Waives Unemployment Pandemic Benefits repayments in whole or in part if the payment of such pandemic unemployment assistance was without fault on the part of the claimant and such repayment would be contrary to equity and good conscience.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A8930
SPONSOR: Bronson
 
TITLE OF BILL:
An act to amend the labor law, in relation to waiving repayment of unem-
ployment pandemic benefits under certain circumstances
 
PURPOSE OR GENERAL IDEA OF BILL:
To provide financial relief from the need to repay pandemic unemployment
assistance overpayments that were received through no fault of the
claimant.
 
SUMMARY OF PROVISIONS:
Section one of the bill adds a new section, 597-a, to the Labor Law to
provide the Commissioner of Labor the authority to waive pandemic unem-
ployment assistance overpayments. This section would provide for defi-
nitions of relevant terms and outline the standards and process for
waiving such overpayments. '
Section two of the bill would provide a definition for willful for
Department of Labor's evaluation of willful false statements made by
claimants.
Section three would establish the effective date.
 
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):
N/A
 
JUSTIFICATION:
As New Yorkers continue to navigate the economic crisis brought on by
COVID-19 and the resulting high levels of unemployment, several benefi-
ciaries are being notified by the Department of Labor that they, were
overpaid and would need to repay some of their benefits to the Depart-
ment of Labor. These claimants received such payments through no fraud
or fault on their part, and were unaware that they were not entitled to
receive the benefits that they had. These people have already spent
their unemployment payments to pay rent, pay utility bills, and to
purchase food for their families. These claimants are now being asked by
the Department to return some of the benefits they received, with some
New Yorkers owing more than $10,000.
The Federal Government passed legislation in December of 2020 to provide
every State with the authority to waive benefit overpayment amounts.
This legislation would require that the Department of Labor waive these
repayments for certain claimants, and provide financial relief to thou-
sands of New Yorkers who through no fault of their own owe the State
money for overpayments made by the Department of Labor.
 
LEGISLATIVE HISTORY:
2023-2024: A489 - Referred to Labor; enacting clause stricken
2021-2022: A7511 - Ordered to third reading
 
FISCAL IMPLICATIONS:
To be determined.
 
