The Coronavirus Aid, Relief and Economic Security (“CARES”) Act includes increased unemployment insurance compensation benefits for individuals who are generally not eligible for unemployment benefits in ordinary circumstances. Specifically, the CARES Act adds Pandemic Unemployment Assistance (“PUA”), which provides benefits for independent contractors and self-employed individuals such as real estate salespeople who are not otherwise eligible for unemployment compensation. This is a dramatic departure from prior law and definitive regulations and rules for how PUA will be administered have not yet been published. At this time, we expect that traditional rules for benefits administration may be applied to independent contractors and self-employed individuals consistent with the way that eligibility rules have historically applied to traditional employees.
The following is a list of frequently asked questions and our answers, based upon the current state of the law.
The process to apply for PUA is extremely fluid, however, and we will update this as additional guidance is made available. This FAQ was updated as of 12:00 pm on 5/27/2020 and supersedes any prior information provided by NYSAR.
My region has progressed to Phase 2 of the New York Forward: Business Reopening, am I now no longer eligible for PUA? (added 5/27/20)
Self-employed individuals and independent contractors are eligible for PUA if they are unable to work as a result of COVID-19 (see https://www.labor.ny.gov/ui/pdfs/pua-factsheet.pdf). Phase 2 means that these individuals will be able to engage in more real estate activities; however, it does not necessarily mean that they will be able to work like they were before the COVID-19 pandemic. If these individuals continue to meet the eligibility criteria because they are unable to work four or more days per week and unable to earn more than $504 per week, they should continue to be eligible for PUA.
However, if they work four or more days per week, even if it is only for a short time each day, and/or earn more than $504 per week, that information must be reported when they certify for weekly benefits and will impact their eligibility.
Are PUA benefits determined by net income or gross income? (added 5/18/20)
As a licensee, who was receiving UI/PUA and PUC weekly benefits, how do I now certify my weekly UI / PUA benefits once I’ve received a PPP Loan? (added 5/4/20)
If you received income through a PPP loan, you should accurately answer if you earned more than $504 for that week. If so, you will not be eligible for UI/PUA or PUC that week.
Where a husband and wife or other partnership team books sales and commissions to their LLC, can one spouse or partner apply for PUA benefits? (updated 4/24/20)
Each self-employed individual, whether it be a spouse or partner, can apply for PUA.
Added on 4/8/2020
- What if you are an S Corp?
Pursuant to new guidance from the US Department of Labor, a self-employed individual is someone whose “primary reliance for income is on the performance of services in the individual’s own business…including independent contractors.” (https://wdr.doleta.gov/directives/attach/UIPL/UIPL_16-20_Attachment_1.pdf).
If your corporation is an S Corp and you are not paid as an employee, then you would be self-employed and should leave the EIN blank in accordance with the NYDOL guidance. If your S Corp pays you as an employee, provides you with a W-2, and has unemployment insurance, you would include the S Corp’s EIN, and would likely be deemed eligible for unemployment insurance benefits. However, if you are earning more than $504 per week or working four or more days per week, then you will not be eligible for unemployment or PUA benefits.
- Do you use commissioned income paid to the corporation by the RE Broker or the income your corporation pays you?
If you are applying for PUA benefits, you need to use the income you personally received as the self-employed individual or independent contractor.
- Do you divide the commissioned income, based on those licensed activities performed by each spouse that generated the sale, for each individual income?
The answer to this question depends upon how the spouses are paid and the applicable tax documents. You should attribute the income to each spouse as you would during any tax year.
If I had previously applied and was told to call NYS DOL Customer Service should I reapply under the new UI Application? (added 4/13/20)
If I received the $504 already, but was improperly penalized for the "waiting week" with no benefits what do I do? The waiting week was supposed to be waived. DOL's customer service line has an outgoing message only. (added 4/13/20)
Generally, when is an individual eligible for unemployment insurance compensation? How might these standards be applied to independent contractors?
