New York Unemployment Benefit Webinar + FAQ
FAQ for New York State Unemployment
Disclaimer: This is not legal advice. It is guidance on navigating the UI system. If you have questions, please email email@example.com.
If I get paid through an S-Corp, am I still eligible for unemployment?
You may be. We have spoken with the NYSDOL about whether members with S Corporations are eligible for Unemployment. The DOL appears to be most concerned with whether or not the corporate officer of the S corporation is still running the corporation and therefore ineligible for UI because they are not totally unemployed (i.e. they are running an active business). Our position is that if the strike suspends the activity of the S Corporation then the corporate officer may be eligible for unemployment benefits because business activity has been stopped. Therefore, we believe you should apply for unemployment if you are an officer of an S Corporation and the S Corporation has essentially ceased operations due to the strike.
If you have an S Corporation, you will most likely receive a questionnaire from the DOL which will ask questions including the following:
Is the business functioning presently and has the business ceased operation?
If the only income you receive through the S corporation is income related to work which you are not performing due to the strike, you could provide a written explanation (i.e. an additional piece of paper attached to the questionnaire if you don’t have sufficient room on the form) that explains that the business has been suspended due to the strike.
If I have an S Corporation is my gross quarterly income the amount my employer pays the S Corps, or what I pay myself via payroll taxes?
The Monetary Benefit Determination (MBD), which you should received from the DOL within a week of your application, will show payments made to you by the S Corp i.e. W-2 payments. Please note that the MBD is most likely not going to show payments made through a 1099.
My S Corp pays me on a W2 but only in the fourth quarter of each year. So the other three quarters will show zero. Does that mean I’m ineligible?
In order to be monetarily eligible, you need to have earnings in at least 2 quarters in your base period along with other earnings requirements. So if you only have earnings in one calendar quarter, you will not be eligible for UI. However, if you have earnings from other jobs during the relevant base period, you may still be eligible. Check your eligibility here. (external – opens in a new window)
Are you still eligible to apply if you are still receiving income for other non-WGA covered work like theater?
Any work will need to be reported on your weekly certifications. However, if you receive less than $504 gross a week, you may still be eligible for all or part of your UI benefits. See more about Partial UI rules on the NY DOL website. (external – opens in a new window)
Please note that if you are, or will be, paid for this work through your S Corp, then the entity has not ceased operating and you will likely be disqualified as a corporate officer. Also, if your S Corp or other work earnings were used in your Monetary Benefit Determination, then these earnings cannot be excluded as earnings from self employment on your weekly certification – you should declare all days/hours and amounts earned.
I have an S-Corp, and also work as a playwright and will have some (minimal) playwriting income to the S Corp over the next few months (theatre writing is not part of the strike). So my S-Corp will have some income from writing, but not from film and TV writing. Does this disqualify me?
See answer to 4 above.
What if your LLC invoiced for your labor but had so many costs that it showed a loss so it didn’t end up paying you?
If wages were not paid and no W2 was issued, then you do not have wages that would count towards a UI claim. However, please note that if you have wages from another source of income, you may be eligible for UI. See answer to 4.
I finished a show in April and applied for UI then and since, do I need to change anything or inform DOL now that I am on strike?
You need to reopen your claim and tell them that you were on strike and when the strike began. Also, you should let them know when the strike ends. If you can’t reach the DOL on the phone, you should send a two way message through the on-line system. If you have additional problems, contact the union and we may be able to assist.
Can you address if one can receive residual payments while collecting unemployment? I am an S corp.
Yes, residuals do not count as earnings and the DOL has stated these will be included. However, this is contingent on you not being excluded as a corporate officer.
Asking for a colleague who had freelance income (so invoiced, not W2 wages) from an overseas company so a company that does not pay UI to NY State: is he still eligible?
Answer: Earnings from employment should count toward a UI claim. The issue for your colleague is not that they are being paid by a foreign entity but that they may be classified as an independent contractor which earnings are not automatically counted toward a claim. However, if there is an argument that the work for this overseas company is being done in the U.S. and is actually employment as opposed to independent contract work then the colleague may want to request a reconsideration to have this work considered to be covered employment. Visit the NY DOL’s Request Reconsideration (external – opens in a new window) and FAQ about UI for independent contractors (external – opens in a new window) pages for more information.
If you operate as an S-Corp and pay yourself via payroll/ W2s, are you required to cease payroll to yourself if awarded UIB?
If you continue to pay yourself, the DOL will most likely exclude you as a corporate officer with an operable business task and not considered totally unemployed. It may be the subject of a DOL inquiry how payroll is processed by you to determine this. Any wages received must be declared on weekly certifications.
The FEIN in the case of an S-Corp listed on a W2 would belong to that S-Corp? Should we provide our s-corp’s fein/id or fein/id of the employer that pays our s-corp?
The FEIN ought to be that of the S-Corp. You may need to clarify with NYSDOL if you have reported otherwise.
How does the DOL determine the pay period for 1099 income? or S corp income? residuals or other payments often come in months after the actual work… Do any earnings suggest current work?
The frequency of earnings through employment made to you under your SSN and how these were issued to you dictates whether they are covered employment, as does the calendar quarter in which they were received. Residuals, or any other income, are not covered employment earnings.
While you’re collecting unemployment, if you receive a script fee to your S Corp but don’t pay it to yourself as wages while collecting unemployment, do you report that money?
No, provided you do not pay this to yourself as wages, these are not earnings for weekly benefit certification purposes. However, any work involved in obtaining such payments on any week you certify must be declared as hours worked. Similarly, receipt of this payment may additionally impact NYSDOL’s assessment of whether the S-Corp is operating and if you are ineligible as a corporate officer.