EFFECTIVE DATE:
This act shall take effect immediately and shall apply to all pandemic
unemployment assistance repayments assessed on or after March 27, 2020.
STATE OF NEW YORK
________________________________________________________________________
8930
IN ASSEMBLY
January 30, 2024
___________
Introduced by M. of A. BRONSON -- read once and referred to the Commit-
tee on Labor
AN ACT to amend the labor law, in relation to waiving repayment of unem-
ployment pandemic benefits under certain circumstances
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The labor law is amended by adding a new section 597-a to
2 read as follows:
3 § 597-a. Waiver authority for certain overpayments of pandemic unem-
4 ployment assistance. 1. Definitions. As used in this section:
5 (a) "Unemployment pandemic benefits" or "UPB" means federal unemploy-
6 ment insurance or assistance payments including extended benefits and
7 the first week of regular unemployment insurance made during the period
8 of January twenty-seventh, two thousand twenty through September sixth,
9 two thousand twenty-one.
10 (b) "Without fault" means the claimant has not knowingly supplied or
11 omitted false information, with the intent to receive benefits, which
12 directly resulted in the department issuing UPB to which the claimant
13 was not entitled.
14 (c) "Blanket waiver" means a waiver authorized under federal law,
15 including but not limited to UIPL 20-21 and UIPL 20-21, Change 1 and any
16 and all subsequent waivers that the federal government authorizes states
17 to implement.
18 (d) "Categorical waivers" means a waiver for which the department
19 receives approval after requesting permission to implement from the
20 Federal Department of Labor and/or appropriate federal agency in accord-
21 ance with UIPL 20-21, Change 1, Attachment 2. Upon approval, a categori-
22 cal waiver becomes a blanket waiver.
23 (e) "Individual waiver" means a waiver made available to every claim-
24 ant who has not been approved for a blanket waiver.
25 (f) "Final determination date" means the date thirty days after appeal
26 rights have been exhausted or abandoned.
27 2. Waiver of certain repayments. The department shall review all UPB
28 overpayments to determine eligibility for waivers at the time of the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02796-01-3
A. 8930 2
1 overpayment determination and shall review all previously issued UPB
2 overpayment determinations retroactively to determine eligibility for
3 waivers as described in paragraphs (a), (b) and (c) of this subdivision.
4 The department must complete its review of previously determined over-
5 payments for waiver eligibility within one hundred twenty days of the
6 effective date of this section. Prior to denial of a blanket waiver, as
7 described in paragraphs (a) and (b) of this subdivision, the department
8 must assess all UPB overpayments to determine if claimants are eligible
9 for state unemployment insurance. The department shall assess and
10 approve any subsequent waivers not previously authorized which the
11 federal government authorizes states to implement. There shall be a
12 presumption that claimants are eligible for UPB waivers absent clear and
13 convincing evidence to the contrary.
14 (a) The department shall assess and approve blanket waivers. The
15 department shall proactively identify individuals eligible for a blanket
16 waiver including those who have previously been denied waivers. Notice
17 of a claimant's approval for a blanket waiver must be provided pursuant
18 to subdivision three of this section within fourteen days of the depart-
19 ment's decision to approve the blanket waiver. To the extent that the
20 department has collected benefits for which an overpayment was assessed
21 which are eligible for a blanket waiver, the department must refund
22 benefits to claimants within thirty days of waiver approval.
23 (b) The department shall apply for approval of categorical waivers as
24 listed in this subdivision within thirty days of the effective date of
25 this section. Upon approval of a categorical waiver, such approved waiv-
26 er shall be considered to be a blanket waiver and the requirements for
27 blanket waivers as listed in paragraph (a) of this subdivision shall
28 apply. The department shall request approval for the following categor-
29 ical waivers:
30 (i) all overpayments assessed against educational workers pursuant to
31 subdivisions ten and eleven of section five hundred ninety of this title
32 during calendar year two thousand twenty;
33 (ii) all overpayments assessed because of alleged ineligibility due to
34 immigration status;
35 (iii) all overpayments assessed against the claimant where they
36 received correspondence, forms, or any other documentation in a language
37 that was not their own or in a manner that was inaccessible to the
38 claimant; or due to other similar difficulties (e.g., education, litera-
39 cy, and/or language barriers) in understanding what information the
40 state needed from the claimant to properly determine eligibility;
41 (iv) all overpayments assessed because the claimant filed in the wrong
42 state or there was an incorrectly adjudicated interstate claim; and
43 (v) all overpayments assessed against claimants where receipt of UPB
44 was without fault on the part of the claimant.
