§590 (11) of
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Matter of Alongi (City Sch. Dist. of the City of N.Y.--Commissioner of Labor) |
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2024 NY Slip Op 02957 |
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Decided on |
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Appellate Division, Third Department |
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Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
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This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered:
CV-23-0618
[*1]In the Matter of the Claim of Diane Alongi, Appellant. The
Calendar Date:
Before:Pritzker, J.P., Reynolds Fitzgerald,
Ceresia, McShan and Mackey, JJ.
Diane Alongi,
Letitia James, Attorney General,
Mackey, J.
Appeal from a decision of the Unemployment Insurance Appeal Board,
filed
Claimant worked as a per diem substitute paraprofessional for the employer beginning in 2012 and was notified of work available at the employer's public schools through a registry known as SubCentral. SubCentral maintained a record of, among other things, each substitute paraprofessional's availability and notified such individuals of available work via an automated telephone system, its website and/or administrator-initiated assignments, the latter of which occurred through direct contact with a school administrator who, in turn, would enter the assignment into SubCentral.
The 2020-2021 academic year consisted of 182 days; claimant was
offered 182 days of work through SubCentral and worked 144 days as a per diem
substitute paraprofessional — accepting all of her assignments through the
direct-contact method. At the start of the academic year, the pay rate was
$151.82 per day and, beginning
By letter dated June 17, 2021, claimant was advised that
SubCentral would continue to be used to grant her assignments during the
upcoming 2021-2022 academic year and that the "economic terms and
conditions" for the impending school year were expected "to be
substantially the same" as had existed in the preceding year. Although the
letter did not specify claimant's rate of pay, such rate was governed by the
existing contract ($166.67/day), and claimant was expressly advised that the
employer anticipated that "there [would] be as much day-to-day work for
[s]ubstitute [p]araprofessionals during the 2021-2022 [s]chool [y]ear, as was
available in the 2020-2021 [s]chool [y]ear." Claimant acknowledged
receiving was what denominated as a reasonable assurance letter, electronically
signed such letter on
By notice of determination dated
"Labor Law § 590 (11) . . . precludes 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" (Matter of Enman [New York City Dept of Educ.-Commissioner of
Labor], 161 AD3d 1368, 1369 [3d Dept 2018] [citations omitted], lv
denied 32 NY3d 902 [2018]; accord Matter of Johnson [Commissioner of Labor], 222
AD3d 1115, 1118 [3d Dept 2023]). "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" (Matter of Overacker [Churchville-Chili Cent. Sch. Dist.-Commissioner
of Labor], 213 AD3d 1127, 1128 [3d
Contrary to claimant's assertion, a reasonable assurance of
reemployment is not a guarantee (see Matter of Enman [New York City Dept. of
Educ.-Commissioner of Labor], 161 AD3d at 1370), and the June 2021 letter
sent to claimant upon the employer's behalf clearly indicated that work would be
available for claimant in her capacity as a per diem substitute
paraprofessional during the upcoming 2021-2022 academic year and that the
"economic terms and conditions" for the impending school year were
expected "to be substantially the same" as had existed in the
preceding year (see Matter of Gracy [Commissioner of Labor], 182 AD3d at
872-873). This letter, which claimant received and electronically signed,
further advised that claimant's name would remain on SubCentral for purposes of
receiving her assignments. Such proof, "together with the testimony
concerning the per diem rate of pay for the [2021-2022] academic year and
number of potential work days available, provides substantial evidence
supporting the Board's finding that the employer provided claimant with a
reasonable assurance of continued employment" (id[*3]. at
873; see Matter of Johnson [Commissioner of Labor], 222 AD3d at
1119; Matter of Overacker [Churchville-Chili Cent. Sch.
Dist.-Commissioner of Labor], 213 AD3d at 1128-1129; Matter of
Enman [
Pritzker, J.P., Reynolds Fitzgerald, Ceresia and McShan, JJ.,
concur.
ORDERED that the decision is affirmed, without costs.
Footnotes
Footnote 1: It is not clear from the record when
claimant applied for unemployment insurance benefits. The notice of
determination found claimant to be ineligible effective
Footnote 2: Claimant did not appeal from the denial of
her subsequent applications for a reopening and reconsideration, and claimant
was not charged with a recoverable overpayment of the benefits she received.