CHAPTER 7 FOREIGN TRAVEL

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CHAPTER 7

FOREIGN TRAVEL

2.7.1 INTRODUCTION

When a claimant leaves the country, it raises a series of legal issues including availability,

compliance with certification and registration requirements, compliance with reporting

requirements and willful misrepresentation. The typical fact pattern arises when the claimant

travels to a foreign country, other than Canada, for a vacation or to visit family and attempts to

certify for benefits using the internet. The Department’s certification system recognizes the foreign

IP address and imposes a block, preventing the claimant from successfully certifying for benefits

and putting a hold on the account until the claimant returns. The claimant may then attempt to

certify by some other means, either by asking someone in the United States to certify on his or

her behalf or by using some device or software to technologically circumvent the block, such as

a Magic Jack device or a virtual private network (VPN). The claimant may also certify that he or

she was ready, willing, and able to work during the week he or she was at least partially outside

the country.

In the typical case, the Department of Labor issues multiple determinations which are made part

of a combined hearing. The first case generally consists of the issue of availability and an

associated willful misrepresentation determination imposing a forfeit penalty because the claimant

knew he or she was not ready, willing, or able to work but reported to the contrary. The second

case generally contains an initial determination holding the claimant ineligible for benefits because

he or she failed to comply with certification requirements when certifying while outside the country,

either by allowing another to certify for him or her or by circumventing the system by technological

means and an associated willful misrepresentation determination with an 80 day forfeit penalty

for flagrant fraud. The third case may contain a determination holding the claimant ineligible for

the same period because he or she did not comply with reporting requirements on the grounds

that the claimant was not in a jurisdiction that is a signatory to the Interstate Benefits Payment

Plan (IBPP). If the claimant makes multiple attempts to certify while outside the country, the

Department may issue an additional determination holding the claimant ineligible for the

subsequent statutory weeks on the grounds that he or she failed to comply with registration

requirements for the same reasons.

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2.7.2 AVAILABILITY

ELIGIBILITY

The Unemployment Insurance Law provides that “a claimant must be ready, willing and able to

work in the claimant's usual employment or in any other for which the claimant is reasonably fitted

by training and experience.”

To be available for work, a claimant must be prepared to accept

employment immediately.

When a claimant leaves the country, he or she is usually held to be unavailable for the length of

the trip out of the country. Ultimately, whether a claimant is available on a foreign trip is academic

for purposes of eligibility because if the claimant is outside the United States, a U.S. territory or

Canada, he or she is also ineligible for the same period because of an inability to report, as will

be discussed below.

Whether the claimant is considered available for work during this period depends on the reason

for the trip and the claimant’s ability to work in the location where he or she travels. In deciding

the case, the Judge must take evidence on the claimant’s usual labor market, the reasons for

traveling, and where the claimant is authorized to work.

A claimant who travels for vacation or

other personal reasons is not available for work.

Incidental work search while on a personal

foreign trip does not make one available for work.

Generally, when the claimant is looking for

work located in the United States while abroad, he or she is considered not available, even if the

Labor Law § 591(2).

Appeal Board No. 585041 (holding claimant to be unavailable where it would have taken him 24 hours to return to

New York).

Although some prior Board decisions contain language stating a claimant is unavailable “as a matter of law” when in

a country that is not a signatory to the Interstate Benefits Payment Plan, that analysis should be avoided. Reference

to the Interstate Benefits Payment Plan should be made when addressing the claimant’s failure to report, not the

claimant’s availability (see Section 2.7.3, Failure to Report, below).

Appeal Board No. 587054 (claimant held not available for work while vacationing in Italy); Appeal Board No. 586950

(holding that the claimant was not available for work while on vacation in St. Lucia); Appeal Board No. 582188 (holding

the claimant was not available for work while vacationing in Mexico without searching for work); Appeal Board No.