45 (c) If an individual is not approved for a blanket waiver, the depart-
46 ment must assess each claimant's eligibility for a waiver individually
47 at the time the overpayment is established. The department shall waive
48 such overpayment repayment if it is determined that the payment of such
49 UPB was without fault on the part of such claimant and such repayment
50 would be contrary to equity and good conscience. There shall be a
51 presumption that the claimant is without fault where the claimant
52 provided incorrect information or failed to provide information and
53 documentation in the following situations:
54 (i) the department provided conflicting, changing, or confusing infor-
55 mation or instructions;
A. 8930 3
1 (ii) the department took more than six months to implement a federal
2 law regarding proof of eligibility from claimants;
3 (iii) the claimant was unable to reach the department despite their
4 best efforts to inquire or clarify information the individual needed to
5 provide, due to language, education, literacy, disability or other simi-
6 lar barriers;
7 (iv) the claimant was unable to understand the department's notices or
8 directives due to language, education, literacy disability or other
9 similar barriers;
10 (v) the claimant chose a reason for separation which is legally incor-
11 rect; or
12 (vi) the claimant had assistance in filing a claim, certifying, or
13 otherwise responding to the department where the claimant's assistant
14 did not confirm required information with the claimant or misunderstood
15 such information provided by the claimant.
16 (d) There shall be a presumption that the payment of UPB is without
17 fault if the overpayment was due to department error or mistake or the
18 employer provided incorrect or untimely information. Receipt of the
19 Unemployment Insurance Claimant Handbook shall not create a presumption
20 that the claimant was on notice of its contents and such receipt shall
21 not be used against the claimant on points of fact or law.
22 (e) For purposes of this section it shall be considered to be "contra-
23 ry to equity and good conscience" where any one or a combination of the
24 following apply:
25 (i) recovery would cause financial hardship to the person from whom it
26 is sought;
27 (ii) the recipient of the overpayment can show, regardless of their
28 financial situation, that repayment would cause them to relinquish a
29 valuable right or change their position for the worse including but not
30 limited to signing a lease, taking out a loan, or passing up state or
31 federal assistance in reliance on receipt of UPB;
32 (iii) where the individual or their household is in receipt of Social
33 Security Income, Supplemental Security Income, Social Security Disabili-
34 ty, Medicaid, Medicare, free or reduced public school lunch, Family
35 Investment Program, temporary assistance, Supplement Nutrition Assist-
36 ance Program benefits (SNAP), nutrition benefits provided as part of the
37 Special Supplemental Nutrition Program for Women, Infants and Children
38 (WIC), Home Energy Assistance Program benefits, Senior Citizen Rent
39 Increase Exemption, Disability Rent Increase Exemption, rental subsidy
40 pursuant to Section 8 of the Housing Act of 1937 and/or state law, or is
41 at or below four hundred percent of the federal poverty guidelines, or
42 is living in project-based subsidized housing and any substantially
43 equivalent successor program to the aforementioned benefits programs;
44 (iv) where the individual used the unemployment benefits to meet their
45 ordinary living expenses including but not limited to food, rent,
46 medical costs and/or insurance, dental bills and/or insurance, school
47 loans, school fees, utilities, childcare, mortgage payments, transporta-
48 tion, purchase or maintenance of a car or equipment needed for employ-
49 ment or self-employment, or operating expenses for self-employment;
50 (v) where the department made programming, technological or automated
51 system errors or where individuals relied upon the department's publi-
52 cized information later determined to be erroneous;
53 (vi) where representatives and/or agents of the department provided
54 information, upon which individuals relied or omitted information, which
55 resulted in an overpayment;
A. 8930 4
1 (vii) where the department failed to determine a non-monetary issue
2 within twenty-one days after the department had notice of the issue;
3 (viii) where the department reversed a decision regarding a claimant's
4 eligibility more than thirty days after the initial determination;
5 (ix) where the department failed to communicate with an employer, the
6 claimant, and/or other relevant parties including but not limited to
7 federal, state or territorial government entities, prior to awarding
8 unemployment benefits;
9 (x) where the department failed to communicate with the claimant in a
10 manner or format inaccessible to the individual;
11 (xi) where a decision on a hearing that resulted in an overpayment
12 being assessed was issued more than thirty days after the first unem-
13 ployment benefit payment;
14 (xii) where the overpayment is based on unemployment claims that were
15 opened during a period when the department failed to send notices within
16 thirty days to employers of claimants having applied for benefits;
17 (xiii) where there is any other reason for which recovery of the over-