Unemployment insurance is generally allowed only when someone is not working. Working is defined generally. In traditional employee-employer relationships, steps taken by a salesperson related to procuring a sale, like calling on a prospective customer, answering customers questions or demonstrating a product are all considered work even though a commission is not earned until a sale is consummated. The same standards are likely to apply to an independent contractor. Steps taken such as showing a house, meeting with a prospective client, and communicating with potential buyers and sellers are all activities which fit the general definition of work even though they are all preliminary to being paid a commission at the closing.
What if a licensee is approved for PUA and continues to “work” by showing houses etc., will the PUA be reduced or does that only happen when they earn the commission when the closing occurs and they collect their commission? (updated 4/7/20)
New York does allow for something called “partial unemployment” in circumstances where a workweek is reduced. For example, if someone is reduced from a full-time five days per week job to a part-time job of less than four days per week, they are eligible for a partial payment based on a pro-rata formula.
Based on New York State unemployment law, to receive full unemployment with traditional unemployment insurance claims, you must not work at all. For partial unemployment, you can work one, two, or three days and receive prorated benefits, provided you earn less than $504 per week. Guidance from the US Department of Labor provides that states will calculate partial payments under PUA in accordance with the state law applicable to unemployment insurance benefits.
PUA will be comprised of two payments:
- New York’s maximum weekly unemployment benefit is $504. A self-employed individual who works for less than four days during a week will have their benefit amount reduced by wages earned that week. However, the partial unemployment weekly benefit amount will not be less than 50% of the average weekly payment of regular compensation in the State of New York. This is $172 for the period from January 1, 2020, through March 31, 2020, and $182 for the period from April 1, 2020, through June 30, 2020.
- Individuals who receive partial PUA payments will also be eligible to receive an additional $600 per week benefit through July 31, 2020, pursuant to the Federal Pandemic Unemployment Compensation (“PUC”).
We recommend that members maintain a log showing the detail of the work tasks and dates and times those tasks were performed. As we describe above, because it appears that traditional definitions apply to PUA benefits, the log will need to show that your work was limited to the specific days when the tasks performed are bundled. This log will be of immense benefit to you in the event of an audit.
If a licensee is paid a commission for a property that closed how does that impact the PUA under the following circumstances: a) the closing occurred before the Executive Order but the commission was paid after b) the closing occurred after the Executive Order and the commission was paid during the Executive Order (updated 4/8/20)
We cannot be sure of the differing impact of earning a commission versus receiving payment of the commission. For this reason, we advise that members should apply for unemployment pursuant to PUA and provide accurate detailed information for benefits calculations. We expect additional regulatory guidance in the US and NY Departments of Labor that should clarify the answers to these questions. In the meantime, we believe that benefits will be reduced and/or not be paid based upon when the independent contractor has “earnings” in a given week.
Added on 4/8/2020
We have not yet seen any additional guidance from the NYDOL regarding the PUA application or implementation. However, the USDOL guidance provides the following:
- The applicant will need to self-certify that they are unemployed, partially unemployed, or unable or unavailable to work. This means that the applicant will need to self-certify that they do not have the ability to telework with pay.
- With respect to partial unemployment, states are directed to calculate the payment amount in accordance with the state law applicable to such a week of unemployment. For New York, when a commission is “earned” depends upon the independent contractor agreement.
- Also, under New York unemployment insurance law, individuals will be eligible if they “worked less than four days and earned a gross income of less than $504” for that week. Using this standard, the individual’s eligibility under traditional unemployment would be based on when they earned, rather than when they received, the commission. (https://www.labor.ny.gov/ui/pdfs/ui-covid-faq.pdf).
Now that some real estate related activities have been deemed “essential,” how does it impact the availability of PUA on the industry? (updated 4/4/20)
Whether an individual will be eligible for PUA depends upon whether or not that individual is able to work. Although someone’s ability to work due to COVID-19 is not dependent upon whether an individual’s business is deemed to be essential or non-essential, the change in essential designation opens the door for REALTORS® to be able to work in whole, or in part, by virtually showing properties and performing back-office work. The test is not whether someone is theoretically able to work, but rather whether someone is as a practical matter unable to work. For example, now that some REALTOR® work is deemed essential, it may be that it is possible for a REALTOR® to work, but as a practical matter, the particular marketplace realities mean that working is prevented by the practical reality that the customers are absent.
