TABLE OF CONTENTS

1. Wilful false statement, definition
2. Agent or impersonator
3. Disclosure to employment service
4. Relationship to benefit rights
5. Other considerations

1. Wilful Misrepresentation

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)

2. Redeterminations

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)

1505. General

1. Wilful false statement, definition
1. Where claimant furnishes incorrect information but believes the statements he made to be factually true, the forfeit penalty for wilful false statements does not apply. (A.B. 28,560; A-750-1084)
2. A wilful false statement within the meaning of the law can be made without an affirmative statement by remaining silent when there is a duty to speak, but whether silence amounts to wilful misrepresentation is dependent on the facts of the situation and the intent of the party who fails to speak; thus a claimant’s failure to come forward with pertinent information (self-employment) does not justify the imposition of the penalty when facts showing such duty to speak and an intent to conceal have not been established. (Matter of Galitzer, 2 AD 2d 923; A-750-1442)
3. A claimant who certifies to total unemployment while performing services as an elected official is subject to the penalty for wilful misrepresentation notwithstanding the fact that he disclosed his status when he filed his original claim and was informed that such work would not count as covered employment and would not affect his benefits because he was also advised to declare all full time or part time work while claiming benefits and had received the Claimant Handbook. (A.B.558788; A-750-2141).
2. Agent or impersonator
1. Where a claim form signed by the claimant contains false information, the penalty for wilful misrepresentation applies even though the blanks on that form calling for relevant information had been filled in by another person at claimant’s direction but without attempt at verification by claimant as to the accuracy of the information as recorded and even though the claimant alleges that the recorded information does not correspond to instruction given to that person. (A.B. 51,489-55; A-750-1385)
2. Sending another person to impersonate claimant at local office and to certify to continuance of his unemployment constituted misrepresentation. (A.B. 1237-39)
3. When a claimant obtains or attempts to obtain benefits fraudulently by arranging for an impostor to report for him and sign for benefits in his name, this constitutes an aggravating circumstance, for which a forfeiture of 80 effective days of future benefits may be imposed (A.B. 299,751; A-750-1895)
4. When a claimant obtains or attempts to obtain benefits fraudulently, by having another person certify for benefits on his behalf by giving that person access to his personal identification number (PIN), this constitutes an aggravated circumstance, for which a forfeiture penalty of 80 effective days of future benefits may be imposed (A.B. 453,811; A-750-2073)
3. Disclosure to employment service
1. A false certification to total unemployment and false entries in the insurance booklet constitute a wilful misrepresentation to secure benefits even though claimant had disclosed the employment to the Employment Service and relied on the assistance of another person who marked the insurance booklet. (A.B. 55,936-56; A-750-1436)
2. Falsely certifying to the insurance office that no employment was refused constitutes a wilful misrepresentation even though claimant had previously informed the placement office of the refusal. (A.B. 74,809-60; A-750-1532)
4. Relationship to benefit rights
1. A wilful misrepresentation although made at a time when claimant was not entitled to benefits because of insufficient earnings, justifies the imposition of a forfeiture penalty, to be applied in a benefit year established subsequently by filing a valid claim at a later date in the next benefit year. (Matter of King, 278 App. Div. 1036; A.B. 24,663-50; A-750-1051)
2. Wilful misrepresentation was sustained where failure to report because of alteration of reporting date occurred subsequent to refusal but prior to actual issuance of refusal disqualification. (A.B. 28,834-51)
3. Concealment of a day of employment during a contested strike suspension period constitutes a wilful false statement to obtain benefits. (A.B. 39,501-53; A-750-1226)
4. Claimant's action in signing the back of the benefit check and then cashing it constitutes a wilful false statement when claimant knew she was not entitled to receive the benefits. (A.B. 396,995; A-750-2060)
5. Other considerations
1. A misrepresentation cannot be excused on the theory that claimant was not sufficiently apprised of the consequences of the false statement. (Matter of Trepper, 278 App. Div. 993; A-750-1030)
2. A false statement made during an interview is nullified so that no forfeit penalty applies when a claimant retracts the statement by disclosing the true facts before the conclusion of the interview. (A.B. 28,079-51; A-750-1446)
3. A false statement does not warrant the imposition of a forfeit penalty when claimant made the statement only to render himself ineligible to receive benefits; for instance, alleging employment while claimant is incapable (Matter of Davis, 283 App. Div. 908; A-750-1405; similarly, A.B. 52,064-55)
4. A wilful false statement deliberately made by the claimant at a referee hearing is subject to the imposition of the penalty provided in Section 594 of the law when there is evidence showing a calculated scheme to deceive the hearing officer, such as the presentation of spurious documents purporting to support the false statement. (A.B. 122,795; A-750-1647)
5. A negative response to the question whether claimant is related to persons for whom he had worked in the past twelve months was held to be a wilful false statement when claimant was employed by a corporation in which his relatives were officers and major stockholders. (A.B. 285,228; A-750-1884).
6. Claimant's action in signing the back of the benefit check and then cashing it constitutes a wilful false statement when claimant knew she was not entitled to receive the benefits. (A.B. 396,995; A-750-2060)

