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PART 470

ARTICLE 1

REGULATIONS OF THE INDUSTRIAL COMMISSIONER

PART 470 - GENERAL PROVISIONS
(Statutory authority: Labor Law, § 530; Article 18)

Section 470.1
Superseded Regulations
Section 470.2
Definition of Terms
Section 470.3
Value of Gratuities
Section 470.4
Overpaid unemployment insurance benefits
Section 470.5
Setoff against unemployment insurance benefits

§ 470.1 Superseded regulations.

Each and every rule and regulation promulgated by the Industrial Commissioner and effective before June 5, 1944 is superseded by the regulations promulgated and effective beginning with such date.

Rules and regulations which were in effect before June 5, 1944 and which are superseded in accordance with subdivision (a) of this section shall continue to govern employers' and employees' rights and obligations for the period preceding such date.

§ 470.2 Definition of terms.

Payroll period means that period of time for which an employer customarily makes a single payment of remuneration to all or a group or groups of his employees.

1. For all purposes except the computation of a claimant's average weekly wage, remuneration earned, whether or not paid, shall be deemed "paid":

as of the day or the first of several days on which amounts definitely assignable to a payroll period are generally paid by the employer;

as of the day when both the amount and the liability of the employer for payment thereof have been unconditionally established if the remuneration is not definitely assignable to a payroll period;

with respect to remuneration paid pursuant to an order of a competent tribunal or an agreement between an employer and his employees or their respective representatives following negotiations, a dispute or disagreement with respect to the amount or liability for remuneration, as of the date of said order or agreement, or the date, if any prescribed therein for payment.

For the purpose of computing a claimant's average weekly wage:

all remuneration accrued in, whether or not paid at the end of a statutory week, shall be deemed "paid" in such statutory week. If remuneration is accrued in a payroll period other than a statutory week and the remuneration for each statutory week cannot be ascertained, such remuneration shall be allocated to statutory weeks in proportion to the number of calendar days of the payroll period which fall within each statutory week;

remuneration which cannot be allocated in accordance with subparagraph (i) of this paragraph shall be deemed "paid" in accordance with paragraph (1) of this subdivision unless actually paid at an earlier date.

A quarter or calendar quarter means one of the four period of three consecutive calendar months which begin, respectively, on January 1, April 1, July 1, and October 1.

Wages paid in a quarter means the total of all wages which in accordance with subdivision (b) of this section are deemed "paid" on any day falling within the calendar quarter.

Statutory week means the period beginning with Monday and ending with the following Sunday.

Itinerant point means a locality where there is no full-time State employment office but where claims are taken by the division's field service and personal reports are made by claimants at a specified place and on a specified day or days of the week.

Week of employment includes any statutory week during any part of which an employee is on paid vacation or other paid leave of absence even though no actual work is performed.

Historical note: Section amendment filed May 14, 1969, effective immediately.
Substituted new (b)(2).

Decisions
1. Wages when paid

Held that in determining the number of weeks covered employment to be credited claimant musician rehearsal wages, despite the fact that they were withheld until after the performance, must be considered earned when each rehearsal took place. A rule of the Industrial Commissioner (12NYCRR 470.2) provides that remuneration shall be deemed paid "as of the day both the amount and the liability of the employer for payment thereof have been unconditionally established if the remuneration is not definitely assignable to a payroll period." Entitlement to such wages is unconditionally established as of the date of each rehearsal and is not dependent as to amount of liability on any future event.

Matter of Jory v. Catherwood, 34 A D 2d 260 (1970)

§ 470.3 Value of gratuities.

The value of gratuities under Section 517 of the Unemployment Insurance Law may be determined and established by rules promulgated by the Industrial Commissioner in the following manner:

Public hearings with respect to which notice as to time, place and purpose has been given at least 20 days prior to the date of each such hearing shall be held in regard to such rules.

Such rules shall be filed in the offices of the Industrial Commissioner and the Secretary of State and published within 30 days of the date of filing in the office of the Secretary of State. The public announcement shall indicate the date of filing in the office of the Secretary of State and such rules shall become effective 30 days after such filing unless otherwise specified therein.

Notices pursuant to paragraph (1) above and announcements pursuant to paragraph (2) above shall be made in such manner as the Industrial Commissioner deems expedient for the purpose of giving due notice to all reasonably interested parties.

Gratuities, the value of which is not established by any rule promulgated under this section, shall be reported at the actual amount if ascertainable or, if this be impossible, shall be evaluated by the employer upon a reasonable basis and reported by him accordingly. Employers shall submit upon request a statement of the basis used in, and sustaining the reasonableness of, such evaluation.

Whenever the value of gratuities has been determined and established by a rule promulgated in accordance with this section, such determination shall be binding for the purpose of the Unemployment Insurance Law on all parties concerned with respect to the basis on which contributions and benefits are payable pursuant to sections 570 and 590 of such law, respectively.

If the employer makes a definite service charge which is added to each customer's bill, or if in those places of the employer's establishment where the usual services to customers are rendered, announcements are conspicuously displayed forbidding the acceptance of gratuities (tips) by employees, or if such practice is actually brought to each customer's attention in writing at or before the time the customer is advised of the amount due the employer as a charge for the commodities sold or services rendered and the employer submits a sworn statement to the Department of Labor setting forth that his employees are not allowed to accept gratuities pursuant to an agreement or understanding with them, and that he adopts reasonable means to obtain compliance with such agreement or understanding, it shall be deemed that no gratuities are received by the employees of that employer unless the employer, directly or indirectly, encourages contravention of such practice.

Any rule promulgated pursuant to subdivision (a) of this section may be modified in the Industrial Commissioner's discretion, after investigation and upon notice and hearing.

If, after a rule promulgated pursuant to subdivision (a) of this section has been in effect two years or more, an application for a modification is made by representative organizations of employers or employees affected by such rule, new hearings shall be held within six months of such application. After proper hearings, a new rule shall be promulgated which may affirm or modify the rule in force and effect at the time such application was made. The provisions of subdivision (a) of this section shall apply to notices of hearings, promulgations of rules, and publications thereof under this subdivision.

When, under any rule promulgated pursuant to subdivision (a) of this section, the value of gratuities received may be established by a statement submitted by an employee certifying the value of gratuities received by such employee, such statements shall be valid only if submitted not less frequently than once each calendar quarter, except that the statement for a period of employment shall not be valid unless submitted prior to the date of mailing or personal delivery of notice to the employer that the employee has filed an original claim for the first time subsequent to such period of employment.

Historical note: Section amendment filed September 10, 1974,
effective immediately. Amended (d).

§ 470.4 Overpaid unemployment insurance benefits

The Commissioner of Labor shall, as provided for in section 18 of the State Finance Law, waive the assessment of interest and late charges on debts owed which occurred as a result of overpayment of unemployment insurance benefits.

§ 470.5 Setoff against unemployment insurance benefits

Established and outstanding overpaid unemployment insurance benefits shall be collected from a claimant's weekly benefit award as a setoff.

Priority of liquidation. In the event that more than one overpayment is established against an individual claimant, setoff amounts will be debited to such overpayments in chronological order.

Willful overpayment. A setoff of 100 percent of the weekly benefit amount will apply to one or more established and outstanding overpayments attributable to an individual claimant so long as at least one of such overpayments is determined to have been willful.

Non-willful overpayment. A setoff of 50 percent of the weekly benefit amount will apply to one or more established and outstanding overpayments attributable to an individual claimant so long as none of such overpayments are determined to have been willful.

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