What must an independent contractor “show” that they are affected by COVID-19. (updated 4/4/20)
Independent contractors need to show that they are unable to work due to COVID-19. They do not need to show any additional impacts to be eligible for PUA. There are additional eligibility criteria for PUA that are inapplicable to self-employed individuals or independent contractors. The test is not that they are eligible to work, but rather whether as a practical matter, they are able to work.
Individuals who are receiving partial PUA payments will also be eligible to receive an additional $600 per week benefit through July 31, 2020, pursuant to the Federal Pandemic Unemployment Compensation (“PUC”). Do you also receive the additional $600/week if you receive full PUA payments? (updated 4/1/20)
Yes, individuals who are eligible for PUA payments will also receive the additional $600 PUC payment.
Does showing a buyer, going on a listing appointment, escorting a home inspector constitute working? (added 4/2/20)
Yes, we believe that this would constitute working.
If you do one real estate activity on 5 different days does that disqualify for that week? (added 4/2/20)
We do not yet know how the New York State Department of Labor will determine whether a self-employed individual or an independent contractor is “partially unemployed” or still working. We expect additional regulatory guidance from the US and NY Departments of Labor that should clarify how this determination will be made. It is possible that working five days a week will disqualify an applicant from obtaining PUA.
If a licensee has another job, for example, works for a title company, should they apply for Unemployment Insurance under the W2 job or PUA as 1099? I imagine you cannot apply for both correct? (added 4/2/20)
It is very unlikely that the individual will be able to apply for both unemployment insurance compensation through their job and for PUA because they hold a real estate license.
We do not know enough about this individual’s employment circumstances to fully respond to this question. However, the employee likely will be deemed eligible for unemployment insurance compensation through their position with the title company, so it may be more expedient to file for traditional unemployment.
If a broker owner of a real estate office files for DISASTER LOAN ASSISTANCE, the forgivable one via SBA, can the same person (the owner who usually gets a salary) also apply for PUA? (added 4/2/20)
We are awaiting additional regulatory guidance necessary to fully answer this question. We believe that an owner who obtains a PPP loan, may not be eligible to recover unemployment as well. The purposes of both programs are the same – to ensure that individuals are still being paid whether this is by keeping them employed through a PPP loan or providing enhanced unemployment benefits.
As a small business owner, are we limited to what we can apply for as small business assistance? I don't want to apply for one thing and then find something else, only to learn one overrides the other. Is there a way of knowing what is correct to apply for? (added 4/2/20)
Individuals will need to determine which is the best option for themselves and their businesses. Since a self-employed, small business owner may not be able to receive both PUA and PPP, both programs should be assessed based upon that individual’s specific circumstances.
Please clarify the meaning of self-employed individuals. If your corporation pays you, are you considered self-employed? (added 4/8/20)
As provided above, the USDOL guidance states that a “self-employed individual” is defined as an individual “whose primary reliance for income is on the performance of services in the individual’s own business.” (See https://wdr.doleta.gov/directives/attach/UIPL/UIPL_16-20_Attachment_1.pdf). Even if your corporation pays you, you will still be self-employed. However, if your corporation has unemployment insurance and you are listed, you should be eligible for unemployment insurance benefits and not PUA.
I am an S Corp and when I collect PUA, am I able to also take a salary from my corporation? (added 4/8/20)
PUA is available for individuals who are not otherwise eligible for unemployment insurance benefits. If you receive a salary and your S Corp has unemployment insurance, you should be eligible for unemployment if you are unable to work, either fully or partially. If you are applying for PUA as a self-employed individual, you may have difficulty self-certifying that you are unable to work if you continue to be paid a salary. In addition, if your payment exceeds $504 per week, you will not be eligible for either unemployment or PUA under New York law.
