UNEMPLOYMENT PRO BONO

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UNEMPLOYMENT PRO BONO
UNEMPLOYMENT PRO BONO

Information for attorneys on the New York Pro Bono Project

Information for attorneys on the New York Pro Bono Project

Aly Luftig

Video Answers to Questions

Sample Information to Send Clients

Resources From NYSBA (webinars etc)

NYSBA / Gov / DOL Liaison

Information from Chief of Staff of an Upstate Senator

Fact Sheets & Info From DOL

LWA Fact Sheets

2021 Updates

DISCLAIMER: This is a compilation of resources including questions, answers, and information from the NYSBA pro bono initiative, legal research/ statutory law, and some other social media pages where people discuss common issues they’re facing with unemployment insurance. Please do not rely definitively on anything I have put in here without looking into it further, and please do not consider this legal advice.

2021 DOL Updates

includes extension of PUA and PEUC

Partial Unemployment New Rule- Governor Cuomo’s new executive order which will change the reporting process to account for HOURS worked.

See 2021 updates subpage for detailed information about all of this!

Updated PUA Minimum Amount

The previous minimum amounts of $172 and $182 have been raised to $187 as of July 2020.

Liaison Program

** IMPORTANT** ーAS OF TODAY, January 20, 2021, I’m unsure how much contact we still have and will update after a call with the DOL tomorrow.**

We have established a line of communication between the NYSBA unemployment pro bono attorneys and Governor Cuomo’s office! Please see the “NYSBA / Gov / DOL Liaison” page for details on passing along pressing / unique issues for more direct and specific solutions for clients. So far this has been a huge help.

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Click here for information on the liaison procedure.⁠

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LWA NEW INFO as of September 11, 2020 regarding the Lost Work Assistance (LWA) program for New York

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Click this link for the LWA fact sheet subpage⁠

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And/or see the below text!

NYS Department of Labor Announces $300 Lost Wages Assistance Payments Will Begin Next Week

Roughly 2 Million New Yorkers are Pre-Qualified for Lost Wages Assistance and will Receive Payments Next Week

Approximately 435,000 New Yorkers Must Submit an Additional Certification to Qualify — Certification System Launches on Sept. 11, Payments Begin on a Rolling Basis Next Week (From 9/11/2020)

Actions DOL is taking to inform claimants who are eligible:

taking proactive steps to communicate directly with all 2.4 million claimants tomorrow, including:

Sending emails and text messages to all 2 million New Yorkers who are pre-qualified, informing them of their qualification and that they do not need to take any additional actions to receive the LWA benefits.

Sending emails to the ~435,000 who need to certify with the DocuSign document to certify for the LWA program.

New York has Paid $43.7 Billion in Benefits During Pandemic Emergency, Representing Over 20 Typical Years’ Worth of Benefits in Just Six Months. Expand arrow below for more info including who is eligible automatically, who may be eligible but needs to take further action, how long the benefits should last/ to how much claimants may be entitled and more!

Expand arrow for detailed information

Approximately 435,000 New Yorkers Must Submit an Additional Certification to Qualify — Certification System Launches on Sept. 11, Payments Begin on a Rolling Basis Next Week

The New York State Department of Labor today announced that payments for the Lost Wages Assistance (LWA) program, which provides an additional $300 in weekly benefits to unemployed New Yorkers, will begin next week. Up to 2.4 million New Yorkers are eligible for the program, including 435,000 who must submit an additional certification to qualify.

During the pandemic emergency, New York State has paid $43.7 billion in unemployment benefits to 3.5 million New Yorkers, representing over 20 typical years’ worth of benefits paid in just six months.

“Throughout this crisis, states’ unemployment systems have been pushed to the limit and constantly-changing federal guidance — including this haphazard Presidential executive order — have only delayed our efforts to get benefits to New Yorkers in need. But we have worked day and night to stand up this program, and millions of New Yorkers will see payments next week,” Commissioner Roberta Reardon said. “We are emailing all New Yorkers who are receiving benefits to inform them of their status and, if needed, provide information about certifying for the Lost Wages Assistance program. All New Yorkers should keep an eye out for these messages and, if an additional certification is required, respond immediately.”