585067 (“[A]s the primary focus of the claimant’s travel was vacation, the claimant was not ready, willing, and able to

work during this period”); Appeal Board No. 552275 (claimant found not available for work while in Turkey visiting an ill

relative despite his contention that he was looking for work there since the primary purpose of the trip was to visit the

relative); Appeal Board No. 561517 (claimant held not available for work while in United Kingdom attending his son’s

wedding since primary purpose of trip was personal, he would have had to fly home prior to starting work and was

therefore not immediately available).

Appeal Board No. 552275 (claimant found not available for work while in Turkey visiting an ill relative despite his

contention that he was looking for work there since the primary purpose of the trip was to visit the relative).

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purpose of the trip could be considered work-related.

This is due to the time it would take for the

claimant to return to the usual labor market to accept work or attend an interview.

In the context

of domestic travel; however, the Board has held that a claimant may be available for work where

there is a mixed business/personal purpose of the trip.

If the purpose of the trip is to search for work, a claimant may be considered available so long as

he or she is authorized to work in the country and is actually looking for work located there.

WILFUL MISREPRESENTATION

When a claimant is found unavailable, the issue of whether the certification that he or she was

ready, willing, and able to work will be considered a willful misrepresentation depends on whether

the evidence establishes the claimant reasonably believed he or she was available. Where a

claimant is on vacation,

is traveling for personal matters,

or is out of the country to care for a

Appeal Board No. 576993 (Board held claimant not available when she traveled to London to attend an international

securities symposium for the purpose of networking with potential employers since she could not physically be present

for an interview or contract negotiations for a job in New York).

Appeal Board Nos. 585041, 561517.

Appeal Board No. 590147 While the case does not involve foreign travel, the principles may apply to some foreign

travel cases. The claimant did some freelance work for a company based in California, though the work was performed

remotely in New York. After filing for benefits, the claimant traveled to California for personal reasons. While in

California, she performed work on a freelance assignment, as well as another assignment she was given as a test for

purposes of obtaining other work. The claimant reported that she was working when certifying for benefits while in

California. The Board went on to hold that the claimant was available for work based on her work search activities and

actual work while in California, writing, “the most compelling argument in favor of the claimant’s availability while in

California, and therefore her eligibility for benefits during her sojourn to that state, is the fact that the claimant actually

did work in her occupation while she was in California…”

Appeal Board No. 588921 (Board held the claimant, a Ugandan native who traveled to Uganda for the primary purpose

of seeking a paid fellowship, was available for work except during the dates she was in transit since she was authorized

to work in Uganda and was actively applying for other employment while there) . ; but see, Appeal Board No. 576697

(claimant not available while in India as he was not authorized to work there); Appeal Board No. 570211 (holding

claimant not available where he not a citizen of the Asian countries he visited, was not legally permitted to work in those

countries without a work visa and, if hired, the employer would have to sponsor him for a work visa before he could

begin working for them).

Appeal Board No. 585067 (claimant should have known he was not ready, willing and able to work while on

vacation in Europe).

Appeal Board No. 584710 (finding that the claimant, on a personal trip to India, made a willful misrepresentation: “we

have consistently held that a claimant who is out of the country on personal matters must be aware that she is not

available for work, and that no specialized knowledge is needed in order to certify accurately in this circumstance”);

Appeal Board No. 555795 (“The Board has consistently held that a claimant who is out of the country attending to

personal matters must be aware that he is not available for work.”) (citing Appeal Board Nos. 552275 and 482073);

Appeal Board No. 584710 (“we have consistently held that a claimant who is out of the country on personal matters

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relative,

the Board has found that a claimant should know he or she is not ready, willing, and

able to work. No further advice would need to be given to a claimant under those circumstances

prior to finding the certification that he or she was ready, willing, and able to work is a willful

misrepresentation.

Where the trip has a mixed purpose or the claimant contends that he or she made concerted work

search efforts while out of the country, it is necessary to determine if the claimant was informed

of eligibility requirements. If a claimant attempts to certify while outside of the country, the claimant

sees a screen entitled “Unauthorized Access,” which states “You are attempting to claim

Unemployment Insurance from outside the United States, a U.S. Territory or Canada. You may

not claim benefits until you return to the United States, a U.S. Territory or Canada.’”

