Claimants for unemployment insurance benefits found ineligible to receive such benefits because they were not totally unemployed.

Plaintiffs in this action* are, or were, civil service employees who worked full time as instructors or teachers of incarcerated individuals, or educational supervisors, at facilities operated by the New York State Department of Corrections and Community Supervision.

After Plaintiffs were advised that there would be no additional work available for the summer of 2020, Plaintiffs filed for and received unemployment insurance benefits including regular unemployment insurance benefits, federal pandemic unemployment compensation and pandemic unemployment assistance under the Coronavirus Aid, Relief and Economic Security Act of 2020 (the CARES Act) (see 15 USC §§ 9021, 9023, 9025) and Lost Wage Assistance benefits (see 44 CFR 206.120).

The New York State Department of Labor subsequently determined that Plaintiffs were paid an annual salary and were consequently ineligible to receive regular or federal benefits in that they were not totally unemployed effective as of specified dates in June 2020, and charged them with certain overpayments. Plaintiffs challenged the Department's determinations.

In this appeal the Appellate Division sustained the determination of the New York State Unemployment Insurance Appeal Board that:

1. "Under state law, regular unemployment insurance benefits require total unemployment (see Labor Law §591[1]; Matter of Kelly [Commissioner of Labor], 215 AD3d 1157, 1158 [3d Dept 2023]), which is defined as "the total lack of any employment on any day" (Labor Law §522 [emphasis added]). "Whether a claimant is totally unemployed and thereby entitled to receive unemployment insurance benefits is a factual issue for the Board to decide and its decision will be upheld if supported by substantial evidence" (Matter of Chin [Commissioner of Labor], 211 AD3d 1263, 1264 [3d Dept 2022] [internal quotation marks and citations omitted]; see Matter of Cruz [Commissioner of Labor], 215 AD3d 1203, 1204 [3d Dept 2023]). In finding that claimants were not totally unemployed during the summer 2020 recess, the Board properly relied upon Civil Service Law §136, which applies to teachers and instructors at state institutions, including those operated by DOCCS, and provides that the "annual salary" for those employees may be paid over 10 months or 12 months (Civil Service Law §136[2]; see Civil Service Law §136[1]; Matter of Darwin [Catherwood], 30 AD2d 996, 996 [3d Dept 1968]). If they are required to work outside of the academic year, they must receive "additional compensation" beyond their annual salary, which, by definition, compensates them for the entire 12-month year including the summer recess (Civil Service Law §136[2]); and 

2. "Contrary to claimants' arguments, the Board correctly concluded that their entitlement to PUA benefits is governed by state unemployment insurance law, including the requirement of total unemployment. This conclusion "is consistent with the guidance provided by the US Department of Labor, the federal agency tasked with providing operating instructions for the joint state-federal pandemic unemployment insurance program," of which this Court has taken judicial notice (Matter of Mikheil [Commissioner of Labor], 206 AD3d 1422, 1425 [3d Dept 2022]). That guidance provides that "the terms and conditions of the state law of the applicable state for an individual which apply to claims for, and the payment of, regular compensation apply to the payment of PUA to individuals" (US Department of Labor, Employment and Training Administration, Unemployment Insurance Program Letter No. 16-20, at I-9."

* Matter of Almindo (New York State Department of Corr. and Community Supervision - Commissioner of Labor)

The full  text of the Appellate Division's decision in Matter of Almindo is set out below. 

 

Matter of Almindo (New York State Dept. of Corr. & Community Supervision--Commissioner of Labor)

2023 NY Slip Op 06424

Decided on December 14, 2023

Appellate Division, Third Department

Egan Jr., J.P.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

 

Claimants were civil service employees who worked full time as instructors or teachers for incarcerated individuals, or educational supervisors, at facilities operated by the Department of Corrections and Community Supervision (hereinafter DOCCS). Claimants were paid an annual salary to teach or supervise teaching during the academic year, which ran from approximately September 1 through June 30 according to the schedule set by each facility. Their employment was governed by a collective bargaining agreement (hereinafter CBA) entered into between the state and claimants' union, the Public Employees Federation, AFL-CIO (hereinafter PEF). The CBA provided that claimants had the option of receiving their annual salary biweekly either over the academic year or over the calendar year; all of the claimants except Michael Heintz opted to receive their salary over the 12-month calendar year. Prior to 2020, claimants were offered work over the summer, if it was available, for which they were paid additional hourly compensation. Claimants worked through the June 2020 academic year, remained on the payroll over the summer and returned to work in September 2020, although they did not perform additional work over that summer due to the COVID-19 pandemic.

