NYS availability to work question

by Rich

(NYS)

My part-time position (12 hrs/week) at a small company has been eliminated, and I will continue to work for the company as a consultant, but only 2 hrs/week. If I file for UI, will I need to be applying to other businesses on a weekly basis for additional work?

I would suspect so, but you used the word “consultant” .. will you now be self employed, paying your own taxes, under the control of the employer?

It sounds like they are changing the conditions of hire .. are they?

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Jun 17, 2010
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Yes, self-employed

by: Rich

Thanks for your reply!

I will now be self-employed, using my old DBA, paying all FICA & Medicare taxes, and most likely working most of the hours from my home. The employer did change the conditions of hire. I’m curious as to how the looking for new work is documented. Would I be able to look for new work as an independent consultant only, or would I have to be willing to consider a position as an employee. Would I have to be available to work full-time? Before the change I was working only 12 hrs/week.

Hi Rich,

This is kind of a timely question as I ponder how best to write an article about collecting unemployment and starting a business .. because I believe with the loss of jobs and the non-creation of jobs, more people have to start businesses and become employers.

To be eligible for UI benefits you MUST be looking for “covered employment” whether you have a business or not. If you restrict your availability to accept full-time suitable work .. you have a problem. And sometimes it is entirely dependent on what your business is.

Many employers try to switch employees to contractor status, because they don’t want to pay UI taxes on the wage, but this alone does not mean you are not an employee .. All states have tests to determine what an employee is, regardless of what you’re called.

You do probably have good cause to quit due to the change in condition of hire, but if you will be going back into business and actively looking for other consulting gigs with other businesses, then I presume you may be considered unavailable for covered work and therefore, ineligible.

But, as I said the issue seems to be state specific and the factors of whether you were conducting a business concurrently with being a full-time employee in covered work or are starting a business after becoming employed do play into it.

It’s all about what you can prove .. you know.

New York’s interpretive index does provide some guidance on the issue. Section 1400 and specifically 1420 seem relevant.

But, I want to warn anyone reading this who does not live in NY that unemployment regarding this matter can be interpreted much differently depending on the state so please, do your due diligence and investigate the issue and how you will be affected.

And then share the information!!!!