Sunday, September 20, 2009


Section 594 of the Unemployment Insurance Law provides that "a claimant who has wilfully made a false statement or representation to obtain any benefit ... shall forfeit benefits for at least the first four but not more than the first eighty effective days following discovery of such offense ...". It further provides that the claimant shall be deemed to have received benefits for such forfeited effective days", and that "A claimant shall refund all moneys received because of such false statement ...". Yesterday, I received a favorable decision on a matter. A claimant was denied benefits due to misconduct and I was able to establish that the actions complained of were not misconduct; however, when the claimant first filed the claim, the claimant made a statement that employment was terminated due to the economy, despite the fact that it was clear that the claimant's employer was was not happy with the performance of the claimant. A determination and four day penalty of willful misrepresentation was also made by the Department of Labor and that determination was upheld by the Appeals Board. Now although the penalty only amounted to a few hundred dollars and the benefits the claimant will receive will be over $20,000, it is a reminder that in claiming benefits, the Department of Labor, after their investigation on a contested claim, may make a penalty determination for willful misrepresentation and 'willful' does not imply a criminal intent to defraud but means 'knowingly', 'intentionally', 'deliberately' to make a false statement. (Matter of Vick, 12 AD 2d 120). If you are discharged for an alleged misconduct, you may want to contact an attorney before you make your claim for unemployment benefits. An attorney can research the law, make sure your application is proper and avoid the risk of a determination of "willful misrepresentation". But in any case, be honest and truthful when filing your application and remember, just because your employer is unhappy with your work, there remain circumstances which would not justify the imposition of a disqualification for misconduct, including:

1. Mere inefficiency.

2. Inadequate performance as the result of inability or incapacity Inadvertence or ordinary negligence in isolated instances (not from gross negligence, indifference, or recurrent carelessness).

3. Good faith errors in judgment or discretion.


  1. Dear Mr.Probstein,

    I had " willful misrepresentation " determination back in 2005 for my unemployment.. and I repaid the whole money right away.

    Sir, do you think this charge by labor representative will some how show up on my Citizenship interview on October 2009.

    I sincerely thank you for your opinion.

  2. Hello:

    Of course, an investigation these days can turn up anything and if there was a repayment problem, some Department of Labor offices claim they will file with credit report agencies. My suggestion would be to contact your immigration lawyer - remember, a willful misrepresentation does not imply a criminal intent: perhaps it would be best to disclose this right away with an explanation, especially in light of the fact that you had repaid. Again, consult with an immigration attorney as nothing contained herein should be construed as legal advice - you should always consult a lawyer regarding any matter.

  3. Hi, Ijust recieved a letter in the mail stating "claimant made false statements. Claimants rights to further benefits is reduced by 008 days until 05/02/2013" what exactly does this mena? that i will not be paid until 2013? or does it mean that i will not be paid until i repay those 8 days on any claim i file between now and 2013? Thanks

  4. NY State Dept of Labor: If have forfeiture of future benefits for 80 effective days and you return to work prior to the 80 day period, are you liable to repay the remaining penalty or does it just apply while you are unemployed?

  5. An explanation of penalties can be found at this link to a special bulletin from the DOL: