MISREPRESENTATION AND REDETERMINATIONS
TABLE OF CONTENTS
False statement or representation
Availability or capability 1510
Base period weeks and wages 1512
Efforts to find work 1515
Employment and earnings 1520
Insurance Book Alteration 1525 (Section has been obsoleted in its entirety)
Claimant Handbook 1530
Reason for separation 1535
Refusal of employment 1540
True last employer 1550
Training and experience 1555
Forfeit penalty calculation 1580
Recovery of overpayment 1590
Section 594 of the Unemployment Insurance Law provides that "a claimant who has wilfully made a false statement or representation to obtain any benefit ... shall forfeit benefits for at least the first four but not more than the first eighty effective days following discovery of such offense ...". It further provides that the claimant shall be deemed to have received benefits for such forfeited effective days", and that "A claimant shall refund all moneys received because of such false statement ...".
Not every false statement subjects a claimant to the penalties provided in sub. sec. 594. A claimant may provide information (s)he believes to be true, which ultimately proves to be incorrect. In such instances no penalty applies. However, if it is established that the claimant was aware of the true situation, but gave false information, or purposely failed to fully disclose the facts, a determination of wilful misrepresentation should be made. As the courts have held, "'wilful' as used here does not imply a criminal intent to defraud but means 'knowingly' , 'intentionally' , 'deliberately' to make a false statement. (Matter of Vick, 12 AD 2d 120)
Subsection 597.3 provides that "Any determination regarding a benefit claim may, in the absence of fraud or wilful misrepresentation be reviewed only within one year from the date it is issued because of new or corrected information, or, if the review is based thereon, within six months from a retroactive payment of remuneration, provided that no decision on the merits of the case has been made upon hearing or appeal."
Index 1595 – Redeterminations - contains current guidelines for making redeterminations under current case law. There are limitations on the Commissioner's ability to redetermine. The local office is prohibited from reviewing facts and issuing new determinations unless it can show that these limitations do not apply to a particular case.
Section 597.4 has been amended effective May 19, 1998. It provides that overpayments, except those resulting from retroactive payments of remuneration, are not recoverable if the benefits "were accepted by the claimant in good faith, and the claimant did not make any false statement or representation and did not wilfully conceal any pertinent fact in connection with his claim for benefits." Although not specifically set forth in the statute, causality is a necessary element of recoverability (Matter of Greenberg, 65 AD 2d 659). Only those benefits received by the claimant as a result of the claimant's wilful misrepresentation, false statement or wilful concealment of pertinent information, or not having been accepted in good faith, are recoverable. Benefits paid because the local office overlooked potentially disqualifying information provided by the claimant, or made an incorrect determination despite the claimant's disclosures are not recoverable.
An overpayment resulting from a retroactive payment of remuneration (e.g. back pay award, holiday or vacation pay) is always recoverable provided the determination is issued within six months of the date the retroactive payment is made.
Section 600.7(c) provides that overpayments resulting from pension reductions are recoverable subject to the conditions governing retroactive payments of remuneration, if, at the time benefits were due, it had not been established that the claimant would be receiving such pension.
Section 593.4, which deals with loss of employment as a result of an act constituting a felony in connection with employment, provides that "any benefit paid to a claimant prior to a determination that the claimant has lost employment as a result of such act shall not be considered to have been accepted in good faith." Thus, all overpayments resulting from a criminal act determination are recoverable without exception.
Determinations and redeterminations regarding wilful misrepresentation and recoverability of overpayments should be made in accordance with the principles reported in this section of the Interpretation Service and the policies set forth in relevant Special Bulletins (A-710 series)
False statement or representation
1510. Availability or capability
1512. Base period weeks and wages
1515. Efforts to find work
1520. Employment and earnings
1525. Insurance booklet alteration (Section obsoleted in its entirety)
1530. Claimant Handbook
1535. Reason for separation
1540. Refusal of employment
1550. True last employer
1555. Training and experience
1580. Forfeit penalty, calculation
*/ Now 4 effective days
1590. Recovery of overpayment