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PART 472

ARTICLE 1

REGULATIONS OF THE INDUSTRIAL COMMISSIONER

PART 472 - CONTRIBUTIONS TO STATE UNEMPLOYMENT INSURANCE FUND
(Statutory authority: Labor Law, §530, 575; Article 18)

Section 472.1
Status report
Section 472.2
Employer records
Section 472.3
Reports and payments of contributions
Section 472.4
Reports of remuneration and employment
Section 472.5
Employees' social security account numbers
Section 472.6
Transfers of accounts
Section 472.7
Posting of notice for employees
Section 472.8
Notice upon separation
Section 472.9
Payment of contributions, reports in regard to seamen's remuneration paid under shipping articles
Section 472.10
Apportionment of remuneration, vacation payments or allowances in connection with experience rating
Section 472.11
Transfer of out-of-state experience
Section 472.12
Reporting on request

§ 472.1 Status report.

An employer upon becoming liable for contributions under the Unemployment Insurance Law shall submit a status report on forms furnished for this purpose by the Department of Labor and in accordance with instructions printed thereon.

Historical note: Section amended and filed September 10, 1974, effective immediately. Changed "Division of Employment" to "Department of Labor".

§ 472.2 Employer records.

Every employer employing persons within New York State shall establish, maintain and preserve, for not less than three years, records with respect to his employees which shall show:

  • for each payroll period:
    • the beginning and ending date of such period;
    • the total amount of remuneration paid by the employer for such period as set forth in section 470.2(b)(1) of this Title;
    • the total amount of remuneration paid during such period as set forth in section 470.2 (b)(2) of this Title;
    • the total amount of compensation on which contributions are due under the New York Unemployment Insurance Law solely because the employer is liable for a tax on such compensation under the Federal Unemployment Tax Act;
  • for each employee:
    • his name;
    • his social security account number;
    • remuneration paid to him for a payroll period in accordance with subparagraph (1)(ii) of this subdivision or during a payroll period in accordance with subparagraph (1)(iii) of this subdivision, showing for each such period, separately:
      • remuneration paid in cash;
      • money equivalent of remuneration, other than in the form of money, paid by the employer, including reasonable money value of board, rent, housing, lodging or similar advantage received;
      • the value of gratuities (tips) received by the employer in the course of his employment from a person other than his employer to be determined in accordance with section 470.3 of this Title;
    • compensation on which contributions are due under the New York Unemployment Insurance Law, solely because the employer is liable for a tax on such compensation under the Federal Unemployment Tax Act;
  • the calendar days on which each employee was employed reflecting the remuneration applicable to each such day.

Every employer liable for contributions under the Unemployment Insurance Law shall preserve for a period of not less than three years copies of all reports which he is required to submit to the Department of Labor with respect to his payroll in accordance with section 472.3 of this Part, and which he may be required to submit with respect to individual employees' earnings in accordance with section 472.4 of this Part.

Employers who maintain their records containing the information required pursuant to subdivision (a) of this section at a place outside of the State of New York shall make such records or sworn certified copies thereof available at a place within New York State upon demand by the commissioner.

Historical note: Section amendments filed August 10, 1971; September 10, 1974, effective immediately. Amended (b).

§472.3 Reports and payments of contributions.

Contributions due under the Unemployment Insurance Law shall be payable quarterly based on wages paid in a quarter as set forth in section 470.2 of this Title, except that contributions based on compensation on which contributions are due under the New York Unemployment Insurance Law solely because the employer is liable for a tax on such compensation under the Federal Unemployment Tax Act shall be payable annually.

Employers liable for contributions under the Unemployment Insurance Law shall report contributions due on forms furnished for this purpose by the Department of Labor, and in accordance with instructions printed thereon. Such report shall be accompanied by payment of contributions.

Reports with respect to remuneration, as defined by section 517 of the Unemployment Insurance Law, and payments of contributions due thereon, shall become due on or before the last day of the month following the close of the quarter during which the wages were paid; providing, however, that in regard to wages definitely assignable to payroll periods, if the rate or amount of such wages has not been finally determined prior to the end of such quarter, reports of such portion of the wages is not paid in that quarter, and the payments of contributions thereon, shall become due on or before the last day of the month following the close of that quarter in which the rate or amount of such wages was finally determined; a separate contribution report shall then be filed for each quarter to which such wages as finally determined apply.

Reports with respect to compensation on which contributions are due solely because the employer is liable for a tax on such compensation under the Federal Unemployment Tax Act, and payments of contributions thereon, shall become due not later than January 31 following the end of the calendar year during which the compensation was paid, except that, upon the application of an employer made prior to January 31, the commissioner may grant an extension to a date not later than April 30.