This would

place the claimant on notice that there may be a problem with his or her eligibility while outside of

the country.

The Claimant Handbook also puts the claimant on notice that he or she will be considered not

ready willing or able for work while out of the country. It advises that to be available one must be

prepared to take a job immediately.

It further advises a claimant that he or she cannot claim and

receive benefits while traveling for vacation or personal reasons and must contact the

Department of Labor prior to traveling, even if traveling to look for work or a job interview. It further

states that a claimant’s certification from out of the country will be blocked and the benefits will be

withheld

and specifically advises:

Do not attempt to certify for benefits while you are outside of the

United States, Canada, Puerto Rico or the Virgin Islands for any

reason. Your certification will be blocked and your benefits will be

held. Certifying that you are ready, willing, and able to work while

you are out of the country or giving your username, password,

social security number, and/or PIN number to someone else to

certify on your behalf may lead to severe penalties. These penalties

can include overpayment, loss of benefits, monetary penalties,

criminal prosecution and prison.

must be aware that she is not available for work, and that no specialized knowledge is needed in order to certify

accurately in this circumstance”) (citing Appeal Board Nos. 582226, 581334, 555795, 552275 and 482073).

Appeal Board No. 570888 (finding that the claimant was aware that she was not available where she traveled to the

Dominican Republic to care for her mother).

See Chapter 2.7.4, Compliance with Certification and Registration Requirements, below.

Unemployment Insurance: A Claimant Handbook (October 2017), at 2.

Unemployment Insurance: A Claimant Handbook (October 2017), at. VI, XI, XII, and 16.

A Claimant Handbook (October 2017), p. 16.

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This warning has been in the Claimant Handbook since October 2016. Prior versions of the

handbook were not as clear. For cases addressing claimants who filed unemployment insurance

claims prior to October 2016, the specific language in the version of the Claimant Handbook the

claimant received must be evaluated to determine whether it would put the claimant on notice that

certifications of being ready, willing, and able to work would be false.

Even where a claimant contends he or she did not read the Claimant Handbook, the claimant is

responsible for its contents and a willful misrepresentation may be found.

If a claimant alleges

he or she did not receive the handbook and did not know a Claimant Handbook was available

online, testimony from the Department of Labor may be sufficient to establish that the claimant

had constructive knowledge that the Claimant Handbook was available online.

Where there is no evidence that a claimant was advised of the eligibility requirements, the work

search done on the trip and the claimant’s employment history should be taken into consideration

when determining whether there was a willful misrepresentation. Where a claimant has a history

of working electronically from anywhere in the world and using technology to actively look for

work, including emailing prospective employers and participating in phone interviews, a claimant’s

Appeal Board No. 578069 (“The [2009] claimant Handbook did not include information which would have alerted

the claimant that being outside of the United States, in and of itself, could render him unavailable for unemployment

insurance benefits.”); Appeal Board No. 577668 (“the [handbook in effect in May 2013] does not adequately explain

that a claimant could forfeit future benefits by certifying to availability for work while overseas seeking employment.

As the claimant had obtained a visa for business purposes, met with companies in an attempt to secure employment,

and went so far as to notify the Department of Labor upon his return, his certification to his availability cannot be said

to have constituted a wilful misrepresentation”).

Matter of Roberts, 49 A.D.3d 1129 (3d Dep’t 2008) (“neither the claimant’s failure to adequately read the handbook

nor the purportedly unintentional nature of his misrepresentation is a valid defense”) (citations omitted); Appeal Board

No. 575540 (“We have also consistently held that a claimant who, having read or at least being on notice of the

handbook, then certifies to be having been ready, willing, and able to work at a time when the claimant was out of the

country has made a willful misrepresentation”).

Appeal Board No. 575540 (“Although the claimant contended that he never saw the handbook or even noticed the

link, the witness for the Department of Labor credibly testified that all claimants who file online see the confirmation

page and we will follow the presumption that the agency properly followed its procedures”).

