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New York Department of Labor Sued Over Failure to Release Unemployment Insurance Information


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Gov. Hochul presents data (photo: Kevin P. Coughlin/Governor's Office)


An advocacy group for low-income communities is suing New York State for documents and data that could shed light on the struggle of non-English speakers to get unemployment insurance during the pandemic.

The National Center for Law and Economic Justice (NCLEJ), a legal advocacy organization, filed a lawsuit in New York State Supreme Court last week against the state Department of Labor for documents the group requested under the state Freedom of Information Law. According to NCLEJ, workers who don't speak English as a first language have faced barriers to accessing state and federal unemployment payments throughout the pandemic, including limited translation services. Its lawyers are seeking documentation of the policies and procedures the Department of Labor instituted to assist non-English-speakers and data on claims filed by people with language access needs. 

"We have all of these very, very troubling anecdotes and we want to get a better picture of what are the agency’s policies, what were they actually doing, how much of this was agency oversight and how much of it was the result of actual documented policies? We just don't know," said Katharine Deabler-Meadows, the NCLEJ staff attorney who filed the suit. She described applicants who could not reach a DOL representative that spoke their language, workers being sent notices in the wrong language, and delays in translating important information on DOL's website.

"Without the DOL complying with their FOIL obligations and giving us the information that they have, it's difficult to get a systemic picture," Deabler-Meadows told Gotham Gazette.

A spokesperson for the Department of Labor wrote in an email: “The New York State Department of Labor cannot comment on pending litigation."

Unemployment in the state skyrocketed during the pandemic, jumping from 4% to 16% in April 2020, and remained high for much of the past 20 months. In New York City, the unemployment rate hit 20% last year and remains more than double pre-pandemic levels. The economic fallout has landed disproportionately on lower-wage sectors that tend to employ more immigrants and people with limited English fluency – particularly retail and food services.

In September, multiple federal unemployment programs implemented under the CARES Act expired, including Pandemic Unemployment Assistance, or PUA, which was available to individuals who did not qualify for traditional state unemployment insurance, like gig workers, people who were self-employed or didn't work enough hours to qualify. Roughly 900,000 people were receiving benefits through PUA when the program expired. Pandemic Emergency Unemployment Compensation, or PUEC, which supplemented the unemployment benefits of traditionally eligible workers, also expired. According to NCLEJ, administrative obstacles at DOL existed while the agency was administering the programs and continued after they ended.

The Freedom of Information Law enables public access to government records upon request but has suffered from abysmal response times and poor document retrieval. NCLEJ requested the documents nearly a year ago, in January 2021, on behalf of its members, Make the Road New York, an advocacy group and service provider for immigrants, and others. The group filed the lawsuit after DOL "failed to produce a single document or respond in any meaningful way to the request," according to the NCLEJ. It was served to DOL on Tuesday. If NCLEJ prevails, the state will have to cover its legal fees.

The documents, including internal DOL policies on handling applications from non-English speakers, records on translating DOL's website, statistics on claims by applicants’ languages, and statistics on staffing levels, including bilingual staff, and translation capacity.

The lawsuit is just one of hundreds or thousands filed every year on behalf of people seeking government records but it is indicative of what transparency advocates call a "broken" FOIL system.

In her four months in office, Governor Kathy Hochul has made government transparency, and improving FOIL, in particular, a central commitment as part of an effort to distance herself from some of the hallmarks of the Cuomo administration. In October, Hochul announced a number of changes to the way FOIL requests would be processed to reduce delays and "the backlog of thousands of FOIL requests inherited by the Hochul Administration."

"From Day One, I've been committed to restoring New Yorkers' faith in their government by improving transparency and increasing accountability," Hochul said in an October statement. "The changes we're announcing today bring us closer to creating the kind of government that New Yorkers deserve, and we'll continue to build on this progress."

"I have instructed my counsel to come up with an expedited process to fulfill all FOIL requests as fast as possible—and post completed requests publicly online," she said in her major address as governor.

