UNEMPLOYMENT INSURANCE - EMPLOYER'S REQUEST FOR HEARING

Today I will deal with a conflict as to what is the proper time for an employer to file a request for a hearing after it has been determined that the Claimant is entitled to benefits.

The statute involved is:

LABOR LAW SECTION 621 (2):

"2. Contested determinations, rules, or orders. Within twenty days after the mailing or personal delivery of notice of the decision after a hearing on contested determinations, rules or orders by the commissioner, the employer may take an appeal to the appeal board, provided he appeared at the hearing, by filing a notice of appeal with the commissioner, and the commissioner may likewise within such period take an appeal to the board by giving written notice thereof to the employer, regardless of whether or not the commissioner appeared or was represented at the hearing before the referee."

The regulation involved is:

Section 461.2 Application for hearing by employer under subdivision 2 of section 620 (employer case)(italics supplied).

Any employer who claims to be aggrieved by any determination, rule or order of the commissioner under any provision of the law, may apply to the commissioner for a hearing before an administrative law judge, pursuant to subdivision 2 of section 620 of the law, within 30 days after the mailing or personal delivery of notice of such determination, rule or order. A request for a hearing shall be deemed to be timely filed if such request is postmarked within 30 days of the appealing party's receipt of such determination, or if there is other proof of filing of same with the commissioner, such as a fax acknowledgment, a certificate of mailing, a stamped receipt by an agent of the commissioner, or an affidavit of personal service on the commissioner or her agent by a disinterested party. Absent proof to the contrary, an initial determination of the commissioner shall be deemed to have been mailed on the date recited on the initial determination and received by a party to whom it is addressed no later than five business days after the date on which it is mailed. The application for such hearing should be in writing stating the reasons therefor.

Now note the italic section of the regulation and how it conflicts with the following 3rd Department case:

SURDAM v. COMM. OF LABOR, 51 A.D.3d 1182, 855 N.Y.S.2d 923 [3d Dept 2008]

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 5, 2007, which, upon reconsideration, adhered to its prior decision ruling, among other things, that claimant was disqualified from receiving unemployment insurance
benefits because his employment was terminated due to misconduct.

Martin T. Surdam, Tonawanda, appellant pro se.

Before: Mercure, J.P., Spain, Rose, Kane and Kavanagh, JJ.

An initial determination finding claimant eligible to receive unemployment insurance benefits was mailed to the parties on April 19, 2006. Although the employer thereafter requested a hearing to challenge that determination, an Administrative Law Judge sustained the initial determination upon the employer's failure to appear. The employer successfully applied to reopen the case and, following a hearing, an Administrative Law Judge overruled an objection by the Commissioner of Labor to the timeliness of the employer's hearing request and determined that claimant was disqualified from receiving benefits because he lost his employment as a result of misconduct. The Unemployment Insurance Appeal Board affirmed that decision and, following claimant's successful application for reopening and reconsideration, adhered to its decision. Claimant now appeals.

Although the employer's hearing request was dated within the statutory 30-day period (see Labor Law § 620 [2]), it was not filed with the Department of Labor until that time period had expired. As such, it was not a timely request (see Matter of Harroun [Commissioner of Labor], 44 AD3d 1220, 1221 [2007]; Matter of Levine [Commissioner of Labor], 253 AD2d 954, 955 [1998]) and the Board's decision must be reversed.

Ordered that the decision is reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court's decision.