On December 7, 2017, the Appellate Division, Third Department, clarified the process by which school districts should communicate with certain instructional employees to provide reasonable assurance of continued employment to avoid unemployment insurance benefits liability for the winter recess.

The claimant in Matter of Papapietro (Rochester City School District)was a per diem substitute who worked for the district during the 2014-15 school year and worked at least three days in the week immediately prior to the winter recess at the end of December.  The claimant applied for unemployment benefits once the winter recess began due to a purported lack of work related to the recess.  After the claim was initially denied, a hearing officer awarded the claimant benefits because the claimant had not received any reasonable assurance of employment after the winter recess.  The employer appealed to the Insurance Appeal Board, which reversed the hearing officer’s decision, holding that the claimant had in fact received reasonable assurance of employment after the recess in compliance with New York Labor Law § 590(10).

That order was appealed to the Third Department, however, where the court found that the Insurance Appeal Board’s interpretation of Labor Law § 590(10) was inconsistent with the plain language of that provision requiring reasonable assurance from an employer.  Under Section 590(10), a claimant who is employed in an instructional capacity by an educational institution is precluded from receiving unemployment insurance benefits during:

any week commencing during an established and customary vacation period or holiday recess, not between such academic terms or years, provided the claimant performed services for such institution immediately before such vacation period or holiday recess and there is reasonable assurance that the claimant will perform any services . . . in the period immediately following such vacation period or holiday recess.

Matter of Scott (Commissioner of Labor), 25 A.D.3d 939, 939-40 (3d Dep’t 2006), citing Labor Law § 590(10).  The Court noted it has well established precedent interpreting the phrase "reasonable assurance" regarding two successive academic years or terms to require a representation by the employer as to future employment.  This representation often takes the form of a letter from an employer assuring a per diem substitute teacher of future employment opportunities.  In Papapietro, the employer never sent any letter to claimant or provided him with any other form of notice that informed him about employment after the recess.  The Court thus overturned the Insurance Appeal Board’s decision and remitted the case for further proceedings.

As a result of this decision, school districts should ensure they provide notice prior to the upcoming winter recess to per diem substitute teachers assuring them of future employment opportunities (assuming such future employment opportunities are available to those individuals), much in the same way they send letters prior to summer breaks.