Unemployment Insurance Law Summaries
New York, Unemployment Insurance Law Summaries
New York's unemployment insurance law is located in Article 18, Chapter 31 of the Consolidated Laws, as amended, Secs. 500 to 640; and in the Rules and Regulation under the unemployment insurance program, 12NYCRR 460.1 to 490.7. The full text of the law is available beginning at Unemployment Insurance UI-NY ¶4001 .
The New York disability benefits law is located in Article 9, Chapter 67 of the Consolidated Laws, as amended, Secs. 200 to 242; and in the Rules and Regulation under the disability benefits program, 12NYCRR 355.1 to 397.1. The full text of the law is available beginning at Unemployment Insurance UI-NY ¶4601 .
DEFINITIONS
An “employer” becomes liable for contributions if it pays remuneration of $300 or more in any calendar quarter, liability beginning as of the first day of the quarter. Domestic service is considered separately, and employer of domestics is covered if it pays at least $500 in a calendar quarter. The term “employer” also includes the State of New York and successor by operation of law, purchase or otherwise; and the nonprofit organizations or governmental entity liable for contributions for all services performed by individuals who are enrolled participants in a summer youth employment program conducted and funded pursuant to the Federal Job Training Partnership Act.
“Employer for disability benefits:” A “covered employer” is employer of one or more employees on each of at least 30 days during the calendar year. Public authorities, municipal corporations, fire districts and other political subdivisions can elect coverage. Employers of domestics are covered from and after the expiration of four weeks following the employment of one or more personal or domestic employees who work for a minimum of 40 hours per week and are employed on each of at least 30 days in a calendar year. An employer may also become subject by acquiring the trade or business of a covered employer.
“Employment:” Service under any contract of employment for hire, express or implied, written or oral, with exceptions listed below.
Services by certain agent-drivers or commission-drivers and traveling or city salespersons are covered.
Services by a professional musician or other person engaged in the performing arts for a television or radio station or network, film production, theater, hotel, restaurant, night club or similar establishment unless, by written contract, such person is stipulated to be an employee of another covered employer.
Whenever any helper, assistant or employee of an employer engages any other person to aid in his or her work, the employer is also the employer of the other person, whether such person is paid by the helper, assistant or employee or by the employer, provided the employment has been with the knowledge, actual, constructive or implied, of the employer.
The services of a person performed at a place of religious worship as a caretaker or for the performance of duties of a religious nature, or both, are employment if the employer makes application to this effect and the application is approved in writing.
“Employment for disability benefits:” “Employment” means employment in any trade, business or occupation carried on by an employer, exclusive of governmental agencies, railroad, seamen, farm laborers, casual workers, golf caddies, and part-time workers who are day students in elementary or secondary schools.
“Employee for disability benefits:” “Employee” means any person engaged in employment in the service of an employer, except the employer's spouse or minor child, a minister, priest, rabbi or member of a religious order. The term also excludes a sexton or Christian Science reader, a teacher, professional, or volunteer working for a religious, charitable, or educational institution or persons participating in and receiving rehabilitative services in a sheltered workshop operated by such an institution under a certificate issued by the U.S. Department of Labor, or a person receiving charitable aid who performs services for a religious or charitable institution that are incidental to, or in return for, such aid.
“Employee” also includes a professional musician or person otherwise engaged in the performing arts who performs services for a television or radio station or network, a film production, theater, hotel, restaurant, night club, or similar establishment, unless such individual is stipulated by written contract to be the employee of another employer.
An exclusion applies to a domestic or personal worker in a private home who is employed for less than 40 hours per week by any one employer and to an executive officer of a corporation who at all times during the period involved owns all of the issued and outstanding stock of the corporation and holds certain offices, or an executive officer of an incorporated religious, charitable or educational institution. However, an executive officer of a corporation having other persons who are employees required to be covered for disability benefits purposes is deemed to be included in the corporation's disability benefits plan unless he or she elects to be excluded. A licensed real estate broker or sales associate is also excluded.
“Wages:” Every form of compensation for employment paid by employer to its employee, whether paid directly or indirectly by employer, including salaries, commissions, bonuses, and reasonable money value of board, rent, housing, lodging or similar advantages, and also any compensation that is not “remuneration” if employer is liable for federal tax with respect to such compensation, even though the services involved are not “employment.” Gratuities received in the course of employment from a person other than the employer are taxable.
The following are excluded from the definition of “wages:”
Remuneration over $8,500 paid by employer during any calendar year for employment. Wages for services in another state and wages paid by employer's predecessor may be included in the wage limit.
Other exclusions from wages are listed below.
“Wages for disability benefits:” “Wages” means money rate at which employment with a covered employer is recompensed under the contract of hire and includes the reasonable value of board, rent, housing, lodging, or similar advantage received.
COVERAGE
An employer becomes liable for contributions if he pays remuneration of $300 or more in any calendar quarter, liability beginning as of the first day of the quarter. Domestic service is considered separately, and employer of domestics is covered if he pays at least $500 in a calendar quarter. The term “employer” also includes the State of New York and successor by operation of law, purchase, or otherwise; and the nonprofit organizations or governmental entity liable for contributions for all services performed by individuals who are enrolled participants in a summer youth employment program conducted and funded pursuant to the Federal Job Training Partnership Act.
Service under any contract of employment for hire, express or implied, written or oral, with exceptions listed below.
Services by certain agent-drivers or commission-drivers and traveling or city salesmen are covered.
Services by a professional musician or other person engaged in the performing arts for a television or radio station or network, film production, theater, hotel, restaurant, night club or similar establishment unless, by written contract, such person is stipulated to be an employee of another covered employer.
Whenever any helper, assistant or employee or an employer engages any other person to aid in his work, the employer is also the employer of the other person, whether such person is paid by the helper, assistant or employee or by the employer, provided the employment has been with the knowledge, actual, constructive or implied, of the employer.
The services of a person performed at a place of religious worship as a caretaker or for the performance of duties of a religious nature, or both, are employment if the employer makes application to this effect and the application is approved in writing.
Agricultural employers.- Agricultural labor is covered if performed for an employer who employed 10 or more workers in such labor in 20 weeks in the current or preceding calendar year or paid cash remuneration of $20,000 or more for such labor in any quarter of the current or preceding calendar year. When agricultural labor is supplied by a crew leader, the employing unit for which the services are performed is the employer of the crew members unless the crew leader is registered under the Farm Labor Contractor Registration Act of 1963 or substantially all of the crew members operate or maintain mechanized equipment that is provided by the crew leader. In either of these instances, the crew leader is the employer.
Government and nonprofit employers.- Nonprofit services.-Coverage is mandatory for services performed for nonprofit organizations which have paid cash remuneration of $1,000 or more in any calendar quarter, or have employed four or more persons on each of 20 days during the current or preceding calendar year, each day being in a different calendar week.
Nonprofit organizations may pay regular contributions or may use the reimbursement method, i.e., employers' payments equal the amount of benefits paid to claimants and charged to their account.
Governmental services.- All state governmental entities, including the State of New York, municipal corporations and other governmental subdivisions and any instrumentalities thereof, are covered, with the following exceptions:
elected officials;
members of the legislature or the judiciary;
members of the State National Guard or Air National Guard, except an individual who renders such services as a regular state employee;
temporary employees serving in case of fire, storm, snow, earthquake, flood or similar emergency;
individuals in major nontenured policymaking or advisory positions; and
inmates of custodial or penal institutions.
A governmental entity may use either the contribution or reimbursement method of financing benefits.
Disability benefits.- A “covered employer ” is employer of one or more employees on each of at least 30 days during the calendar year. Public authorities, municipal corporations, fire districts, and other political subdivisions can elect coverage. Employers of domestics are covered from and after the expiration of four weeks following the employment of one or more personal or domestic employees who work for a minimum of 40 hours per week and are employed on each of at least 30 days in a calendar year. An employer may also become subject by acquiring the trade or business of a covered employer.
“Employee” means any person engaged in employment in the service of an employer, except the employer's spouse or minor child, a minister, priest, rabbi, or member of a religious order. The term also excludes a sexton or Christian Science reader, a teacher, professional, or volunteer working for a religious, charitable, or educational institution or persons participating in and receiving rehabilitative services in a sheltered workshop operated by such an institution under a certificate issued by the USDL, or a person receiving charitable aid who performs services for a religious or charitable institution that are incidental to, or in return for, such aid. “Employee” also includes a professional musician or person otherwise engaged in the performing arts who performs services for a television or radio station or network, a film production, theater, hotel, restaurant, night club, or similar establishment unless such individual is stipulated by written contract to be the employee of another employer.
An exclusion applies to a domestic or personal worker in a private home who is employed for less than 40 hours per week by any one employer and to an executive officer of a corporation who at all times during the period involved owns all of the issued and outstanding stock of the corporation and holds certain offices, or an executive officer of an incorporated religious, charitable or educational institution. However, an executive officer of a corporation having other persons who are employees required to be covered for disability benefits purposes is deemed to be included in the corporation's disability benefits plan unless he elects to be excluded. A licensed real estate broker or sales associate is also excluded.
“Employment” means employment in any trade, business or occupation carried on by an employer, exclusive of governmental agencies, railroad, seamen, farm laborers, casual workers, golf caddies, and part-time workers who are day students in elementary or secondary schools.
“Wages” means money rate at which employment with a covered employer is recompensed under the contract of hire and includes the reasonable value of board, rent, housing, lodging, or similar advantage received.
“Carrier” includes the state fund, stock corporations, mutual corporations, and reciprocal insurers that insure the payment of benefits, and also employers, employer or employee associations, and trustees authorized to pay benefits. Services for an organization operated for religious, charitable, scientific, literary, or educational purposes are covered even if the employee is engaged primarily in the religious, charitable, etc., activities of the organization.
EXCEPTIONS
Wages.- The following are excluded from the definition of “wages ”:
Remuneration over $8,500 paid by employer during any calendar year for employment. Wages for services in another state and wages paid by employer's predecessor may be included in the wage limit.
Stand-by pay to employee 65 or over.
Payments by employer to employees or their dependents under plan or system established on account of retirement, sickness, accident disability, etc.
Certain other retirement payments.
Payments for sickness or accident disability or medical or hospitalization expenses made over six months after separation.
Payments from, or under, trust or annuity plan exempt from federal income tax.
Compensation paid in any medium other than cash to employee for service not in course of employer's trade or business.
Dismissal payments, unless employer is subject to Federal Act.
Payment of employee's FICA tax without deduction from wages.