I am collecting a pension from previous employment can I still collect PUA for my real estate practice? (added 4/8/20)
When you are receiving a pension and apply for traditional unemployment, there are rules for reducing how much unemployment insurance benefits you may receive. Those rules are complicated and very fact-specific; however, receiving a pension, in most instances, will reduce your unemployment insurance benefit. We anticipate that the same rules will apply to applications for PUA.
See https://www.labor.ny.gov/formsdocs/factsheets/pdfs/p826.pdf for more information.
Can a husband and wife both collect PUA and the EIDL Grant if the commissioned sales were paid to only one of them and they are not incorporated? (added 4/8/20)
Yes, they can both collect PUA and EID Grant funds, if they meet the eligibility requirements for both programs. How they report income for tax purposes will determine the degree to which they qualify to receive those funds.
Can you collect the EIDL Grant and PUA if you work part-time (2 days a week) in a different salaried profession? (added 4/8/20)
With respect to the EID Grant, you will need to apply for an EID loan before you can obtain a grant. If you need an EID Loan or Grant for one or more of the approved payments (providing paid sick leave to employees, maintaining payroll, for costs associated with obtaining materials, for rent or mortgage payments, or to pay other debts), you will be eligible to apply for EID Loan even if you are still earning a salary.
With respect to PUA, if you have a salaried position, you may be eligible to apply for unemployment insurance benefits if your position as full-time and is no part-time due to COVID-19. If you have consistently worked only two days per week in your salaried position, then you may be eligible for PUA as an independent contractor due to your real estate position. However, if you earn more than $504 per week in total (between both jobs), you will not be eligible for either unemployment insurance benefits or PUA.
See https://esd.ny.gov/sites/default/files/EIDL%20FAQs.pdf for more information about EID Loans and Grants and https://www.labor.ny.gov/ui/pdfs/ui-covid-faq.pdf for more information about PUA.
If you collect the EIDL Grant, EIDL Loan, and/or the PPP Loan does that affect your ability to receive PUA benefits or vice versa? (added 4/8/20)
You cannot obtain an EID Grant unless you apply for an EID Loan. You can apply for both an EID Loan and PPP loan, provided you do not use funds from both loans for the same purpose (e.g., you cannot use both for payroll costs in the same time period). It is still unclear whether you will be able to apply for both the loan programs and PUA, but to date, there has not been any guidance prohibiting individuals from applying for all of these programs. However, please note that a business cannot obtain a PPP loan and the payroll tax credit.
I was unable to apply for the PUA because the site kept crashing. Is this benefit retroactive to the date I was affected by COVID-19? (added 4/8/20)
I am an independent contractor for two companies on commissioned sales. Can I apply twice for the EIDL Grant, EIDL Loan, PPP loan & PUA? (added 4/8/20)
To obtain an EID Grant, an individual must apply for an EID Loan first. If the independent contractor believes they meet the requirements of the EID Loan program for both companies, they may be able to submit two applications. See https://esd.ny.gov/sites/default/files/EIDL%20FAQs.pdf for eligibility requirements for the EID Loan program.
The current guidance from the government on access, use, and forgiveness of PPP funds indicate that an individual applicant may only file one application for PPP funds. As such, you should submit your PPP application to encompass all sources of 1099 income you receive in one application. You will not be permitted to recover PPP funds to restore income in excess of $100,000 annually, nor will you be permitted to recover the same lost income from multiple government programs.
With respect to PUA, you can apply for benefits when you are unable to work/telework. The total will be up to $504 per week as the equivalent to New York State unemployment, plus $600 per week up until July 31, 2020. If you are otherwise working, or able to work remotely, you will not be eligible. You should report all income from all of your companies when completing the applicable forms.
I own investment properties, can I still apply for PUA for my real estate income loss? (added 4/8/20)
Yes, but this is a fact-specific question. You will need to report all of your income and may be ineligible for PUA if you are earning $504 or more per week from the properties and it is viewed as self-employment.
If you had no commissioned real estate income in 2019 can you still collect the Pandemic Unemployment Compensation of $600/week since it's not based on income? (added 4/8/20)
Yes, you are eligible for PUA based upon your current reportable income. If you receive PUA (up to $504 per week), then you will also receive the PUC of $600 per week.