Tuesday, May 17, 2011


Also relevant to my objection to the application is the following Appeal Board case:

PO Box 15126 Albany NY 12212-5126

Mailed and Filed: AUGUST 19, 2009

IN THE MATTER OF: Appeal Board No. 546037

The Department of Labor issued the initial determination holding the claimant eligible to receive benefits. The employer requested a hearing and objected contending that the claimant and all other persons similarly situated were independent contractors. The Commissioner of Labor objected that the hearing request was not made within the time allowed by statute.The Administrative Law Judge held telephone conference hearings at which all parties were accorded a full opportunity to be heard and at which testimony was ta. There were appearances by the claimant and on behalf of the employer and the Commissioner of Labor. By decision filed April 2, 2009 (A.L.J. Case No.), the Administrative Law Judge sustained the Commissioner of Labor's timeliness objection, overruled the employer's objection, and continued in effect the initial determination.The employer appealed the Judge's decision to the Appeal Board. The Board considered the arguments contained in the written statement submitted on behalf of the employer.Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: In December 2007, the employer had moved from New York to Texas. The employer completed the move in June 2008. During that time, the employer maintained a post office box in New York for the receipt of business mail. Once per month, the employer would contact the store where the post office box was located to have the mail sent to the employer in Texas. A notice of determination holding that the claimant was an employee of the employer and holding the employer liable for contributions based on the earnings of the claimant and those similarly situated was mailed to the employer on April 10, 2008. The notice advised the employer that the employer had thirty days to ask for a hearing if the employer disagreed with the determination. The determination was delivered to the employer's post office box in New York State. On May 17 or May 18, 2008, the employer contacted the store where the New York post office box was maintained to have the employer's mail forwarded to her in Texas, and the employer received the determination on May 19, 2008. The employer first requested a hearing from the April 10 determination by letter faxed to the Department of Labor on May 21, 2008, on which the employer indicated that the employer's address had changed from New York to Texas. The employer did not inform the Department of Labor of the change of address from New York to Texas prior to May 21, 2008. The employer spoke with a Department of Labor employee on several occasions regarding the matter at hand. The procedure followed by the Department of Labor employee with whom the employer spoke was to notify employers that changes of address had to be in writing. The Department of Labor has no record of an address change by the employer prior to May 21, 2008.

OPINION: Pursuant to Labor Law § 620 (1) (a), a claimant who is dissatisfied with an initial determination of the claim for benefits or any other party, including any employer whose employer account percentage might be affected by such determination may, within thirty days after the mailing or personal delivery of notice of such determination, request a hearing. The Referee (Administrative Law Judge) may extend the time fixed for requesting a hearing, upon evidence that the physical condition or mental incapacity of the claimant prevented the claimant from filing an appeal within thirty days of the initial determination. The regulations of the Board, as amended, provide that a hearing request will be deemed to have been timely made if the request is postmarked within thirty days of the receipt of the determination. Absent any proof to the contrary, a determination shall be held to have been mailed on the date recited on the determination and received five business days after the mailing of the determination (12 NYCRR § 461.1). The credible evidence establishes that the determination was mailed to the employer on April 10, 2008 and the employer received it at the employer's post office box located in New York State. Pursuant to the amended regulations, the employer is deemed to have received the determination not later than five business days after April 10, 2008, or by April 17, 2008. The employer's hearing request was required to be postmarked not later than May 17, 2008, which is thirty days after April 17, 2008.In the case before the Board, the hearing request by the employer was made on May 21,2008, which is not within the 30 day period within which the hearing request was to be made. Accordingly, the employer's hearing request is not timely. The employer knew that she had to request a hearing within 30 days of the date the notice of determination was mailed. We reject the employer's contention that she notified the Department of Labor of her address change prior to the date that the determination was issued. We note that theemployer testified that she made the Department of Labor aware of the address change on the fax cover sheet included with her hand-written responses to the request for information, but the employer has not produced such fax cover sheet to substantiate her contention. In addition, the Department of Labor employee has no record of any such change of address prior to the employer's May 21, 2008 hearing request. Furthermore,although the employer claims to have also informed the Department of Labor by telephone of the address change, we accept as credible the testimony of the Department of Labor employee that the procedure she follows for all employers is to advise the employer that the change of address must be in writing. It is also significant that the employer continued to utilize the post office box in New York for receipt of mail. We therefore find that the employer did not notify the Department of Labor that the employer's address had changed prior to May 21, 2008. The employer did not take reasonable steps to ensure the prompt forwarding of mail from the employer's post office box in New York to the new address in Texas. Furthermore, the employer has not raised contention of an excusable office error which prevented her from making the hearing request in a timely manner. The employer's delay in making the hearing request is, therefore, not excused, and the employer is not entitled to a decision on the merits.

DECISION: The decision of the Administrative Law Judge is affirmed.The Commissioner of Labor's timeliness objection is sustained.The employer's objection, that the claimant and all other persons similarly situated were independent contractors, is overruled.The initial determination, holding the claimant eligible to receive benefits, is continued in effect."

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