The Federal Emergency Management Agency (FEMA) has released funding for the first three weeks of LWA benefits to New York State, covering the benefit weeks ending August 2nd, August 9th, and August 16th. The DOL estimates that up to 2.4 million New Yorkers may be eligible for the benefits from those weeks, including recipients of both traditional unemployment insurance (UI) and Pandemic Unemployment Assistance (PUA). Approximately 2 million New Yorkers are pre-qualified and will receive payments starting next week. The remainder — roughly 435,000 New Yorkers — must submit an additional certification to qualify.

Of the estimated 2.4 million New Yorkers who may be eligible: (CLICK ARROW TO EXPAND!!)

Approximately 2 million are already qualified for the LWA program because they indicated on their initial benefit application that their unemployment was connected to the COVID-19 pandemic. These claimants: **CLICK ARROW TO EXPAND**

Do not need to take any further action;

Will receive LWA payments starting next week; and

Will receive an email and text message from DOL informing them they have pre-qualified for LWA.

Roughly 435,000 need to submit an additional certification confirming that their unemployment is related to COVID-19 to qualify for LWA benefits, as required by the federal government. These claimants: (CLICK ARROW TO EXPAND!!)

Can certify starting Friday, September 11th either online or via phone:

Online: claimants will receive a secure DocuSign email from the DOL on September 11th, with a link to certify for LWA benefits

Phone: claimants can call

833-491-0632⁠

to certify via an automated phone system

Will receive payments starting next week if their certification is submitted by 5pm on September 15th — after that, payments will be released on a rolling basis.

Eligible New Yorkers will receive LWA payments of $300 per week for the weeks ending August 2nd, 9th, and 16th. Under federal rules, New York State may be eligible for additional weeks of LWA funding.

According to FEMA, funding for the LWA program will continue until any of the following occur: (CLICK ARROW TO EXPAND!!)

1. The federal Disaster Relief Fund balance falls below $25 billion

2. The $44 billion set aside for the LWA program is depleted;

3. Congress enacts a replacement unemployment relief program; OR

4. If none of the above scenarios occur before December 27, 2020, funding will terminate on that date.

Fact Sheets and New Information from the DOL

Representatives from the DOL provided us with updated fact sheets and some new information. This can be found on the “DOL Fact Sheet” subpage.

Topics Covered on the fact sheets include:

returning to work

general UI and PUA claims (FAQ)

determining the status of claims

Keybank debit cards

forfeit days and offsets

communications from the DOL.

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Click here for the fact sheets and information from the DOL⁠

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Please continue checking back, as I am making frequent updates as I acquire more helpful information.

EXTRA RESOURCES

Be sure to visit the informative subpages which contain further helpful resources and will be updated periodically to include new information.

1) An employment attorney and friend of mine, Vincent White, graciously created Youtube videos to answer some of our initial questions. Please contact me if you have a particular topic you'd like him to discuss, as he has generously agreed to address issues we may encounter going forward.

2): A member of the volunteer group spoke with the chief of staff of a senator in upstate NY and I included it on a subpage.

**Additional resources are being added regularly and links to all subpages can be found at the top of the page.**

Here are the links:

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Video Answers to Questions⁠

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Information from Chief of Staff of an Upstate Senator⁠

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Unemployment: Initial FAQ

**FOR ANY AREA THAT INDICATES THERE'S AN ANSWER OR INFORMATION THAT APPEARS BLANK, MAKE SURE TO CLICK THE ARROW WHICH FUNCTIONS TO EXPAND/COLLAPSE**

My client successfully applied X weeks ago and hasn't heard back. What should I advise?

Answer

Do:

Have Patience. DOL is getting through their backlog. (See twitter)

Have you checked your mail? The mail is really important.

Have you been answering your phone? UI will call from a "private number" (make sure not to ignore it!). Answer your phone! Yes, they call on Sundays, so answer your phone!

Has your employer received their notice of claims? (Obviously only works if your employer is still working and available.)

Possibly contacting state legislators.

Don't:

keep calling DOL.

call DOL on client's behalf.

apply again/repeatedly.

2. My client made a mistake on the application. What should I advise?

Answers (Click arrow for two options)

Client should use the UI app's messaging system - this may result in a suggestion to call. Unfortunately, this seems to be the scenario in which calling is necessary.

