§ 590. Rights to benefits. 1. Entitlement to benefits. A claimant shall be entitled to accumulate effective days for the purpose of benefit rights only if he has complied with the provisions of this article regarding the filing of his claim, including the filing of a valid original claim, registered as totally unemployed, reported his subsequent employment and unemployment, and reported for work or otherwise given notice of the continuance of his unemployment. 3. Compensable periods. Benefits shall be paid for each accumulation of effective days within a week. 4. Duration. Benefits shall not be paid for more than one hundred and four effective days in any benefit year, except as provided in section six hundred one and subdivision two of section five hundred ninety-nine of this chapter. 5. Benefit rate. A claimant's weekly benefit amount shall be one twenty-sixth of the remuneration paid during the highest calendar quarter of the base period by employers, liable for contributions or payments in lieu of contributions under this article. However, for claimants whose high calendar quarter remuneration during the base period is three thousand five hundred seventy-five dollars or less, the benefit amount shall be one twenty-fifth of the remuneration paid during the highest calendar quarter of the base period by employers liable for contributions or payments in lieu of contributions under this article. Any claimant whose high calendar quarter remuneration during the base period is more than three thousand five hundred seventy-five dollars shall not have a weekly benefit amount less than one hundred forty-three dollars. The weekly benefit amount, so computed, that is not a multiple of one dollar shall be lowered to the next multiple of one dollar. On the first Monday of September, nineteen hundred ninety-eight the weekly benefit amount shall not exceed three hundred sixty-five dollars nor be less than forty dollars, until the first Monday of September, two thousand, at which time the maximum benefit payable pursuant to this subdivision shall equal one-half of the state average weekly wage for covered employment as calculated by the department no sooner than July first, two thousand and no later than August first, two thousand, rounded down to the lowest dollar. 6. Notification requirement. No effective day shall be counted for any purposes except effective days as to which notification has been given in a manner prescribed by the commissioner. 7. Waiting period. A claimant shall not be entitled to accumulate effective days for the purpose of benefit payments until he has accumulated a waiting period of four effective days either wholly within the week in which he established his valid original claim or partly within such week and partly within his benefit year initiated by such claim. 8. Benefit payments to professional athletes. If substantially all of a claimant's employment during his base period is as a participant in sports or athletic events or in training or preparing to so participate, no benefits shall be payable for any week commencing during the period between two successive sports seasons or similar periods, provided there is a reasonable assurance that the claimant will perform services in such capacity for both of such seasons or similar periods. For the purposes of this subdivision, "reasonable assurance" shall mean a written contract that the claimant will perform services in the same capacity during the ensuing sports season or similar period or a claimant's offering of services in the successive season or similar period and an interest by an employer in employing him. 9. Benefits based on employment performed by illegal aliens. (a) Remuneration received by a claimant who was an alien at the time suchremuneration was paid shall not be taken into consideration for the purpose of establishing rights to benefits under this article unless the claimant was then lawfully admitted for permanent residence in the United States, was then lawfully present for purposes of performing such services or was then permanently residing in the United States under color of law, including a claimant lawfully present pursuant to section 207 or 208 of the federal immigration and nationality act. (b) A determination that benefits are not payable to a claimant because of the claimant's alien status shall be made only upon a preponderance of the evidence, and shall be effective only if it is in conformity with section 3304 (a) (14) of the federal unemployment tax act. (c) Any data or information required of a claimant to determine whether benefits are not payable to him because of his alien status shall be uniformly required from all claimants. 10. Benefits based on professional employment with educational institutions, including the state university of New York, the city university of New York and any public community colleges. If a claimant was employed in an instructional, research, or principal administrative capacity by an institution of education, including the state university of New York, the city university of New York and any public community colleges, or performed services in such an institution in such capacity while employed by an educational service agency, the following shall apply to any week commencing during the period between two successive academic years or terms, or during a similar period between two regular but not successive terms when the contract provides therefor instead, provided the claimant has a contract to perform, or there is a reasonable assurance that the claimant will perform, services in such capacity for any such institution or institutions for both of such academic years or such terms, and to any week commencing during an established and customary vacation period or holiday recess, not between such academic terms or years, provided the claimant performed services for such institution immediately before such vacation period or holiday recess and there is a reasonable assurance that the claimant will perform any services described in this subdivision or subdivision eleven of this section in the period immediately following such vacation period or holiday recess: (a) In the case of a claimant who has no current benefit year, whether the claimant meets the conditions of section five hundred twenty-seven in any such week shall be determined by disregarding the remuneration paid for such employment. (b) In the case of a claimant who does have a current benefit year, no benefits shall be payable with respect to any such week provided the claimant would not have met the conditions of section five hundred twenty-seven in the week in which the claimant filed a valid original claim if the remuneration paid for such employment is disregarded. (c) The benefit rate of a claimant with respect to any such week shall be determined or redetermined by disregarding the remuneration paid for such employment. "Educational service agency" means a governmental agency or governmental entity or Indian tribal entity which is established and operated exclusively for the purpose of providing to one or more educational institutions services mentioned under this subdivision or subdivision eleven of this section. For purposes of this subdivision or subdivision eleven of this section, "educational institution" shall include any not-for-profit community art school which is chartered as a school by the board of regents of the university of state of New York.11. Benefits based on non-professional employment with certain educational institutions. If a claimant was employed in other than an instructional, research or principal administrative capacity by an educational institution, or performed services in such an institution in such capacity while employed by an educational service agency, the following shall apply to any week commencing during the period between two successive academic years or terms provided there is a reasonable assurance that the claimant will perform services in such capacity for any such institution or institutions for both of such academic years or terms, and to any week commencing during an established and customary vacation period or holiday recess, not between such academic terms or years, provided the claimant performed services for such institution immediately before such vacation period or holiday recess and there is a reasonable assurance that the claimant will perform any services described in this subdivision or subdivision ten of this section in the period immediately following such vacation period or holiday recess: (a) In the case of a claimant who has no current benefit year, whether the claimant meets the conditions of section five hundred twenty-seven in any such week shall be determined by disregarding the remuneration paid for such employment. (b) In the case of a claimant who does have a current benefit year, no benefits shall be payable with respect to any such week provided the claimant would not have met the conditions of section five hundred twenty-seven in the week in which the claimant filed a valid original claim if the remuneration paid for such employment is disregarded. (c) The benefit rate of a claimant with respect to any such week shall be determined or redetermined by disregarding the remuneration paid for such employment. (d) Notwithstanding the foregoing provisions of this subdivision, a claimant who was not offered an opportunity to perform services for the educational institution for the second of such academic years or terms shall be entitled to be paid benefits retroactively for each week for which the claimant filed a timely claim for benefits and for which benefits were denied solely by reason of this subdivision. "Educational service agency" means a governmental agency or governmental entity or Indian tribal entity which is established and operated exclusively for the purpose of providing to one or more educational institutions services mentioned under this subdivision or subdivision ten of this section. 12. An individual claimant who has received a determination of entitlement pursuant to section five hundred twenty-seven of this article may request the commissioner to reconsider the benefit rate to which such claimant is entitled under the following circumstances: (a)(1) the claimant filed a valid original claim pursuant to subdivision one or two of section five hundred twenty-seven of this article or, in the event the claimant exercised his or her right to apply to the commissioner to determine his or her benefits pursuant to paragraph (b) of subdivision two of such section, the claimant selected the base period to be utilized; and (2) after the establishment of the base period to utilize pursuant to subparagraph one of this paragraph, and within ten days of the date of the mailing of the determination of the benefit rate to which the claimant is entitled for such base period by the commissioner, the claimant produces proof satisfactory to the commissioner and consistent with wage data contained in the statewide wage reporting system maintained by the department of taxation and finance or, in the commissioner's sole discretion, sufficient to warrant its use in the event that it is inconsistent with such wage data, that he or she has atleast twenty weeks of employment, as defined in section five hundred twenty-four of this chapter, in such established base period. Such proof shall include paycheck stubs, payroll envelopes, or cancelled checks. (b) in the event that a claimant submits a request for reconsideration of the benefit rate to the commissioner pursuant to paragraph (a) of this subdivision, and one-half of the average weekly wage of all wages paid for all weeks of employment for which proof satisfactory to the commissioner was submitted pursuant to subparagraph two of paragraph (a) of this subdivision during the established base period referenced in such paragraph is at least five dollars more than the weekly benefit amount calculated pursuant to subdivision five of this section, the commissioner shall determine the claimant's benefit rate to be such amount, but in no event shall such amount be more than the maximum benefit rate in effect pursuant to subdivision five of this section.