Payment for unused vacation at termination of employment is taxable only if legal right to the payment has accrued to the employee's benefit. If there is no legal right, it is termed a dismissal payment that is not taxable unless the employer is subject to the Federal Act.
Employment.- The term “employment” does not include the following:
Baby sitters-not applicable to services performed for nonprofit organizations or governmental entities.
Golf caddies-not applicable to services performed for nonprofit organizations or governmental entities.
Licensed real estate broker or sales associate if substantially all of the remuneration is directly related to sales or other output rather than to number of hours worked; and his or her services are performed pursuant to a written contract providing that the broker or associate is an independent contractor, will be paid by commissions, and will be permitted certain freedoms with respect to the performance of his or her services.
Railroad employees covered by Railroad Unemployment Insurance Act.
Relatives, i.e., service for employer by his or her spouse or minor child.
Service for an educational institution by a student in regular attendance, or by a spouse of that student if spouse's employment is under a program of assistance to the student.
Services performed by a minor in casual labor consisting of yard work and household chores in and about a residence or the premises of a nonprofit organization, not involving the use of power-driven machinery. Service by any child under age 14 is exempt. Not applicable to services performed for nonprofit organizations or governmental entities.
Services performed for a nonprofit organization by a person participating in a youth service program designed to foster a commitment to community service and occupational and educational development, but only if the person performs services in the community or attends school and receives a stipend designed to cover expenses and is eligible for an award or scholarship upon leaving the program.
Students attending elementary or secondary schools during the day who perform part-time work during school year or regular vacation periods. This exclusion is not applicable to nonprofit organizations and governmental entities.
Service by student under 22 enrolled at nonprofit or public educational institution in a full-time work study program. This exemption does not apply to program established for an employer or group of employers.
Government and nonprofit employers.-Nonprofit services.- Services for a nonprofit organization do not include the following:
Religious duties of a minister or member of a religious order, a lay member of a church engaged in religious functions, and a caretaker of a church, unless an election for coverage has been made.
Patients performing services in a sheltered workshop or other rehabilitation facility.
Governmental services.- All state governmental entities, including the State of New York, municipal corporations and other governmental subdivisions and any instrumentalities thereof, are covered, with the following exceptions:
elected officials;
members of the legislature or the judiciary;
members of the State National Guard or Air National Guard, except an individual who renders such services as a regular state employee;
temporary employees serving in case of fire, storm, snow, earthquake, flood or similar emergency;
individuals in major nontenured policymaking or advisory positions; and
inmates of custodial or penal institutions.
PROCEDURES
Base period.- The first four out of the last five completed calendar quarters prior to the filing of a claim; last four completed calendar quarters may be used if claimant fails to qualify under basic provision.
Disability benefits.- There are no provisions in the unemployment insurance law concerning a base period for disability benefits.
Benefit year.- The 52-week period beginning with the first Monday after valid original claim is filed.
Weekly benefit amount.- $40 to $405 for each accumulation of four effective days within a week, depending on worker's average weekly wage. Worker need not accumulate four effective days in order to receive benefits, but may receive a benefit amount for one effective day. “Effective day ” means full day of total unemployment if it falls in week in which worker had four or more days of total unemployment, but only those days of total unemployment in excess of three days within such week are deemed effective days. No effective day is deemed to occur in a week in which worker is paid remuneration in excess of the maximum weekly benefit amount.
An individual's weekly benefit amount is
of high-quarter wages unless the high-quarter wages are $3,575 or less, in which the weekly benefit amount is
of such high-quarter wages. Any claimant whose high-quarter remuneration during the base period is more than $3,575 will not have a weekly benefit amount less than $143.
Maximum total benefits.- 104 effective days (26 weeks) in benefit year, plus, during periods of high unemployment, extended benefits at regular weekly benefit rate.
A system of shared work programs is also in effect. An individual is eligible for shared work benefits if he or she works less than his or her normal full-time hours in a week for his or her customary employer and that employer has reduced or restricted his or her weekly hours of work or has rehired a claimant previously laid off and reduced his or her weekly hours of work from those previously worked, as the result of a plan to stabilize the workforce by a program of sharing the work remaining after a reduction in total hours of work and a corresponding reduction in wages. An eligible individual will be paid shared work benefits for any week equal to his or her benefit rate multiplied by the percentage of reduction of his or her wages resulting from reduced hours of work, but only if such percentage is no less than 20%.
Assignment of benefits.- Generally not permitted; however, deductions from benefits are allowed to satisfy child support obligations (Unemployment Insurance Law, Sec. 596(2)). In addition, a claimant must be advised that benefits are subject to federal, state and local income tax and that he or she may elect to withhold federal income taxes from his or her benefit payment (Unemployment Insurance Law, Sec. 596(5)).
Maximum benefits for disability benefits.- The maximum benefit is $170, and the minimum generally is $20. The benefit is computed as half of the claimant's average weekly wage, unless his or her average weekly wage is less than $20, in which case the benefit will equal his or her average weekly wage. The average weekly wage for the purpose of computing the amount of disability benefits of an employee during any period of disability is the amount determined by dividing either:
the total wages of such employee in the employment of his or her last covered employer for the eight weeks or portion thereof immediately preceding and including his or her last day worked prior to commencement of his or her disability or
the total wages of the last eight weeks or portion thereof immediately preceding and excluding the week in which his or her disability began, whichever is the higher amount, by the number of weeks or portion thereof of such employment.