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certification that he was ready, willing, and able to work may not be a willful misrepresentation,

especially where it could be determined to be a mistake of law regarding eligibility.

The Board has held that when a claimant makes multiple certifications that he or she is available

while on the same trip out of the country, it is a single offense for purposes of determining the

forfeit penalty.

The Department’s guidelines provide that the penalty for a single offense without

an overpayment is four effective days.

When there is an overpayment, the forfeit penalty is the

greater of eight effective days or the number of effective days the claimant was overpaid.

For

example, if the claimant was overpaid half of his or her benefit rate, the penalty would be eight

effective days; if he or she was overpaid three weeks of benefits, the penalty would be twelve

effective days.

2.7.3 FAILURE TO REPORT

The Unemployment Insurance Law requires that for a claimant to be entitled to receive benefits,

the claimant must be properly registered within such time and in such manner as the

Commissioner has prescribed.

The Commissioner’s regulations state that a claimant may not

receive credit for any period of unemployment from the day on which a failure to report occurs

until the claimant next reports.

The Board has routinely held that a claimant is ineligible for

benefits as a matter of law when the claimant is in a jurisdiction that is not a signatory to the

Although these cases rely on prior handbooks that did not put a claimant on proper notice, the analysis could be

used in situations where there is no evidence that the claimant was aware of the more current handbook. See Appeal

Board No. 578785A (Board found claimant did not make willful misrepresentation regarding availability where claimant

traveled to Ireland for personal reasons, had previously worked in the software field in a job that could be and had been

done from anywhere in the world, and while on the trip he emailed 17 prospective employers and participated in two

phone interviews and could begin work immediately online); Appeal Board No. 576993 (finding no willful

misrepresentation where claimant believed she was available because she could trade securities using her iPhone);

but see Appeal Board No. 577365 (claimant who worked in marketing field in set labor market made willful

misrepresentation when he certified that he was ready, willing, and able to work while on a personal trip to Germany,

Africa and the Middle East).

Appeal Board No. 578785 (citing Matter of Valvo, 57 N.Y.2d 116, 127-28 (1982)).

Appeal Board No. 555795

Special Bulletin A-710-21, at 5.

Id.

Labor Law §§ 590 (1) and 596.

12 NYCRR 473.3 (d).

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Interstate Benefit Payment Plan (hereinafter “IBPP”) on the basis that the claimant could not

comply with reporting requirements.

The IBPP is an agreement among the 50 states, Puerto Rico, the U.S. Virgin Islands and

Canada.

The IBPP itself does not address whether a claimant is eligible while in a jurisdiction

that is not a signatory.

The Board, however, has long held that a claimant is unable to comply

with reporting requirements while outside the United States.

Whether a jurisdiction is a signatory

to the IBPP is a matter of law, rather than fact, and a Judge can decide the issue without testimony

from the Department on whether a particular foreign nation is a signatory. The Board has also

held that there is no requirement that a claimant be on notice of the requirement to be present in

a signatory jurisdiction to be eligible for benefits.

2.7.4 COMPLIANCE WITH CERTIFICATION AND

REGISTRATION REQUIREMENTS

ELIGIBILITY

The Commissioner of Labor’s regulations provide that a claimant who fails to certify for a benefit

period within the seven-day period for such certification shall not be eligible for that benefit period

and claimant shall not be eligible for future benefit periods until the claimant files a subsequent

claim.

A subsequent failure to certify as required is a failure to comply with registration

requirements.

Appeal Board No. 587055 (citing Appeal Board Nos. 585066, 575501, 575200, and 372361).

The IBPP can be accessed at https://workforcesecurity.doleta.gov/unemploy/pdf/istate_agree_bene_payment.pdf

Id.

Appeal Board No. 573558 (“[t]he Board has long held that: It is well established that a claimant who is outside of a

jurisdiction which is part of the Interstate Benefits Payment Plan ("the Plan") is… [not] able to comply with reporting

requirements”) (internal quotations omitted) (citing Appeal Board Nos. 561517, 557498, 557285, 514717, 482073, and

372361).