Alternative: Send a letter to the NYSDOL at :NYS Department of Labor, PO BOX 15130, Albany, NY 12212-5130

3. My client applied for both PUA and UI (before app was streamlined) and hasn't heard back.

Answer

I think this is in the patience category as well. These will be more difficult for UI staff to sort and I expect they will take some time on these confused applications.

4. My client was denied and I need to request a hearing.

Answer

Let or help the client apply for themselves and you can help with the hearing when it happens. The NYSDOL notice of decision has a form on the back for requesting a hearing.

5. My client used to work in NY and moved elsewhere and didn't start working in the new state before The Closing started. What do I advise?

Answer

Apply in NY.

6. My client used to work in NY, moved elsewhere, started a new job and then The Closing started. What do I advise?

Answer

Apply in new state.

7. My client is self-employed -

The answers are in the text of the CARES Act, the regulations), and in the Disaster Unemployment Assistance program law & regulationss.

Useful links and resources:

NYS UI Claimants Handbook. Literally the most useful item for newbies to UI (PDF). (click the arrow below)

CLICK ON THE ARROW TO LOAD THE PDF "Unemployment Insurance A Bridge to Your Next Career (it's so long it's easier for the page to load this way)

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CARES Act Information

CLICK ON THE ARROW TO LOAD THE PDF (it's 331 pages so this is for site functionality)

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Employment and Training Administration Advisory System (PDF)

CLICK ON THE ARROW TO LOAD THE PDF

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This link can't be embedded.⁠

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Disaster Unemployment Assistance quick reference/ Fact Sheet (DUA is what PUA is based on) (PDF)

CLICK ON THE ARROW TO LOAD THE PDF

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DUA law

https://www.govinfo.gov/content/pkg/USCODE-2011-title42/html/USCODE-2011-title42-chap68-subchapIV-sec5177.htm⁠

DOL info

On the issues concerning forfeiture and related issues, this link will take you to Appeals Board decisions that may help the pro bono client,

labor.ny.gov/ui/aso/Section_1500.htm⁠

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**Please note the above forfeiture information applies to BEFORE May 13, 2020.

On the issues of Good Cause, voluntary v. involuntary separation from employment, these cases have been very helpful,

labor.ny.gov/ui/aso/Section_1600.htm⁠

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The End of $600 FPUC Payments+ UI and PUA extension- DOL announcement

Under current federal guidelines, this is the last benefit week for $600 FPUC payments in New York.

When you submit your weekly certification between Sunday 7/26 & Saturday 8/1, you will be certifying for your final week of FPUC.

This may change if Congress takes action to extend Americans' unemployment benefits.

We will provide all updates on our website and social media. Please do not call our call centers to inquire about FPUC extensions, so those who need assistance with their claims can get through.

In addition, we announced last week that UI & PUA had been extended:

➡️ Traditional Unemployment Insurance (UI) benefits are now extended for up to 59 weeks

➡️ Pandemic Unemployment Assistance (PUA) benefits are now extended for up to 46 weeks

More information on these extensions: https://on.ny.gov/peuceb

To continue receiving your UI or PUA benefits, continue to certify every week. There is no need to reapply or contact the NYS DOL, unless your benefit year has expired.

Certify online at http://labor.ny.gov/signin or by calling 1-888-581-5812 (for UI) or 1-833-324-0366 (for PUA).

Extended Benefits and PEUC info

UPDATE: The Extended Benefits (EB) program is now in effect in NYS.

Thanks to the Pandemic Emergency Unemployment Compensation (PEUC) & EB programs, New Yorkers receiving traditional UI are now eligible for up to 59 weeks of benefits – up from 26 weeks before the pandemic. Details: https://on.ny.gov/peuceb

In addition, under federal law, those receiving Pandemic Unemployment Assistance (PUA) are now eligible for up to 46 weeks of benefits in NYS – up from the original 39 weeks.

More information:

–To be eligible for EB, you must first exhaust all 26 weeks of traditional UI and all 13 weeks of PEUC benefits and continue to be unemployed.

–Alternatively, if your benefit year for UI expired after July 1, 2019, and you received 13 weeks of PEUC, you may be eligible for EB.

–New Yorkers who qualify for these programs do not have to reapply – just continue to certify weekly.

–If your benefit year has expired, you must file a new claim. The system will advise you if you are in this situation.