Reports and payments of contributions by an employer liable for contributions under the Unemployment Insurance Law as the result of an application for voluntary coverage become due for the first time on or before the last day of the month following the close of the calendar quarter during which the application for voluntary coverage was approved. The employer shall at such times file separate reports with respect to each of the calendar quarters for which contributions are payable by him.

Variation:

 

 

In light of the Governor's proclamation of a state of emergency within the State of New York caused by the New York City transit strike, I hereby make and promulgate a variation from section 472.3 governing transmittal of reports and payment of contributions. I do hereby declare that reports and payments of contributions normally due not later than January 31, 1966 may be substituted beyond such date but not later than February 28, 1966 without incurring any interest.

 

Historical note: Section amendments filed August 10, 1971; September 10, 1974, effective immediately. Amended (b).

 

Decisions

1. Defaults in answering information charging violation

Held that corporation which defaulted in answering an information charging it with violation of Labor Law § 575.1 and

§ 472 of the Industrial Commissioner's regulations (12NYCRR 472.3), may not have a judgment taken against it under section 681 of the Code of Criminal Procedure which applied only to "indicted corporations".

People v. Mineola Coal Co., 65 Misc 2d 731 (1971)

2. Payment of contributions - due date

Held that while the State could properly deduct from the amount of refund of a liquor license fee to an applicant's assignee franchise tax and unemployment insurance contribution which became due from the applicant prior to filing of such assignment on March 18, 1964 not due until "the last day of the month following the close of the quarter" (12 NYCRR 472.3(c)) could not be deducted since they were not payable at the time the assignment was filed.

Chase Bank NY Trust Co. v State of New York, 55 Misc 2d 425 (1967)

§472.4 Reports of remuneration and employment.

Any employer liable for contributions under the Unemployment Insurance Law may be designated by the Industrial Commissioner as an employer required to file periodic reports of remuneration and employment. Such employer shall report, in accordance with instructions issued by the commissioner, any or all of the following with respect to employment in the period covered by the report:

  • the name and social security account number of each employee who did some work for him;
  • the remuneration paid by him to each employee;
  • the number of weeks of employment of each employee; and
  • the number of weeks of employment of each employee in which he earned less than $40, and his total earnings for such weeks.

Any employer liable for payments in lieu of contributions shall report, on forms furnished for this purpose by the Department of Labor and in accordance with instructions printed thereon, the number of his employees in the middle week of each month and wages as well as remuneration paid in each calendar quarter. Such reports shall be due on or before the last day of the month following the close of the quarter during which the wages were paid.

An employer liable for contributions or for payments in lieu of contributions who plans to shut down his business on a temporary, seasonal or permanent basis, and who wishes to be relieved of the request reporting requirements specified in subdivision 2 of section 575 of the Unemployment Insurance Law, shall give notice as prescribed in subdivision 3 of that section and thereafter, but prior to the date on which he seeks to be so relieved, he shall report, for the week in which such shutdown occurs, and for the 52 preceding weeks, separately for each week:

the name and social security number of each employee who did some work for him; and

the amount of remuneration paid to each employee in each such week.

Historical note: Section amendments filed October 16, 1968; August 10, 1971; September 10, 1974; January 18, 1979. Amended (a)(4).

§472.5 Employees' social security account numbers.

An employer shall ascertain the Federal social security account number of each employee employed by him, list such number on his records in accordance with section 472.1 of this Part, and include it in his reports to be submitted pursuant to sections 472.3 and 472.12 of this Part.

An employee shall report his Federal social security account number to every employer by whom he is employed.

An employer shall inform each employee who has not secured an account number that an application for such number must be filed on or before the seventh day after the date on which the employee first performs services in employment, except that the application shall be filed on or before the date the employment is terminated if such date precedes such seventh day.

An employer shall inform his employee in instances in which the information is pertinent that he should apply at a field office of the Social Security Board with respect to replacement of a lost Federal social security account number card, changes of the number desired by the employee, required changes of name because of marriage or otherwise, or corrections of any inaccurate information given when applying for a social security account number.

§472.6 Transfers of accounts.

An employer who, subsequent to July 1, 1951, acquires the organization, trade or business, in whole or in part, of an employer liable for contributions shall report such fact, in writing, together with the date of acquisition and the name and other identification of the transferring employer. If only a part of the organization, trade or business is transferred, experience rating charges based on benefits paid to former employees of the transferring employer shall be debited to the account of the transferee.

If only a part of the organization, trade or business is transferred, the transferring employer's account, including its balance and all other aspects of its experience under the Unemployment Insurance Law, shall be allocated in proportion to the payroll assignable to the transferred part during the last 12 completed calendar quarters prior to the date of transfer except that the allocation shall be made in proportion to the number of employees assignable to the transferred part in the following cases:

  • if the transferred part of the organization, trade or business was not in existence for 12 completed calendar quarters prior to the date of transfer;
  • if the transferring employer and the transferee join in a request to allocate in accordance with the number of employees, and demonstrate that allocation in accordance with payroll would be inequitable.

