N.Y. Labor Law § 597: Initial determination

§ 597. Initial determination. 1. Issuance. The validity of the claim

and the amount of benefits payable to the claimant shall be determined

in accordance with the regulations and procedure established by the

commissioner and, when such determination is issued by the commissioner,

it shall be deemed the initial determination of the claim.

2. Obtaining information necessary for determinations. (a) When filing

an original claim, each claimant shall furnish to the commissioner all

information which the commissioner shall require concerning his or her

prior employment.

(b) Whenever a claimant's base period includes a completed calendar

quarter for which a wage data report is not due or has not been received

and the claimant provides information as required by the commissioner,

the commissioner shall determine such claimant's entitlement and benefit

rate using the information the claimant provided for such quarter.

However, in those instances where the claimant is unable to provide such

information to the commissioner's satisfaction, the commissioner may

request the employer to provide the amount of remuneration paid to such

individual. The commissioner shall notify each base period employer upon

the establishment of a valid original claim, of such claim. If an

employer provides new or corrected information in response to the

initial notice of monetary entitlement, adjustments to the claimant's

benefit rate and adjustments to the employer's experience rating account

shall be prospective as of the date such information was received by the

department.

(c) Notwithstanding paragraph (b) of this subdivision, adjustments to

the claimant's benefit rate and adjustment to the experience rating

charges to the employers' accounts will be retroactive to the beginning

of the benefit claim in the following circumstances:

(i) the new or corrected information results in a higher benefit rate,

or

(ii) the new or corrected information results in the claimant's

failure to establish a valid original claim, or

(ii) the amount of the previously established benefit rate was based

upon the claimant's willful false statement or representation.

(d) Notwithstanding any provisions of this article, unless a

commissioner's error is shown or the failure is the direct result of a

disaster emergency declared by the governor or president, an employer's

account shall not be relieved of charges resulting in an overpayment of

benefits when the commissioner determines that the overpayment was made

because the employer or the agent of the employer failed to timely or

adequately respond to a request for information in the notice of

potential charges or other such notice requesting information in

relation to a claim under this article, provided, however, that the

commissioner shall relieve the employer of charges the first time that

the employer fails to provide timely or adequate information, if the

employer provides good cause for such failure as determined by the

commissioner.

"Timely" shall mean a response is provided in the time period

specified in the notice as prescribed by the commissioner.

The term "adequately" shall mean that the employer or its agent

submitted information sufficient to render a correct determination.

This prohibition for relief of charges shall apply to all employers

under this article including employers electing payment in lieu of

contributions.

3. Limitation on review of determinations. 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. Such review shall be conducted and a

new determination issued in accordance with the provisions of this

article and regulations and procedure prescribed thereunder with respect

to the adjudication and payment of claims, including the right of

appeal.

4. Effect of review. Whenever a new determination in accordance with

the preceding subdivision or a decision by a referee, the appeal board,

or a court results in a decrease or denial of benefits previously

allowed, such new determination or decision, unless it shall be based

upon a retroactive payment of remuneration, shall not affect the rights

to any benefits already paid under the authority of the prior

determination or decision provided they 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 or her claim for benefits.