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Code of Federal Regulations Pertaining to ETA |
| Employees' Benefits |
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| Employment and Training Administration, Department of Labor |
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| Trade Adjustment Assistance for Workers Under the Trade Act of 1974 |
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| Administration by Applicable State Agencies |
20 CFR 617.67 - Transition guidelines for the 1988 Amendments.
- Section Number: 617.67
- Section Name: Transition guidelines for the 1988 Amendments.
The provisions of part 3 of subtitle D of title I of the Omnibus
Trade and Competitiveness Act of 1988 (the ``OTCA''), Public Law 100-
418, approved on August 23, 1988, made material changes in the TAA
Program for workers that are reflected in the amended regulations
published with this new section on transition guidelines for the 1988
Amendments. States and cooperating State agencies shall be guided by the
following paragraphs of this section in the transition to the TAA
Program as modified by the 1988 Amendments and reflected in the
preceding provisions of this part 617, as well as in the interim
operating instructions issued by the Department which are superseded by
these regulations. The operating instructions in GAL 15-90, and the
Changes thereto, shall continue in effect as guidance on the proper
application of the 1988 Amendments except as modified in these final
regulations. (GAL 15-90 is available from the Office of Trade Adjustment
Assistance, U.S. Department of Labor, 200 Constitution Ave., NW., room
C-4318, Washington, DC 20210.)
(a) Oil and gas workers--prospective. Workers in firms or
appropriate subdivisions of firms engaged in exploration or drilling for
oil or natural gas are newly covered under the TAA Program by an
amendment to section 222 of the Trade Act of 1974. This is a permanent
change in the Act having prospective effect, and became effective on
August 23, 1988. Oil and gas workers covered by a certification issued
pursuant to section 223 of the Act and the regulations at 29 CFR part 90
shall be entitled to basic and additional TRA and other TAA Program
benefits on precisely the same terms and conditions as apply to other
workers covered by other certifications and which are specifically set
forth in this part 617.
(b) Oil and gas workers--retroactive. Oil and gas workers referred
to in paragraph (a) of this section, who were separated from adversely
affected employment after September 30, 1985, are covered retroactively
under section 1421(a)(1)(B) of the OTCA, if they are covered by a
certification issued pursuant to section 223 of the Act which is in
response to a petition filed in the Office of Trade Adjustment
Assistance on or before November 18, 1988. Administration of TAA Program
benefits to these workers shall be on precisely the same terms and
conditions as apply to other workers covered by other certifications,
except that the limitations of the impact date provision of section
223(b) and the 60-day preclusion in section 231(a) may not be applied to
these workers.
(c) Benefit information to workers. (1) An amendment to section 225
of the Act requires individualized and published notices to workers
covered by certifications issued pursuant to section 223 of the Act.
This amendment became effective as a requirement on September 22, 1988,
and is applicable to all certifications issued on and after that date.
Individualized notices and published notices shall contain the
information specifically set forth in this part 617.
(2) Section 239(f) of the Act requires cooperating State agencies to
furnish four discrete items of information and advice to individuals
about TAA Program benefits, commencing with such advice and information
to every individual who applies for unemployment insurance under each
State's unemployment compensation law. See Sec. 617.4(e). This amendment
became effective on August 23, 1988. Information and advice required by
section 239(f)
shall be provided in accordance with this part 617.
(d) Training and eligibility requirements for TRA. Effective on
November 21, 1988, in general, enrollment and participation in, or
completion of, a training program approved under subpart C is required
as a condition of entitlement to basic TRA. Amendments to sections
231(a)(5), 231(b), and 231(c) of the Act incorporate this new
requirement, replacing the job search program requirement which remains
in effect through November 20, 1988. Continuation of the job search
program requirement through November 20, 1988, and installation of the
training program requirement on and after November 21, 1988, is required
of all applicants for basic TRA.