"Governor Hochul is committed to transparency and restoring trust in government and has announced major improvements to the FOIL process, with the goal of providing more public records on a faster timeline and reducing the significant backlog of FOIL requests inherited by the Hochul Administration," wrote Hazel Crampton-Hays, a spokesperson for Hochul, in an email, noting the Executive Chamber does not comment on ongoing litigation. "We will continue to build on our progress to deliver the accountability New Yorkers deserve."

As part of the October measures, the administration released "agency transparency plans" where agencies reported to the governor how they would improve access to government information. The Department of Labor's plan includes a section on improving FOIL that consists of only two measures, exploring the use of request tracking software and continuing to post commonly requested data online, which it will complete in the third or fourth quarter of 2022, according to the document.

"Although we face significant staffing challenges within Counsel’s Office, as a Department, NYSDOL is already very responsive to FOIL requests," the plan states.

"What you see here with this is typical because the agencies pay no price for basically ignoring FOIL," said John Kaehny, executive director of the good government group Reinvent Albany. "They find it easier to just get sued than they do to comply with the law. And it's systematic, it's everywhere."

Kaehny believes part of the problem is that the Committee on Open Government, the state agency that oversees FOIL, the Open Meetings Law, and privacy laws, is only an advisory body with few teeth, and the shrinking local news landscape means delinquent agencies aren't being "name[d] and shame[d]."

"No one knows how many FOIL requests are filed. Nobody knows how long it takes agencies to respond because that data is not collected. And there is no government body that has the authority to do anything that is charged with continuous improvement of FOIL," he said.

While transparency advocates have been heartened by Hochul's early efforts to review and adjust agency information access, more is expected.

"This is something that [Hochul] should be specifically asked as a candidate," Kaehny said. "How are you fixing Freedom of Information Law structurally so that agencies like this comply with it and so that the process is improved?"

"This new era of transparency that Governor Hochul promised when she took office is not happening at the DOL," Deabler-Meadows said. "We are in the same position that we were in the Cuomo administration where we're having to fight tooth and nail just to get basic information. And it's causing people real harm."

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by Ethan Geringer-Sameth, reporter, Gotham Gazette
     

Read more by this writer.

Max Politics Podcast: Rep. Jamaal Bowman on 'Build Back Better,' Democratic Compromise, & More


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Rep. Bowman with top New York leaders (photo: Mike Groll/Office of Governor Kathy Hochul)


December 21, 2021 - Rep. Jamaal Bowman on 'Build Back Better,' Voting Rights, & More

Congressional Rep. Jamaal Bowman, a first-term progressive representing New York's 16th Congressional District, which covers parts of the Bronx and Westchester, joined the show to discuss where things stand on 'Build Back Better' and other top items on his agenda, how Democrats can come to a compromise on the massive social package that is a cornerstone to President Biden's platform, and other topics, including the former principal's thoughts on the incoming Mayor, Eric Adams, and schools chancellor, David Banks. 

Listen to the conversation and let us know what you think, on Twitter @TweetBenMax. You can listen to the show through the embedded audio below or download the episode wherever you get your podcasts at Max Politics.

Read more: Max Politics Podcast: Rep. Jamaal Bowman on 'Build Back Better,' Democratic Compromise, & More

Failure of Ballot Questions Halts New York's Three-Year Expansion of Voting


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An Albany rally for voting reform (photo: Senator Michael Gianaris)


When New Yorkers voted down two state constitutional amendments this fall that would make it easier to vote they put a stunning stop to a three-year deluge of major statewide election reform.

Voting rights advocates and Democratic state lawmakers are licking their wounds and looking ahead to the next legislative session, beginning in January, with a list of changes to election rules and operations, including some of the measures that just failed.

Had they been passed by voters after having been passed by two consecutive classes of the Democrat-led State Legislature, the amendments would have enshrined or paved the way for universal absentee voting – a pandemic-era provision with a year-end expiration date – and "same-day voter registration,” which allows people to register and cast a ballot on the same day.