Appeal Board No. 586951 (“It is not dispositive that the claimant did not receive the Claimant Information Handbook,

as the claimant cannot receive benefits while in a country not a signatory to the Plan, as a matter of law”).

12 NYCRR 473.2 (c)

Appeal Board No. 579855 (holding that the claimant failed to register as required during his subsequent certifications

while in the United Kingdom).

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To prevent a certification from overseas, the Department of Labor system imposes a block on the

claimant’s claim when it registers a certification attempt from a foreign IP address.

The system

then displays a message titled “Unauthorized Access,” which states “You are attempting to claim

Unemployment Insurance from outside the United States, a U.S. Territory or Canada. You may

not claim benefits until you return to the United States, a U.S. Territory or Canada.” When a

claimant deliberately circumvents this block, either by giving someone in the United States log-in

credentials so that person can certify for the claimant

or by using a technological device to

circumvent the block and make a certification appear as though it was coming from within the

United States,

the claimant has failed to comply with certification (or registration)

requirements.

The period of ineligibility is the statutory week for which the claimant failed to

certify as required.

Generally, the evidence must establish that the claimant knew it was improper to certify from

outside of the country, use technology to circumvent the Department of Labor’s system,

or to

have someone else certify on his or her behalf.

This can be established where the claimant

testifies he or she saw the block message when attempting to certify or where the claimant can

be imputed with knowledge of the Claimant Handbook. Where the evidence does not establish

that the claimant saw the Unauthorized Access message or did not see it until after her

certification went through, the Board has declined to find that the claimant failed to comply with

certification or registration requirements.

A claimant’s lack of memory or vague testimony on

whether he or she saw the Unauthorized Access message, does not preclude a finding of a failure

to comply with certification or registration requirements where the Commissioner of Labor

Appeal Board No. 577362 (“If the Department of Labor's system recognizes a foreign internet protocol (IP) address

during an internet certification, it puts a block on the claim, preventing the certification from being completed”).

Appeal Board No. 590237 (involving the claimant giving her ID and password to someone in the United States “for

the purpose of circumventing a foreign IP block and certifying for benefits on her behalf while she was in Great Britain”).

Appeal Board No. 575674 (involving a claimant using a Magic Jack device to certify for benefits).

Although prior Board cases have held that a claimant has failed to comply with certification or registration

requirements as a matter of law solely because the claimant attempted to certify from a country that is not a signatory

to the Interstate Benefits Payment Plan, this analysis should not be followed.

Appeal Board No. 574443.

Matter of Corso, 144 A.D.3d 1367 (3d Dep’t 2016); Appeal Board No. 575212.

Appeal Board No. 587056.

Appeal Board No. 580385 (claimant was found to have complied with registration requirements where the claimant

credibly testified she did not see the block screen, did not have anyone else certify on her behalf and the Department’s

documents lacked time zones to reflect when transactions occurred); Appeal Board No. 588636 (crediting the claimant

that the operation “timed out” and that she did not actually see the Unauthorized Access message); Appeal Board No.

587215 (crediting the claimant’s testimony that a page never loaded, noting that he testified he received similar

problems while trying to access his online bank account).

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presents evidence of how the system works.

The Board has also held that a claimant has failed

to certify as required even if he or she did not see the Unauthorized Access message where the

claimant is on notice from the Claimant Handbook,

which advises that one cannot certify while

outside the United States or Canada.

WILFUL MISREPRESENTATION

Whether the claimant made a willful misrepresentation depends on what information the claimant

had at the time of the certification and what the claimant understood about the means used to

certify. Beyond determining whether the claimant made a willful misrepresentation, it is also

necessary to determine whether the claimant’s act constituted flagrant fraud

so as to justify the

80 effective day penalty.

The Department of Labor typically imposes an 80 effective day forfeit penalty when claimants

certify while outside the country if it is found that the claimant committed flagrant fraud by

circumventing the block by technological means

or by giving his or her username and password

or PIN to an impostor to certify on his or her behalf.

