Thursday, July 31, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 9

It should be noted that on the DOL website FAQ for employers re "Employer UI Fraud", consenting to ineligible requests for benefits is not specifically mentioned:

"The State Labor Department has a 24-hour toll-free hotline for those who wish to report employer UI fraud. Examples of employer UI fraud are:
  • Paying “off the books” or “under the table” wages
  • Intentional misclassification of workers as independent contractors
  • State Unemployment Tax Act (SUTA) dumping – shifting workers between employer payrolls to improperly use a lower contribution rate"
So the question remains if the three items listed and later discussed are only examples, are there other examples, viz., consenting to ineligible requests for benefit.

Wednesday, July 30, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 8

Employers are also reminded to respond honestly to claim applications in the FAQ with respect to SIDES ( Developed through a strategic partnership between the U.S. Department of Labor and state Unemployment Insurance agencies, the State Information Data Exchange System (SIDES) and SIDES E-Response systems offer employers and third-party administrators (TPAs) – free of charge – a secure, electronic and nationally standardized format to respond to Unemployment Insurance information requests, reduce follow-up phone calls and streamline Unemployment Insurance response processes.):

"Q: What are the main causes of Unemployment Insurance overpayments?
A: The two largest causes of Unemployment Insurance overpayments are a lack of complete and accurate information when someone files a claim and people who work while collecting Unemployment Insurance benefits. Many Unemployment Insurance overpayments, which could be prevented by receiving timely and accurate information, negatively impact employers’ bottom lines.
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Q: Are SIDES and SIDES E-Response expected to reduce Unemployment Insurance overpayments?

A: Yes. Both options have the potential to reduce Unemployment Insurance overpayments while improving the Unemployment Insurance information exchange process."

Tuesday, July 29, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 7

This is the new regulation which is applicable to this discussion:

"Section 1. Section 472.12 is repealed and a new Section 472.12 is added to read as follows:

472.12 Responding to Requests for Information and Employer Relief of Charges – Timely and Adequately Requirement for Responding

(a) A response to a notice of potential charges (hereinafter referred to as a claim notice) must be received by the Department of Labor within 10 calendar days of the date on the claim notice.

(b) All other requests for information pertaining to an unemployment insurance claim must be received by the Department of Labor within the number of days specified in the written (including electronic transmission) or verbal request for information.

(c) The Department of Labor may communicate its request for information to employers by letter; electronic communication; fax; telephone; through "SIDES," the State Information Data Exchange System (if agreed to by the employer); or other method of communication approved by the Department of Labor.

(d) The claim notice and all other requests for information referenced in subdivisions (a) and (b) shall be sent to the employer’s address, fax number, or email address of record on file with the Department of Labor, or an electronic account authorized by the Department of Labor. The Department of Labor may also request information by calling the employer’s business telephone number. Employers must notify the Department of Labor when any of the above contact information changes. Requests for information sent to the employer’s last known address, business telephone number, fax number, email address or authorized electronic account shall be deemed to have been sent to the correct address for the purposes of this section.

(e) Employers may respond to a claim notice and/or request for information by fax, electronic communication, SIDES, U.S. Postal Service, private delivery service, telephone (if the request for information required a telephone response), or other method of communication approved by the Department of Labor. An employer’s response to the Department of Labor shall be deemed to have been received on the date indicated by the date stamp placed on incoming faxes by the Department of Labor’s fax machine, the date stamp on paper documents, or the date the electronic submission is received. If no fax or date stamp exists, the receipt date will be deemed to be two days prior to the date the document is entered in the Department’s imaging system. If the employer disputes the date a response was received by the Department of Labor, the burden shall be on the employer to provide proof that the response was timely. Proof may include, but is not limited to, a confirmation of delivery, a stamped receipt by an agent of the Commissioner, or an affidavit of personal service on the Commissioner or his/her agent.

