Opinion
January 17, 1962
Appeal by the Industrial Commissioner from a decision of the Unemployment Insurance Appeal Board. Claimant was employed in New York but worked in Connecticut; and the problem in the case is whether the employment was, as the Unemployment Appeal Board has held, a New York employment, or as the Industrial Commissioner ruled on the initial determination, that claimant was not qualified for New York unemployment insurance benefits because his work was "localized" in Connecticut and he did not have the necessary qualifying weeks in New York employment. Work is "localized" in New York if it is "performed entirely within" the State; or, if it is performed within and without the State, if "that performed without the state is incidental to the person's service within the state" (Labor Law, § 511, subd. 2). The employer is an Illinois corporation, but has a New York office. Claimant was hired at the New York office as a salesman for the State of Connecticut. He received preliminary training for the job for a period of four weeks in New York. Thereafter, he worked 28 weeks in Connecticut for the employer as a salesman and his work was carried out entirely in that State. He was required to telephone the New York office each day to report. In the 28 weeks while he was on the job at Connecticut he came to New York "two or three times" to discuss the work and for "pep talks". We are of opinion the Commissioner's determination was right and that the Appeal Board's decision overruling the Commissioner is not warranted. It is, of course, very clear that the claimant's services were not "performed entirely within" New York. They seem, rather, to have been "performed", in the language of the statute, entirely within Connecticut. The job was that of a salesman. The preliminary training in New York for the job was not the performance of the job, and the attendance at three conferences in New York in 28 weeks would not usually be treated as performance of the Connecticut selling job. Even if such attendance at three or four conferences can be deemed in some part "performance", it is clear that it is a mere incident to the "performance" in Connecticut. It is not possible to say within the language of the statute that the selling job in Connecticut was an incident to the conferences in New York. Only if the performance out of the State is "incidental" to the New York work can it be deemed a New York employment. Decision of the Unemployment Insurance Appeal Board reversed and initial determination of the Commissioner reinstated, without costs. Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ., concur.