Tag: unemployment

New York Unemployment Benefits Severance Pay

Severance Pay Affects New York Unemployment Benefits

Since a 2014 reform to New York State’s Unemployment Insurance System, employees are generally not eligible to receive both severance pay and unemployment insurance at the same time. However, there are exceptions and nuances to this rule. As a result, employers sometimes have options that can affect their former employees’ receipt of New York unemployment benefits.

[You might also want to review this article on “Contesting New York Unemployment Claims”.]

New York Unemployment Benefits

In New York, employees must be completely unemployed and actively seeking work to be eligible for unemployment benefits. Most unemployed individuals with sufficient work history will be eligible for benefits. Employees who resigned or engaged in misconduct might not receive benefits.

Until several years ago, severance pay did not change employees’ New York unemployment benefits. Now, however, it often will.

What is Severance Pay?

New York’s unemployment insurance law defines severance pay as “payments made by an employer to an employee due to separation from employment.” Severance pay generally does not include payments regarding retirement, health insurance, accrued leave, or unemployment benefits.

The law recognizes that severance pay can be paid in several payments or one lump sum. And now the timing of the payment(s) matters for unemployment purposes.

Why Timing Matters

Whether severance pay affects unemployment benefits can depend on when the employer makes the payments.

If an employee receives severance pay within 30 days of his or her last day of employment, the severance may offset the unemployment benefits. In that scenario, the employee will not receive unemployment if the weekly severance payments (or pro rata portion of a lump-sum payment) are higher than the maximum weekly unemployment benefit rate. Once the severance payments have ended, the employee may be eligible to receive unemployment benefits (assuming they meet standard eligibility requirements).

On the other hand, if the employee does not begin receiving severance pay until more than 30 days have passed since their last day of employment, they can immediately collect unemployment. In this situation, the severance pay will not affect New York unemployment benefits at all.

(The “last day of employment” is the last day an employee was actually working or was on paid leave.)

Keep This in Mind

Eligibility to receive New York unemployment benefits is often an important issue for departing employees. Employers should carefully consider unemployment issues in developing severance packages.

When employers have options in structuring the severance payout, they should factor in the impact on unemployment benefits. The decisions involved can have meaningful financial implications for both the employer’s business and the former employee. The “right” choice will likely vary in different situations.

Contesting New York Unemployment

Contesting New York Unemployment Claims

Are departing employees eligible for unemployment? As usual, it depends. To claim unemployment insurance benefits in New York, employees usually must be totally unemployed, yet available for and seeking work. After that, the most important factors are whether the employee has worked long enough to qualify and the reason for separation from employment. Here, we’ll focus on that last question, as it’s the one employers most often use in contesting unemployment claims.

Before we go any further, here are related free webinars that might interest you:

Why Isn’t the Employee Working?

Unemployed individuals with sufficient recent work history will receive unemployment insurance benefits unless they became unemployed because of a disqualifying reason.

The primary disqualifying reasons for loss of employment are:

  • Voluntary resignation
  • Misconduct

Neither category is entirely straightforward under New York’s unemployment law.

Voluntary Resignation

Employees who quite a job entirely of their own accord usually will not receive unemployment benefits. However, there are some exceptions.

First, the departure must be truly voluntary. Employees who have no real choice but to “resign” may still receive unemployment. This could occur where the employer gives the employee the option to either resign or be terminated. It also includes situations where the employer was treating the employee unlawfully such that the employee understandably felt compelled to leave.

A second scenario is more surprising to employers. Suppose an employee resigns from Company A to work for Company B. If the employee then loses their job with Company B soon enough and for a non-disqualifying reason, then Company A may be credited with some portion of the employee’s resulting unemployment claim. Company A seldom can do anything to avoid or contest this result.

Misconduct

Many employees lose their jobs due to workplace misconduct. However, many of those employees will still receive unemployment benefits. Even when employers contest unemployment claims, proving disqualifying misconduct is difficult.

To win an unemployment claim based on misconduct, an employer must prove either extremely bad behavior or prior specific warning of the consequences for the behavior. In most cases, poor performance will not rise to the level of misconduct under the New York unemployment law.

Examples of misconduct that may justify a denial of unemployment benefits include theft, physical violence, falsifying documents, and workplace drug use. In addition, any misconduct that constitutes a felony should disqualify an employee.

Many other forms of misconduct that support termination of employment will not necessarily result in denial of benefits. These may include poor attendance, insubordination, carelessness, and violation of employer rules. However, any of these behaviors could constitute disqualifying misconduct under the right circumstances. Usually, this requires prior warning of the specific improper behavior and the future consequence of termination followed by more incidents.

Overall, the analysis of misconduct depends on the facts. But close calls usually get decided in the employee’s favor.

Minimizing Successful Unemployment Claims

Most New York employers of any size must accept some unemployment claims as part of doing business. Obviously, one way to avoid these claims would be never to let anyone go against their will. But that probably isn’t a good business model.

Employers who want to minimize the impact on their claims history can take precautions before discharging employees. This includes having clear discipline policies that spell out what forms of conduct are unacceptable. But that alone probably is not enough. Even if not written into policy, most employers will want to follow the concept of progressive discipline. This allows that extreme misconduct will cost employees their job in the first instance. However, employees will get a second chance for less consequential missteps. Any discipline notices should then include specific language about the consequences of further violations. When warranted, that would be termination of employment. With that prior warning in place, an employer’s chances of contesting the employee’s unemployment claim will increase.