After they were advised that there would be no additional work available for the summer of 2020, claimants filed for and received unemployment insurance benefits including regular unemployment insurance benefits, federal pandemic unemployment compensation (hereinafter FPUC) and pandemic unemployment assistance (hereinafter PUA) under the Coronavirus Aid, Relief and Economic Security Act of 2020 (the CARES Act) (see 15 USC §§ 9021, 9023, 9025) and Lost Wage Assistance benefits (hereinafter LWA) (see 44 CFR 206.120). The Department of Labor determined that claimants were paid an annual salary and were consequently ineligible to receive regular or federal benefits in that they were not totally unemployed effective as of specified dates in June 2020, and charged them with certain overpayments.

At the hearing requested by claimants, testimony was taken and DOCCS, the Commissioner of Labor and PEF, on behalf of claimants, reached a stipulation and agreement that the decision for the five named claimants would bind the Department, DOCCS and 172 other PEF members listed in the agreement (see 12 NYCRR 461.4 [g]). The stipulation governed the issues of whether claimants were totally unemployed, eligible for regular unemployment insurance benefits or eligible for PUA, FPUC or LWA benefits. In essentially identical determinations, the Administrative Law Judge (hereinafter ALJ) sustained the initial determinations and found that, pursuant to Civil Service Law §136, claimants were not totally unemployed during the summer of 2020 in that they were employed on an annual basis and paid an annual salary, regardless of how they opted to be paid (on a calendar or academic year); thus, they were not entitled to regular, PUA, FPUC or LWA unemployment benefits. The ALJ also upheld the determination that the overpayments of FPUC and LWA benefits are recoverable.

On claimants' appeal, the Unemployment Insurance Appeal Board issued five substantially identical decisions adopting the ALJ's finding and opinions. The Board further found that claimants must be totally unemployed within the meaning of the state Labor Law to be eligible for PUA benefits. Claimants appeal.

We affirm. Under state law, regular unemployment insurance benefits require total unemployment (see Labor Law § 591 [1]; Matter of Kelly [Commissioner of Labor], 215 AD3d 1157, 1158 [3d Dept 2023]), which is defined as "the total lack of any employment on any day" (Labor Law § 522 [emphasis added]). "Whether a claimant is totally unemployed and thereby entitled to receive unemployment insurance benefits is a factual issue for the Board to decide and its decision will be upheld if supported by substantial evidence" (Matter of Chin [Commissioner of Labor], 211 AD3d 1263, 1264 [3d Dept 2022] [internal quotation marks and citations omitted]; see Matter of Cruz [Commissioner of Labor], 215 AD3d 1203, 1204 [3d Dept 2023]). In finding that claimants were not totally unemployed during the summer 2020 recess, the Board properly relied upon Civil Service Law § 136, which applies to teachers and instructors at state institutions, including those operated by DOCCS, and provides that the "annual salary" for those employees may be paid over 10 months or 12 months (Civil Service Law § 136 [2]; see Civil Service Law § 136 [1]; Matter of Darwin [Catherwood], 30 AD2d 996, 996 [3d Dept 1968]).^[FN1] If they are required to work outside of the academic year, they must receive "additional compensation" beyond their annual salary, which, by definition, compensates them for the entire 12-month year including the summer recess (Civil Service Law § 136 [2]).

