Court Indicates a Certification Claimant Is Not Working Can Be a “Willful Misrepresentation” Even If “Unintentional”

The Third Department determined claimant was properly denied benefits because of his self-employment activities which he did not report.  The court noted that the certification that claimant was not working supports the finding that he made a “willful misrepresentation even if it was unintentional:”

Whether a claimant is totally unemployed is a factual issue for the Board to decide, and its determination will be upheld if supported by substantial evidence … . A claimant who performs activities on behalf of an ongoing business may not be considered totally unemployed, even if such activities are minimal or the business is not profitable, if he or she stands to benefit financially from its continued operation … . Here, claimant incorporated the business, opened a business checking account, created a business logo, started developing a business website, distributed business cards, attended seminars and trade shows and had apparel samples made by overseas manufacturers, all in furtherance of establishing a lucrative business. Notwithstanding the fact that claimant was not receiving income from the business, substantial evidence supports the Board’s decision that he was not totally unemployed … . Furthermore, given that claimant read the provisions of the unemployment insurance handbook relating to self-employment, but represented that he was not working when certifying for benefits, we find no reason to disturb the Board’s finding that he made a willful misrepresentation — even if it was unintentional … . Matter of Romero…, 2014 NY Slip Op 06634, 3rd Dept 10-2-14