(e) Eligibility period for basic TRA. (1) Effective on August 23,
1988, and with respect to all decisions (i.e., all determinations,
redeterminations, and decisions on appeals) issued on or after that
date, the eligibility period for basic TRA is changed from the prior
law. Prior to the OTCA amendments, section 233(a)(2) provided that the
eligibility period for an individual was a fixed 104-week period that
immediately followed the week with respect to which the individual first
exhausted all rights to regular benefits after the individual's first
qualifying separation. Under section 233(a)(2) the new eligibility
period is movable, and is the 104-week period that immediately follows
the week in which the worker's most recent total qualifying separation
occurs under the same, single certification. Under the effective date
provisions of the OTCA, section 233(a)(2) applies to all decisions
(i.e., determinations, redeterminations, and decisions on appeals)
issued on and after August 23, 1988. Further, the law to be applied in
making any such decision is the law as in effect on the date such a
decision is made. These interpretative rules apply in all cases,
regardless of whether the total qualifying separation occurred before,
on, or after August 23, 1988, except as noted in paragraph (e)(3) of
this section.
(2) The major significance of the change in section 233(a)(2) is
that, effective for all decisions (i.e., determinations,
redeterminations, and decisions on appeals) issued on or after August
23, 1988, it applies to the ``most recent'' total qualifying separation.
This means that, after the first qualifying separation before August 23,
1988, or the first total qualifying separation on and after August 23,
1988, with each subsequent total qualifying separation of an individual
under the same certification the individual's eligibility period must be
redetermined as the 104-week period that immediately follows the week in
which such subsequent separation occurred.
(3) Section 1430(g) of the OTCA requires that the new eligibility
period not be applied with respect to any total qualifying separation
occurring before August 23, 1988, if as a result of applying section
233(a)(2) the individual would have an eligibility period with an
earlier expiration date than the expiration date of the eligibility
period established under the prior law and based on a first qualifying
separation which occurred under the same certification before August 23,
1988. Therefore, for decisions (i.e., determinations, redeterminations,
and decisions on appeals) issued on or after August 23, 1988, for a
worker who had a first qualifying separation under the same
certification before August 23, 1988, it must be determined what the
individual's eligibility period is based upon the prior law, and, if the
individual also had a subsequent total qualifying separation, what the
individual's eligibility period is based on the amended law. Only if the
subsequent total qualifying separation occurred before August 23, 1988,
and the expiration date of the new eligibility period ends on the same
date or a later date than the expiration date of the old eligibility
period may the new eligibility period be applied to the individual, and
in that event it must be applied; if the new eligibility period would
end on a date earlier than the ending date of the eligibility period
based on the worker's first qualifying separation, section 1430(g)
operates to preclude the application of amended section 233(a)(2).
(4) Computation of the weekly and maximum amounts of basic TRA do
not change under the 1988 Amendments in the OTCA. They must continue to
be based upon the first benefit period
which is related to the worker's first total or partial separation under
the same certification regardless of whether such first separation
occurs before, on, or after August 23, 1988. Upon the occurrence of a
second or subsequent separation under the same certification which is a
total qualifying separation under this part 617, the individual's
eligibility period will be 104 weeks after the week of such second or
subsequent (total qualifying) separation, but no change will be made in
the weekly or maximum amounts of basic TRA as computed in relation to
the first separation. Therefore, for any decision (i.e., determination,
redetermination, or decision on appeal) issued on or after August 23,
1988, whenever an individual files a new TRA claim it will be necessary
to determine whether the individual's most recent separation was a total
qualifying separation, and, if so, whether the individual had a prior
partial or total separation within the certification period of the same
certification which was a first qualifying separation. If such most
recent (total qualifying) separation occurred before August 23, 1988,
and was not the individual's first qualifying separation, then:
(i) The eligibility period will be the 104 weeks beginning with the
week following the week in which the most recent total qualifying
separation occurred or 104 weeks after the first exhaustion of regular
UI following the first qualifying separation, whichever is longer, and
(ii) The individual's weekly amount of basic TRA, as computed under
Sec. 617.13, and the individual's maximum amount of basic TRA, as
computed under Sec. 617.14, are established or remain fixed as
determined with respect to the individual's first benefit period
following the first separation which is within the certification period
of the certification covering the individual.