The fact that optional, additional work was not available over the summer of 2020, as it had been in prior years, does not change the analysis or conclusion that claimants remained employed over the summer recess, i.e., they were not totally unemployed (see Matter of McNamara [Commissioner of Labor], 215 AD3d 1215, 1216 [3d Dept 2023]). To that end, "unemployment insurance benefits are [not] intended . . . to supplement a full annual salary" (Matter of Summers [New York City Bd. of Educ.-Commissioner of Labor], 21 AD3d 669, 671 [3d Dept 2005]). The Board properly rejected claimants' contention that they were employed and compensated for only 10 months each year and unemployed during the summer. As it was undisputed that claimants, although only required to work during the academic year, were paid their full annual salary, substantial evidence supports the Board's finding that they were not totally unemployed during the summer recess of 2020 and, thus, were ineligible to receive regular unemployment benefits for that period (see Matter of Darwin [Catherwood], 30 AD2d at 996; see also Matter of Chin [Commissioner of Labor], 211 AD3d at 1264; Matter of Gronowicz [Commissioner of Labor], 59 AD3d 824, 824 [3d Dept 2009]; Matter of Summers [New York City Bd. of Educ.-Commissioner of Labor], 21 AD3d at 671; Matter of Wolfson [Ross], 57 AD2d 10, 11 [3d Dept 1977]).

"Given the Board's finding that claimant[s were] not totally unemployed and therefore ineligible for unemployment insurance benefits under state law, claimant[s were] also not eligible to receive federal pandemic assistance under the CARES Act" (Matter of McNamara [Commissioner of Labor], 215 AD3d at 1216 [citations omitted]). Claimants were further properly charged with recoverable overpayments, including for the PUA ^[FN2] (see 15 USC § 9021 [h]; 20 CFR 625.14), FPUC (see 15 USC § 9023 [b] [1]; [f] [2]) and LWA (see 44 CFR 206.120 [f] [5]; see also 15 USC § 9025 [e] [2]; Matter of Spring [Syracuse City Sch. Dist.-Commissioner of Labor], 215 AD3d 1211, 1212 [3d Dept 2023]; Matter of Cruz [Commissioner of Labor], 215 AD3d at 1204; Matter of Chin [Commissioner of Labor], 211 AD3d at 1264).

Contrary to claimants' arguments, the Board correctly concluded that their entitlement to PUA benefits is governed by state unemployment insurance law, including the requirement of total unemployment. This conclusion "is consistent with the guidance provided by the US Department of Labor, the federal agency tasked with providing operating instructions for the joint state-federal pandemic unemployment insurance program," of which this Court has taken judicial notice (Matter of Mikheil [Commissioner of Labor], 206 AD3d 1422, 1425 [3d Dept 2022]). That guidance provides that "the terms and conditions of the state law of the applicable state for an individual which apply to claims for, and the payment of, regular compensation apply to the payment of PUA to individuals" (US Department of Labor, Employment and Training Administration, Unemployment Insurance Program Letter No. 16-20, at I-9 [attachment 1], available at https://www.dol.gov/agencies/eta/advisories/unemployment-insurance-program-letter-no-16-20; see US Department of Labor, Employment and Training Administration, Unemployment Insurance Program Letter No. 09-21, complete document at 3-4 ["The programs and provisions within . . . the CARES Act operate in tandem with the fundamental eligibility requirements of the Federal-State (unemployment insurance) program" and "(s)tates must ensure that individuals only receive benefits in accordance with federal and state law"], available at https://www.dol.gov/agencies/eta/advisories/unemployment-insurance-program-letter-no-09-21). We have considered claimants' remaining contentions and find that they do not support a contrary result.

Pritzker, Fisher, McShan and Powers, JJ., concur.

ORDERED that the decisions are affirmed, without costs.