An individual disabled while unemployed may not receive benefits beyond a period of 26 weeks immediately following his or her separation.
Benefit eligibility.- Claimant eligible if-
able and available for work,
unemployed for one waiting-period week (four effective days),
his or her previously established benefit year (if any) has expired,
has wages in at least two quarters of the base period with at least $1,600 in the high-quarter and total base period wages of at least one and one-half times the high-quarter wages, and
claim is filed in week in which he or she has at least one effective day.
Special provisions apply to individuals who have received workers' compensation or volunteer firefighters' benefits. Eligibility not affected by regular attendance at vocational training course approved by Commissioner or training under the Trade Act of 1974.
Employment in a professional or nonprofessional capacity for an educational institution cannot be used to establish benefit rights on claims filed between academic years and during vacation periods of holiday recesses if there is a contract or reasonable assurance of performing services with any educational institution in the same capacity in the ensuing academic year or term in any capacity immediately following a vacation or holiday recess. The economic terms and job conditions in the upcoming academic period must not be substantially less than the terms and conditions in the prior period for the employment to be disregarded. Nonprofessional employees may receive retroactive payments for a week previously denied if an offer of employment does not subsequently materialize.
A similar disqualification applies to employees performing services in educational institutions while in the employ of an educational service agency.
Weeks of employment and remuneration earned as a professional athlete must be disregarded during periods between successive sport seasons if there is reasonable assurance that the individual will perform services in both seasons.
An alien is disqualified from benefits unless he or she has been lawfully admitted for permanent residence, was lawfully present for purposes of performing services, or is otherwise permanently residing in the United States under color of law.
Certain college students over 21 are ineligible for benefits based on participation in a cooperative education program.
Disability benefit eligibility; Requirements.-
Disabled during employment. An employee is eligible for benefits when he or she is in the employ of a covered employer for four or more consecutive weeks, or, if the employee works regularly in covered employment but less than the employer's usual full workweek, he or she becomes eligible on the 25th day of work. Eligibility continues for four weeks after termination, whether or not the worker performs any work for remuneration or profit in noncovered employment; if, however, the worker performs work during such four-week period for another covered employer, he or she will become eligible with respect to that employment.
Disabled while unemployed. (i) Entitled to unemployment benefits. An individual terminated from covered employment who becomes ineligible for unemployment benefits within 26 weeks after separation because of a disability will be eligible for disability benefits if he or she was not working for profit on the day he or she became disabled and if he or she is not otherwise eligible for disability benefits. (ii) Ineligible for unemployment benefits. An employee whose employment with a covered employer is terminated, and who, during a 26-week period of unemployment immediately following such termination is not eligible for unemployment benefits because of lack of qualifying wages, will be eligible for disability benefits if he or she was in covered employment and was paid wages of $13 in each of 20 covered weeks during the 30 calendar weeks immediately preceding separation and he or she has, during unemployment, evidenced a continued attachment to the labor market. He or she can receive benefits if he or she continues to be disabled for at least eight consecutive days during the 26-week period.
Benefits are also payable based on a disability caused by or in connection with pregnancy.
Disqualifications- Period.- Voluntary separation without good cause from last employment, refusal of suitable work without good cause, loss of last employment through misconduct connected with work-disqualification ends when individual has subsequently worked in employment and earned remuneration of at least five times the weekly benefit amount. Disqualification also applies to voluntary separation from last employment due to marriage. No disqualification if the claimant, pursuant to an option provided under a collective bargaining agreement or written employer plan that permits waiver of his or her right to retain employment when there is a temporary layoff because of lack of work, has elected to be separated for a temporary period with the employer's consent. Also no disqualification if claimant left employment because of a domestic violence situation.
Loss of employment for act constituting felony in connection with employment-no days of total unemployment deemed to occur for 12 months after loss of employment.
Labor dispute-seven weeks unless dispute terminates prior to expiration of such seven weeks. Disqualification is not interrupted by reemployment.
False statements-four to 80 effective days; benefits reduced accordingly.
Receipt of benefits under another law-period in which such payment made.
Receipt of governmental or other pension, retirement or retired pay, annuity or other similar periodic payment based on the claimant's previous work-reduction of weekly benefit amount by amount of such payment. As required by the FUTA, only pensions from a chargeable employer would be offset; if the employer was not the sole contributor, only one-half of the pension would be offset; and if the employer contributed less than one-half of the pension, there would be no offset.
Disqualification for disability benefits.- No benefits for:
more than 26 weeks in any 52.
more than 26 weeks in any one period of disability.
any period individual is not under the care of a duly licensed physician, duly registered and licensed podiatrist or chiropractor or duly licensed dentist.
any period an employee who adheres to the faith or teachings of a church or denomination depending on prayer through spiritual means alone for healing is not under the care of an accredited practitioner of his or her church or denomination. (Such an individual must submit to all physical examinations required by the law).
any disability caused by self-injury or intent to injure self or another.
any disability caused by an injury or sickness sustained in perpetrating an illegal act.
any day for which the individual is entitled to receive remuneration or maintenance from his or her employer, or from a fund to which his or her employer has contributed, exceeding his or her benefit.
any period in which he or she is or would be subject to suspension or disqualification for unemployment benefits.
any disability due to an act of war.
any disability commencing prior to the individual's eligibility.
a period for which various other benefits are paid or payable, including unemployment insurance benefits. Partial benefits are payable under certain circumstances.
if, in the event of a contested claim, the individual refuses without good cause to submit to a physical examination.
if the individual makes a material false statement.
