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Systematic Barriers Prevent Non-English Speakers from Accessing Unemployment Benefits in New York: NYLAG Attorney Comments

NYLAG’s Ciara Farrell, volunteer attorney with our Mobile Help Legal Center, contributed to a report from the National Center for Law and Economic Justice (NCLEJ) entitled Designed to Exclude: New York’s Failure to Provide Compensation and Language Access to Unemployed Workers, detailing the barriers people with limited English proficiency face in accessing unemployment benefits in New York State.  Speaking at the press conference and launch event for the report on August 24, 2022, Ciara explained these issues with the comments below.

“Throughout the pandemic, several issues specifically and systemically affected limited English proficient, or LEP, claimants’ ability to apply for, certify for, establish their eligibility for, and receive benefits from unemployment insurance programs. New York is one of few states which records language at application, despite the web application only being available in English and Spanish with other languages available when filing by telephone. However, accessing a New York State Department of Labor agent by telephone during the pandemic was almost impossible and doubly so for non-English speakers. 

 

“In filing, LEP claimants especially struggled with understanding the English meaning and legal context of the reasons for separation available on the application. For example, one Uzbek-speaking client selected “strike/lock out” as her reason for separation, because she had throat cancer in remission and her doctor advised her not to continue her work as a homecare attendant in March 2020 due to COVID-19. She selected Russian, despite it being her third language which she could only speak, not read. She then received an inquiry form about the circumstances of her separation in English only, with no Babel notice, which gives claimants notice of important documents in their chosen   language. Consequently, she then confusedly selected “Quit” as her reason for separation. Her benefits stopped being paid and she received a Notice of Determination of Ineligibility in Russian with a $16,000 overpayment. 

 

“Even when LEP claimants navigated the application, problems arose during issue investigations. LEP claimants often received forms and questionnaires in English, despite having notified NYSDOL of their language needs at filing or thereafter. Another Russian-speaking homecare attendant received a Notice of Overpayment and penalties in excess of $60,000, following an inquiry form in English which she was unable to complete, so an adverse determination was issued. 

 

“A lack of meaningful assistance from the DOL led to other devastating issues for LEP claimants. Many times, lower-wage workers and those in domestic violence or homeless shelters, where NYSDOL has no informational presence, would pay notaries and dubious individuals to aid with their applications. This resulted in benefit theft, identity theft and eligibility disqualifications amongst the most vulnerable. Similar problems arose with certifications, where the weekly online form and retroactive certification DocuSign are in English only, resulting in overpayments and penalties for willful misrepresentation due to language access errors.  

 

“Inability to understand English does not align with the DOL’s prerequisite that a statement must be “knowingly and intentionally” false for fraud penalties to be imposed. NYSDOL have only recently, at the repeated urging of advocates, begun to re-examine such findings of fault and fraud applied to LEP claimants.   

 

“Furthermore, Pandemic Unemployment Assistance (PUA) Notices of Determination of Eligibility/Ineligibility appear to have been issued solely in English throughout the operation of the program without an Important Document Babel notice attached. We had Russian, Bengali and Spanish speaking clients receiving a translated UI Notice of Determination but then an English PUA one. 

 

“These are just some examples of the wider issues with language access and new program information being provided in English only on the NYSDOL website. Moreover, the website had a recommendation throughout the pandemic to use in-browser translation services for vital new information solely in English. This violates US DOL and NY State requirements. There are many concerns surrounding information available or sent to LEP claimants by NYSDOL, resulting in egregious language and technology access barriers for many who struggle with application, certification and documentary submission requirements of the UI and PUA programs. 

 

“Language access barriers were further compounded with the introduction of ID.me in February 2021, when the NYSDOL removed prior identity verification alternatives and refused accommodations requests for language and technology barriers. NYSDOL local offices still remain closed, so LEP claimants have nowhere to go for in-person language assistance with ID.me from the DOL. There were no translated NYSDOL instructions for using ID.me; only recently did NYSDOL introduce a Spanish language explanation of ID.me on its site. 

 

“In terms of ID.me verification process language access, several components of ID.me remain untranslated into NYS’ top six languages (Spanish, Chinese, Russian, Yiddish, Bengali, Korean), or the top ten (Haitian Creole, Italian, Arabic, Polish). None of the ID.me features, help guides, or video chat are translated or available in Bengali, Russian or Yiddish;  ID.me does not service these languages. There were long wait times for language assistance, with most LEP claimants providing their own translator to complete the process. Many gave up, missing out on crucial benefits to which they are entitled.

 

Recommendations

“New York State needs to translate many more important documents within the UI system. However, several of the remedies are much simpler and could be implemented immediately: ensuring all LEP claimants are issued a translated document or a Babel notice on all communications to enable them to receive the assistance they need; always contacting LEP claimants with an interpreter in the correct language; permitting longer response times to messages by LEP claimants before issuing adverse determinations; and not automatically finding fraud where there is clearly a language barrier. 

 

“The predominant issue though, is one of agency culture and attitude towards LEP workers and communities. The unemployment system was always very difficult to navigate, but the pandemic exacerbated this generally and for LEP claimants especially, resulting in unnecessary barriers forcing LEP claimants to try any avenue for assistance in desperation. Until equity is centered and prioritized within the NYS DOL UI system, LEP claimants will continue to experience disparate impact and a lack of parity in UI programs.” 

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