§ 590. Rights to benefits. 1. Entitlement to benefits. A claimant shall be entitled to accumulate effective days for the purpose of benefit rights only if he has complied with the provisions of this article regarding the filing of his claim, including the filing of a valid original claim, registered as totally unemployed, reported his subsequent employment and unemployment, and reported for work or otherwise given notice of the continuance of his unemployment. 3. Compensable periods. Benefits shall be paid for each accumulation of effective days within a week. 4. Duration. Benefits shall not be paid for more than one hundred and four effective days in any benefit year, except as provided in section six hundred one and subdivision two of section five hundred ninety-nine of this chapter. 5. Benefit rate. A claimant's weekly benefit amount shall be one twenty-sixth of the remuneration paid during the highest calendar quarter of the base period by employers, liable for contributions or payments in lieu of contributions under this article. However, for claimants whose high calendar quarter remuneration during the base period is three thousand five hundred seventy-five dollars or less, the benefit amount shall be one twenty-fifth of the remuneration paid during the highest calendar quarter of the base period by employers liable for contributions or payments in lieu of contributions under this article. Any claimant whose high calendar quarter remuneration during the base period is more than three thousand five hundred seventy-five dollars shall not have a weekly benefit amount less than one hundred forty-three dollars. The weekly benefit amount, so computed, that is not a multiple of one dollar shall be lowered to the next multiple of one dollar. On the first Monday of September, nineteen hundred ninety-eight the weekly benefit amount shall not exceed three hundred sixty-five dollars nor be less than forty dollars, until the first Monday of September, two thousand, at which time the maximum benefit payable pursuant to this subdivision shall equal one-half of the state average weekly wage for covered employment as calculated by the department no sooner than July first, two thousand and no later than August first, two thousand, rounded down to the lowest dollar. 6. Notification requirement. No effective day shall be counted for any purposes except effective days as to which notification has been given in a manner prescribed by the commissioner. 7. Waiting period. A claimant shall not be entitled to accumulate effective days for the purpose of benefit payments until he has accumulated a waiting period of four effective days either wholly within the week in which he established his valid original claim or partly within such week and partly within his benefit year initiated by such claim. 8. Benefit payments to professional athletes. If substantially all of a claimant's employment during his base period is as a participant in sports or athletic events or in training or preparing to so participate, no benefits shall be payable for any week commencing during the period between two successive sports seasons or similar periods, provided there is a reasonable assurance that the claimant will perform services in such capacity for both of such seasons or similar periods. For the purposes of this subdivision, "reasonable assurance" shall mean a written contract that the claimant will perform services in the same capacity during the ensuing sports season or similar period or a claimant's offering of services in the successive season or similar period and an interest by an employer in employing him. 9. Benefits based on employment performed by illegal aliens. (a) Remuneration received by a claimant who was an alien at the time suchremuneration was paid shall not be taken into consideration for the purpose of establishing rights to benefits under this article unless the claimant was then lawfully admitted for permanent residence in the United States, was then lawfully present for purposes of performing such services or was then permanently residing in the United States under color of law, including a claimant lawfully present pursuant to section 207 or 208 of the federal immigration and nationality act. (b) A determination that benefits are not payable to a claimant because of the claimant's alien status shall be made only upon a preponderance of the evidence, and shall be effective only if it is in conformity with section 3304 (a) (14) of the federal unemployment tax act. (c) Any data or information required of a claimant to determine whether benefits are not payable to him because of his alien status shall be uniformly required from all claimants. 10. Benefits based on professional employment with educational institutions, including the state university of New York, the city university of New York and any public community colleges. If a claimant was employed in an instructional, research, or principal administrative capacity by an institution of education, including the state university of New York, the city university of New York and any public community colleges, or performed services in such an institution in such capacity while employed by an educational service agency, the following shall apply to any week commencing during the period between two successive academic years or terms, or during a similar period between two regular but not successive terms when the contract provides therefor instead, provided the claimant has a contract to perform, or there is a reasonable assurance that the claimant will perform, services in such capacity for any such institution or institutions for both of such academic years or such terms, and to any week commencing during an established and customary vacation period or holiday recess, not between such academic terms or years, provided the claimant performed services for such institution immediately before such vacation period or holiday recess and there is a reasonable assurance that the claimant will perform any services described in this subdivision or subdivision eleven of this section in the period