WHAT THE EMPLOYER MUST DO
Pay the standard rate.- 5.4%. Maximum possible basic rate is 8.9%. Employee taxes are required under disability law (see below).
Experience rates.- Basic rates for “qualified employers” depend on the employer's individual “account percentage” and the state-wide “size-of-fund index.” The employer's account percentage is the balance remaining in the account after contributions have been credited and experience rating charges have been debited to it, stated as a percentage of its average payroll for the last three years preceding the computation date or for all quarters if the employer has been liable for contributions for fewer than 13 quarters. In the case of an employer with 13 or fewer consecutive quarters of liability ending on the computation date, the account percentage is multiplied by a “benefit equalization factor ” ranging from 1.00 to 3.00.
If a qualified employer, with at least 17 quarters of liability, has an account percentage that is negative on any computation date and the total wages paid by that employer in the preceding payroll year is equal to or greater than 80% of the previous three payroll years' average total wages, that employer's account percentage for the subsequent year is improved by four percentage points for purposes of determining the employer's rate. In no event may the resulting rate after the adjustment be less than 6.1%.
The size-of-fund index is the lesser of the following two percentages: fund balance on the computation date divided by total taxable payrolls for all employers ending on the previous September 30, or such fund balance divided by the average of the totals of all taxable payrolls for the three consecutive one-year periods ending on the previous September 30. On the basis of the size-of-fund index, one of 12 schedules of rates is selected.
A “qualified employer” is one
whose account reflects its experience with respect to unemployment throughout not less than the four consecutive calendar quarters ending on December 31 preceding the year for which rates are being determined,
who paid some remuneration in the one-year period ending on the previous September 30, and
who filed all contribution reports that may have been prescribed during the three-year period ending on this September 30 by the following December 31.
An employer pays a subsidiary contribution provided from a schedule in the law as applied to wages paid in the four calendar quarters immediately subsequent to the computation date. The subsidiary rate for employers that have not been liable for contributions during at least the five completed calendar quarters ending on the computation date will be the highest percentage for those employers with a positive employer's account percentage. Subsidiary contributions range from zero for all employers when the account balance is $650 million or more to a range of .525% to .925% when the account balance is less than $75 million, each employer's rate depending on its account percentage.
In addition, each employer that is liable for contributions under the New York Labor Law must pay an interest assessment surcharge to the Commissioner at a rate established annually that is sufficient to pay the interest due on advances from the federal unemployment account under Title XII of the Social Security Act. The rate is effective as of the beginning of the first calendar quarter of the year such interest becomes due.
Each contributing employer is required to pay a .075% reemployment service tax.
When an employer's account balance is negative as of the computation date, a certain amount is transferred as a charge to the general account.
Dismissal wages and wages paid to certain students (i.e., those in regular daytime attendance in an institution of learning who work part-time during the school year or regular vacation periods) are subject to special provisions. If the employer's remuneration taxable under the New York law does not produce an amount of tax that equals or exceeds 2.7% of the amount of remuneration it paid that is subject to the FUTA, additional tax will be required.
One of 12 schedules in the law will be in effect, depending on the size-of-fund index. Rates for positive-balance employers in the most favorable schedule will range from zero to 1.6%, and rates in the least favorable schedule will range from 0.9% to 4.1%. Rates for negative-balance employers range from 2.4% to 5.9% in the most favorable schedule, and from 5.2% to 8.9% in the least favorable schedule. Employers who have failed to file all necessary reports by the computation date pay 5.4%, unless a higher rate applies to them. None of the above rates includes the subsidiary tax.
Rates for 2009 may be determined from the following table (the “0.0% but less than 0.5%” column):
Employer's Account Percentage
|
|---|
Negative-Balance Employer
|
2008 Rate (%)
|
21% or more
|
8.7
|
20.5% or more but less than 21%
|
8.6
|
20% or more but less than 20.5%
|
8.5
|
19.5% or more but less than 20%
|
8.4
|
19% or more but less than 19.5%
|
8.3
|
18.5% or more but less than 19%
|
8.2
|
18% or more but less than 18.5%
|
8.1
|
17.5% or more but less than 18%
|
8.0
|
17% or more but less than 17.5%
|
7.9
|
16.5% or more but less than 17%
|
7.8
|
16% or more but less than 16.5%
|
7.7
|
15.5% or more but less than 16%
|
7.6
|
15% or more but less than 15.5%
|
7.5
|
14.5% or more but less than 15%
|
7.4
|
14% or more but less than 14.5%
|
7.3
|
13.5% or more but less than 14%
|
7.2
|
13% or more but less than 13.5%
|
7.1
|
12.5% or more but less than 13%
|
7.0
|
12% or more but less than 12.5%
|
6.9
|
11.5% or more but less than 12%
|
6.8
|
11% or more but less than 11.5%
|
6.7
|
10.5% or more but less than 11%
|
6.6
|
10% or more but less than 10.5%
|
6.5
|
9.5% or more but less than 10%
|
6.4
|
9% or more but less than 9.5%
|
6.3
|
8.5% or more but less than 9%
|
6.2
|
8% or more but less than 8.5%
|
6.1
|
7% or more but less than 8%
|
6.0
|
6% or more but less than 7%
|
5.9
|
5% or more but less than 6%
|
5.8
|
4% or more but less than 5%
