Labor & Employment Law

Employees of a non-for-profit working in ?before school? and ?after school? childcare programs serving public school districts are not employees of an

By Harvey Randall, Esq.

Employees of a non-for-profit working in ?before school? and ?after school? childcare programs serving public school districts are not employees of an educational institution
Matter of Andrea T. Fernandez v Commissioner of Labor, 2008 NY Slip Op 03528, Decided on April 24, 2008, Appellate Division, Third Department

Labor Law §590(10)(11) makes employees of an educational institution having a reasonable assurance of employment in the next academic term ineligible for unemployment insurance benefits during periods of unemployment between successive academic terms.

A number of employees of the Suffolk County Organization for the Promotion of Education [SCOPE], a not-for-profit organization providing various services to a number of public school districts including before school and after school childcare programs, did not work when the public schools were not in session. When these employees? claims for unemployment insurance benefits for those periods during which these SCOPE programs were not operative were approved, SCOPE objected.

SCOPE contended that:

[1] it was an ?education institution? within the meaning Labor Law §590(10)(11); and

[2] because these employee-claimants had had reasonable assurance of employment in the next academic term, they cannot collect benefits between successive academic terms.

The Appellate Division rejected SCOPE?s argument, indicating that it agreed with the Board that ?SCOPE was not an ?educational institution? within the meaning of the statute? and thus the employee-claimants were eligible for unemployment insurance benefits while unemployed between successive academic terms.

The Department of Labor administratively defines an educational institution, as ?an organization established for the purpose of operating a school, schools, or alternative educational experience offering a program of instruction in academic, technical or vocational subjects, which is certified by, under contract to or subject to the regulations of the Commissioner of Education.?

Although SCOPE is chartered by the Department of Education as an ?education corporation . . . organized and operated exclusively for educational purposes,? SCOPE's before school and after school programs in which the employee-claimant served are not regulated or licensed by the Department of Education, but by the Office of Children and Family Services. The court said that ?the fact that SCOPE offers some services that are entirely educational in nature is not determinative of whether SCOPE is an educational institution? in the context of its employment of these employee-claimants.

In addition, the Appellate Division commented that SCOPE?s affiliation with an educational institution is not sufficient to place it within the ambit of the Labor Department?s definition of an ?educational institution,? noting an Unemployment Insurance Board determination that a subsidiary of an educational institution which provides noneducational services (i.e., food service) does not qualify as an educational institution, citing Matter of Axtell, 35AD3d 943.

Full post as published by New York Public Personnel Law on April 25, 2008 (boomark / email).