Despite support among New York City voters, they failed statewide after a well-funded campaign by conservatives in the suburbs and upstate stoked unfounded fears of voter fraud, one that unfolded against a national backdrop of unproven election claims by former President Donald Trump. It caught Democrats flat-footed: the Conservative Party spent roughly $3 million, about ten times what State Senate Democrats spent, in advertising to defeat the two proposals and a third related to state and federal reapportionment and redistricting.

Voter turnout on the two ballot proposals in New York City, where the amendments were popular, was just 16% of registered city voters, compared to 28% of registered voters outside the five boroughs.

"They cannot have won without attracting ‘blanks,’ or independent voters, as well as even Democrats to their side," said Democratic Party Chair Jay Jacobs, in an interview on WCNY's The Capitol Pressroom shortly after the amendments lost, adding later, "It's something we ought to pay attention to."

Facing criticism for the defeat, Jacobs blamed the lawmakers who had pushed the amendments in the Legislature, mostly progressive Democrats, for not enlisting the party machinery. "From the state party's standpoint, we didn't hear much from the stakeholders on the issues so there wasn't any direction really to engage to a large degree on these amendments."

Since Democrats took full control of the State Legislature in 2019 by winning a Senate majority to match their long-standing Assembly one, lawmakers have passed a slew of reforms to change the voting landscape.

They attached a nine-day preamble of early voting to every election and moved state and local primaries to June to align with Congressional elections. They shortened the party enrollment deadline, made voter registration "portable" around the state, and authorized 16- and 17-year-olds to pre-register to vote. They passed requirements to make ballots easier to read and enabled poll workers to use electronic poll books instead of cumbersome paper rolls.

Beginning in 2023, eligible New Yorkers will be automatically registered to vote when they go to the DMV and a handful of other state agencies, unless the potential voter opts out. This year, state lawmakers passed a bill to automatically restore the voting rights of people when they leave prison.

Many of these changes were considered nonstarters before 2019, when Republicans controlled the State Senate with the help of a breakaway faction of Democrats.

When the pandemic hit, lawmakers enacted temporary no-excuse absentee voting and later changed the rules for counting and correcting flawed ballots. They also passed (to the chagrin of voting advocates) a law letting voters apply for absentee ballots earlier but restricting the deadline to request them.

In New York City, a voter-approved city charter amendment in 2019 enacted the new ranked-choice voting system in municipal elections. This month, the New York City Council passed legislation allowing green card holders and immigrants with legal work authorization to vote in local races.

Supporters say these measures have and will expand access to the ballot box and modernize New York's elections, which for years have suffered from low turnout, long lines, and administrative blundering. The changes have not been without challenges to local election boards that have had to devise numerous new systems to implement them.

The backlash against the state constitutional amendments this fall has echoed in opposition to the city's new immigrant voting law. Last week, Senate Minority Leader Rob Ortt, Assembly Minority Leader Will Barclay, and other Republican legislators issued a joint statement calling the amendments "Democrats' transparent political power plays and un-American electoral 'reforms'" and promising "a swift, Constitutionally-sound, and ultimately successful legal challenge" if immigrant voting is enacted in New York City. Mayor Bill de Blasio has said he would not veto the bill and City Council lawyers and other legal authorities believe it will survive a battle in the courts.

While this fall's defeat has given reformers some pause, Democrats and voting rights advocates say they will continue to push for changes to the state constitution and election law.

State Senator Leroy Comrie, a Queens Democrat, sponsored the no-excuse absentee voting amendment and told Gotham Gazette he would reintroduce it next session.

"We were surprised," he said. "I had no idea there was such a rabid campaign against it. The Democratic Party on the state level was caught with its pants down and they were totally unprepared to respond to it and never put together a campaign to even promote it."

"I don't anticipate having any problems with reintroducing it and getting it passed," he added, and said he was also working on bills "to increase voter participation, voter awareness, and also transparency."

Assembly Member Robert Carroll of Brooklyn also said he would reintroduce the same-day registration amendment he sponsored. "A hundred percent, I'm undeterred. We're going to get this done and we're going to get it back on the ballot and I'm convinced it will pass," he said recently on Manhattan Neighborhood Network's Represent NYC.

