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March 15, 2021

An employee's suspension with pay pending disciplinary action may not constitute work for the purposes of qualifyiing for unemployment insurance benefits

§75.3 of the Civil Service Law, and some collective bargaining agreements, authorize the suspension of an employee with pay pending the hearing and determination of disciplinary charges filed against the employee alleging incompetency or misconduct. 

An employee [Claimant] was served with disciplinary charges and was suspended without pay from her employment for several 30-day periods. As relevant here, Claimant filed an original claim for unemployment insurance benefits effective January 15, 2018 and received benefits. The employer [Employer] then suspended Claimant with pay effective January 30, 2018, and Claimant did no further work for the Employer before being terminated from her employment effective January 25, 2019. Claimant then filed a subsequent claim for unemployment insurance benefits effective January 28, 2019. 

A Workers' Compensation Administrative Law Judge [ALJ] sustained the Department of Labor's administrative determination that Claimant was ineligible to receive further unemployment insurance benefits. The ALJ, in essence, held that a suspended employee is not performing any "work in employment" for which he or she could receive remuneration as required by §527[6] (emphasis supplied in Appellate Division's decision). 

Claimant appealed the ALJ's ruling to the Unemployment Insurance Appeal Board [Board]. The Board, sustaining the ALJ's determination, concluded that Claimant "had insufficient wages to meet the work requirements to re-qualify for a subsequent original claim and had not worked in employment and been paid remuneration for such work equal to at least 10 times [her] weekly benefit rate."

The Board had rejected Claimant contention that such monies did "constitute remuneration for work ... so as to count toward her eligibility to file a subsequent claim", citing the Board's decision set out in Matter of Appeal Board No. 569753* in support of her claim. Claimant appealed. 

Noting that Claimant performed no work for the Employer during the relevant period, the court said the question to be resolved is whether "the monies she received while suspended [with pay] constituted remuneration for work in employment so as to count toward her eligibility to file a subsequent valid original claim."

The Appellate Division then affirmed the Board's determination, explaining that to file a subsequent valid original claim, the applicant "must have worked in employment and been paid remuneration for such work since the beginning of such previous claim in an amount equal to at least [10] times the claimant's weekly benefit rate," citing Labor Law §527[6].**

The Appellate Division observed that the Board had adopted the decision of the ALJ, rejecting Claimant's argument that its decision in Appeal Board No. 569753 controlled, and opined that it perceived "nothing unreasonable in that distinction, which comports with the statutory language, and therefore [found] substantial evidence in the record to support the Board's determination that [Claimant] had not 'worked in employment and been paid remuneration for such work' in a sufficient amount to file a subsequent valid original claim."

* Claimant had relied upon Appeal Board No. 569753 in advancing her appeal to the Board, pointing out that in Board No. 569753 the Board held that an individual serving a paid suspension under the terms of a collective bargaining agreement was performing a service so as to fall within the statutory definition of employment. See https://uiappeals.ny.gov/system/files/documents/569753-appeal-decision.pdf.

** §527[6] of the Labor Law provides as follow: "Work requirement. An individual who has filed a previous valid original claim pursuant to this section must have worked in employment and been paid remuneration for such work since the beginning of such previous claim in an amount equal to at least ten times the claimant's weekly benefit rate in order to be able to file a subsequent valid original claim.

Click HEREto access the text of the Appellate Division's ruling.

 

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