False statement or representation

1510. Availability or capability

1. Certifying to availability, on a day when claimant did not respond to a recall to work by the employer and was occupied in personal affairs, constituted wilful misrepresentation, when the supporting evidence shows an entry of the letter "N" instead of the letter "O" for the date when claimant was not available while for subsequent days of unavailability the booklet was so marked as not to claim benefit credits. (A.B. 52,905-55; A-750-1393)
2. A false statement does not warrant the imposition of a forfeit penalty when claimant made the statement only to render himself ineligible to receive benefits; for instance, alleging employment while claimant is capable. (Matter of Davis, 283; App. Div. 908; A-750-1405; similarly, A.B. 52,064-55)

1512. Base period weeks and wages

1. Claimant's overstatement of his base period earnings, resulting in assignment of a benefit rate of more than twice the correct rate, was a wilful false statement to obtain benefits. (A.B. 235,204; A-750-1829)

1515. Efforts to find work

1. Falsely certifying to having made written applications at employment agencies constitutes a wilful misrepresentation to obtain benefits. (Ref. 523-138-55R; A-750-1359)

1520. Employment and earnings

1. Claimant's failure to report one day's employment with earnings of less than $24 believing that such employment did not affect eligibility, represents a wilful false statement to obtain benefits since the statute (1) authorizes the forfeiture when claimant knowingly certifies to a false fact regardless of his interpretation of the ultimate effect of his statement, and (2) does not require a criminal intent or proof sufficient to support larceny. (Matter of Bernstein, 303 N.Y. 755. aff'g 278 App. Div. 625; A-750-986)
2. A false certification to total unemployment and false entries in the insurance booklet constitute a wilful misrepresentation to secure benefits even though claimant had disclosed the employment to the employment service and relied on the assistance of another person who marked the insurance booklet. (A.B. 55,936-56; A-750-1436)
3. A claimant who places "N" in the calendar insert and certifies that "I did not work in employment or self-employment although (s)he knew (s)he had worked two days and received pay is subject to the penalty for wilful misrepresentation notwithstanding that the claimant honestly misinterpreted the law and believed the work had no effect on benefit rights (Matter of Vick, 12 AD 2d 120)
4. An overpayment resulting from a false statement of fact, even if made unintentionally, is recoverable, but one resulting solely from an erroneous conclusion of law is not. Thus, if a claimant's activities in "employment" are so minimal that a claimant would not reasonably be expected to realize they constitute work a certification that "I did not work in employment or self-employment" is not a factually false statement; rather, it is a false legal conclusion and alone is insufficient to establish recoverability. (Matter of Valvo et. al. 57 N.Y. 2d 166; A-750-1929)
5. A claimant who certifies to total unemployment while performing services as an elected official is subject to the penalty for wilful misrepresentation notwithstanding the fact that he disclosed his status when he filed his original claim and was informed that such work would not count as covered employment and would not affect his benefits because he was also advised to declare all full time or part time work while claiming benefits and had received the Claimant Handbook. (A.B.558788; A-750-2141).

1525. Insurance booklet alteration (Section obsoleted in its entirety)

1530. Claimant Handbook

1. Having received the information handbook, it is incumbent on the claimant to read it, and he is charged with the knowledge of its contents. (A.B. 535961; A-750-2123)
2. A claimant who files an original claim for benefits on line is made aware of the on-line information handbook, and is properly charged with the knowledge contained in it, despite non-receipt of the printed information booklet. ( Matter of Jamie L. Nigro, 47 AD 3d 1040; A-750-2124)