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Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 19681
Experience:  Licensed Attorney with 29 yrs. exp in Employment Law
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I was collecting NY state unemployment from 11/2012 to 10/2013.

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I was collecting NY state unemployment from 11/2012 to 10/2013. I applied for social security disability 6/2013 and was approved last week. When I applied I used my last day of work in 10/2012 as my date of disability. I was actively seeking work each and every week. At the end of June I felt I would not be to work again. When I contacted unemployment last week to have it stopped they wanted to know why. I said I would be receiving SSDI benefits beginning for the month of oct. This threw up a red flag! Unemployment has sent me paperwork to fill out re: my disability. It also states their records indicate I was unavailable for work from 11/2012 to present. I am worried about being charged with fraud and losing everything. How can I admit guilt without further incriminating myself and jeopardizing SSDI?
I was diagnosed with COPD in 12/2009 and worked until 10/2012 when I was laid off.

Thank you for the information and your question. Can you tell me if your former job exacerbated your lung condition and if you were looking for different kind of work that what you used to you while you were on unemployment? Did your doctor advise you to quit work because the job was too hard with your condition?
Customer: replied 2 years ago.
COPD never gets better just worse over time. I was diagnosed in 12/2009 and worked until 10/12. I was looking for the same type of work that I was doing. No my doctor did not advise to quit as I was laid off due to lack of work.
Hello again and thank you for your reply. I do understand how COPD works as I have had immediate family members with the disease. What I was trying to ascertain is if you might have a work around the issue that you raised for appealing any decision that you might have been overpaid since the stated onset of your disability. This is technical, so we look for technical arguments.

First though, let me reassure you that you are not going to be arrested or charged with criminal fraud. That really just doesn't happen with situations like these. Although there might be a very infrequent prosecution for unemployment fraud, it would only be in cases where there was a conspiracy to defraud by an alleged employer and an alleged employee who created false records and stole several thousand dollars from the State. Otherwise, the State just doesn't have the financial or manpower resources to prosecute any sort of alleged fraud. In addition, based on what you have told me, they wouldn't be able to prove fraud anyway, since you were apparently actively seeking employment.

So, the issue here is whether or not you have a defense to an overpayment claim and demand by the State that you repay the benefits you received. That is why I asked the questions about whether your disease and your work were incompatible. In that case, you would most definitely be qualified to unemployment benefits for this period, since you would be looking for work you could do with your disease. However, in your case, since you were laid off and your doctor apparently didn't tell you that you had to quit (which makes me wonder a bit about how you were approved for SSDI), you will need to convince the State that you were not only actively looking for employment, but that you were "able and available" to do so while you were receiving UI benefits. If you can do that, then you won't have to repay those benefits. If you can't, then they will want to be repaid.

If you are ordered to repay the benefits after you appeal any demand (which you definitely want to appeal), then you might be able to ask for a hardship waiver of repayment based upon your current situation. But again, the burden is going to be on you to show how you could work, even though you were determined to be eligible for SSDI. It is not impossible and there are people on both, but you may want to consult with a local employment law attorney who handles unemployment claims to assist you. If you cannot afford one, then you can call your local Legal Aid or Legal Services Office and they can provide you with free legal assistance in this area.

Please let me know if you need any clarification. I would be glad to assist you further if I can.
Customer: replied 2 years ago.

Thanks for your response. It has been very helpful. Do you think I should return the paperwork or wait until unemployment contacts me again? Unemployment states if no response within 7 calendar days they proceed with the available information they have currently which considers me unable to work from 11/2012 to present.
Thank you again

You're welcome and yes, you should submit the information they have asked for. If you don't, then it makes it harder for you to successfully appeal any decision for repayment. So, it is important that you try to explain what you have been doing as far as looking for work and that you could, during the period in question still work at some form of job.
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