This is true even where the claimant denies

an intent to commit fraud.

Appeal Board No. 588777 (crediting the Commissioner of Labor’s evidence the Unauthorized Access message would

have been displayed over the claimant’s “vague assertion that the message contained some type of reference to an IP

address”); Appeal Board No. 577024 (In finding the claimant saw the block screen, the Board stated “[t]here is a

presumption of regularity accorded to the procedures of a governmental agency”) (citing 558385, 548318 and

542438A).

Appeal Board No. 589733 (crediting the claimant’s testimony that she was unable to load anything when she

attempted to access the website and so did not see the Unauthorized Access message but holding that she did not

certify as required based on the contents of the Claimant Handbook). It should be noted that the basis of the Board’s

decision was that she was certifying from South Africa, rather than that she circumvented the block.

. Unemployment Insurance: A Claimant Handbook (October 2017), at. VI, XI, XII, and 16.

See Standards for the Imposition of Wilful Misrepresentation Penalties, Special Bulletin A-710-21 (1982), at 2-3, 7

(providing for an 80 effective day penalty in cases of “flagrant fraud” or for “aggravating” circumstances such as

recidivism).

Appeal Board Nos. 574627 (claimant, who certified twice while in Guyana, was aware using a Magic Jack would give

his certifications a U.S. IP address), Appeal Board No. 585068 (claimant’s attempt to certify from Europe for a second

time was a circumvention of the system warranting 80-day flagrant fraud penalty).

Appeal Board No. 590237 (involving a claimant who provided her login credentials to a third party to certify on her

behalf); Appeal Board No. 590237, Appeal Board No. 587056.

Appeal Board No. 587056.

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Where the claimant is on notice of the requirement to not give or tell anyone her PIN, the Board

routinely upholds the 80-day penalty.

This notice can come from the Claimant Handbook

from other information on the Department’s website, such as information on the confirmation

page

or the website used to establish one’s password.

However, where the evidence fails to

establish that the claimant knew or should have known providing login credentials to another

individual to certify on his or her behalf was improper, there may be no willful misrepresentation.

Additionally, in cases where a claimant asserts that he or she did not tell anyone the username

and password but saved them on a computer and someone certified on his or her behalf, a finding

of willful misrepresentation will depend upon whether the claimant authorized someone to make

the certification.

In cases involving circumventing the system through technological means, if the evidence

establishes the claimant saw the Unauthorized Access message when certifying from a foreign

IP address,

or received the Claimant Handbook,

and then proceeded to use some other

Appeal Board No. 590237 (sustaining the forfeit penalty where the claimant received the Claimant Handbook and so

was on notice of the requirement that she not divulge her NY.GOV ID and password); Matter of Inatomi, 116 A.D.3d

1332 (3d Dep’t 2014) (reaching the same conclusion).

Id.; see also Unemployment Insurance: A Claimant Handbook (March 2016), at XI, 15.

Appeal Board No. 572124 (noting that the confirmation page states, “NEVER tell anyone your PIN. Claiming

unemployment insurance fraudulently (or allowing someone else access to your claim using your PIN) is a serious

offense and can lead to severe penalties, including criminal prosecution and imprisonment”).

Appeal Board No. 582187 (relying on information in the Claimant Handbook, as well online messages during the

application process regarding creating a NY.GOV ID and password).

Appeal Board No. 581876 (finding the claimant did not make a willful misrepresentation by having her mother certify

for her where she did not receive the Claimant Handbook and she was not “exposed to the confirmation page at the

time she filed her claim”); Appeal Board No. 586952 (no willful misrepresentation where the claimant did not receive

the handbook, did not provide login credentials to his wife and did not see internet certification pages).

See, e.g., Matter of Hart, 125 A.D.3d 1021 (3d Dep’t 2015) (in a case not involving foreign travel, the court held that

the claimant did not make a willful misrepresentation since it requires a knowing, intentional or deliberate act and since

the claimant did not authorize anyone to certify for him, he did not knowingly, intentionally or deliberately make a false

statement). It is of note, however, that in a case involving foreign travel it would be more difficult to establish a lack of

knowledge or direction where the Department of Labor’s documents establish a blocked certification from a foreign

country followed by a certification from the United States.

