD3d 939, the court said that "Pursuant to Labor Law §590(10), a claimant who is employed in an instructional capacity by an educational institution is precluded from receiving unemployment insurance benefits during 'any week commencing during an established and customary vacation period or holiday recess, not between such academic terms or years, provided the claimant performed services for such institution immediately before such vacation period or holiday recess and there is a reasonable assurance that the claimant will perform any services ... in the period immediately following such vacation period or holiday recess'" Despite the fact that the Legislature required an assurance in this regard, the court said that the Board had found that none was needed, while, in contrast, it has "long held" that an employer is required to  give an employee reasonable notice regarding his or her employment following a recess or a vacation.

In, the words of the Appellate Division, Third Department it "has repeatedly held that the interpretation of plain language in Labor Law §590(10) is a matter for resolution by the courts, not subject to deference in regard to the Board's interpretation" and has well-established precedent interpreting the identical phrase in Labor Law §590(10), "reasonable assurance," regarding two successive academic years or terms to require "a representation by the employer" as to future employment, which representation "often takes the form of a letter from an employer assuring a per diem substitute teacher of future employment opportunities."

Rochester had not sent any letter to Papapietro nor provided him with any other form of notice that made a representation regarding his continued employment after the recess. 

Finding that the Board's conclusion that the employer need not make any representation or provide any notice to an employee regarding the provision of services immediately following a recess or vacation to be inconsistent with the plain legislative requirement that the employer provide a reasonable assurance regarding such services, the Appellate Division reversed the Board's determination and remitted the matter to the Unemployment Insurance Appeal Board "for further proceedings not inconsistent with this Court's decision."

The decision is posted on the Internet at:

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