|
5.7
|
3% or more but less than 4%
|
5.4
|
2% or more but less than 3%
|
5.3
|
1% or more but less than 2%
|
5.2
|
Less than 1%
|
5.0
|
Positive-Balance Employer
|
2008 Rate (%)
|
Less than 1%
|
3.9
|
1% or more but less than 2%
|
3.8
|
2% or more but less than 3%
|
375
|
3% or more but less than 4%
|
3.6
|
4% or more but less than 5%
|
3.5
|
5% or more but less than 5.5%
|
3.4
|
5.5% or more but less than 5.75%
|
3.3
|
5.75% or more but less than 6%
|
3.2
|
6% or more but less than 6.25%
|
3.1
|
6.25% or more but less than 6.5%
|
3.0
|
6.5% or more but less than 6.75%
|
2.9
|
6.75% or more but less than 7%
|
2.8
|
7% or more but less than 7.25%
|
2.7
|
7.25% or more but less than 7.5%
|
2.6
|
7.5% or more but less than 7.75%
|
2.5
|
7.75% or more but less than 8%
|
2.4
|
8% or more but less than 8.25%
|
2.3
|
8.25% or more but less than 8.5%
|
2.2
|
8.5% or more but less than 8.75%
|
2.1
|
8.75% or more but less than 9%
|
2.0
|
9% or more but less than 9.25%
|
1.9
|
9.25% or more but less than 9.5%
|
1.8
|
9.5% or more but less than 9.75%
|
1.7
|
9.75% or more but less than 10%
|
1.6
|
10% or more but less than 10.25%
|
1.5
|
10.25% or more but less than 10.5%
|
1.4
|
10.5% or more but less than 10.75%
|
1.3
|
10.75% or more but less than 11%
|
1.2
|
11% or more but less than 11.25%
|
1.1
|
11.25% or more but less than 11.5%
|
1.0
|
11.5% or more but less than 11.75%
|
0.9
|
11.75 or more but less than 12%
|
0.8
|
12% or more
|
0.7
|
The subsidiary tax rates for 2009 may be determined from the table below (the “less than 0% column” remains in effect). The subsidiary tax rate for new employers in 2009 is 0.625%.
If employer's account percentage is less than 0.0% (NEGATIVE), 0.925%; if employer's account percentage is 0.0% or more but less than 5.5%, 0.625%; if employer's account percentage is 5.5% or more but less than 7.5%, 0.625%; if employer's account percentage is 7.5% or more but less than 9%, 0.625%; if employer's account percentage is 9% or more, 0.525%.
Voluntary payments.- Voluntary contributions may be made at any time, but are credited to employer's account as of a computation date, December 31, if made before the following April 1.
Disability benefit.- Employers are authorized to make deductions from employees' wages at the rate of
of 1% of such wages, but not more than 60 cents a week for each employee; the employer bears the cost of providing disability benefits in excess of amounts contributed by employees. Failure on the part of the employer to withhold employees' tax not later than one month after payment of wages renders it liable for such tax. An annual assessment is required against certain carriers if the assets in the Special Fund (a fund used primarily for the payment of benefits to unemployed individuals with disabilities) total $11,000,000 or less on April 1 of any year. The amount assessed is the amount necessary to bring the balance in the Fund to $12,000,000. When in effect, the assessment is limited to the first $6,000 of earnings of each employee during a year. An emergency assessment may also be made under certain circumstances if the assets in the Fund at any time fall below $3,000,000. All carriers who have had covered employees in employment during the preceding three calendar years, or any portion or portions thereof, are subject to these assessments. Carriers also pay an administrative tax. Such tax is also limited to the first $6,000 of earnings of each employee during a year.
Liability of an employer or its carrier for disability benefits payable to a separated employee is limited to the first four weeks after the employee worked for the employer.
An employer may provide for payment of disability benefits by insuring with the state fund, with insurance carriers authorized to write accident and health insurance, or by insuring payment of such benefits him- or herself.
DEADLINES
Tax and wages.- Each employer must file a Quarterly Combined Withholding Wage Reporting and Unemployment Insurance Return (Form NYS-45 and NYS-45-ATT) with the appropriate taxes due no later than the last day of the month following the last day of each calendar quarter. Filing via magnetic media is required for employers with 250 or more employees; magnetic media filing is encouraged for all other employers.
ENFORCEMENT
The New York Unemployment Insurance Law is administered by the Industrial Commissioner through the Unemployment Insurance Division.
If an employer fails to make the payments required by the New York Unemployment Insurance Law, after due notice the amount due shall be collected by civil action brought against him in the name of the Commissioner. The employer's compliance with the contribution provisions of the law shall date from the time of payment of the money so collected. Civil actions brought in the name of the Commissioner to collect contributions, interest, or penalties from an employer are entitled to preference on the calendar of all courts, as conferred by law to actions brought by any state officer.
If an employer fails to file a report for the purpose of determining the amount of contributions due, or if an incorrect or insufficient report is filed and the employer fails to file a corrected one within 20 days after demand by the Commissioner, the Commissioner must determine the amount of contribution due on the basis of such information as he can obtain, and must notify the employer of that determination. Such a determination is final unless the employer applies for a hearing within 30 days. Similarly, the decision at such a hearing is final unless the employer takes an appeal to the Appeal Board within 20 days. Within 30 days after mailing or personal delivery of notice of the Appeal Board's decision, the Commissioner or any other party affected thereby who appeared at the appeal before the Appeal Board may appeal questions of law to the Appellate Division of the Supreme Court, Third Division. Decisions of this court may be appealed to the Court of Appeals in the same manner as is provided for in civil action.
