IN RE: the Claim of Leslie CHIN (2022)

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 21, 2021, which ruled, among other things, that claimant was ineligible to receive unemployment insurance benefits because she was not totally unemployed.

At all times relevant, claimant was employed full time as a public safety officer for a municipal entity.  As a result of the COVID–19 pandemic, claimant was not required to report to work after March 21, 2020.  Although claimant did not return to work or otherwise perform any services for the employer until September 2, 2020, she nonetheless received her regular salary and benefits during the intervening period.

In addition to her full-time employment, claimant also was employed on a part-time basis as a massage therapist.  After being laid off from her part-time position in March 2020, claimant filed a claim for unemployment insurance benefits and, throughout the relevant reporting period, certified on a weekly basis that she did not work during the preceding week.  Based upon claimant's certification, she received unemployment insurance benefits, as well as federal pandemic unemployment compensation, pandemic emergency unemployment compensation and lost wage assistance pursuant to the Coronavirus Aid, Relief and Economic Security Act of 2020 (the CARES Act) (see 15 USC § 9021, as added by Pub L 116–136, 134 U.S. Stat 281, 313;  44 CFR 206.120).

The Department of Labor held that claimant was ineligible to receive unemployment insurance benefits beginning March 23, 2020 upon the ground that she was not totally unemployed and charged her with a recoverable overpayment of the state and federal funds received.  Following a hearing, an Administrative Law Judge (hereinafter ALJ) modified the initial determination – agreeing that claimant was not totally unemployed during the relevant time period and charging her with a recoverable overpayment of the federal pandemic-related benefits.  Based upon claimant's particular circumstances, however, the ALJ concluded that claimant's certification with respect to her work status was not undertaken in bad faith and, therefore, found that the state unemployment insurance benefits were not recoverable.  The Unemployment Insurance Appeal Board affirmed the ALJ's decision, prompting this appeal by claimant.

We affirm.  “Whether a claimant is totally unemployed and thereby entitled to receive unemployment insurance benefits is a factual issue for the Board to decide and its decision will be upheld if supported by substantial evidence” (Matter of Lee [Commissioner of Labor], 190 A.D.3d 1170, 1172, 140 N.Y.S.3d 314 [3d Dept. 2021] [internal quotation marks and citations omitted];  see Matter of Bebbino [Clare Rose Inc.-Commissioner of Labor], 174 A.D.3d 1238, 1239, 103 N.Y.S.3d 204 [3d Dept. 2019];  Matter of Lasker [Commissioner of Labor], 155 A.D.3d 1236, 1237, 63 N.Y.S.3d 758 [3d Dept. 2017], lv denied 31 N.Y.3d 907, 2018 WL 2123233 [2018]).  Claimant does not dispute that, in her capacity as a public safety officer, she received her full salary and benefits between March 21, 2020 (the last day she reported to work) and September 2, 2020 (when she returned to work) – during which time she did not perform any services for the employer.  As claimant remained on the employer's payroll throughout the period of time that she certified for unemployment insurance benefits, the Board properly deemed her to be ineligible for such benefits upon the ground that she was not totally unemployed (see generally Matter of Robinson [Commissioner of Labor], 125 A.D.3d 1038, 1039–1040, 3 N.Y.S.3d 177 [3d Dept. 2015], lv dismissed 26 N.Y.3d 953, 17 N.Y.S.3d 70, 38 N.E.3d 815 [2015];  Matter of Ramdhani [Commissioner of Labor], 98 A.D.3d 1183, 1184, 950 N.Y.S.2d 832 [3d Dept. 2012];  Matter of Felder [Commissioner of Labor], 93 A.D.3d 1122, 1123, 941 N.Y.S.2d 327 [3d Dept. 2012]).  Similarly, inasmuch as claimant received her full salary and benefits during the period at issue, it necessarily follows that she was not eligible for federal pandemic assistance under the CARES Act and, therefore, the federal pandemic unemployment compensation, pandemic emergency unemployment compensation and lost wage assistance benefits paid to claimant were properly recoverable (see 15 USC §§ 9023[f][2];  9025[e][2];  44 CFR 206.120[f][5];  Matter of Frederick [Commissioner of Labor], 197 A.D.3d 1456, 1458 [3d Dept. 2021]).  Claimant's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.

ORDERED that the decision is affirmed, without costs.

Reynolds Fitzgerald, J.

Garry, P.J., Lynch, Ceresia and McShan, JJ., concur.