immediately following such vacation period or holiday recess: (a) In the case of a claimant who has no current benefit year, whether the claimant meets the conditions of section five hundred twenty-seven in any such week shall be determined by disregarding the remuneration paid for such employment. (b) In the case of a claimant who does have a current benefit year, no benefits shall be payable with respect to any such week provided the claimant would not have met the conditions of section five hundred twenty-seven in the week in which the claimant filed a valid original claim if the remuneration paid for such employment is disregarded. (c) The benefit rate of a claimant with respect to any such week shall be determined or redetermined by disregarding the remuneration paid for such employment. "Educational service agency" means a governmental agency or governmental entity or Indian tribal entity which is established and operated exclusively for the purpose of providing to one or more educational institutions services mentioned under this subdivision or subdivision eleven of this section. For purposes of this subdivision or subdivision eleven of this section, "educational institution" shall include any not-for-profit community art school which is chartered as a school by the board of regents of the university of state of New York.11. Benefits based on non-professional employment with certain educational institutions. If a claimant was employed in other than an instructional, research or principal administrative capacity by an educational institution, or performed services in such an institution in such capacity while employed by an educational service agency, the following shall apply to any week commencing during the period between two successive academic years or terms provided there is a reasonable assurance that the claimant will perform services in such capacity for any such institution or institutions for both of such academic years or terms, and to any week commencing during an established and customary vacation period or holiday recess, not between such academic terms or years, provided the claimant performed services for such institution immediately before such vacation period or holiday recess and there is a reasonable assurance that the claimant will perform any services described in this subdivision or subdivision ten of this section in the period immediately following such vacation period or holiday recess: (a) In the case of a claimant who has no current benefit year, whether the claimant meets the conditions of section five hundred twenty-seven in any such week shall be determined by disregarding the remuneration paid for such employment. (b) In the case of a claimant who does have a current benefit year, no benefits shall be payable with respect to any such week provided the claimant would not have met the conditions of section five hundred twenty-seven in the week in which the claimant filed a valid original claim if the remuneration paid for such employment is disregarded. (c) The benefit rate of a claimant with respect to any such week shall be determined or redetermined by disregarding the remuneration paid for such employment. (d) Notwithstanding the foregoing provisions of this subdivision, a claimant who was not offered an opportunity to perform services for the educational institution for the second of such academic years or terms shall be entitled to be paid benefits retroactively for each week for which the claimant filed a timely claim for benefits and for which benefits were denied solely by reason of this subdivision. "Educational service agency" means a governmental agency or governmental entity or Indian tribal entity which is established and operated exclusively for the purpose of providing to one or more educational institutions services mentioned under this subdivision or subdivision ten of this section. 12. An individual claimant who has received a determination of entitlement pursuant to section five hundred twenty-seven of this article may request the commissioner to reconsider the benefit rate to which such claimant is entitled under the following circumstances: (a)(1) the claimant filed a valid original claim pursuant to subdivision one or two of section five hundred twenty-seven of this article or, in the event the claimant exercised his or her right to apply to the commissioner to determine his or her benefits pursuant to paragraph (b) of subdivision two of such section, the claimant selected the base period to be utilized; and (2) after the establishment of the base period to utilize pursuant to subparagraph one of this paragraph, and within ten days of the date of the mailing of the determination of the benefit rate to which the claimant is entitled for such base period by the commissioner, the claimant produces proof satisfactory to the commissioner and consistent with wage data contained in the statewide wage reporting system maintained by the department of taxation and finance or, in the commissioner's sole discretion, sufficient to warrant its use in the event that it is inconsistent with such wage data, that he or she has atleast twenty weeks of employment, as defined in section five hundred twenty-four of this chapter, in such established base period. Such proof shall include paycheck stubs, payroll envelopes, or cancelled checks. (b) in the event that a claimant submits a request for reconsideration of the benefit rate to the commissioner pursuant to paragraph (a) of this subdivision, and one-half of the average weekly wage of all wages paid for all weeks of employment for which proof satisfactory to the commissioner was submitted pursuant to subparagraph two of paragraph (a) of this subdivision during the established base period referenced in such paragraph is at least five dollars more than the weekly benefit amount calculated pursuant to subdivision five of this section, the commissioner shall determine the claimant's benefit rate to be such amount, but in no event shall such amount be more than the maximum benefit rate in effect pursuant to subdivision five of this section.
