School bus drivers sue NY to keep unemployment money

Several school bus drivers in the Greece Central School District have filed a federal lawsuit regarding unemployment benefits that ultimately could impact countless other school employees across New York.

The bus drivers received unemployment benefits last summer, when summer school was canceled and the course of COVID-19 was far from clear. Early this year, though, the state Department of Labor informed them that they did not in fact qualify for those benefits and would have to pay them back, in sums ranging from $4,200 to $8,200.

The lawsuit, filed against the state last week in federal court, calls that a misreading of labor law and asks a judge to recognize a wide class of possibly affected employees: namely, all non-educator school employees such as bus drivers, security guards and cafeteria workers who may have sought unemployment benefits last summer and been denied.

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"They followed the rules, they did everything right," said Peter Dellinger, an attorney with the Empire Justice Center in Rochester who is representing the plaintiffs. "And then they get these notices saying, you owe us $8,000; you owe us $4,000."

Generally speaking, non-educator school workers are not entitled to unemployment benefits during the summer as long as their employer provides "reasonable assurance" that they will be able to resume their job in the fall. "Reasonable assurance" is a specific legal term with certain criteria to be met.

The lawsuit alleges procedural violations were made by both the school district and the Department of Labor. More broadly, though, it argues that it was impossible in June 2020 for a school district to assure a school bus driver that he or she would be able to begin work in September, given the pandemic.

"Every school in New York was closed; nobody knew when they were going to reopen," Dellinger said. "How is that reasonable assurance of a job?"

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Most of the plaintiffs in the lawsuit are senior citizens who work as bus drivers to supplement their otherwise fixed income. They have filed administrative appeals of the state's attempt to recoup their money, which they already spent last summer to pay their bills.

"These are not wealthy people who can write you a check for $5,200 tomorrow," Dellinger said.

There are six plaintiffs from Greece, but countless non-educators from across New York are likely in a similar situation and could possibly have their repayment requirements dismissed.

Dan DiClemente, president of the non-educators union BENTE in the Rochester City School District, estimated that a few dozen members have gotten claw-back letters regarding unemployment money they received last summer.

The Department of Labor declined to comment but said federal law requires it to attempt to recoup overpayments. It notified people last week that they can seek a waiver for repayment as long as they did not commit fraud.

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In March the state reported about $115 million in unemployment overpayments in 2020, about two tenths of one percent of the $69 billion it paid out. Some state legislators have urged the administration not to recoup that money except in cases of fraud.

The Greece Central School District is not named in the lawsuit. The lawsuit alleges that the state's recent ineligibility determinations were "based on (Greece's) protest of unemployment benefit payments."

A spokeswoman said in a statement: "We communicated regularly with staff during the pandemic and provided them with written information about who was eligible for unemployment, even providing filing assistance to those who qualified. We also made clear to 10-month employees that even if they traditionally worked in our summer programs, summer employment is determined on a yearly basis and is not guaranteed."

The lawsuit is being led by the Empire Justice Center and the University of Buffalo School of Law's COVID Law and Community Engagement Clinic. It seeks class action status but no new monetary reward.

"Our clients aren’t looking for any money; they already got the money," Dellinger said. "They just want to keep the money they got."

Contact staff writer Justin Murphy at jmurphy7@gannett.com.