If I am on a current claim for “lack of work” but stopped certifying when we went on strike to coincide with the strike two-week period before applying, do I wait until next week (or the week after to match 3 weeks) to certify again, and then state that I didn’t certify because on strike?
You should notify NYSDOL immediately if you were receiving UI prior to the strike. See answer to 8.
If I was unemployed for the last year (so I don’t qualify for strike unemployment monetarily), but made money in May 2023 via residuals, can I claim unemployment against my residual check or not because it’s too current of a quarter?
The basic base period for a claim file in this quarter (April – Jun, 2023) is January – December, 2022. If you had any employment income, you may be eligible for UI and should apply. You can check your eligibility using the NY DOL’s benefit rate estimator tool (external – opens in a new window). However, residual income does not count as covered employment earnings needed to establish monetary eligibility.
What if you have a C corp?
If you are an officer of a C-Corporation, you are likely to be excluded from UI because you may be considered to not be totally unemployed because the DOL will view you as continuing to run the corporation. You should still apply for UI but make sure to answer any questions that the DOL has in regards to your business. Reach out to your union if you have questions or are denied to see if someone may be available to assist you.
What if your employer pays you once during the strike but not for services rendered— would you report that amount?
If you are being paid by an employer (not your S Corp) for work already done, then you shouldn’t have to report it if its for a period prior to the week that you are certifying for.
I live and work in NYC (and pay taxes here) – but am paid by a prod co in CA via W2. Does that matter?
If the location of the work performed is NY, this should be sufficient to establish a nexis to file a NY claim. However, the DOL may have many questions about your work and may deny you even though you may be eligible. You may also have to complete forms to have covered employment from a California employer transferred to New York. Should you have issues, contact the union and we may be able to advocate on your behalf
I am still receiving a monthly paycheck, from my own S-Corp, for work completed in January and February (I turned in a screenplay and am spreading a lump sum out over the year to help me handle my budget and expenses). But obviously, I am not doing any new work. Does that make me ineligible?
As you are still receiving payment from your S-Corporation, NYSDOL may find you to be ineligible as a corporate officer. However, as you received the payment and instituted an installment payment prior to the strike, you may be eligible. If the DOL denies you, you should reach out to your union and we may be able to advise you further.
PLEASE NOTE that on the week each month you receive payments, you must declare the gross amount of earnings and if you receive more than $504 – you will most likely not be entitled to benefits that week.
Are you self-employed (Business Owner or 1099 Employee) on the application?
Yes, all members with S-Corps, Loan Outs and LLCs are business owners. Similarly, all of these members are expected to declare they are corporate officers by NYSDOL. If you mistakenly did not answer yes to both or either of these questions, you should promptly contact NYSDOL to correct this information. See also Answer to No. 1.
On the Labor Dept. website there are two places where we are asked to enter an employer name: first when registering for the site and then again when applying for UI. In either or both of these places, should I list the name of my New York-based employer, or the California-based payroll company from which I get my W2?
If you are able to put in your employer information, you should list your NY based employer. Normally your employer will pop up automatically in the application and sometimes the payroll company is listed as your employer. If you receive a message that you should apply in California, you should contact the DOL and let them know that your employer is NY based. If the DOL does not accept this, contact your union and we may be able to assist.
In addition to my work as a WGA writer, I am also currently working as an independent contractor outside of the guild’s jurisdiction (paid via a 1099), and I work in excess of 40 hours of work each week. I expect my independent contractor work to last through the end of 2023. If my independent contract work ends before the end of the strike will I qualify for UI and when should I apply?
You can’t apply for UI until you are no longer working so you will have to wait for your independent contractor work to apply for UI. You may be eligible for unemployment if you have sufficient wages during the relevant base period. The basic base period for a claim filed in the first quarter of 2024 (Jan. – March, 2024) is October, 2022 through September, 2023. If your most recent W-2 earnings were in the third quarter of 2022, you are likely not to be eligible for UI if you are applying in the first quarter of 2024. You can check your eligibility using the NY DOL’s benefit rate estimator tool (external – opens in a new window).
Please note that sometimes workers are misclassified as independent contractors when in fact they should be paid as employees. Please see Answer to question 10.
I filed a claim last year when my job ended and the claim year will end in July, 2023. If the strike is still ongoing after my claims ends in July, should I file a new claim?
I made the most money in the first quarter of 2023. Can I get a higher benefit based on my most recent work?
If you apply for UI benefits during the second quarter of 2023, April through June, 2023, the DOL will determine your benefit rate based on your basic base period which is January through December, 2022 unless you don’t have sufficient wages to establish a claim. If you don’t, have sufficient wages in your basic base period, then the DOL will consider wages in the alternate base period (the most recently completed quarters – April, 2022 through March, 2023). If your benefit rate is less than the maximum of $504 and you have higher earnings in the most quarter, then you may request the alternate base period.
PLEASE NOTE that you only have 10 days after the date listed on the monetary benefit rate to request the alternate base period (external – opens in a new window).
I’m a WGA writer trying to apply for UI. Unfortunately, yesterday I ended up finding out that someone may have stolen my identity. So I’m in an annoying process of reporting possible identity fraud. My concern is that I won’t be able to apply for UI until this gets resolved. So my question is: Is there a latest date by which I can apply for UI?
Unfortunately, many claimants have found out that they are the victim of identity fraud. In most cases, this should not prevent you from applying for and receiving UI. You should report the fraud to the DOL on their website (external – opens in a new window) and attempt to apply for UI. If you are delayed because of the fraud issue, make efforts to contact the DOL to get help. Document your attempts to file and get help. If you are still delayed after 2-3 weeks, please reach out to your union and we may be able to assist you.