Relates to the elimination of employer unemployment contributions for employees fired for misconduct.
TITLE OF BILL: An act to amend the labor law, in relation to the elimination of employer unemployment contributions for employees fired for misconduct
PURPOSE: To eliminate instances when an employer fires an employee for misconduct and is subsequently required to contribute to that employee's unemployment benefit.
Section 1 adds clause (vi) to subparagraph 2 of paragraph (e) of subdivision 1 of section 581 of the labor law to exclude employers who terminate as a result of misconduct or good cause from the experience rating.
Section 2 adds a new subdivision (2-a) to section 581 of the labor law to exclude employers who terminate as a result of misconduct or good cause.
Section 3 adds a new section (594-a) to the labor law to ensure a claimant who has been fired for misconduct or good cause within their base period sees a reduction in benefits that correlates with that employment period.
Section 4 amends subdivision 3 of section 593 of the labor law to ensure the claimant who was fired fox misconduct does not collect based from the general account in the event he/she has been fired for misconduct or good cause.
Section 5 adds a new section (593-a) of the labor law for misconduct hearings and determinations. Under this new section, an employer will have ten days to object to a claim and the Department has thirty days to have a final determination hearing.
Section 6 provides the enacting clause.
JUSTIFICATION: Under Section 593.3 of the labor law, if an unemployment claimant lost employment prior to the filing of her/his claim through misconduct in connection with his/her employment, she/he is disqualified from benefits beginning with such loss of employment and ending when he/she has worked in subsequent employment and earned remuneration at least equal to five times her/his weekly benefit rate. Any wages earned through employment which ended due to misconduct in connection with that employment cannot be used to establish a valid original claim for benefits.
However, if that claimant obtains a new position and is let go in a non-disqualifying way, she/he may be eligible to collect benefits. In that instance, the original terminating employer is charged a debit in accordance with section 581 of the labor law.
The need for clarification in the law was recently highlighted in two decisions made by the Appellate Division in the 3rd Judicial Department. In the Matter of Perry (Summit Security Systems Inc.) and Matter of Christy (Aspire of Western NY), Judge Peters explains the necessity of a "final determination" of misconduct being made by the Department on the claimant's prior termination in order to exclude the employer from an experience rating charge to their account. Likewise, the court decided the same determination should be made in order to exclude wages earned from employers from whom the claimant lost employment under conditions which would be disqualifying.
This bill amends the labor law so that in instances where the claimant has been denied unemployment benefits due to termination for misconduct, the terminating employes will have an opportunity to object and be excluded from the base period of employers used in calculating a valid original claim and therefore not be charged a debit on the claim of the terminated claimant.
With genuine unemployment claims increasing, it is especially important to create policies that protect businesses from illegitimate and undeserved claims.
LEGISLATIVE HISTORY: S6850 of 2012 - referred to labor
FISCAL IMPLICATIONS: Significant cost savings are anticipated for businesses as well as the State and Federal governments.