§ 590. Rights to benefits. 1. Entitlement to benefits. A claimant shall be entitled to accumulate effective days for the purpose of benefit rights only if he has complied with the provisions of this article regarding the filing of his claim, including the filing of a valid original claim, registered as totally unemployed, reported his subsequent employment and unemployment, and reported for work or otherwise given notice of the continuance of his unemployment. 3. Compensable periods. Benefits shall be paid for each accumulation of effective days within a week. 4. Duration. Benefits shall not be paid for more than one hundred and four effective days in any benefit year, except as provided in section six hundred one and subdivision two of section five hundred ninety-nine of this chapter. 5. Benefit rate. A claimant's weekly benefit amount shall be one twenty-sixth of the remuneration paid during the highest calendar quarter of the base period by employers, liable for contributions or payments in lieu of contributions under this article. However, for claimants whose high calendar quarter remuneration during the base period is three thousand five hundred seventy-five dollars or less, the benefit amount shall be one twenty-fifth of the remuneration paid during the highest calendar quarter of the base period by employers liable for contributions or payments in lieu of contributions under this article. Any claimant whose high calendar quarter remuneration during the base period is more than three thousand five hundred seventy-five dollars shall not have a weekly benefit amount less than one hundred forty-three dollars. The weekly benefit amount, so computed, that is not a multiple of one dollar shall be lowered to the next multiple of one dollar. On the first Monday of September, nineteen hundred ninety-eight the weekly benefit amount shall not exceed three hundred sixty-five dollars nor be less than forty dollars, until the first Monday of September, two thousand, at which time the maximum benefit payable pursuant to this subdivision shall equal one-half of the state average weekly wage for covered employment as calculated by the department no sooner than July first, two thousand and no later than August first, two thousand, rounded down to the lowest dollar. 6. Notification requirement. No effective day shall be counted for any purposes except effective days as to which notification has been given in a manner prescribed by the commissioner. 7. Waiting period. A claimant shall not be entitled to accumulate effective days for the purpose of benefit payments until he has accumulated a waiting period of four effective days either wholly within the week in which he established his valid original claim or partly within such week and partly within his benefit year initiated by such claim. 8. Benefit payments to professional athletes. If substantially all of a claimant's employment during his base period is as a participant in sports or athletic events or in training or preparing to so participate, no benefits shall be payable for any week commencing during the period between two successive sports seasons or similar periods, provided there is a reasonable assurance that the claimant will perform services in such capacity for both of such seasons or similar periods. For the purposes of this subdivision, "reasonable assurance" shall mean a written contract that the claimant will perform services in the same capacity during the ensuing sports season or similar period or a claimant's offering of services in the successive season or similar period and an interest by an employer in employing him. 9. Benefits based on employment performed by illegal aliens. (a) Remuneration received by a claimant who was an alien at the time suchremuneration was paid shall not be taken into consideration for the purpose of establishing rights to benefits under this article unless the claimant was then lawfully admitted for permanent residence in the United States, was then lawfully present for purposes of performing such services or was then permanently residing in the United States under color of law, including a claimant lawfully present pursuant to section 207 or 208 of the federal immigration and nationality act. (b) A determination that benefits are not payable to a claimant because of the claimant's alien status shall be made only upon a preponderance of the evidence, and shall be effective only if it is in conformity with section 3304 (a) (14) of the federal unemployment tax act. (c) Any data or information required of a claimant to determine whether benefits are not payable to him because of his alien status shall be uniformly required from all claimants. 10. Benefits based on professional employment with educational institutions, including the state university of New York, the city university of New York and any public community colleges. If a claimant was employed in an instructional, research, or principal administrative capacity by an institution of education, including the state university of New York, the city university of New York and any public community colleges, or performed services in such an institution in such capacity while employed by an educational service agency, the following shall apply to any week commencing during the period between two successive academic years or terms, or during a similar period between two regular but not successive terms when the contract provides therefor instead, provided the claimant has a contract to perform, or there is a reasonable assurance that the claimant will perform, services in such capacity for any such institution or institutions for both of such academic years or such terms, and to any week commencing during an established and customary vacation period or holiday recess, not between such academic terms or years, provided the claimant performed services for such institution immediately before such vacation period or holiday recess and there is a reasonable assurance that the claimant will perform any services described in this subdivision or subdivision eleven of this section in the period