§472.7 Posting of notice for employees.

Every employer liable for contributions under the Unemployment Insurance Law, except employers of employees in personal or domestic service, shall post and maintain notices furnished by the Department of Labor indicating that he is registered with the department. Every employer liable for contributions with respect to employees in personal or domestic service shall inform each such employee of the fact that the employer is registered with the department.

Notices must be posted conspicuously in easily accessible places customarily frequented by the employees and at or near each location where the employees' services are performed.

An employer who is not liable for contributions under the law or who has ceased to be liable for contributions is not permitted to display such notices and must remove them if on display.

Historical note: Section amendment filed September 10, 1974, effective immediately. Changed "Division of Employment" to "Department of Labor" in (a); changed "division" to "department" in (a).

§472.8 Notice upon separation.

Every employer liable for contributions shall inform each employee of his right to file an application for unemployment benefits with a field office of the Department of Labor. Such information shall be given at the time of each separation from his service if such separation is permanent or for an indefinite period. In case of temporary separation or any other interruption of continued services, such information shall be given only if the employer believes that it may result in more than three days of unemployment in any statutory week for which the employee's compensation does not exceed the amount set forth in section 523 of the Unemployment Insurance Law. Such notice shall be given in writing on a form furnished or approved by the Department of Labor and shall include:

  • the employer's name and registration number;
  • the address of the employer to which a request for remuneration and employment information with respect to such employee must be directed;
  • a statement advising the employee that he should have the form in his possession if and when he reports to an insurance office of the Department of Labor for the purpose of filing an application for benefits; and
  • such other information as is required by the commissioner. Such notice need not be given if the employer's pay vouchers, envelopes or pay check stubs furnished to employees contain the information and statement required by paragraphs (1), (2) and (3) of this subdivision.

Every employer shall upon request submit to the office of the Department of Labor where an application for benefits is filed by the employee a statement giving the date and reasons for the separation and submitting other relevant information, including information concerning an employee's employment record in any statutory week for which certification of more than three days of total unemployment has been made by such employee. Every employer shall furnish this information on request within 10 days of the mailing or personal delivery of such request except that an extension of time may be allowed if it is shown to the commissioner's satisfaction that compliance within 10 days would occasion undue hardship to the employer.

Historical note: Section amendments filed July 8, 1965; October 16, 1968; July 6, 1970; September 10, 1974, effective September 30, 1974 and immediately. Respectively amended (a) and (b).

§472.9 Payment of contributions and reports in regard to seamen's remuneration paid under shipping articles.

For the purpose of this section, the term pay period established by shipping articles means the period of a voyage or engagement of the crew of a vessel under "Articles of Agreement" pursuant to Title 46 of the United States Code. This section shall not apply to remuneration payable on fixed paydays for regularly recurrent payroll periods which are not longer than one month.

Notwithstanding any other provisions of sections 470.2, 472.2 and 472.3 of this Title, all reports required thereunder with respect to remuneration and wages including advances, allotments, and payment in kind, such as board and lodging, paid in any pay period established by shipping articles shall be submitted as of the calendar quarter in which any such remuneration in cash was actually paid or such remuneration in kind was furnished.

Reports required under subdivision (b) of this section together with contributions due thereon need not be submitted prior to the time when reports regarding remuneration paid at the termination of such pay period must be filed. However, separate reports must in that event be filed for each calendar quarter involved during which remuneration in cash was paid and remuneration in kind furnished.

§472.10 Apportionment of remuneration, vacation payments or allowances in connection with experience rating.

A request pursuant to section 581 of the Labor Law for the apportionment of remuneration paid in the form of annual bonuses or other lump sum payments shall be made in writing to the Department of Labor on or before October 1 next following the fiscal year during which such remuneration was paid. The request shall state the total amount of such remuneration paid during each calendar quarter of such fiscal year for services performed over a period or more than three months.

A request pursuant to section 581 of the Labor Law for the apportionment of remuneration paid regularly on a biweekly basis shall be made in writing to the Department of Labor on or before October 1st next following the fiscal year during which such remuneration was paid. The request shall state the total amount of such remuneration in excess of six biweekly payments so paid during each calendar quarter of the fiscal year.

A request pursuant to section 581 of the Labor Law for the apportionment of vacation payments or allowances made in advance shall be made in writing to the Department of Labor on or before October 1st next following the fiscal year during which such payments or allowances were paid. The request shall state the dates and the applicable amounts of vacation payments or allowances made in advance and shall set forth the dates, with the applicable amounts, when remuneration covering the vacation periods would have been paid in the usual course of business for work actually performed.