For more about ending the employment relationship, check out these webinars: Don’t Fire Me on Friday and Conducting Your Next Reduction in Force.

Top Posts of 2017

Top Posts of 2017

As the year comes to a close, I thought I would review the New York Management Law Blog’s top posts of 2017.

These posts reflect some topics that most interested New York employers in 2017. Do they also suggest what will be top of mind in 2018?

New York Minimum Wage Increases on 12/31/17

This post reminded New York employers of the scheduled increases to both minimum wage and the salary threshold for overtime exemptions under state law.

If you haven’t already checked whether your company is paying enough, act fast! If you’re reading this, new requirements are already in place.

For those looking ahead, this post contains full charts of all scheduled increases to New York minimum wage and overtime exemption salary requirements. This includes increases taking effect on December 31st of 2018, 2019, 2020, and beyond.

New York Paid Family Leave

The New York Paid Family Leave Program kicks off on January 1, 2018. Companies throughout the state have spent much of 2017 preparing for this significant change in New York employment law. As a result, 3 of our 10 top posts of 2017 addressed this topic.

New York Paid Family Leave Notice Requirements

If you still haven’t determined what the employer and employee notice requirements are, then don’t wait any longer.

There are several things all covered employers must do beginning January 1, 2018, including:

  • Post a Notice Confirming Coverage
  • Provide Written Guidance to Employees
  • Provide a Notice of Rights When Employees Request Leave

If you still have questions about the New York Paid Family Leave Program, check out these two top posts that include replays of webinars I presented on the topic:

In Case You Missed It: New York Paid Family Leave Webinar 9-12-17

I presented this webinar in September. It addresses many of the paid family leave basics. If you still don’t know whether your organization is covered or what it means if you are, start here.

Are You Ready for New York Paid Family Leave? (Webinar)

This more recent webinar gets into some of the latest details about what employers need to know to comply with the New York Paid Family Leave Benefits Law.

This webinar will help you get your written policy in place and prepare you for administering paid family leave in 2018.

Who Will Get the Last Seat on the NLRB?

In his first year in office, President Trump appointed two new members to the National Labor Relations Board: Marvin Kaplan and William Emanuel. Both are Republicans, which temporarily gave the 5-member Board a 3-2 Republican majority. Chaired by Philip Miscimarra (R), the NLRB reversed several key Obama-era precedents in December.

However, Chairman Miscimarra’s term ended on December 16, 2017, creating a new vacancy. President Trump named Kaplan the new Chairman, but has not yet formally nominated a new member to fill the Board.

Two names surfaced over the past several months as potential Miscimarra replacements. Our top posts of 2017 featured both of these individuals:

Report: Attorney John Ring May Replace Miscimarra on NLRB

Mike Stoker for NLRB?

Although Trump has not made his selection official, it now appears that Ring will be the pick in early 2018. A Republican management-side labor and employment lawyer, Ring will likely join Chairman Kaplan and Member Emanuel in continuing to move away from the Obama NLRB’s pro-union decisions.

5 Best Reasons for Anti-Harassment Training

2017 brought to light an extensive pattern of sexual harassment and assault by powerful men in the entertainment industry. This placed a spotlight on employers’ duties to prevent and remedy harassment in the workplace.

If your organization is still not sure where to start, this top post of 2017 is for you.

What Employers Didn’t Know About Existing New York Labor Laws

The 3 remaining top posts of 2017 shed light on several legal issues that were not new this year. This follows the blog’s purpose of providing useful information even about topics that are not being discussed elsewhere. Posts like these are another reason you should sign up for my email newsletter so you don’t miss out on critical guidance that you didn’t even know you needed!

New York Law Protects Employees’ Off-Duty Conduct

Are you familiar with Section 201-d of the New York Labor Law? Well, for starters, it applies to all New York employers. Click above to find out more!

New York’s Shared Work Program Provides a Layoff Alternative

Many employers were interested in this post about a little-known aspect of New York’s unemployment insurance benefits program. Sometimes companies can reduce their employees’ hours while offsetting the lost wages with partial unemployment benefits. This arrangement can help employers who would otherwise have to lay off employees during slow periods and risk losing them to other jobs before business picks up.

Disciplining Public Employees in New York Under Civil Service Law Section 75

This was a top post of 2017 among public employers. This includes governmental entities such as counties, municipalities, school districts, and state agencies. If you work in one of these organizations and have a role in employee discipline, you may need to understand how Section 75 of the New York Civil Service Law works. Or, at least, you must make sure it doesn’t apply, then determine what other due process requirements you have to comply with instead.

Don’t Stop at the Top Posts of 2017!

I hope you find it helpful to look back at what happened last year, but you should also look forward. Please continue to follow the New York Management Law Blog in 2018.

The best way (in my opinion) to stay informed of the hottest topics in New York labor and employment law is to subscribe to my monthly email newsletter. It not only recaps my recent blog posts, but also announces upcoming complimentary webinars that help you manage the people in your organization.

See you in 2018!