18 payment would be against equity and good conscience under the circum-
19 stances;
20 (xiv) where it would be unfair to require repayment;
21 (xv) where requiring repayment now would undermine an individual's
22 financial stability and the purposes for which the benefits were paid;
23 and/or
24 (xvi) where recovery would be unconscionable under the circumstances.
25 (f) The department shall provide claimants, who have previously been
26 denied waivers with applications for individual waivers within sixty
27 days of the effective date of this section. To the extent that the
28 department has collected benefits for which an overpayment was assessed
29 which are eligible for an individual waiver, the department must refund
30 benefits to claimants within thirty days of waiver approval.
31 3. (a) The department shall notify each claimant with an overpayment
32 of the following:
33 (i) the total amount of such overpayment and the cause of such over-
34 payment;
35 (ii) the amount of the overpayment that is waived and the reason why
36 some or all of the overpayment was not waived;
37 (iii) the availability of a ten-year period to repay the overpayment;
38 (iv) the means by which the commissioner is entitled to collect or
39 recover such overpayment;
40 (v) an explanation of the claimant's right to appeal such determi-
41 nation or decision in accordance with the provisions of this title and
42 any rules and regulations promulgated thereunder;
43 (vi) an explanation of the standards by which an overpayment can be
44 waived as set forth in this section; and
45 (vii) the process by which the claimant may request and obtain an
46 individual waiver of recovery of such overpayment.
47 (b) A copy of the application for individual waivers must be sent with
48 the notification described herein.
49 (c) A claimant who is dissatisfied with a determination regarding a
50 waiver may, within sixty days after receipt of notice of the determi-
51 nation, request a hearing. Overpayment claimants shall have all the
52 appeals rights provided by title eight of this article except that
53 referees may extend the time fixed for requesting a hearing upon good
54 cause shown.
55 4. The department shall develop and implement a process, within thirty
56 days of the effective date of this section, by which claimants may
A. 8930 5
1 request and obtain an individual waiver application by phone, fax, mail,
2 or through the department's two-way communication system. All notifica-
3 tions shall be translated into the ten most commonly spoken languages in
4 New York state. Any notice not fully translated into one of these
5 languages must be accompanied by a notice informing the recipient of
6 where they may seek translation and other assistance as provided by the
7 department.
8 5. Any funds recouped or repaid prior to the granting of these waivers
9 shall be returned to the individual within thirty days of the waiver
10 being granted.
11 6. The department shall ensure that no overpayments are or have been
12 established based on a redetermination more than one year after the
13 first date for which benefits are paid.
14 7. (a) The department shall not pursue or continue collection activity
15 prior to a final determination regarding the overpayment and that a
16 claimant is ineligible for any waiver.
17 (b) Where an overpayment waiver is denied, claimants shall have up to
18 ten years to repay overpayments. Upon a showing of the claimant's
19 inability to repay, the ten-year period shall be extended to an indefi-
20 nite period as long as the claimant can make a minimum payment of five
21 dollars per month. Offsets shall be limited to three years.
22 8. The department shall report publicly on its website on a quarterly
23 basis the following information by race, gender, ethnicity, and
24 language: the number of overpayment notifications it sent to claimants,
25 the number of waiver requests received, the number of waiver requests
26 granted, the number of waiver requests denied and, if denied, the
27 reasons for denying each waiver request.
28 § 2. Subdivision 4 of section 597 of the labor law, as amended by
29 chapter 61 of the laws of 1998, is amended and a new subdivision 5 is
30 added to read as follows:
31 4. Effect of review. Whenever a new determination in accordance with
32 the preceding subdivision or a decision by a referee, the appeal board,
33 or a court results in a decrease or denial of benefits previously
34 allowed, such new determination or decision, unless it shall be based
35 upon a retroactive payment of remuneration, shall not affect the rights
36 to any benefits already paid under the authority of the prior determi-
37 nation or decision provided they were accepted by the claimant in good
38 faith and the claimant did not make [any] a willful false statement or
39 representation and did not [wilfully] willfully conceal any pertinent
40 fact in connection with his or her claim for benefits.
41 5. The term "willful" as it is used in this section shall mean the
42 claimant intentionally and deliberately supplied or omitted false infor-
43 mation which directly resulted in the department issuing benefits to
44 which the claimant knew they were not entitled.
45 § 3. This act shall take effect immediately and shall apply to all
46 pandemic unemployment assistance repayments assessed on or after March
47 27, 2020.