(f) Eligibility period for additional TRA. One technical and one
conforming change are made by the OTCA in section 233(a)(3) of the Act,
but have no effect on the 26-week eligibility period for additional TRA
as the statute has been interpreted and applied in the past. Therefore,
the 26-week eligibility period begins with the first week of training if
the training begins after exhaustion of basic TRA. Further, if the
training begins before approval is obtained under this part 617, the 26-
week eligibility period begins with the week in which the determination
of approval is issued, if there is any scheduled training session in
that week after the date of the determination.
(g) Eligibility for TRA during breaks in training. (1) Paragraph (f)
of section 233 of the Act, added by the OTCA, provides for the payment,
under specified conditions, of both basic and additional TRA during
scheduled breaks in a training program, provided the conditions for such
payments are met as expressed in this part 617. By making this provision
applicable to basic TRA as well as additional TRA, paragraph (f) of
section 233 of the Act changes the prior law for both. Previously, basic
TRA was payable during training breaks, but additional TRA was payable
solely with respect to weeks of training. Under new section 233(f), both
basic and additional TRA are payable during training breaks, but only if
the break does not exceed 14 days. Now, as under the prior law, weeks
when TRA is not payable will still count against the eligibility periods
for both basic and additional TRA, and in the case of additional TRA it
will also count against the number of weeks payable.
(2) Paragraph (f) of section 233 of the Act is effective with regard
to all decisions (i.e., all determinations, redeterminations, and
decisions on appeals) made on or after August 23, 1988, regardless of
when the training was approved under section 236 of the Trade Act, or
whether the training was approved or is approvable under section 236 as
amended by the 1988 Amendments, or when the break in training began or
ended. In making any decision involving paragraph (f) of section 233 of
the Act, the law to be applied is the law as in effect on the date the
decision is made.
(h) Retroactive eligibility for TRA. (1) Effective on August 23,
1988, section 1425(b) of the OTCA provides for an open-ended waiver of
the time limit in section 233(a)(2) on the eligibility period for basic
TRA, and the 210-day time limit in section 233(b) on filing a bona fide
application for training in
order to qualify for additional TRA. This waiver provision applies
solely to workers who experienced a total qualifying separation in the
period which began on August 13, 1981 and ended on April 7, 1986. Other
conditions must be met that are specified in section 1425(b) and in this
part 617.
(2) Altogether, nine conditions must be met for workers to obtain
TRA payments under this special provision. (See Sec. 617.11(a)(3).)
Further, this special provision applies solely to weeks which begin
after August 23, 1988; no retroactive payments may be made under this
special provision. Finally, only the two specific time limitations are
waived, and all other requirements of the prior and amended law apply,
including the first separation rule (relating to computation of the
weekly and maximum amounts of basic TRA payable), the 26-week
eligibility period for additional TRA, and the break provision of
section 233(f).
(i) Training for adversely affected workers. Extensive amendments to
section 236 are made in the OTCA which, except for some technical and
conforming changes that take effect on November 21, 1988, all became
effective on August 23, 1988. These changes must be effectuated in
accordance with this part 617.
(j) Agreements with States. Section 239 also was amended by the
OTCA, to require new terms and conditions in the section 239 agreements.
This requires new agreements to be executed between the States and the
Secretary of Labor, and gives new emphasis to the contractual nature of
the obligations entered into by the States to administer the TAA Program
in strict accordance with the Act and the regulations and operating
instructions issued by the Department.
(k) Other. Other matters covered by the OTCA amendments, as well as
the matters discussed in the preceding paragraphs of this section,
shall, to the extent that the States may be involved in their
implementation, be effectuated in strict accordance with the Act and the
regulations and operating instructions issued by the Department, and as
of the respective effective dates of the various provisions of the OTCA.