*A fact sheet on EB and PEUC will be added by tomorrow (July 26 2020)

Forfeit Day Penalties

*also see the “Fact Sheets & Info from the DOL” subpage for information on this subject.

May 13 Press release suspension of forfeiture day penalties

Direct link to NYSDOL Press Release:

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https://labor.ny.gov/pressreleases/2020/may-13-2020.shtm⁠

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*** NEW: 📢 The DOL announced emergency measures to ensure unemployed New Yorkers who have been assessed forfeiture day penalties will receive benefits during the COVID19 pandemic. on.ny.gov/2Wv18Aa ***

Unemployed NYers with only forfeiture days on their accounts will immediately begin receiving $600 weekly FPUC payments, including back pay through the program's launch on April 5. They will also begin receiving UI or PUA benefits they would otherwise be eligible for in ~2 weeks.

Relevant content / info of announcement (click arrow to expand)

Department of Labor announced emergency measures to ensure unemployed New Yorkers who have been assessed forfeiture day penalties will receive benefits during the COVID-19 pandemic. These actions, which suspend forfeiture days for the duration of the pandemic emergency, will allow more unemployed New Yorkers to receive financial support during this unprecedented crisis.

The Department of Labor is announcing emergency actions to provide relief for New Yorkers who have been assessed “forfeiture day” penalties, which, under Federal and New York State law, prevent individuals who knowingly claimed more unemployment benefits than they are eligible for from receiving future benefits for a specified number of days. For every four forfeiture days someone is assessed, that person must forfeit a week of future unemployment benefits.

Recognizing that many New Yorkers currently unemployed because of the COVID-19 pandemic lost their jobs through no fault of their own and have limited options to find employment, the Department of Labor is providing immediate relief by suspending forfeiture days during the pandemic emergency. This will help more New Yorkers receive the financial support they need during this crisis.

Unemployed New Yorkers with forfeiture days on their accounts have already begun receiving the $600 weekly Federal Pandemic Unemployment Compensation payments. In addition, individuals with forfeiture days will now receive the traditional unemployment insurance (UI) or Pandemic Unemployment Assistance (PUA) benefits they would otherwise be eligible for. These payments will begin in approximately two weeks and will include back pay through [May 13, 2020]. Those with other flags on their accounts, including child support payments and offset payments to reimburse the state for benefits they improperly received, will see payments reduced to continue to re-pay amounts owed.

Before the May 13 press release (info applies prior to May 13)

Question 1

I have a situation in which a claimant has been denied benefits on the ground that he has not exhausted his forfeit day penalties and therefore also is ineligible for the $600/week CARES benefit. I understand that there has been legislation introduced in the State Senate (S8275) and Assembly (A10348) to suspend penalties during the pandemic, to allow people to receive UI benefits for a period of time, but I do not know the status of these bills. I also understand that the DOL itself is considering making modifications. Apparently, there are online discussion groups addressing this dilemma and at least one organization, called the Workers Defense League, that has weighed in. I have not seen anything regarding outcomes on any of this, however.

Calculation of forfeit days (info applies to before the May 13 press release)

Question 2

- My immediate question is whether anyone knows how "forfeit days" are calculated? I appears that these are imposed when applicants have provided inaccurate information in prior applications, and are imposed in addition to requiring repayment of benefits and assessment of monetary fines. But as best as I can tell, the actual number of forfeit days imposed is up to the investigator that handled the matter. In the case I am addressing, the number is 72 forfeit days, which seems like a lot. Does anyone know whether there are any guidelines that the Department of Labor is supposed to follow for setting the number of forfeit days? Or, can anyone suggest someone who might have experience with this issue and would be willing to advise? Thanks very much.

Pandemic unemployment compensation and unemployment insurance - issues related to forfeiture and overpayment BEFORE THE MAY 13 PRESS RELEASE

Question 1

One of my clients is in the following circumstance and I am not quite sure how best to guide him, as I am still familiarizing myself with how the Pandemic Unemployment Compensation mechanism works.

My client applied for UI and was approved ~5 weeks ago. Unfortunately, he was slapped with a forfeiture penalty, as the state claims he was previously overpaid. While my client has made his peace with this assessment, his chief concern is that he has yet to receive any funds in accordance with Pandemic Unemployment Compensation, which he believes he is entitled to, given that he's been approved for UI and was merely assessed a penalty for state benefits.