Footnotes

Footnote 1: We agree with the Board's conclusion that Labor Law § 590 (10) and (11), and the decisions and guidance provided thereunder, are inapplicable in that they govern employment with educational institutions and not state institutions or facilities run by DOCCS. The CBA governing claimants reflects that they are teachers in state institutions. This Court has "accepted the Department of Labor's definition of an educational institution, as an organization established for the purpose of operating a school, schools, or alternative educational experience offering a program of instruction in academic, technical or vocational subjects, which is certified by, under contract to or subject to the regulations of the Commissioner of Education" (Matter of Fernandez [Suffolk County Org. for Promotion of Educ.-Commissioner of Labor], 50 AD3d 1399, 1400 [3d Dept 2008] [internal quotation marks and citations omitted; emphasis added], lv denied 11 NY3d 705 [2008]). While DOCCS offers an array of educational and instructional opportunities for incarcerated individuals, it was not established for educational or instructional purposes but, rather, was established "to ensure the appropriate care, custody, treatment, and supervision of offenders, whether in a correctional facility or in the community" (Mark Bonacquist, Practice Commentaries, McKinney's Cons Laws of NY, Book 10B, Correction Law § 5 at 29; see Correction Law §§ 2 [4]; 112, 136).

Footnote 2: As claimants lacked total unemployment, they did not demonstrate entitlement to PUA benefits or that they were unable to work — indeed, they continued to receive their annual salary during the summer recess although they did not have an offer to work in the summer — due to one of the qualifying statutory conditions (see 15 USC § 9021 [a] [3] [A] [ii] [I]). 

Click HERE to access the Appellate Division's ruling posted on the Internet.

 

Authority to employ legal counsel when it is determined it is necessary to do so in order to avoid a conflict of interest

In this hybrid proceeding pursuant to CPLR Article 78, the Mayor of the City [Mayor] challenged the authority of the Common Council of the City and Lamb and Barnosky, LLP, a law firm, [collectively Common Council] to retain counsel in a dispute with the Mayor concerning the separation of powers between the Mayor and the Common Council.

Supreme Court approved the Common Council's retaining the law firm and the Mayor appealed. The Appellate Division sustained the Supreme Court's ruling with one bill of costs payable by the Mayor to the Common Council.

The Mayor sought to invalidate Resolution R20-78, which was passed by the Common Council and authorized the Common Council to retain its own counsel in a dispute with the Mayor over the separation of powers between the Mayor and the Common Council.

Supreme Court, among other things, had denied the Mayor's petition and declared that R20-78 was valid and that the Common Council may retain separate legal counsel when it determines a conflict exists between the legislative branch and other branches of the City's of government. The Mayor appealed.

Citing Cahn v Town of Huntington, 29 NY2d 451, and other decisions, the Appellate Division opined the Supreme Court properly declared that the Common Council was entitled to retain separate legal counsel who did not have a conflict of interest.

In the words of the Appellate Division, "Notwithstanding lack of specific statutory authority, a municipal board ... possesses implied authority to employ counsel in the good faith prosecution or defense of an action undertaken in the public interest, and in conjunction with its ... official duties where the municipal attorney refused to act, or was incapable of, or was disqualified from, acting"

Here, opined the Court, it was apparent that the Corporation Counsel of the City and the Mayor were taking a position contrary to that of the Common Council and affirmed the Supreme Court's order and judgment.

Click HERE to access the decision of the Appellate Division posted on the Internet.

 

 

Employer's failure to serve a copy of its application for a review of a decision by the Workers' Compensation Board on claimant's new legal representative may result in the Board declining to review the decision

Claimant, a fire department lieutenant, filed a claim for workers' compensation benefits alleging that she experienced long-term health issues after contracting COVID-19 at work. The self-insured employer and its claims administrator [collectively Employer] filed a first report of injury-denial [Form FROI-04] on February 10, 2021 controverting the claim.

After hearings, a Workers' Compensation Law Judge [WCLJ] issued a decision filed July 7, 2021, which, among other things, established the claim for contraction of COVID-19 at work, set claimant's average weekly wage, authorized medical treatment and continued the case. The Workers' Compensation Board [Board] sent a copy of the WCLJ's decision to claimant and her then-current legal representative.