Appeal Board No. 585068, affirmed by Matter of Corso, 144 A.D.3d 1367 (3d Dep’t 2016); but see Appeal Board No.

588636 (finding no willful misrepresentation after accepting the claimants’ testimony they did not see the unauthorized

access message).

Appeal Board No. 576975 (finding a willful misrepresentation where claimant did not fully understand the

Unauthorized Access message because it was automatically translated into Greek and the claimant’s certified using

his cell phone since claimant handbook put him on notice he could not certify from foreign country); Appeal Board No.

574627.

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means (such as a Magic Jack or VPN) to certify, it constitutes a willful misrepresentation.

However, the Board has reduced a flagrant fraud penalty of 80 days to 4 days where it is a one-

time occurrence, the claimant voluntarily discloses the fraudulent certification to the Department

and received no benefit from that certification.

The Board has also declined to impose the 80

day flagrant fraud penalty where the claimant does not see the Unauthorized Access message,

where a claimant logged in remotely to a computer in the U.S., or where a claimant made repeated

attempts to contact the Department of Labor prior to traveling, even if the claimant was on notice

of the Claimant Handbook.

The Board has also found a willful misrepresentation but declined to impose a flagrant fraud

penalty where the claimant certified for benefits after being presented with a certification

statement in the Review of Responses section of the online certification process as the language

contained in the Review of Responses would not put the claimant on notice that his or her

certifications would result in a forfeit of benefits for 20 weeks and the claimant contacted the

Department of Labor shortly after returning to the United States.

In the context of circumventing the system by technological means the Board has reduced the

forfeit penalty to four effective days where the offending certification was for a week in which the

claimant was at least partially eligible for benefits.

Such a reduction would apply where the

claimant left the United States on Friday, Saturday or Sunday, and then attempted to certify for

benefits for that week, was blocked, and then used some device to circumvent the block.

Appeal Board No. 574627 (claimant used a Magic Jack device and admitted he did so to disguise his IP address,

Board found willful misrepresentation since handbook put claimant on notice that he could not certify from foreign

country but decreased the penalty from 80 to 4 effective days since the claimant contacted the Department of Labor

to self-report and because it was a one-time occurrence); Appeal Board No. 587246 (citing Department of Labor

Special Bulletin A-701-21, distinguishing between single offence and separate offenses and provides for a reduction

of a forfeit penalty where a claimant “voluntarily, on his own initiative, without having been challenged, discloses the

truth and at such time, returns the benefit check or repays the benefits received”).

Appeal Board No. 587215 (declining to impose 80-day penalty where claimant remotely logged in to his computer in

New York); Appeal Board No. 589733 (finding no willful misrepresentation where the claimant did not see the

Unauthorized Access message from the foreign certification attempt and then used her cellular phone to certify for

benefits); Appeal Board No. 577362 (claimant made numerous attempts to contact Department prior to leaving,

contacted another state’s unemployment insurance division and was told to continue certifying while abroad and

believed her problem with certifying was a technical one).

Appeal Board No. 589315.

Appeal Board No 584330 (relying on Appeal Board No. 581403A).

Id.; Appeal Board No. 581403A (granting a Commissioner of Labor’s withdrawal of its appeal to “allow the

Commissioner to modify the initial determination” to reduce the forfeit penalty “based on recent modifications to the

Commissioner's policy regarding claimants who attempt to claim benefits while outside the United States and mitigating

factors, including that the certification at issue was for a week during which the claimant was essentially eligible for

benefits, as she departed the United States on a Saturday”); Appeal Board No. 585066 (makes clear that earlier cases

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reduction is not warranted, however, where the claimant certifies again while outside the country

for the entire week.

are limited to circumstances present in Appeal Board No. 581403A and 584330 and are not to be followed to the extent

that they reduce the penalty without explanation of the mitigating factors).

Appeal Board No. 585066.

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