immediately following such vacation period or holiday recess: (a) In the case of a claimant who has no current benefit year, whether the claimant meets the conditions of section five hundred twenty-seven in any such week shall be determined by disregarding the remuneration paid for such employment. (b) In the case of a claimant who does have a current benefit year, no benefits shall be payable with respect to any such week provided the claimant would not have met the conditions of section five hundred twenty-seven in the week in which the claimant filed a valid original claim if the remuneration paid for such employment is disregarded. (c) The benefit rate of a claimant with respect to any such week shall be determined or redetermined by disregarding the remuneration paid for such employment. "Educational service agency" means a governmental agency or governmental entity or Indian tribal entity which is established and operated exclusively for the purpose of providing to one or more educational institutions services mentioned under this subdivision or subdivision eleven of this section. For purposes of this subdivision or subdivision eleven of this section, "educational institution" shall include any not-for-profit community art school which is chartered as a school by the board of regents of the university of state of New York.11. Benefits based on non-professional employment with certain educational institutions. If a claimant was employed in other than an instructional, research or principal administrative capacity by an educational institution, or performed services in such an institution in such capacity while employed by an educational service agency, the following shall apply to any week commencing during the period between two successive academic years or terms provided there is a reasonable assurance that the claimant will perform services in such capacity for any such institution or institutions for both of such academic years or terms, and to any week commencing during an established and customary vacation period or holiday recess, not between such academic terms or years, provided the claimant performed services for such institution immediately before such vacation period or holiday recess and there is a reasonable assurance that the claimant will perform any services described in this subdivision or subdivision ten of this section in the period immediately following such vacation period or holiday recess: (a) In the case of a claimant who has no current benefit year, whether the claimant meets the conditions of section five hundred twenty-seven in any such week shall be determined by disregarding the remuneration paid for such employment. (b) In the case of a claimant who does have a current benefit year, no benefits shall be payable with respect to any such week provided the claimant would not have met the conditions of section five hundred twenty-seven in the week in which the claimant filed a valid original claim if the remuneration paid for such employment is disregarded. (c) The benefit rate of a claimant with respect to any such week shall be determined or redetermined by disregarding the remuneration paid for such employment. (d) Notwithstanding the foregoing provisions of this subdivision, a claimant who was not offered an opportunity to perform services for the educational institution for the second of such academic years or terms shall be entitled to be paid benefits retroactively for each week for which the claimant filed a timely claim for benefits and for which benefits were denied solely by reason of this subdivision. "Educational service agency" means a governmental agency or governmental entity or Indian tribal entity which is established and operated exclusively for the purpose of providing to one or more educational institutions services mentioned under this subdivision or subdivision ten of this section. 12. An individual claimant who has received a determination of entitlement pursuant to section five hundred twenty-seven of this article may request the commissioner to reconsider the benefit rate to which such claimant is entitled under the following circumstances: (a)(1) the claimant filed a valid original claim pursuant to subdivision one or two of section five hundred twenty-seven of this article or, in the event the claimant exercised his or her right to apply to the commissioner to determine his or her benefits pursuant to paragraph (b) of subdivision two of such section, the claimant selected the base period to be utilized; and (2) after the establishment of the base period to utilize pursuant to subparagraph one of this paragraph, and within ten days of the date of the mailing of the determination of the benefit rate to which the claimant is entitled for such base period by the commissioner, the claimant produces proof satisfactory to the commissioner and consistent with wage data contained in the statewide wage reporting system maintained by the department of taxation and finance or, in the commissioner's sole discretion, sufficient to warrant its use in the event that it is inconsistent with such wage data, that he or she has atleast twenty weeks of employment, as defined in section five hundred twenty-four of this chapter, in such established base period. Such proof shall include paycheck stubs, payroll envelopes, or cancelled checks. (b) in the event that a claimant submits a request for reconsideration of the benefit rate to the commissioner pursuant to paragraph (a) of this subdivision, and one-half of the average weekly wage of all wages paid for all weeks of employment for which proof satisfactory to the commissioner was submitted pursuant to subparagraph two of paragraph (a) of this subdivision during the established base period referenced in such paragraph is at least five dollars more than the weekly benefit amount calculated pursuant to subdivision five of this section, the commissioner shall determine the claimant's benefit rate to be such amount, but in no event shall such amount be more than the maximum benefit rate in effect pursuant to subdivision five of this section.
