S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    444
 
                        2025-2026 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 8, 2025
                                ___________
 
 Introduced  by Sen. HOYLMAN-SIGAL -- read twice and ordered printed, and
   when printed to be committed to the Committee on Labor
 
 AN ACT to amend the labor law, in relation to the recovery  of  overpay-
   ments  of  unemployment benefits; to direct the department of labor to
   provide claimants who have previously been denied waivers with  appli-
   cations  for  individual  waivers; and to repeal certain provisions of
   such law relating thereto
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The labor law is amended by adding a new section 594-a to
 read as follows:
   § 594-A. RECOVERY OF OVERPAYMENTS. (1) DEFINITIONS. FOR  THE  PURPOSES
 OF THIS SECTION:
   (A)  "WITHOUT  FAULT"  MEANS  THE CLAIMANT DID NOT, WITH THE INTENT TO
 RECEIVE BENEFITS, INTENTIONALLY SUPPLY FALSE  INFORMATION  OR  KNOWINGLY
 OMIT  INFORMATION,  WHICH  DIRECTLY  RESULTED  IN THE DEPARTMENT ISSUING
 BENEFITS TO WHICH THE CLAIMANT KNEW THEY WERE NOT ENTITLED;
   (B) "FINAL DETERMINATION" MEANS THIRTY DAYS AFTER APPEAL  RIGHTS  HAVE
 BEEN EXHAUSTED OR ABANDONED.
   (C)  "WILLFUL MISREPRESENTATION" OR "WILLFUL FALSE STATEMENT" MEANS AN
 INTENTIONAL, KNOWING, OR  DELIBERATELY  FALSE  REPRESENTATION  FROM  THE
 CLAIMANT  TO THE DEPARTMENT, MADE IN ORDER TO OBTAIN UNEMPLOYMENT INSUR-
 ANCE BENEFITS. "KNOWING" FOR THE PURPOSES OF THIS PARAGRAPH MEANS HAVING
 ACTUAL KNOWLEDGE.
   (2) NOTWITHSTANDING ANY PROVISION OF SECTION FIVE HUNDRED  NINETY-FOUR
 OF  THIS  TITLE  TO THE CONTRARY, ANY CLAIMANT WHO HAS RECEIVED BENEFITS
 UNDER THE PROVISIONS OF THIS ARTICLE ON OR AFTER JANUARY TWENTY-SEVENTH,
 TWO THOUSAND TWENTY, TO WHICH THEY WERE NOT ENTITLED SHALL NOT  BE  HELD
 LIABLE  FOR  THE  AMOUNTS  OVERPAID  PROVIDED  THAT ALL OF THE FOLLOWING
 CONDITIONS EXIST:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD01904-01-5
 S. 444                              2
 
   (A) SUCH OVERPAYMENT WAS NOT DUE  TO  A  WILLFUL  FALSE  STATEMENT  OR
 MISREPRESENTATION;
   (B)  SUCH  OVERPAYMENT  WAS  RECEIVED WITHOUT FAULT ON THE PART OF THE
 CLAIMANT; AND
   (C) THE RECOVERY OF SUCH OVERPAYMENT WOULD BE AGAINST EQUITY AND  GOOD
 CONSCIENCE.
   (3) WHEN DETERMINING WHETHER AN OVERPAYMENT WAS RECEIVED WITHOUT FAULT
 ON THE PART OF THE CLAIMANT, THE COMMISSIONER SHALL CONSIDER THE FOLLOW-
 ING FACTORS:
   (A)  THE  NATURE AND CAUSE OF SUCH OVERPAYMENT AND THE CAPACITY OF THE
 CLAIMANT TO RECOGNIZE THE ERROR RESULTING IN SUCH OVERPAYMENT;
   (B) WHETHER THE CLAIMANT KNEW OR REASONABLY  SHOULD  HAVE  KNOWN  THAT
 SUCH CLAIMANT WAS NOT LAWFULLY ENTITLED TO RECEIVE SUCH BENEFITS;
   (C)  WHETHER  THE  BENEFITS  WERE  RECEIVED OR RETAINED BECAUSE OF THE
 CLAIMANT'S GOOD FAITH RELIANCE  ON  AN  ADMINISTRATIVE  OR  DEPARTMENTAL
 ERROR; AND
   (D) WHETHER THE CLAIMANT WILLFULLY REPORTED OR FAILED TO REPORT INFOR-
 MATION WHICH RESULTED IN SUCH OVERPAYMENT.
