May 15, 2018

Determining if a communication sent to the employee constitutes a "letter of reasonable assurance of continued employment" within the meaning of Labor Law §590[10] and [11]


Determining if a communication sent to the employee constitutes a "letter of reasonable assurance of continued employment" within the meaning of Labor Law §590[10] and [11]
Matter of Enman (New York City Dept. of Educ. -- Commissioner of Labor), 2018 NY Slip Op 03416, Appellate Division, Third Department

Labor Law §590(11), which is analogous to Labor Law §590(10) dealing with teachers and other educational professionals, bars nonprofessionals who are employed by educational institutions from receiving unemployment insurance benefits during the time between two academic periods if they have received a reasonable assurance of continued employment. In Matter of Murphy [Copake-Taconic Cent. School Dist.-Commissioner of Labor], 17 AD3d 762, and in other cases addressing this issue, the courts have stated that "A reasonable assurance . . . has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period."

The New York City Department of Education challenged the Unemployment Insurance Appeal Board's determination that Shaniqua Enman, who worked as a per diem substitute paraprofessional for the New York City Department of Education, had not received a letter of reasonable assurance within the meaning of Labor Law §590(11) between two academic periods.  

Ms. Enman worked at schools within the New York City School District and was registered to receive assignments through the SubCentral Registry, an automated system for filling vacancies. During the 2015-2016 school year, Ms. Enman worked 161 days of the 179 days that were in the school year. She received 153 of her assignments directly from administrators at the schools where she worked and the remaining eight assignments through the SubCentral Registry.  

In June 2016, NYCDOE sent Ms. Enman a communication, which it contended constituted "a letter of reasonable assurance," indicating that for the 2016-2017 school year  it anticipated the same amount of work for her as a per diem substitute paraprofessional as in the previous year on substantially the same economic terms and conditions.

Notwithstanding this letter, Ms. Enman filed a claim for unemployment insurance benefits and the Department of Labor found her entitled to receive such benefits. This  determination was later upheld by an Administrative Law Judge following a hearing.

On appeal, the NYCDOE objected to Ms. Enman's receipt of unemployment insurance benefits on the ground that it had provided her with a letter of reasonable assurance pursuant to Labor Law §590(11). The Unemployment Insurance Appeal Board overruled NYCDOE's objection and sustained the Administrative Law Judge's decision. NYCDOE appealed the Board's ruling.

The Appellate Division disagreed with the Board's decision, noting that the Board had initially found that the June 2016 letter sent by the NYCDOE to Ms. Enman constituted a reasonable assurance of continued employment for the 2016-2017 school year. But, said the court, instead of ending the inquiry at that point, the Board "went on to ascertain whether the reasonable assurance was bona fide in light of the testimony presented at the hearing."

The Board ultimately found that the testimony of the NYCDOE's witness was not competent with respect to assignments that Ms. Enman obtained through means other than the SubCentral Registry and declined to count such assignments in projecting those that would be made available to her during the 2016-2017 school year. Rather, it decided that Ms. Enman would have to be offered 145 assignments during the 2016-2017 school year in order to meet the 90% threshold, and considering that she had obtained most of her previous assignments through direct contact with school administrators, the Board concluded that the evidence was insufficient to establish that the NYCDOE provided Ms. Enman with a reasonable assurance of continued employment.*

The Appellate Division ruled, based on its review of the record, the Board's decision was not supported by substantial evidence. The court explained that, in reaching its conclusion, the Board essentially imposed a requirement that a reasonable assurance be a guarantee of earnings during the following school year, an interpretation that finds no support in the statute or case law.

Further, said the court, "the Board erroneously failed to include in its projection the assignments that [Ms. Enman] obtained directly from school administrators during the 2015-2016 school year, as these assignments were reflected in the SubCentral Registry after [she had] accepted them."

The decision indicates that the SubCentral Registry identified paraprofessionals who were working as well those who were not, a critical factor in ascertaining those paraprofessionals who were available and would be likely to accept future assignments. In the words of the Appellate Division, "As long as a paraprofessional was registered in the SubCentral Registry, as was claimant, his or her assignments and/or availability were monitored" and "the 153 assignments that [Ms. Enman] obtained directly through school administrators during the 2015-2016 school year exceeded the 145 needed to satisfy the 90% threshold and should have been counted in determining whether she received a reasonable assurance of continued employment."

The court also noted that the NYCDOE's witness testified that no changes were anticipated with respect to the budget, salary or number of students and paraprofessionals needed for the upcoming school year and further stated that 14% of jobs go unfilled, providing ample opportunity for substitutes to find openings.

In view of the foregoing, opined the Appellate Division, the record establishes that the NYCDOE provided Ms. Enman with a reasonable assurance of continued employment within the meaning of Labor Law §590(11), thereby precluding her from receiving Unemployment Insurance Law benefits.

* The Appellate Division commented that "The Board appears to have erroneously referenced the 2015-2016 school year in its decision."

The decision is posted on the Internet at:

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