(f) An employer’s response to a request for information must contain adequate information. To be considered adequate, the response must:

(1) specify the reason(s) for the separation, or other issue affecting the claimant’s eligibility or entitlement for benefits;

(2) answer, in good faith, all questions in detail; and

(3) provide all relevant information and documentation for the Department of Labor to render a correct determination regarding the claimant’s eligibility or entitlement for benefits.

(g) If the Commissioner of Labor determines that overpaymentsoverpayments, except in accordance with subdivisions (h), (i) and (j). The employer shall not be relieved of charges for each
week that an overpayment is made, through the date that the Department of Labor makes a determination that the claimant is no longer eligible for or entitled to benefits or makes a determination that results in a reduction of benefits.

(h) An employer shall be relieved of charges imposed in subdivision (g) for the first instance that the employer or its agent fails to provide timely or adequate information, if the employer provides good cause for such failure. Good cause shall include any significant event that the employer could not reasonably have anticipated which affects the employer’s ability to respond timely to requests for information, as determined by the Commissioner. After the first instance of failing to provide timely and adequate information, the employer shall only be relieved of charges for a subsequent failure in accordance with the provisions of subdivisions (i) and (j) below.

(i) An employer may be relieved of charges if the charges were due to an error by the Department of Labor.

(j) An employer may be relieved of charges if they were unable to respond in a timely manner due to a disaster emergency as declared by the Governor of their State or the President of the United States."

Monday, July 28, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 6

In April of this year, the law firm of Epstein Becker Green posted an article "Act Now Advisory: Changes to New York State's Unemployment Insurance Laws May Affect Employers' Severance Procedures and How Employers Respond to DOL Inquiries" and stated (italics supplied):

"In response to the requirements of the Act, as set forth above, the New York UI law was amended to provide that employers will not be relieved of charges to their UI accounts if the State UI Division determines that: (1) the payment of unemployment benefits was made because the employer or its agent was at fault for failing to respond timely or adequately to the request of an agency for information relating to a claim for UI benefits, or (2) the employer or its agent has established a pattern of failing to respond timely or adequately to such requests.

In New York State, the UI Division generally sends requests for information pertaining to a former employee's eligibility for UI benefits in a standard form, which asks for information, such as the former employee's previous pay and the circumstances of his or her termination. Upon receipt of the request, New York employers have 10 days to respond. Employers that do not submit a timely response will be deemed to have failed to respond. Employers that fail to respond to two or more claims are deemed to have exhibited a "pattern of failing" to respond and will not be refunded any erroneous UI payments that are recouped by the State. In other words, even if the UI Division decides that the former employee is not entitled to benefits (or has been otherwise overpaid), the UI Division will not credit the employer's account (as it used to do). Instead, that money will be paid into the State's general UI Fund.

Thus, if an employer wishes to contest a UI claim, it should ensure that it makes a timely and complete response to the UI Division's initial request for information. On the other hand, if the employer does not wish to contest the claim, there does not appear to be any independent penalty for not responding. We are aware that some New York employers opt not to respond to such inquiries, either because they wish for the former employee to receive UI benefits or because they fear that their response to the UI inquiry will be used as evidence in some other proceeding, unrelated to UI eligibility (e.g., a discrimination claim). Now, employers must understand that failing to respond may have other implications."

Friday, July 25, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 5

In yesterday's post, I noted that the Department of Labor would consider, at the very least, the employee to have committed fraud because the employee "[c]ollaborated "with an employer to illegally claim unemployment insurance benefits."