   (4)  (A)  THERE  SHALL  BE  A PRESUMPTION THAT THE CLAIMANT IS WITHOUT
 FAULT IF:
   (I) THE DEPARTMENT PROVIDED CONFLICTING, CHANGING, OR CONFUSING INFOR-
 MATION OR INSTRUCTIONS;
   (II) THE DEPARTMENT TOOK MORE THAN SIX MONTHS TO IMPLEMENT  A  FEDERAL
 LAW REGARDING PROOF OF ELIGIBILITY FROM CLAIMANTS;
   (III)  THE  CLAIMANT  WAS UNABLE TO REACH THE DEPARTMENT DESPITE THEIR
 BEST EFFORTS TO INQUIRE OR CLARIFY INFORMATION THE INDIVIDUAL NEEDED  TO
 PROVIDE  DUE  TO  LANGUAGE,  EDUCATION,  LITERACY, DISABILITY OR SIMILAR
 BARRIERS;
   (IV) THE CLAIMANT WAS UNABLE TO UNDERSTAND THE DEPARTMENT'S NOTICES OR
 DIRECTIVES DUE TO LANGUAGE, EDUCATION,  LITERACY,  DISABILITY  OR  OTHER
 SIMILAR BARRIERS;
   (V) THE CLAIMANT CHOSE A REASON FOR SEPARATION WHICH IS LEGALLY INCOR-
 RECT,  THOUGH  REASONABLE  FOR  THE  CLAIMANT TO HAVE SELECTED UNDER THE
 CIRCUMSTANCES; OR
   (VI) THE CLAIMANT HAD ASSISTANCE IN FILING  A  CLAIM,  CERTIFYING,  OR
 OTHERWISE  RESPONDING TO THE DEPARTMENT AND THE CLAIMANT'S ASSISTANT DID
 NOT CONFIRM REQUIRED INFORMATION WITH THE CLAIMANT OR MISUNDERSTOOD SUCH
 INFORMATION PROVIDED BY THE CLAIMANT, RESULTING IN  INACCURATE  INFORMA-
 TION BEING SUBMITTED WITHOUT THE CLAIMANT'S KNOWLEDGE.
   (B) THERE SHALL BE A PRESUMPTION THAT THE PAYMENT OF BENEFITS IS WITH-
 OUT  FAULT  IF THE OVERPAYMENT WAS DUE TO AGENCY ERROR OR MISTAKE OR THE
 EMPLOYER  PROVIDED  INCORRECT  OR  UNTIMELY  INFORMATION.   RECEIPT   OR
 POSSESSION  OF  THE CLAIMANTS' UNEMPLOYMENT INSURANCE HANDBOOK SHALL NOT
 CREATE A PRESUMPTION THAT THE CLAIMANT WAS ON NOTICE OF  THE  HANDBOOK'S
 CONTENTS NOR SHALL RECEIPT OR POSSESSION OF THE HANDBOOK BE USED AGAINST
 THE CLAIMANT ON POINTS OF FACT OR LAW.
   (5)  RECOVERY  OF  ANY  OVERPAYMENT  WOULD  BE AGAINST EQUITY AND GOOD
 CONSCIENCE IF:
   (A) RECOVERY WOULD CAUSE FINANCIAL HARDSHIP TO THE  PERSON  FROM  WHOM
 RECOVERY IS SOUGHT;
   (B)  THE  RECIPIENT  OF  THE OVERPAYMENT CAN SHOW, REGARDLESS OF THEIR
 FINANCIAL SITUATION, THAT REPAYMENT WOULD CAUSE  THEM  TO  RELINQUISH  A
 VALUABLE  RIGHT  OR  CHANGE THEIR POSITION FOR THE WORSE, INCLUDING, BUT
 NOT LIMITED TO, SIGNING A LEASE, TAKING OUT A LOAN, OR  DECLINING  OTHER
 STATE  OR  FEDERAL  ASSISTANCE  IN  RELIANCE  ON RECEIPT OF UNEMPLOYMENT
 INSURANCE BENEFITS;
 S. 444                              3
 
   (C) THE INDIVIDUAL OR THEIR HOUSEHOLD RECEIVES SOCIAL SECURITY INCOME,
 SUPPLEMENTAL SECURITY  INCOME,  SOCIAL  SECURITY  DISABILITY,  MEDICAID,
 MEDICARE,  FREE  OR  REDUCED PUBLIC SCHOOL LUNCH, FIP, TEMPORARY ASSIST-
 ANCE, SUPPLEMENTAL  NUTRITION  ASSISTANCE  PROGRAM  BENEFITS,  NUTRITION
 BENEFITS  PROVIDED AS PART OF THE SPECIAL SUPPLEMENTAL NUTRITION PROGRAM
 FOR WOMEN, INFANTS AND CHILDREN (WIC), HOME  ENERGY  ASSISTANCE  PROGRAM
 BENEFITS,  SENIOR  CITIZEN  RENT  INCREASE  EXEMPTION,  DISABILITY  RENT
 INCREASE EXEMPTION, RENTAL SUBSIDY PURSUANT TO FEDERAL OR STATE LAW,  IS
 AT  OR  BELOW  FOUR HUNDRED PERCENT OF THE FEDERAL POVERTY GUIDELINES OR
 LIVING IN PROJECT-BASED SUBSIDIZED HOUSING OR ANY  SUBSTANTIALLY  EQUIV-
 ALENT SUCCESSOR PROGRAMS TO THE AFOREMENTIONED BENEFITS PROGRAMS;
   (D)  THE INDIVIDUAL USED THE UNEMPLOYMENT BENEFITS TO MEET THEIR ORDI-
 NARY LIVING EXPENSES, INCLUDING, BUT NOT LIMITED TO, FOOD, RENT, MEDICAL
 COSTS OR INSURANCE, DENTAL BILLS  OR  INSURANCE,  SCHOOL  LOANS,  SCHOOL
 FEES, UTILITIES, CHILD CARE, MORTGAGE PAYMENTS, TRANSPORTATION, PURCHASE
 OR  MAINTENANCE  OF A CAR OR EQUIPMENT NEEDED FOR EMPLOYMENT OR SELF-EM-
 PLOYMENT, OR OPERATING EXPENSES FOR SELF-EMPLOYMENT; OR
   (E) THERE IS ANY OTHER REASON FOR WHICH RECOVERY  OF  THE  OVERPAYMENT
 WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE UNDER THE CIRCUMSTANCES.
   (6) (A) IN THE EVENT THAT A NEW DETERMINATION BY THE COMMISSIONER OR A
 DECISION  BY  A  REFEREE,  THE  APPEAL  BOARD,  OR  A COURT RESULTS IN A
 DECREASE OR DENIAL OF ANY BENEFITS PREVIOUSLY ALLOWED, OR AT  ANY  OTHER
 TIME IT HAS BEEN DETERMINED THAT AN OVERPAYMENT HAS OCCURRED, THE CLAIM-
 ANT  SHALL  BE  NOTIFIED  IN  WRITING, BY MAIL OR ELECTRONICALLY, WITHIN
 FIFTEEN DAYS OF SUCH DETERMINATION OR DECISION OF SUCH CLAIMANT'S  RIGHT
 TO  APPEAL  SUCH  DETERMINATION  OR  DECISION AND TO REQUEST A WAIVER OF
 RECOVERY OF SUCH OVERPAYMENT. SUCH NOTICE SHALL INCLUDE, BUT  SHALL  NOT
 BE LIMITED TO:
   (I)  THE  TOTAL AMOUNT OF SUCH OVERPAYMENT AND THE CAUSE OF SUCH OVER-
 PAYMENT;
   (II) THE SCHEDULE OF REPAYMENT FOR SUCH AMOUNTS OVERPAID;
   (III) THE MEANS BY WHICH THE COMMISSIONER IS ENTITLED  TO  COLLECT  OR
 RECOVER SUCH OVERPAYMENT;
   (IV)  AN  EXPLANATION  OF THE CLAIMANT'S RIGHT TO APPEAL SUCH DETERMI-
 NATION OR DECISION IN ACCORDANCE WITH THE PROVISIONS OF THIS ARTICLE AND
 ANY RULES AND REGULATIONS PROMULGATED THEREUNDER;
   (V) AN EXPLANATION OF THE STANDARDS BY WHICH A CLAIMANT SHALL  NOT  BE
 FOUND LIABLE FOR THE AMOUNTS OVERPAID, AS SET FORTH IN THIS SECTION;
   (VI) THE PROCESS BY WHICH THE CLAIMANT MAY REQUEST AND OBTAIN A WAIVER
 OF RECOVERY OF SUCH OVERPAYMENT, INCLUDING A COPY OF THE WAIVER APPLICA-
 TION; AND
   (VII)  THE  AMOUNT THAT IS WAIVED AND THE REASON WHY ANY OR ALL OF THE
 OVERPAYMENT WAS NOT WAIVED.
   (B) THE COMMISSIONER SHALL REVIEW EACH  WAIVER  REQUEST  IN  A  MANNER
 CONSISTENT  WITH THIS SECTION TO DETERMINE WHETHER THE CLAIMANT SHALL BE
 HELD LIABLE FOR ANY AMOUNTS OVERPAID. ANY CLAIMANT WHO IS FOUND  NOT  TO
 BE  LIABLE  FOR ANY AMOUNTS OVERPAID SHALL BE ENTITLED TO RECEIVE A FULL
 WAIVER OF SUCH OVERPAYMENT AND ANY PREVIOUSLY IMPOSED PENALTIES ON  SUCH
 OVERPAYMENT MUST BE RESCINDED ACCORDINGLY.
