There has been a long-standing requirement in New York State for all employers to provide notice to employees separating from employment of their right to file for unemployment benefits. On September 14, 2023, Governor Hochul signed into law Chapter 366 of the Laws of 2023, which amended Section 590 of the New York State Labor Law effective November 13, 2023. Section 590 of the New York State Labor Law governs employees’ rights to apply for unemployment benefits and Section 590 applies to school districts. Chapter 366 added a new requirement to Section 590 of the Labor Law which requires the employer to notify the employee of the right to file for unemployment benefits even if they experience only a temporary separation from or a reduction in hours of employment. Temporary separation or reduction of hours includes layoffs, partial layoffs, and interruption of employment. Under Section 590, an interruption of employment or partial layoff will qualify employees for unemployment benefits if the result of the interruption of employment or partial layoff will result in the employee earning less than $504 per week or working less than 30 hours per week. The Department of Labor, in their FAQ regarding the changes to the notice requirements indicates that the notice must also be provided to employees voluntarily separating from employment. Voluntary separation includes separation by virtue of a negotiated settlement agreement in lieu of discharge. The FAQ can be found here.
The change to Labor Law 590 presents a particular concern for school districts. Annually, school districts have employees, mainly substitute teachers, subject to an interruption of employment when summer break occurs. Substitutes are per diem employees who have their employment interrupted because of summer break. Section 590 of the Labor Law provides that substitute teachers are eligible for unemployment benefits when there is a break in employment unless they receive reasonable assurance of their position for the next school year. The New York State Appellate Division held in 2005 that reasonable assurance for unemployment purposes must include a representation that claimant will receive in the upcoming school year at least 90% of the earnings received in the current school year.
Now, in addition to the letter of reasonable assurance schools must provide to substitute teachers to avoid liability for unemployment insurance benefits for the summer months, schools must also provide the notice of eligibility for unemployment benefits. The notice should be provided during the spring, prior to the close of the school year, on an annual basis. Best practice would suggest sending the notice of reasonable assurance with the notice of eligibility for unemployment benefits at the same time to ensure both notices are sent. The notice must contain the employer’s name and registration number, the address of the employer to which a request for remuneration and employment information with respect to such employee must be directed. Additional information may be required by the Commissioner of Labor. Currently the unemployment regulations have not been updated to include any additional information for the notice.
School Districts can find the current Department of Labor form with the appropriate notice provisions here.