But would the Department of Labor also consider the employer to  have committed fraud if the employer collaborated with an employee to illegally claim unemployment insurance benefits? This is not clear. From the Department of Labor website:

"Employer UI Fraud

24-Hour Toll-Free Hotline
(1-866) 435-1499

The State Labor Department has a 24-hour toll-free hotline for those who wish to report employer UI fraud. Examples of employer UI fraud are:
  • Paying “off the books” or “under the table” wages
  • Intentional misclassification of workers as independent contractors
  • State Unemployment Tax Act (SUTA) dumping – shifting workers between employer payrolls to improperly use a lower contribution rate
Misclassifying workers and paying workers off the books can have a severe impact on workers and employers in industries where the practice prevails.
For employers, it creates an unfair economic advantage and imposes higher costs on responsible employers. This makes them less competitive and more likely to be under-bid by businesses that intentionally misclassify workers.
For workers, it affects working conditions by encouraging unscrupulous employers to ignore labor protections, such as wage and hour requirements, and safety and health regulations.
SUTA dumping occurs when employers and/or their representatives transfer employees between multiple payrolls strictly to obtain lower UI contribution rates.
We need your help to keep the UI system fair and equitable for everyone. If you are aware of an employer committing fraud, you may report it anonymously by these methods:
  • Call 1-866-435-1499
  • Contact our UI Fraud Unit at (518) 485-2144 between 8 am and 4 pm
  • Fax information to (518) 457-0024 or (518) 485-6172
  • Report by mail to:
    New York State Department of Labor
    Liability and Determination, Fraud Unit
    Building 12, Room 322
    W.A. Harriman State Office Campus
    Albany, NY 12240 "

Thursday, July 24, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 4

Thus, it would appear that the Department of Labor would consider, at the very least, the employee to have committed fraud because the employee, although consented to by the employer:

1. Failed "to disclose information on [his/her]  application for benefits, including lying about how [he/she] lost [their] job" and/or provided false information.

2. Collaborated "with an employer to illegally claim unemployment insurance benefits."

From the Department of Labor website:

"Unemployment Insurance Benefits Fraud
Report UI Fraud
(Online Form)

24-Hour Toll-Free Hotline
(1-888) 598-2077

When someone collects unemployment insurance (UI) benefits by lying to the Department of Labor, he or she is committing fraud. We take UI benefits fraud very seriously. It is a crime that affects businesses and workers. It drives up UI costs to law-abiding businesses, and it leaves honest workers unprotected. We need every dollar to help those who honestly need these benefits.
Some examples of UI benefits fraud include:
  • Providing false information or failing to disclose information on your application for benefits, including lying about how you lost your job
  • Working while collecting unemployment benefits and inaccurately reporting your days and earnings
  • Working any amount of time in a week while collecting benefits and telling us you did not work
  • Earning more than $405 from employers in one week where benefits are collected and not correctly reporting true total earnings for that week
  • Failing to be ready, willing and able to work (e.g., out of the area, on vacation, sick, suffering total disability) while collecting UI benefits
  • Working "off the books" while collecting benefits
  • Using another person's identity (e.g., name, social security number) to file fraudulent claims
  • Helping another person file a false unemployment insurance claim
  • Collaborating with an employer to illegally claim unemployment insurance benefits
Any person who commits fraud will have to pay us back the money. He or she will be penalized, and may be arrested and prosecuted.
We need your help to keep the UI system fair for everyone. If you have reason to believe that someone committed UI benefits fraud, please contact us. You may remain anonymous.
You can report UI benefits fraud three ways:
Report UI Fraud
(Online Form)
  • Click the button to the right to use our Online Form
  • Call our hotline toll-free at (1-888) 598-2077
  • Report by mail to:
    NYS Department of Labor
    Office of Special Investigations
    Bldg 12 - Room 576
    W. Averell Harriman Campus
    Albany, NY 12240"

Wednesday, July 23, 2014

NEW YORK UNEMPLOYMENT INSURANCE - CAN EMPLOYER CONSENT TO INELIGIBLE REQUEST FOR BENEFITS - CONT PART 3

The Department of Labor website clearly sets forth:

"UI Benefits Fraud

UI benefits fraud is committed by people who:
  • Claim UI benefits that they know they are not entitled to
  • Help others claim benefits they are not entitled to
Call toll-free (1-888) 598-2077 to report UI benefits fraud. See UI Benefits Fraud for more information."

Would an employer who consents to employee's application for unemployment insurance benefits with the knowledge that the employee is not entitled to engaging in UI benefits fraud?.