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BusinessColumnistsCarrie Mason-Draffen

Substitute teacher not eligible for summer unemployment

State unemployment insurance law exempts teachers and other

State unemployment insurance law exempts teachers and other personnel employed by educational institutions from applying for unemployment benefits during breaks. Photo Credit: Getty Images/iStockphoto

DEAR CARRIE: I work as a permanent substitute teacher in a local school district. But the district limits me to just four days a week. So sometimes I sub one day in another district in order to work a five-day week. My question is about the summer break, when I will be off with no pay. Would I be eligible to collect unemployment benefits during the summer if I am unable to find a job during the two-month break?

At the end of the school year in June, the school district sends out a contract to subs who will be offered work again in September. I received one. But I also need to have some income coming in during the summer. — Break in Income

DEAR BREAK: I’m afraid you are out of luck because you work in a school district. State unemployment insurance law exempts teachers and other personnel employed by educational institutions from applying for unemployment benefits during breaks. Even though you are a sub, the law affects you as well.

The law says that teachers and other personnel are ineligible for unemployment benefits during breaks if they have a “reasonable assurance” they will be hired back when classes resume.

And what constitutes a reasonable assurance for per diem employees such as yourself, who aren’t considered staff? Here is how the state Labor Department’s website defines it: “You receive written or verbal notification that you will be placed on a substitute list; that list will be used for placing substitutes; there is a reasonable expectation that sub positions will exist; and you can expect to earn at least 90 percent of the prior term’s remuneration (including wages and benefits).”

Since you are usually notified in June about regular sub work for the upcoming school year, you probably wouldn’t qualify for unemployment benefits during the summer break.

DEAR CARRIE: I work as a commissioned salesperson for a food distributor. If I sell to a restaurant that files for bankruptcy a few months later, the company charges me back the commission that I was already paid on the sale. Is this legal? It seems like I am working for free. — Commission Takeback

DEAR COMMISSION: Whether the chargeback was legal or not depends on your commission agreement.

State labor law requires that a commission sales agent’s pay or employment agreement be in writing. But employers have wide latitude in writing commission agreements.

That’s why your first order of business should be to revisit yours to determine when your commission is considered earned.

Once a commission is earned, you are golden because it is then considered wages and subject to wage laws that spell out when you have to be paid and what deductions employers can make. In other words, your employer would have a lot less wiggle room regarding your commission payments.

Here’s some added information from the state Labor Department’s website:

“The commission will be considered ‘earned’ at the time specified in the written employment agreement. If the agreement is silent on this topic, a commission is considered to be earned in accordance with the past dealings between the employer and commission salesperson. If there are no such past dealings, then a commission is considered earned when the commission salesperson produces a person ready, willing, and able to enter into a contract upon the employer’s terms. Once a commission is ‘earned,’ it is legally considered ‘wages’ under the Labor Law and subject to all other provisions of the labor law regarding the payment of wages.”

So check your commission agreement. If you still have doubts, call the state Labor Department at 516-794-8195 or 212-775-3880.

Go to for more on teachers and unemployment benefits.

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