Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Wednesday, May 11, 2011

Self-employed Claimant Not Eligible For Unemployment

If you get laid off and start a web business are you eligible for unemployment insurance? Does it matter if you business looses money. No, your not eligible. Matter of Dupey v. Commissioner of Labor, ___A.D.3d ___(3rd Dep't. Dec. 23, 2010) explains:

Whether a claimant is totally unemployed is an issue of fact to be resolved by the Board and its determination will not be disturbed when it is supported by substantial evidence, despite the existence of evidence that would have supported a contrary result (see Matter of Bernstein [Commissioner of Labor], 67 AD3d 1287, 1287 [2009]; Matter of Bernard [Commissioner of Labor], 53 AD3d 1006, 1006 [2008]). Furthermore, a claimant who is a principal in an ongoing business may not be considered totally unemployed, despite the fact that the business may not be profitable or fully operational, if he or she stands to benefit financially from its continued operation (see Matter of Bernstein [Commissioner of Labor], 67 AD3d at 1287-1288; Matter of Thomas [Commissioner of Labor], 58 AD3d 1099, 1099-1100 [2009]). [*2]Here, it was undisputed that claimant's Web site was still operational, and he testified that he would accept any work offered to him through the site and deduct the expenses of the business on his income tax return. Accordingly, we find that substantial evidence supports the Board's decision.

Mitchell H. Rubinstein

Employment Law | Permalink


Bad public policy decision since it encourages unemployment and the American philisphy of anyone can start a business. Basically with the decision, the courts discourage self-employment and encourages W-2 employment. Seems like they don’t trust the business person’s reporting of income.

Posted by: Shaun Sundahl | May 12, 2011 7:38:01 PM

Does it matter if you business looses money. No, your not eligible...

this clown does not know the difference in "you're" and "your"...

Posted by: bruce | May 13, 2011 6:29:12 AM

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