senate Bill S1953

Relates to the elimination of employer unemployment contributions for employees fired for misconduct

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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  • 09 / Jan / 2013
    • REFERRED TO LABOR
  • 08 / Jan / 2014
    • REFERRED TO LABOR

Summary

Relates to the elimination of employer unemployment contributions for employees fired for misconduct.

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Bill Details

See Assembly Version of this Bill:
A2633
Versions:
S1953
Legislative Cycle:
2013-2014
Current Committee:
Senate Labor
Law Section:
Labor Law
Laws Affected:
Amd §§581 & 593, add §§594-a & 593-a, Lab L
Versions Introduced in 2011-2012 Legislative Cycle:
S6850, A9725

Sponsor Memo

BILL NUMBER:S1953

TITLE OF BILL: An act to amend the labor law, in relation to the elimi-
nation 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.

SUMMARY:

Section 1 adds clause (vi) to subparagraph 2 of paragraph (e) of subdi-
vision 1 of section 581 of the labor law to exclude employers who termi-
nate 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 claim-
ant 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 bene-
fits.

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 unde-
served claims.

LEGISLATIVE HISTORY: S6850 of 2012 - referred to labor

FISCAL IMPLICATIONS: Significant cost savings are anticipated for busi-
nesses as well as the State and Federal governments.

EFFECTIVE DATE: This act shall take effect immediately.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1953

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (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 SHALL

 EXPLANATION--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.

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