Historical note: Section amendments filed September 10, 1974, effective immediately. Changed "Division of Employment" to "Department of Labor".

§472.11 Transfer of out-of-state experience.

An employer who has transferred operations from another state to this State and invokes the provisions of subdivision 5 of section 581 of the Unemployment Insurance Law as of an effective date, must:

  • give written notice of such transfer prior to the computation date; such notice must specify the nature of the transferred operations and identify the state in which they were previously performed;
  • furnish, prior to the effective date, for the calendar year in which that date occurs and the three preceding calendar years, all information which the commissioner requires to compute his experience rating;
  • submit prior to each subsequent effective date, all information which the commissioner requires relating to benefits paid subsequent to the transfer and prior to the corresponding computation date on the basis of wages paid in such other state.

Information required under this section shall be submitted on such forms as the Department of Labor may furnish for this purpose and in accordance with prescribed instructions.

Historical note: Section amendments filed September 10, 1974, effective immediately. Changed "Division of Employment" to "Department of Labor" in (b).

§472.12  Responding to Requests for Information and Employer Relief of Charges - Timely and Adequately Requirement for Responding.

(a) A response to a notice of potential charges (hereinafter referred to as a claim notice) must be received by the Department of Labor within 10 calendar days of the date on the claim notice.

(b) All other requests for information pertaining to an unemployment insurance claim must be received by the Department of Labor within the number of days specified in the written (including electronic transmission) or verbal request for information.

(c) The Department of Labor may communicate its request for information to employers by letter; electronic communication; fax; telephone; through “SIDES,” the State Information Data Exchange System (if agreed to by the employer); or other method of communication approved by the Department of Labor.

(d) The claim notice and all other requests for information referenced in subdivisions (a) and (b) shall be sent to the employer’s address, fax number, or email address of record on file with the Department of Labor, or an electronic account authorized by the Department of Labor. The Department of Labor may also request information by calling the employer’s business telephone number. Employers must notify the Department of Labor when any of the above contact information changes. Requests for information sent to the employer’s last known address, business telephone number, fax number, email address or authorized electronic account shall be deemed to have been sent to the correct address for the purposes of this section.

(e) Employers may respond to a claim notice and/or request for information by fax, electronic communication, SIDES, U.S. Postal Service, private delivery service, telephone (if the request for information required a telephone response), or other method of communication approved by the Department of Labor. An employer’s response to the Department of Labor shall be deemed to have been received on the date indicated by the date stamp placed on incoming faxes by the Department of Labor’s fax machine, the date stamp on paper documents, or the date the electronic submission is received. If no fax or date stamp exists, the receipt date will be deemed to be two days prior to the date the document is entered in the Department’s imaging system. If the employer disputes the date a response was received by the Department of Labor, the burden shall be on the employer to provide proof that the response was timely. Proof may include, but is not limited to, a confirmation of delivery, a stamped receipt by an agent of the Commissioner, or an affidavit of personal service on the Commissioner or his/her agent.

(f) An employer’s response to a request for information must contain adequate information. To be considered adequate, the response must:
(1) specify the reason(s) for the separation, or other issue affecting the claimant’s eligibility or entitlement for benefits;
(2) answer, in good faith, all questions in detail; and
(3) provide all relevant information and documentation for the Department of Labor to render a correct determination regarding the claimant’s eligibility or entitlement for benefits.

(g) If the Commissioner of Labor determines that overpayments of benefits occurred because the employer failed to timely or adequately respond to a claim notice or other request for information, the employer’s account shall not be relieved of charges relating to the overpayments, except in accordance with subdivisions (h), (i) and (j). The employer shall not be relieved of charges for each week that an overpayment is made, through the date that the Department of Labor makes a determination that the claimant is no longer eligible for or entitled to benefits or makes a determination that results in a reduction of benefits.

(h) An employer shall be relieved of charges imposed in subdivision (g) for the first instance that the employer or its agent fails to provide timely or adequate information, if the employer provides good cause for such failure. Good cause shall include any significant event that the employer could not reasonably have anticipated which affects the employer’s ability to respond timely to requests for information, as determined by the Commissioner. After the first instance of failing to provide timely and adequate information, the employer shall only be relieved of charges for a subsequent failure in accordance with the provisions of subdivisions (i) and (j) below.

(i) An employer may be relieved of charges if the charges were due to an error by the Department of Labor.

(j) An employer may be relieved of charges if they were unable to respond in a timely manner due to a disaster emergency as declared by the Governor of their State or the President of the United States.

 

Historical note: Section amendments filed September 10, 1974, effective immediately. Changed "Division of Employment" to "Department of Labor" in (a); changed "division" to "department" in (a) and (b).

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