Answer (Pre- May 13 press release) : I would write to the DOL on his behalf and request PUA immediately.

Question 2

In 2019 my client began receiving UI benefits (July -November). At some point, she was overpaid and told she would have to repay the amount overpaid along with a penalty. Although she entered into a payment plan she failed to make any payments to NYS. It's still unclear as to whether she stopped receiving her benefits because of this overpayment. In March of this year, she worked for two days for a temporary agency, became ill, and was told not to return to the agency until she was well. In April, she filed for unemployment and attempted to collect on her remaining 44 days of benefits. To date, she has not received a UI check.

Are clients not receiving benefits because of a previous overpayment and penalty? I've advised her to continue certifying and contact DOL, but like most others, she's been unable to reach anyone

Answer: **APPLIES TO BEFORE THE MAY 13 PRESS RELEASE**

Here is the DOL's FAQ on over payments and penalties/forfeit days:

labor.ny.gov/ui/claimantinfo/...⁠

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If she has over payments and penalties, she likely has been dinged with forfeit days.

Follow up Question about the above:

I did see that she would be required to forfeit some days. Her overpayment amount is $169 and her penalty is $100, which means that her first two weeks of benefits would have been used to repay NYS. At this point, if I'm reading the FAQ's correctly, it would seem she should be paid up and once again able to receive benefits.

I have not come across anything that shows movement on the pending legislation to waive forfeit days

Answer **applies to BEFORE THE MAY 13 press release**

If she was approved but has forfeit days, that is indicated in a chart like form with the benefit amounts, the amount of forfeit days, and the amount of benefits remaining. This information is located on the weekly notice of benefits the claimant receives from NYSDOL.

Debts ie) child support / Forfeit Days Applies to BEFORE THE MAY 13 PRESS RELEASE (click on arrow to expand)

Info: (Click arrow to expand)

NYC Legal Aid staff reported that the NYS DOL is currently requiring applicants to pay back past debts before receiving regular UI AND taking half, $300, of the $600 per week extra FPUC. As of July 2020 it is confirmed that deductions like these have been made from claimants who owe child support (50% deductions from the federal $600 payments along with higher deductions from regular UI and PUA payments.

Benefit hearings restarted in May 2020, though there is a backlog of thousands of cases. Claimants appealing a DOL determination cannot receive benefits until an ALJ rules on the case. The recommendation for clients is to keep certifying for benefits each week; same for people who haven't received a determination yet.

Bank card with 0

Question

Just got finished talking with my client and he mentioned something about getting a bank card in the mail with 0 balance on it in relation to the pandemic. Has anyone else had a similar experience? If so, what are the next steps?

Answer

Generally the claimant has to call Key Bank to activate the card – did your client already do that?

www.labor.ny.gov/debitcard/faq.shtm⁠

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After you

file an Unemployment Insurance claim⁠

with the Department of Labor, you should receive your debit card in the third week of your claim. If there are any issues on your claim, it may take longer.

For security reasons, you will receive your debit card in a plain white envelope. Please watch for it in the mail. Do not throw it away (even if you sign up for direct deposit).

When you receive your card, call KeyBank Customer Service at (866) 295-2955 to activate it.

Card came with 0; person is eligible for UI as well then got one time payment of $600 but still no UI

Question

OK this is my situation I got one of those key 2 benefit cards sent to me when I looked online two days ago there was a zero balance! I woke up this morning it was $600 but I’m confused my claim has been valid since March 9, 2020 shouldn't I be getting all that back pay plus my weekly benefit rate plus the 600 a week????

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Answer (Click arrow to expand )

See above--must contact Key Bank to activate payments. I watched a news reporter do a question and answer thing with unemployment and she said that the people who randomly got $600 got it as money to hold you over. It wasn’t your unemployment payment or the extra $600. They possibly didn’t even get your claim done yet. But the reporter said that it’s good news because they have your information and they’ll be getting you your money shortly.

Hearings

Can anyone verify if the hearings are being held? My assignment had been awaiting unemployment benefits prior to the pandemic closures, was denied and had a hearing date of March 17, 2020, which was cancelled. She has not been able to get the hearing rescheduled yet. Is anyone aware of a way to get an expedited hearing at this point?