EFFECTIVE DATE: This act shall take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 1953 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________Introduced by Sens. RITCHIE, BONACIC, DeFRANCISCO, GALLIVAN, GOLDEN, GRIFFO, GRISANTI, LARKIN, LIBOUS, MARTINS, O'MARA, RANZENHOFER, VALE- SKY, YOUNG -- read twice and ordered printed, and when printed to be committed to the Committee on Labor AN ACT to amend the labor law, in relation to the elimination of employ- er unemployment contributions for employees fired for misconduct THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subparagraph 2 of paragraph (e) of subdivision 1 of section 581 of the labor law is amended by adding a new clause (vi) to read as follows: (VI) IN THOSE INSTANCES WHERE THE CLAIMANT HAS BEEN DENIED BENEFITS DUE TO TERMINATION FOR MISCONDUCT, THE TERMINATING EMPLOYER SHALL BE EXCLUDED FROM A CALCULATION OF BENEFITS UNDER THIS SUBPARAGRAPH. S 2. Section 581 of the labor law is amended by adding a new subdivi- sion 2-a to read as follows: 2-A. AN EMPLOYER'S ACCOUNT SHALL NOT BE CHARGED, AND CHARGES SHALL NOT BE MADE TO THE GENERAL ACCOUNT, FOR BENEFITS PAID TO A CLAIMANT WHEN SUCH CLAIMANT FITS THE CRITERIA DESCRIBED IN SECTION FIVE HUNDRED NINE- TY-FOUR-A OF THIS ARTICLE OR WHEN SUCH EMPLOYER IS SUCCESSFUL IN A HEAR- ING AS PROVIDED BY SECTION FIVE HUNDRED NINETY-THREE-A OF THIS ARTICLE. S 3. The labor law is amended by adding a new section 594-a to read as follows: S 594-A. REDUCTION IN BENEFITS DUE TO MISCONDUCT. 1. WHENEVER AN INDI- VIDUAL WHO HAS FILED A PREVIOUS VALID ORIGINAL CLAIM PURSUANT TO THIS TITLE HAS RECEIVED REMUNERATION FROM EMPLOYMENT SUBSEQUENT TO FILING A VALID ORIGINAL CLAIM AND SUCH INDIVIDUAL HAS BEEN RELIEVED OF SUCH EMPLOYMENT THROUGH MISCONDUCT, SUCH INDIVIDUAL'S VALID ORIGINAL CLAIM SHALL BE REDUCED BY THE AMOUNT OF REMUNERATION RECEIVED SUBSEQUENT TO FILING THE VALID ORIGINAL CLAIM; PROVIDED THAT SUCH REDUCTION SHALLEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06536-01-3 S. 1953 2
APPLY TO AT LEAST THE FIRST FOUR BUT NOT MORE THAN THE FIRST EIGHTY EFFECTIVE DAYS FOLLOWING ANY RE-FILING OR ATTEMPT TO COLLECT BENEFITS ON SUCH VALID ORIGINAL CLAIM. 2. WHENEVER SUCH INDIVIDUAL AS DESCRIBED IN SUBDIVISION ONE OF THIS SECTION RE-FILES OR COLLECTS BENEFITS ON HIS OR HER VALID ORIGINAL CLAIM, EMPLOYERS IN THE BASE PERIOD OF SUCH VALID ORIGINAL CLAIM SHALL NOT CONTRIBUTE A HIGHER PERCENTAGE OF BENEFITS OF SUCH VALID ORIGINAL CLAIM NOR SHALL ANY REMUNERATION RECEIVED BY SUCH INDIVIDUAL FROM AN EMPLOYER THAT HAS RELIEVED HIM OR HER FROM EMPLOYMENT FOR MISCONDUCT BE INCLUDED IN ANY BASE PERIOD CALCULATION. S 4. Subdivision 3 of section 593 of the labor law, as amended by chapter 589 of the laws of 1998, is amended to read as follows: 3. Misconduct. No days of total unemployment shall be deemed to occur after a claimant lost employment through misconduct in connection with his or her employment
[until he or she has subsequently worked in employment and earned remuneration at least equal to five times his or her weekly benefit rate]. S 5. The labor law is amended by adding a new section 593-a to read as follows: S 593-A. MISCONDUCT; HEARINGS AND DETERMINATIONS. 1. WHENEVER AN EMPLOYER IN THE BASE PERIOD RECEIVES NOTICE THAT A CLAIMANT HAS FILED A CLAIM AND SUCH EMPLOYER HAS TERMINATED SUCH CLAIMANT FOR MISCONDUCT, SUCH EMPLOYER MAY OBJECT TO SUCH CLAIM; PROVIDED, THAT SUCH OBJECTION MUST BE FILED WITH THE DEPARTMENT WITHIN TEN DAYS OF SERVICE OF SUCH NOTICE. 2. IF ANY EMPLOYER DESCRIBED IN SUBDIVISION ONE OF THIS SECTION COMPLIES WITH THE FILING REQUIREMENTS OF SUCH SECTION THEN SUCH EMPLOYER SHALL BE ENTITLED TO A HEARING WITH THE DEPARTMENT WITHIN THIRTY DAYS OF THE FILING DATE OF SUCH OBJECTION. IF SUCH EMPLOYER PREVAILS IN SUCH A HEARING THEN THE DETERMINATION OF THE DEPARTMENT SHALL CONSTITUTE A FINAL DETERMINATION FOR PURPOSES OF THIS CHAPTER. 3. IF THE TERMINATING EMPLOYER SUCCESSFULLY DEMONSTRATES THAT SUCH CLAIMANT WAS TERMINATED FOR MISCONDUCT THEN SUCH EMPLOYER SHALL NOT BE INCLUDED IN ANY BASE PERIOD, WHETHER PRIOR OR SUBSEQUENT TO ANY VALID ORIGINAL CLAIM, FOR PURPOSES OF CONTRIBUTION TO THE GENERAL ACCOUNT. IF SUCH EMPLOYER SUCCESSFULLY DEMONSTRATES THAT SUCH CLAIMANT WAS TERMI- NATED FOR MISCONDUCT THEN SUCH EMPLOYER'S EXPERIENCE RATING SHALL REMAIN UNCHANGED. S 6. This act shall take effect immediately.