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ALTHOUGH CLAIMANTS WERE TEMPORARY EMPLOYEES HIRED BECAUSE OF HURRICANE DAMAGE, THE EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE DID NOT APPLY, CLAIMANTS ENTITLED TO BENEFITS.

The Third Department determined claimants were entitled to unemployment insurance benefits. Claimants were hired on a temporary basis to address damage caused by a hurricane.  The employer argued claimants were hired to address an emergency and therefore were not entitled to coverage. In rejecting the emergency exception, the court noted claimants were hired a year after the hurricane and performed routine maintenance:

For purposes of determining a claimant’s eligibility for unemployment insurance benefits, Labor Law § 565 (2) (d) provides that “the term ’employment’ does not include services rendered for a governmental entity by . . . a person serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency” … . “Whether this exclusion applies presents a mixed question of law and fact, and the Board’s determination in this regard will be upheld if it has a rational basis” … . * * *

The record evidence reflects that claimants, who were hired on a temporary basis using federal grant money received as a result of the damage caused by the hurricane, performed routine maintenance duties, including cutting grass, raking leaves, shoveling snow, driving trucks and cleaning municipal parking lots. In determining that the services performed by claimants were related to the hurricane clean-up efforts but “not performed in case of an emergency,” the Board noted that claimants were hired almost a year after the hurricane and at a time when “there was no need for immediate action.” The Board also relied upon a Program Letter issued by the United States Department of Labor (hereinafter DOL) that provided the DOL’s interpretation of the exclusion from unemployment insurance coverage of governmental services performed in case of emergency … . That Program Letter provides that “the urgent distress caused by the emergency . . . must directly cause the need for the services to be performed” and that, if the services performed occur “after the need for immediate action has passed, they are not necessarily performed in case of emergency”… . Given the Board’s reliance upon the DOL’s Program Letter, as well as the non-exigent, routine nature of the services provided by claimants, who were hired by the employer nearly a year after the hurricane, there is a rational basis for the Board’s decision that the exclusion did not apply and that the services performed by claimants “were in covered employment.” … . Matter of Clemons (Village of Freeport–Commissioner of Labor), 2017 NY Slip Op 04333, 3rd Dept 6-1-17

 

UNEMPLOYMENT INSURANCE (ALTHOUGH CLAIMANTS WERE TEMPORARY EMPLOYEES HIRED BECAUSE OF HURRICANE DAMAGE, THE EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE DID NOT APPLY, CLAIMANTS ENTITLED TO BENEFITS)/EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE (ALTHOUGH CLAIMANTS WERE TEMPORARY EMPLOYEES HIRED BECAUSE OF HURRICANE DAMAGE, THE EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE DID NOT APPLY, CLAIMANTS ENTITLED TO BENEFITS)/LABOR LAW (EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE, ALTHOUGH CLAIMANTS WERE TEMPORARY EMPLOYEES HIRED BECAUSE OF HURRICANE DAMAGE, THE EMERGENCY EXCEPTION TO UNEMPLOYMENT INSURANCE COVERAGE DID NOT APPLY, CLAIMANTS ENTITLED TO BENEFITS)

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AMENDMENT OF NOTICE OF CLAIM TO ALLEGE A DIFFERENT THEORY (CREATION OF THE DEFECT)... EXOTIC DANCER WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS.