Matter of Upham (Dutchess Community Coll.--Commissioner of Labor)

Matter of Upham (Dutchess Community Coll.--Commissioner of Labor) 2015 NY Slip Op 07898 Decided on October 29, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 29, 2015
520695

[*1] PAUL J. UPHAM, Respondent.

and

DUTCHESS COMMUNITY COLLEGE, Appellant. COMMISSIONER OF LABOR, Respondent.

Calendar Date: September 22, 2015
Before: Peters, P.J., McCarthy, Egan Jr. and Devine, JJ.

Roemer, Wallens, Gold & Mineaux, LLP, Albany (Earl T. Redding of counsel), for appellant.

Cynthia Feathers, Glens Falls, for Paul J. Upham, respondent.

MEMORANDUM AND ORDER

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 11, 2014, which ruled that claimant was entitled to receive unemployment insurance benefits.

Claimant worked as an adjunct instructor at a community college and, during the fall 2013 semester, he taught three courses in history and government. Prior to the end of that semester, the chair of his department asked him if he wanted to teach potentially four courses during the spring 2014 semester and he expressed an interest in doing so. After the semester ended, the college sent claimant a letter "anticipat[ing] that [he would] be invited to return to teach," during the spring 2014 semester "subject to enrollment and/or budget constraints."

Prior to his receipt of this letter, claimant applied for unemployment insurance benefits and his claim was denied. Following a hearing, an Administrative Law Judge concluded that claimant was, in fact, eligible to receive benefits because the college had not given him a reasonable assurance of continued employment under Labor Law § 590 (10). The Unemployment Insurance Appeal Board upheld this decision and the college now appeals.

We affirm. Labor Law § 590 (10) precludes a professional employed by an educational institution from receiving unemployment insurance benefits during the period between two successive academic terms if the educational institution has provided the professional with a reasonable assurance of continued employment (see Matter of Rosenbaum [Borough of Manhattan Community Coll., City Univ. of N.Y.—Commissioner of Labor], 125 AD3d 1019, 1020 [2015]; Matter of Cardin [Erie Community Coll.—Commissioner of Labor], 119 AD3d [*2]1014, 1014-1015 [2014], lv denied 24 NY3d 914 [2015]). A "reasonable assurance," in turn, is a representation by the educational institution "that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period" (Matter of Murphy [Copake-Taconic Cent. School Dist.—Commissioner of Labor], 17 AD3d 762, 763 [2005]; see Matter of Schwartz [New York City Dept. of Educ.—Commissioner of Labor], 68 AD3d 1323, 1324 [2009]). This is a factual question for the Board to resolve and its determination in this regard will be upheld if supported by substantial evidence (see Matter of Ganster [Commissioner of Labor], 111 AD3d 1014, 1014 [2013]; Matter of Sultana [New York City Dept. of Educ.—Commissioner of Labor], 79 AD3d 1552, 1553 [2010]).

Here, although the department chair mentioned that claimant could teach potentially four courses during the spring 2014 semester, which exceeded the number that he taught during the fall 2013 semester, this was never confirmed during any subsequent conversations nor in the letter sent to claimant. Significantly, the letter did not specify the details of the spring 2014 semester teaching assignment and conditioned claimant's further employment upon "enrollment and/or budget constraints." In cases where educational institutions have failed to set forth the terms or conditions of continued employment or have made such employment contingent upon certain conditions, courts have found that a reasonable assurance was lacking (see e.g. Matter of Rosenbaum [Borough of Manhattan Community Coll., City Univ. of N.Y.—Commissioner of Labor], 125 AD3d at 1019-1020; Matter of Cardin [Erie County Community Coll.—Commissioner of Labor], 119 AD3d at 1015; Matter of Scott [South Colonie Cent. School Dist.—Commissioner of Labor], 28 AD3d 1027, 1028 [2006]). Given that the same situation is presented here, substantial evidence supports the Board's finding that claimant was entitled to receive benefits.

Peters, P.J., McCarthy, Egan Jr. and Devine, JJ., concur.

ORDERED that the decision is affirmed, without costs.