No determination of liability for, or of the amount of, contributions due may be made more than three years after the last day of the calendar year in which the wages were paid. However, if an employer contests a determination of liability for contributions, a determination of the amount due may be made at any time prior to (a) three years after the last day of the calendar year in which the wages were paid, or (b) two years after the last day of the calendar year in which such determination became final and irrevocable. Once an employer is liable, a penalty for failure to submit required reports must be fixed before the end of the calendar year following the year the reports were due. Civil action or warrant proceedings to collect back taxes or penalty must be stated within two years after the year in which the liability or penalty was determined. This statute does not apply, however, if the employer's intent was to defraud.
Note that assessment and collection of unpaid contributions or unpaid payments in lieu of contributions due from the state, a municipal corporation, or a governmental subdivision are to be made in the same manner as proceedings against a private or nonprofit employer.
Records.- Information acquired from employers and employees under the law is for the exclusive use of the Commissioner, and is not open to the public nor used in any court action unless the Commissioner is a party to such proceeding. However, insofar as such information is material to the making and determination of a benefit claim, it is available to the parties affected, and certain reports may be made to federal agencies.
The New York Disability Benefits Law is administered by the Worker's Compensation Board, 100 Broadway-Menands, Albany, NY 12241 and 215 W. 125th St., New York, NY 10027.
Disability benefits.- The employees of a covered employer who has failed to make provision for the payment of disability benefits are paid out of the Special Fund. Then the noncomplying employer, who is directly liable to its employees for the payment of benefits provided by the statute, pays the Chairman the amount of benefits paid out of the Fund, or 1% of its payroll for its employees in employment during the period of non-compliance, whichever is greater. However, if the Chairman determines to his or her satisfaction that the employer's non-compliance was inadvertent, the sum payable will be the sum paid out of the fund and less than 1% of his payroll, plus the penalties for non-compliance.
An employer who fails to make provision for payment of benefits as required by the statute within 10 days following the date it becomes a covered employer is guilty of a misdemeanor. Upon conviction, it is punishable by a fine of not more than $500, or imprisonment for not more than one year, or both. When the employer is a corporation, the president, secretary, treasurer or officers exercising similar functions are also each guilty of a misdemeanor.
A finding by the Chairman that an employer has failed to make provision for the payment of disability benefits in one or more of the three acceptable ways mentioned above renders the employer liable for a penalty of an amount up to one-half of 1% of its weekly payroll for the period of its failure, plus an amount up to $500. These sums are paid into the Special Fund.
Where a carrier fails to make prompt payment of benefits, the employee(s) involved are paid from the Special Fund. Because the employer is fully and directly liable for the payment of the benefits, he is required to reimburse the Chairman of the Worker's Compensation Board, for credit to the Special Fund, the sum expended from the fund. If the Chairman determines, after a hearing, that the carrier's failure to make prompt payment of the benefits was without just cause, the carrier is penalized an amount not to exceed 25% of the amount of the benefits it failed to pay. This money is paid to the Chairman for credit to the Special Fund. In addition, the Chairman may collect from the carrier and pay to the employees involved $10 for each week, or fraction thereof, for which the benefits were not promptly paid.
The head of a state or municipal department, board, commission or office required to issue work permits to employees must not issue such permits to employees covered by the Disability Benefits Law unless proof, satisfactory to the Chairman, has been furnished establishing that the payment of disability benefits for such employees has been secured. The proof must be subscribed and affirmed as true under the penalties of perjury by an insurance carrier.
WHO TO CONTACT
The New York Unemployment Insurance Law is administered by the Industrial Commissioner through the Unemployment Insurance Division, Building #12, State Campus, Albany, New York 12240; One Main Street, Brooklyn, New York 11201. Telephone (518) 457-5807.
The New York Disability Benefits Law is administered by the Worker's Compensation Board, 100 Broadway-Menands, Albany, New York 12241 and 215 W. 125th St., New York, New York 10027. The public information office may be contacted at (518) 474-6670.
RECORDKEEPING
The New York Unemployment Insurance Law requires that every employer keep a true and accurate record of each of his employees, their names and social security account numbers and the amount of remuneration paid to each of them, and such other records as are prescribed by regulations of the commissioner, and must furnish to the commissioner, upon demand, a sworn statement of the same. Such records, together with all other records reflecting or bearing upon them, are to be open to inspection at any time and as often as may be necessary to verify the number of employees, the periods of their employment, and the amount of their remuneration.
Employers are required to preserve copies of all payroll reports for three years, and employers who maintain their records outside the state must make such records, or copies thereof, available at a place within the state upon demand by the Commissioner.
Disability benefits.- Employers must keep records of information prescribed by the Board.
POSTING
Employers subject to the law are required to post notices indicating that they are registered with the Division.
PENALTIES
Interest and penalty.- An employer who fails to pay the required contributions must pay interest at the rate of 1% for each month it is in default.
If a deficiency is due to fraud with intent to avoid payment of contributions, an additional 50% penalty is assessed.