   (C)  (I)  ANY  CLAIMANT WHO DISAGREES WITH A DETERMINATION REGARDING A
 WAIVER MAY REQUEST A HEARING WITHIN SIXTY DAYS OF RECEIPT OF THE  DETER-
 MINATION.
   (II)  CLAIMANTS  SHALL HAVE ALL APPEALS RIGHTS AS PROVIDED UNDER TITLE
 EIGHT OF THIS ARTICLE, EXCEPT THAT REFEREES MAY EXTEND  THE  TIME  FIXED
 FOR REQUESTING A HEARING UPON GOOD CAUSE SHOWN.
 S. 444                              4
 
   (III) WHEN A DETERMINATION IS MADE THAT THE CLAIMANT WAS AT FAULT, THE
 REFEREE AND UNEMPLOYMENT INSURANCE APPEALS BOARD SHALL REVIEW THE DETER-
 MINATION OF FAULT AND ANY WILLFUL MISREPRESENTATIONS DE NOVO.
   (D)  THE  DEPARTMENT SHALL WITHIN THIRTY DAYS OF THE EFFECTIVE DATE OF
 THIS SECTION DEVELOP AND IMPLEMENT A  PROCESS  BY  WHICH  CLAIMANTS  MAY
 REQUEST AND OBTAIN AN INDIVIDUAL WAIVER APPLICATION BY PHONE, FAX, MAIL,
 AND  THROUGH THE DEPARTMENT'S TWO-WAY COMMUNICATION SYSTEM. THE APPLICA-
 TION SHALL BE MADE AVAILABLE TO ALL CLAIMANTS WITHOUT REGARD TO A DETER-
 MINATION OF FAULT OR WILLFULNESS IN THE RECEIPT OF THE CLAIMANT'S  OVER-
 PAYMENT.
   (E) ALL NOTIFICATIONS SHALL BE TRANSLATED INTO THE TWELVE MOST COMMON-
 LY SPOKEN LANGUAGES IN THE STATE.
   (F)  ANY  FUNDS  RECOUPED  OR REPAID PRIOR TO THE GRANTING OF A WAIVER
 UNDER THIS SECTION SHALL BE RETURNED TO THE CLAIMANT AS  PROVIDED  UNDER
 SUBDIVISION FIVE OF THIS SECTION.
   (7)  (A)  UPON  THE  DENIAL  OF  ANY WAIVER REQUEST, OR UPON ANY OTHER
 DETERMINATION BY THE COMMISSIONER OR A DECISION BY A REFEREE, THE APPEAL
 BOARD, OR A COURT THAT A CLAIMANT SHALL BE HELD LIABLE FOR ANY  OVERPAY-
 MENT,  THE  CLAIMANT  SHALL BE NOTIFIED IN WRITING, BY MAIL OR ELECTRON-
 ICALLY, WITHIN FIFTEEN DAYS OF SUCH DETERMINATION  OR  DECISION.    SUCH
 NOTICE  SHALL  SET  FORTH THE REASON FOR SUCH DENIAL, IF APPLICABLE, AND
 SUCH CLAIMANT'S RIGHT TO REQUEST AN ADJUSTMENT TO SUCH CLAIMANT'S REPAY-
 MENT SCHEDULE.
   (B) WHERE A WAIVER IS DENIED, THE CLAIMANT SHALL BE OFFERED  A  REPAY-
 MENT PLAN TO PAY DOWN THE AMOUNT OWED OVER A PERIOD OF TIME NO LESS THAN
 THREE YEARS. THE REPAYMENT PLAN SHALL BE BASED ON THE CLAIMANT'S ABILITY
 TO  REPAY.  AFTER SUCH THREE YEAR REPAYMENT PERIOD, THE DEPARTMENT SHALL
 WRITE OFF ANY FURTHER OVERPAYMENT DEBT REMAINING ON THE CLAIM.   NOTHING
 IN  THIS SECTION SHALL IMPEDE THE ABILITY OF THE DEPARTMENT TO DISCHARGE
 OR WAIVE ANY OVERPAYMENT.
   (C) THE COMMISSIONER SHALL  GRANT  AN  ADJUSTMENT  TO  THE  CLAIMANT'S
 REPAYMENT  SCHEDULE  IF  AT ANY TIME THE CLAIMANT IS ABLE TO DEMONSTRATE
 THAT THERE HAS BEEN A CHANGE  IN  SUCH  CLAIMANT'S  FINANCIAL  CONDITION
 WHICH  WARRANTS  SUCH ADJUSTMENT.  THE DEPARTMENT SHALL NOTIFY CLAIMANTS
 OF THE ABILITY TO SEEK A MODIFIED REPAYMENT PLAN  IN  WRITING  UPON  THE
 CLAIMANT'S ENTRY INTO A REPAYMENT PLAN.
   § 2. Subdivision 4 of section 597 of the labor law is REPEALED.
   §  3.  Paragraph (c) of subdivision 1 of section 600 of the labor law,
 as amended by section 19 of part O of chapter 57 of the laws of 2013, is
 amended to read as follows:
   (c) If, at the time benefits are payable, it has not been  established
 that  the claimant will be receiving such pension, retirement or retired
 pay, annuity or other payment, benefits due  shall  be  paid  without  a
 reduction,  subject to review within the period and under the conditions
 as provided in [subdivisions] SUBDIVISION three [and  four]  of  section
 five  hundred ninety-seven with respect to retroactive payment of remun-
 eration.
   § 4.  Within 30 days of the effective date of this  act,  the  Commis-
 sioner  of  Labor  shall  seek a review of this act by the United States
 Department of Labor to determine the effect of this act on  the  ability
 of New York State to receive a cap and/or waiver on the reduction of tax
 credits,  otherwise known as the Benefit Cost Rate (BCR) penalty, pursu-
 ant to section 3302 of the Federal  Unemployment  Tax  Act  and  20  CFR
 606.20. As part of the request to review the act, the Commissioner shall
 ask  the  USDOL how the provisions of this act that allow for the waiver
 of the overpayments of  Federal  unemployment  or  assistance  benefits,
 S. 444                              5
 
 alone,  including  Pandemic  Unemployment Assistance, Pandemic Emergency
 Unemployment Compensation and Federal Pandemic Unemployment Compensation
 shall effect the ability of New York State to receive a cap and/or waiv-
 er  on the reduction of tax credits, otherwise known as the Benefit Cost
 Rate (BCR) penalty, pursuant to section 3302 of the Federal Unemployment
 Tax Act and 20 CFR 606.20. Within one week of the receipt of the USDOL's
 review, the Commissioner shall certify that this act will  or  will  not
 prevent  a cap and/or waiver of the BCR penalty and provide such certif-
 ication along with a copy of the USDOL's response to a request for  such
 review  to  the  Assembly  and Senate Labor Committee chairs. As part of
 this certification, the Commissioner shall  state  whether  or  not  the
 provisions  of this act that allow for the waiver of the overpayments of
 Federal unemployment or assistance benefits, alone,  including  Pandemic
 Unemployment  Assistance,  Pandemic  Emergency Unemployment Compensation
 and Federal Pandemic Unemployment Compensation will or will not  prevent
 a cap and/or waiver of the BCR penalty. The Commissioner shall seek such
 review  as of January 15 of each successive year until the sooner of the
 Commissioner certifying that this act will  not  prevent  a  cap  and/or
 waiver of the BCR penalty or the State unemployment insurance trust fund
 becomes solvent.
   §  5.  This  act  shall take effect immediately provided, however that
 sections one, two and three shall take effect upon the certification  by
 the  Commissioner  of  Labor that this act will not prevent a cap and/or
 waiver of the BCR penalty and shall be deemed to have been in full force
 and effect on and after March 9, 2020.  If  the  Commissioner  certifies
 that  the  provisions of this act that allow for the waiver of the over-
 payments  of  Federal  unemployment  or  assistance  benefits  including
 Pandemic   Unemployment   Assistance,  Pandemic  Emergency  Unemployment
 Compensation and Federal Pandemic  Unemployment  Compensation  will  not
 prevent  a  cap and/or waiver of the BCR penalty, those provisions shall
 take effect immediately and shall be deemed to have been in  full  force
 and effect on and after March 9, 2020. In the event that the Commission-
 er  certifies  that all provisions of this act will prevent a cap and/or
 waiver of the BCR penalty, the provisions of this act shall take  effect
 upon  the solvency of the State unemployment compensation trust fund and
 shall be deemed to have been in full force and effect on and after March
 9, 2020. The Commissioner of Labor shall  notify  the  legislative  bill
 drafting commission upon the Commissioner's certification as required by
 this  section  in order that the commission may maintain an accurate and
 timely effective data base of the official text of the laws of the state
 of New York in furtherance of effectuating the provisions of section  44
 of the legislative law and section 70-b of the public officers law.