Index 915C-1


September 2009

Reduction Due to Pension
Retroactive Pension
Recovery of Overpayment





Pursuant to Section 600.7 (c) of the Unemployment Insurance Law, a claimant who receives a retroactive pension payment may be held subject to a retroactive benefit rate reduction and recoverable overpayment despite the fact that the claimant was not at fault and had made a full disclosure to the department regarding the pension shortly after filing the original claim.

Matter of Rita J. Sanchez, 56 A. D. 3d 846 (2008)

Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 24, 2007, which, upon reconsideration, among other things, charged claimant with a recoverable overpayment of unemployment insurance benefits.

Claimant applied for unemployment insurance benefits on July 3, 2006, and a weekly benefit rate was established. When claimant was interviewed by a Department of Labor representative in early August 2006, she indicated that she had applied for her pension from the employer. Claimant received her first pension check on August 25, 2006, retroactive to July 1, 2006, and promptly notified the Department. Prior to that time, claimant had received unemployment insurance benefits in the amount of $2,430. Because the prorated weekly amount of claimant’s pension exceeded her weekly benefit rate, the Unemployment insurance Appeal Board reduced claimant’s weekly benefit rate to zero and charged her with a recoverable overpayment.  Upon reconsideration, the Board adhered to its prior decision, prompting this appeal by claimant.

Substantial evidence supports the Board’s decision reducing claimant’s benefit rate to zero and charging her with a recoverable overpayment of benefits. The record reflects that claimant is receiving a pension that is fully funded by her former employer and that the prorated weekly amount of her pension exceeds her weekly unemployment insurance benefit rate. Under such circumstances, the Board properly reduced claimant’s benefit rate to zero (see Matter of Ziegler [Commissioner of Labor], 28 AD3d 895, 895-896 [2006], lv denied 7 NY3 708 [2006]; Matter of Hosenfeld [Commissioner of Labor], 280 AD2d 738 [2001]; Matter of Hammer [Commissioner of Labor], 263 AD2d 608 [1999]; see also Labor Law § 600 [7]). Similarly, although claimant indeed disclosed her pension and receipt of those benefits to the Department, the conditional payment of unemployment insurance benefits prior to verification of the details of a claimant’s pension is subject to review and recovery of an overpayment (see Labor Law § 597 [3], [4]). Thus, claimant was properly charged with a recoverable overpayment even though she was not at fault (see Labor Law § 597 [3], [4]; § 600 [7] [c]; Matter of Hosenfeld [Commissioner of Labor], supra; Matter of Hammer [Commissioner of Labor], supra).



1. When the claimant in this case filed an original claim on 7/03/06, she stated that she had neither applied for nor was receiving a pension. On 8/06/06 however, she disclosed that she had applied for a pension, but that she did not know when she would receive it, or how much it would be. The claimant’s benefits were properly released and she was advised to inform the Department when the first pension payment was received. Claimant did so, and as the statute specifically addresses this factual situation, the proper determinations were issued.   

2. Section 600.7 (c) states: “If, at the time benefits are payable, it has not been established that the claimant will be receiving such pension, retirement or retired pay, annuity or other payment, benefits due shall be paid without a reduction, subject to review within the period and under the conditions as provided in subdivisions three and four of section five hundred ninety-seven with respect to retroactive payment of remuneration”. Sections 597.3 & 597.4, taken together state in effect that a claimant’s eligibility may be redetermined within six months of a retroactive payment of remuneration and that any resulting overpayment is recoverable, provided no decision has been rendered upon the merits of the case.

3. Thus, a retroactive pension payment is handled in the same manner as a retroactive payment of remuneration. A claimant’s rate may be reduced provided:

a) there has been no decision (hearing or appeal) rendered on the merits; and
b) the conditions enumerated in Section 600.7 (a) and (b) have been met; and
c) the matter is reviewed and a redetermination issued within six months of the retroactive pension payment.

Under such circumstances, the resulting overpayment is recoverable.

4. Although not applicable to the above case, it remains true that if a claimant falsely states that he or she has not applied for or is not receiving a pension such statement is both factually and willfully false. A willful false statement gives the Commissioner the right to review the matter and issue a redetermination with no time limitation. Both the factually false statement and the willfully false statement constitute a basis for the recovery of any overpayment caused by the false statement.