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New York Consolidated Laws

N.Y. Labor Law § 538 (2026)

Representation and witness fees and other expenses

✓ text as retrieved May 2026 (this copy records no edition or section history)
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§ 538. Representation and witness fees and other expenses. 1. Fees and
compensation of representatives. (a) No fee shall be charged in any
proceeding under this article by the commissioner, by the appeal board
or by any court.
  (b) In any proceeding under this article a party may be represented by
an agent, but no fees for services rendered by such agent shall be
allowable unless such agent is registered with the appeal board or is an
attorney.
  (c) Claims of representatives for services rendered to a claimant in
connection with any claim arising under this article shall not be
enforceable unless approved by the appeal board and shall in no event
exceed the benefit allowed, except as provided in paragraph (d) of this
subdivision. In approving any fee requested by a representative pursuant
to this section, the appeal board shall consider the following factors:
(i) the total benefit allowed; (ii) the time spent in providing
representation; (iii) the legal and factual complexities involved; and
(iv) such other factors as the appeal board may deem relevant.
  (d) In addition to any fee which may be allowed by the appeal board
for services rendered to the claimant, an attorney representing a
claimant shall be entitled to a fee not to exceed the sum of five
hundred dollars and necessary printing and other disbursements in each
of the following cases: (1) On an appeal from a decision of the appeal
board in favor of the claimant. (2) On a motion for leave to appeal to
the court of appeals from a decision of the appellate division of the
supreme court which relates to a decision of the appeal board in favor
of the claimant. (3) On an appeal to the court of appeals from a
decision of the appellate division of the supreme court which relates to
a decision of the appeal board in favor of the claimant. When a claimant
takes such appeal, the court shall allow a fee and disbursements only if
it finds the appeal to have been meritorious.
  (e) The court shall appoint an attorney to represent the claimant if
he is unrepresented in each of the cases described in paragraph (d)
hereof, except when the claimant takes an appeal to the court of
appeals. Fees and disbursements provided in such paragraph (d) shall be
fixed by the court in which the appeal is taken or the motion for leave
to appeal is made. Such fees and disbursements shall be paid by the
commissioner as part of the expenses incurred in the administration of
this article.
  (f) Any person, firm, or corporation who shall exact or receive any
remuneration or gratuity for any services rendered to or on behalf of a
claimant except as allowed by this section and in an amount approved by
the board or a court shall be guilty of a misdemeanor. The appeal board
shall order the restitution of any fee paid by a claimant to a
representative to the extent that it exceeds the amount authorized by
this section.
  2. Fees of witnesses and other expenses. Fees of witnesses and other
expenses, except representation services, involved in proceedings under
this article shall be paid at a rate to be established by regulation of
the commissioner except that such fees and other expenses involved in
proceedings before referees and the appeal board shall be paid at a rate
to be established by regulation of this board. Such fees or other
expenses shall be treated as expenses under this article.
  3. Representatives; lists. * (a) The appeal board shall establish the
qualifications and procedures for the registration of agents authorized
to represent claimants in connection with any claims arising under this
article. An agent shall be registered as authorized to represent
claimants by providing the appeal board with his name, business address
and telephone number and by posting a bond with the appeal board in the
amount of five hundred dollars for the benefit of claimants charged fees
by said representative in excess of those approved pursuant to this
section and with respect to which restitution has been ordered pursuant
to paragraph (f) of subdivision one of this section. An agent shall be
registered as authorized to represent an employer by providing the
appeal board with a letter of authorization from the employer. No agent
may be registered who knowingly violates paragraph (c) of subdivision
one of this section.
  * NB Expires December 31, 2026
  (b) An attorney who is available to represent claimants may notify the
appeal board by providing his name, business address and telephone
number.
  * (c) The appeal board shall maintain lists of authorized agents and
attorneys who are available to represent claimants and shall make such
lists available to claimants on request.
  * NB Expires December 31, 2026
Notes of Decisions
Cited in 7 cases, 1993–2016 · leading case: In re the Claim of Carlson, 307 A.D.2d 582 (N.Y. App. Div. 3d Dep't 2003).
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In re the Claim of Carlson, 307 A.D.2d 582 (N.Y. App. Div. 3d Dep't 2003). “Finally, as we have previously held, we reject claimant’s remaining contention that the limit on claimant’s counsel fees in unemployment insurance matters (see Labor Law § 538) is unconstitutional (see Matter of Hughes [Hartnett], 198 AD2d 647, 648 [1993], lv denied 83 NY2d 751…”
In re the Claim of Hughes, 198 A.D.2d 647 (N.Y. App. Div. 3d Dep't 1993). “As to claimant’s constitutional challenge to the provisions of Labor Law § 538 which limit fees of attorneys for claimants, we see no basis for reconsidering our holding in Matter of Reich (Ross) ( 53 AD2d 925 ).”
In re the Appointment of a Guardian for Zhuo, 53 Misc. 3d 1121 (N.Y. Sur. Ct. 2016). “(See Labor Law § 538 [1] [e].) In addition, in the civil arena of Housing Court, the appointment of counsel for indigent individuals facing eviction is recently being supported in the New York City Legislature 6 and by the judiciary, led by Chief Judge Janet DiFiore, who urges…”
In re Raff & Becker, 208 A.D.2d 1086 (N.Y. App. Div. 3d Dep't 1994). · cites it 2× “Appeal from a decision of the Unemployment Insurance Appeal Board, filed April 13, 1993, which, in an application pursuant to Labor Law § 538 (1) (c), determined counsel fees for Raff & Becker for its representation in an unemployment insurance proceeding.”
In re Petrolawicz, 223 A.D.2d 1000 (N.Y. App. Div. 3d Dep't 1996). “He accepted a $150 fee from her for the representation but had failed to make an application therefor, as required by Labor Law § 538 and 12 NYCRR 460.6 (d). Thus, acceptance of the fee violated the Code of Professional Responsibility DR 2-106 (22 NYCRR 1200.”
Bd. of Educ. of the Union-Endicott Cent. Sch. Dist. v. New York State Pub. Emp. Relations Bd., 168 Misc. 2d 284 (N.Y. Sup. Ct. 1996). “” 4 Petitioner distinguishes the situation at bar from those instances where the State Legislature has expressly authorized nonattorneys to represent parties before administrative agencies (see, Labor Law § 538, which requires authorized agents to be registered in order to…”
Doe v. Roe, 190 Misc. 2d 517 (N.Y. Dist. Ct. 2002). · cites it 2× “Labor Law § 538 (1) (c) provides, in relevant part, that “[c]laims of representatives for services rendered to a claimant *520 in connection with any claim arising under [article 18 of the Labor Law] shall not be enforceable unless approved by the appeal board and shall in no…”
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