If an employer erroneously pays to another state the contributions which are due under the New York Unemployment Insurance Law, it will not be liable for interest and penalties under New York law if (a) the contributions were timely paid to the other state, and (b) it pays such contributions to the New York fund within 90 days after the determination establishing its liability becomes final.
Every employer liable for contributions must report on request of the Commissioner, within seven days of the mailing or personal delivery of such request, employment information with respect to any individual and the remuneration, if any, which he paid to the individual. Failure to comply with this request, unless the employer can show that the failure was due to circumstances beyond his control, subjects the employer to a $50 penalty with respect to each request. No determination of the amount of any penalty imposed for failure to meet these reporting requirements will be made more than one year after the last day of the calendar year in which such reports were due.
In addition to the above penalties, the law provides that each of the following persons is guilty of a misdemeanor, punishable by a fine of not more than $500 or imprisonment for not more than one year, or both:
the president, secretary, treasurer, or other officers of a corporation convicted of any violation under the law;
a person who willfully makes a false statement or representation in order to reduce the amount of contributions or with the effect of obtaining benefits;
a person who, in connection with selling any commodity or service, makes a statement ascribing a part of the price of such commodity or service to a contribution imposed under the New York UI Law, knowing that such statement is false or that the contribution is less than the portion of the price ascribed to such contribution;
any person who willfully refuses or fails to pay a contribution to the fund; or any person who refuses to allow the Commissioner or his authorized representative to inspect any records relative to enforcement of the law; and
any employer who makes a deduction from an employee's remuneration for the purpose of paying any part of the employer's contribution under the law.
A failure to comply with the law is deemed an act committed in part at the Commissioner's office in Albany and in part at the place where the employer resides or regularly does business; a Commissioner's certification is prima facie evidence of a failure to comply.
Liens.- In addition and as an alternative to any other remedy (provided that no appeal or other proceeding for review is pending, and the time for taking of such proceeding has expired), the Commissioner may issue a warrant commanding the county sheriff to levy upon and sell the real and personal property of an employer who has defaulted in the payment of contributions.
Within five days after receipt of the warrant, the sheriff must file a copy of it with the county clerk, who must enter in the judgment docket the employer's name, the amount of the contribution, interest, and penalties for which the warrant is issued, and the date of filing. The amount of the warrant so docketed then becomes a lien upon the title to and interest in the employer's property. The sheriff must then proceed upon the warrant in the same manner as that provided by law with respect to executions issued against property upon judgments of a court of record.
If a warrant is returned not satisfied in full, the Commissioner has the same remedies to enforce the amount of the warrant as if he had recovered judgment for it.
The Commissioner may also issue such a warrant to any officer or employee of the Department of Labor.
Bankruptcy.- In the event of dissolution, insolvency, composition, or assignment for the benefit of creditors, contributions due from the employer are on a parity with all state and city taxes, with the exception of real property taxes, and have priority over all other claims except federal taxes and wages due for employment performed in the preceding three months. In case of bankruptcy, the priorities provided in the Federal Bankruptcy Act are controlling. However, payment of contributions, interest and penalties which have accrued on or before the date of a petition for bankruptcy, and which are still unpaid upon the discharge of the employer in bankruptcy by the court, will not be enforced unless civil action or warrant proceedings are begun not later than two years after the date of discharge and the total amount due is at least $2,000.
Disability benefits.- The employees of a covered employer who has failed to make provision for the payment of disability benefits are paid out of the Special Fund. Then the noncomplying employer, who is directly liable to his employees for the payment of benefits provided by the statute, pays the Chairman the amount of benefits paid out of the Fund, or 1% of his payroll for his employees in employment during the period of non-compliance, whichever is greater. However, if the Chairman determines to his satisfaction that the employer's non-compliance was inadvertent, the sum payable will be the sum paid out of the fund and less than 1% of his payroll, plus the penalties for non-compliance.
An employer who fails to make provision for payment of benefits as required by the statute within 10 days following the date he becomes a covered employer is guilty of a misdemeanor. Upon conviction, he is punishable by a fine of not more than $500, or imprisonment for not more than one year, or both. When the employer is a corporation, the president, secretary, treasurer or officers exercising similar functions are also each guilty of a misdemeanor.
A finding by the Chairman that an employer has failed to make provision for the payment of disability benefits in one or more of the three acceptable ways mentioned above renders the employer liable for a penalty of an amount up to one-half of 1% of his weekly payroll for the period of his failure, plus an amount up to $500. These sums are paid into the Special Fund.
Where a carrier fails to make prompt payment of benefits, the employee(s) involved are paid from the Special Fund. Because the employer is fully and directly liable for the payment of the benefits, he is required to reimburse the Chairman of the Workmen's Compensation Board, for credit to the Special Fund, the sum expended from the fund. If the Chairman determines, after a hearing, that the carrier's failure to make prompt payment of the benefits was without just cause, the carrier is penalized an amount not to exceed 25% of the amount of the benefits it failed to pay. This money is paid to the Chairman for credit to the Special Fund. In addition, the Chairman may collect from the carrier and pay to the employees involved ten dollars for each week, or fraction thereof, for which the benefits were not promptly paid.
The head of a state or municipal department, board, commission or office required to issue work permits to employees must not issue such permits to employees covered by the Disability Benefits Law unless proof, satisfactory to the Chairman, has been furnished establishing that the payment of disability benefits for such employees has been secured. The proof must be subscribed and affirmed as true under the penalties of perjury by an insurance carrier.
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