The two amendments could be back on the ballot for voters as soon as fall 2023 if passed by both houses of the Legislature in 2022 and when a new class is seated in 2023.

Comrie, Carroll, and other supporters say they do not view the loss as a break in the momentum of election reform nor cause for Democrats to reevaluate their aggressive approach to the issue.

"I don't think it indicates that at all," said Assembly Member David Weprin, a Democrat who represents a conservative section of Queens. He thinks his party needs to continue pushing the measures with better public advocacy and a "more organized support mechanism."

“A very low turnout election with an extraordinary amount of dark money spent to try and defeat pro-democracy measures. I think it's a unique situation that I do not expect to see repeated,” said Susan Lerner, executive director of the good government group Common Cause New York, in an interview with Gotham Gazette.

“That's indicative of what a corrosive use of money can do. I don't think it's indicative of how people think about democracy upstate at all,” she added.

In a recent report on the state of New York's elections, State Senate Elections Chair Zellnor Myrie, a Brooklyn Democrat, wrote, "The message is clear: without aggressive action to reform our elections and a full-throated defense of voting rights, opponents of expanding democracy can and will prevail."

The report comes after a tour of public hearings where voters and poll workers across the state voiced concerns and hopes for future elections. Without identifying specific legislation, Myrie recommends a host of causes for legislators to pick up when they return to Albany next month: restructuring the New York City Board of Elections; enhancing the capacity of other local boards; strengthening the oversight role of the State Board of Elections; adding professional requirements to election commissioner selections; and improving poll worker training and recruitment.

Advocates at places like the Brennan Center for Justice support many of these goals. The Brennan Center published a report this week, "How to Fix Election Administration in New York State," with a roadmap for state officials to make effective changes. It suggests adding a fifth party-unaffiliated commissioner to the four-member, bipartisan State Board of Elections and changing state law to allow boards to hire nonpartisan staff, including a single executive director at the state-level, rather than co-executive directors from both major parties.

The report also recommends a more transparent commissioner selection and staff hiring process for local boards, with public jobs postings and merit-based standards, and giving the State Board and, in some cases, local elected officials the power to remove commissioners for good cause after review by the courts. Brennan Center and other advocates have also suggested more resources for local boards, including more funding from counties and more centralized procurement by the state. They also want better reporting of voting data by county and state boards in order to better monitor the implementation and efficacy of election reforms.

Myrie is the prime sponsor of the New York Voting Rights Act, an omnibus bill that gives the State Attorney General the authority once held by the U.S. Department of Justice under the federal Voting Rights Act of 1965 to pre-clear elections changes that could discriminate against a protected minority group. It would also cover attorney’s fees for winning voting rights cases. The bill includes the creation of a statewide database of election results and voter information and language assistance at more locations.

Another bill, that lawmakers have been working on for several years and is echoed in Myrie’s report, would set minimum professional standards for New York City Board of Elections commissioners and delineate the responsibilities of board management. The City Board has been criticized for patronage hiring and nepotism and has been responsible for major election bungles over the last decade. The bill has undergone some revision since it was first introduced and while the bill’s Senate sponsor, Manhattan Senator Liz Krueger, has indicated it has a good chance of advancing this session, its Assembly sponsor, fellow Democrat Assembly Member Nily Rozic, has said it will be "an uphill battle" in her chamber, where reform is generally less popular.

Common Cause New York supports the Krueger-Rozic bill, along with one sponsored by Myrie and Assembly Member Amy Paulin to require voting machines use voter-marked paper ballots and other security measures. The group also supports prolonging a pandemic-era extension on the nominating petition deadline and reduction of signature requirements for candidates to get on the ballot. Another bill would extend the temporary allowance for no-excuse absentee voting into 2024.

“I think if that were not to pass people will be shocked that they are unable to get absentee ballots,” Lerner said. She also said legislation that would move the 25-day voter registration deadline back to the constitutional minimum of ten days “will have a significant impact in correcting the misinformation” around voter fraud that helped kill the same-day registration amendment.

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by Ethan Geringer-Sameth, reporter, Gotham Gazette
     

Read more by this writer.



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