NEW YORK UNEMPLOYMENT INSURANCE - FRAUD

It would appear to me that when the "fraud" involves a small amount of payments, the remedy sought by the DOL is repayment and the finding is one of "willful misrepresentation". Thus, in Mailed and Filed: JANUARY 25, 2013 IN THE MATTER OF: Appeal Board No. 566637:


OPINION: Pursuant to Labor Law § 597 (3), absent fraud or willful misrepresentation, a claim may be review only within one year from when it was first determined. The records of the Department of Labor reflect certifications by the claimant that do not match records obtained by the Department of Labor reflecting the claimant's employment history. While testimony was not taken from a witness for the Department of Labor that would establish that the records of certifications qualified as business records, nonetheless, in this particular case, those records may still be relied upon. The claimant admitted that he had worked for the dollar store, but testified that he had no recollection of the days he worked,the manner in which he certified, or whether he received the benefits at issue. The claimant's inability to recall the circumstances of his employment or his certifications does not outweigh the records produced by the Department of Labor. The claimant did not testify, or otherwise produce any evidence, that the records introduced into evidence by the representative of the Commissioner of Labor were inaccurate; and did not introduce any evidence contradicting the information contained in those records. The records establish that the claimant worked but did not report the correct number of days worked when certifying for benefits. As the claimant would certainly have known at the time the days worked, his false certifications were willfully made. Accordingly, we conclude that the Commissioner of Labor had the necessary jurisdiction to issue the initial determinations which are the subject of this case. We further conclude, given the claimant's willful misrepresentations, that the forfeit penalty was properly imposed.The credible evidence also establishes that the claimant was working and receiving remuneration during the two weeks at issue. Only claimants who are totally unemployed are eligible to receive benefits. As the claimant was working, we conclude he was not eligible to receive benefits for the week ending May 17, 2009, and on one day in the week ending August 2, 2009.As the claimant was ineligible, the benefits he received were overpaid. The claimant ha snot denied that he worked at least four days in the week ending May 17, 2009;consequently, the benefits he received for that week were overpaid. As he worked on one day in the week ending August 2, 2009, one-quarter of the benefits he received were overpaid. Given the claimant's willful misrepresentations, we conclude that the overpayment is recoverable.