On that same day, July 7, 2021, the Board received a signed Form OC-400, Notice of Substitution and Appearance, indicating that Claimant had retained a new legal representative, which form indicated that a copy of the change notice was sent to the Employer. The Board sent a letter to Claimant confirming the substitution of counsel on July 13, 2021. A copy of the Board's July 13, 2021, letter to Claimant was sent to Claimant's prior representative and the Employer.

On August 5, 2021, Employer filed a Form RB-89 applying for Board review of the WCLJ's findings and determination and served the form on Claimant's prior counsel but not her then current counsel. Claimant objected, contending Employer's application was defective as it was not served on her current legal representative. Exercising its discretion, the Board denied Employer's application for review of the WCLJ's decision.* The Employer appealed.

The Appellate Division sustained the Board's denial of the Employer's application seeking a review of the WCLJ' findings and decision, finding that Claimant properly designated her new attorney as her legal representative and the Board confirmed Claimant's action in a letter sent to the Employer.

Citing 12 NYCRR 300.13 [a] [4]; [b] [2] [iv] [d]; [b] [4] [i], the Appellate Division opined the Board "did not abuse its discretion in denying the [Employer's] application for review" in view of the Employer's failure to serve or provide proof of service upon Claimant's current counsel.

* The Appellate Division observed "The fact that claimant's counsel served a timely rebuttal does not compel a different result" citing Matter of Harrell v Blue Diamond Sheet Metal, 146 AD3d 1189.

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Application for Accidental Disability Retirement benefits rejected as the injury suffered was not the result of an accident within the meaning of the Retirement and Social Security Law

A police officer [Petitioner] filed an application for Accidental Disability Retirement [ADR] benefits based on an injury Petitioner suffered in the course of his responding to an emergency. Petitioner testified that he and another police officer responded to the incident and he attempted to "kick in the interior door" of a bedroom in which a "suicidal woman" had reportedly locked herself.

The Retirement System determined that the incident giving rise to Petitioner's injuries "did not constitute an accident within the meaning of Retirement and Social Security Law §363." A Hearing Officer [HO] affirmed the Retirement System's denial of the Petitioner's application for ADR. 

In response to Petitioner's appeal of the HO's decision, the Retirement System's Executive Deputy Comptroller sustained the HO's findings and determination. Petitioner then initiated a CPLR Article 78 challenging the rejection of his application for ADR.

Observing that "It was petitioner's burden to 'demonstrat[e] that his disability arose out of an accident as defined by the Retirement and Social Security Law, and [the Retirement System's] determination in that regard will be upheld if supported by substantial evidence'", the Appellate Division dismissed Petitioner's appeal of the Retirement System's denial of his application for ADR.

The Appellate Division noted that Petitioner "explained that he had previously executed similar maneuvers and acknowledged that he was [so] acting 'in the course of [his] duties'". The other responding officer similarly testified that Petitioner's actions were within the duties of a police officer and that he had observed Petitioner kick down doors in the past. Further, the record before the Appellate Division included a written description of Petitioner's job duties, that indicated police officers were required to "perform rescue operations" and "be able to force entrance through barriers."

As there was no evidence of any observed defect in the door at issue and no evidence was submitted to support Petitioner's speculation that the door may have blocked, the Appellate Division sustained the Retirement System's determination. The court found that substantial evidence supported the Retirement System's determination that Petitioner's injuries "occurred in the performance of his ordinary employment duties as a police officer and there was no precipitating event that was not a risk of the work performed."

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Employer's motion for summary judgment dismissing plaintiff's claim of negligent retention and supervision of a "school volunteer" granted

The Appellant Division held Supreme Court correctly dismissed plaintiff's allegations of negligent supervision and retention of a school volunteer by the New York City Department of Education [DOE] as there was no evidence that DOE "had any knowledge that the school volunteer, whom plaintiff alleged injured her, had a propensity to engage in the injury-causing conduct".

The Appellate Division also noted that there was no nexus between the volunteer's activities at the school and his alleged assault upon the plaintiff.

Click HERE to access the Appellate Division's ruling posted on the Internet.