Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Monday, February 20, 2012

Individuals Employed In Policymaking or Advisory Position Not Eligible For Unemployment

Matter of Briggs v. Commissioner of Labor, ____A.D.3d____(3rd Dep't. Dec. 22, 2011), is an interesting case. A City Manager attempted to obtain unemployment benefits after he was terminated by the County Legislature. The Court held that individuals in policy positions are not eligible for unemployment, reasoning:

 Turning to the merits, a claimant is ineligible to file a claim for unemployment insurance benefits when he or she is employed by a governmental entity in a "major nontenured policymaking or advisory position" (Labor Law § 565 [2] [e]; see Matter of Franconeri [New York City Dept. of Personnel—Hudacs], 190 AD2d 970, 971 [1993]). Here, the scope of claimant's duties as County Manager was delineated in both the Sullivan County Code and the Administrative Code and included appointing and supervising department heads, developing policy and procedural recommendations for the County Legislature, performing advisory oversight of the County Auditor and preparing the operating and capital budgets for the employer. As such, the Board's determination that claimant was ineligible to receive benefits was supported by a rational basis (see Matter of Shapiro [Commissioner of Labor], 52 AD3d 1139, 1139 [2008]; Matter of Richman [Commissioner of Labor], 254 AD2d 673, 674 [1998]; Matter of Franconeri [New York City Dept. of Personnel—Hudacs], 190 AD2d at 971; compare Matter of Newell [County of Nassau-Commissioner of Labor], 9 AD3d 559, 560 [2004], lv denied 3 NY3d 610 [2004]).

Mitchell H. Rubinstein

Employment Law | Permalink


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