[59 FR 941, Jan. 6, 1994]
Appendix A to Part 617--Standard for Claim Filing, Claimant Reporting,
Job Finding, and Employment Services
EMPLOYMENT SECURITY MANUAL (Part V, Sections 5000-5004)
5000-5099 Claims Filing
5000 Standard for Claim Filing, Claimant Reporting, Job Finding, and
Employment Services
A. Federal law requirements. Section 3304(a)(1) of the Federal
Unemployment Tax Act and section 303(a)(2) of the Social Security Act
require that a State law provide for:
``Payment of unemployment compensation solely through public
employment offices or such other agencies as the Secretary may
approve.''
Section 3304(a)(4) of the Federal Unemployment Tax and section
303(a)(5) of the Social Security Act require that a State law provide
for:
``Expenditure of all money withdrawn from an unemployment fund of
such State, in the payment of unemployment compensation * * *''
Section 303(a)(1) of the Social Security Act requires that the State
law provide for:
``Such methods of administration * * * as are found by the Secretary
to be reasonably calculated to insure full payment of unemployment
compensation when due.''
B. Secretary's interpretation of federal law requirements.
1. The Secretary interprets section 3304(a)(1) of the Federal
Unemployment Tax Act and section 303(a)(2) of the Social Security Act to
require that a State law provide for payment of unemployment
compensation solely through public employment offices or claims offices
administered by the State employment security agency if such agency
provides for such coordination in the operations of its public
employment offices and claims offices as will insure (a) the payment of
benefits only to individuals who are unemployed and who are able to work
and available for work, and (b) that individuals claiming unemployment
compensation (claimants) are afforded such placement and other
employment services as are necessary and appropriate to return them to
suitable work as soon as possible.
2. The Secretary interprets all the above sections to require that a
State law provide for:
a. Such contact by claimants with public employment offices or
claims offices or both, (1) as will reasonably insure the payment of
unemployment compensation only to individuals who are unemployed and who
are able to work and available for work, and (2) that claimants are
afforded such placement
and other employment services as are necessary and appropriate to
facilitate their return to suitable work as soon as possible; and
b. Methods of administration which do not unreasonably limit the
opportunity of individuals to establish their right to unemployment
compensation due under such States law.
5001 Claim Filing and Claimant Reporting Requirements Designed to
Satisfy Secretary's Interpretation
A. Claim filing--total or part-total unemployment
1. Individuals claiming unemployment compensation for total or part-
total unemployment are required to file a claim weekly or biweekly, in
person or by mail, at a public employment office or a claims office
(these terms include offices at itinerant points) as set forth below.
2. Except as provided in paragraph 3, a claimant is required to file
in person.
a. His new claim with respect to a benefit year, or his continued
claim for a waiting week or for his first compensable week of
unemployment in such year; and
b. Any other claim, when requested to do so by the claims personnel
at the office at which he files his claim(s) because questions about his
right to benefits are raised by circumstances such as the following:
(1) The conditions or circumstances of his separation from
employment;
(2) The claimant's answers to questions on mail claim(s) indicate
that he may be unable to work or that there may be undue restrictions on
his availability for work or that his search for work may be inadequate
or that he may be disqualified;
(3) The claimant's answers to questions on mail claims create
uncertainty about his credibility or indicate a lack of understanding of
the applicable requirements; or
(4) The claimant's record shows that he has previously filed a
fraudulent claim.
In such circumstances, the claimant is required to continue to file
claims in person each week (or biweekly) until the State agency
determines that filing claims in person is no longer required for the
resolution of such questions.
3. A claimant must be permitted to file a claim by mail in any of
the following circumstances:
a. He is located in an area requiring the expenditure of an
unreasonable amount of time or money in traveling to the nearest
facility established by the State agency for filing claims in person;
b. Conditions make it impracticable for the agency to take claims in
person;
c. He has returned to full-time work on or before the scheduled date
for his filing a claim, unless the agency makes provision for in-person
filing at a time and place that does not interfere with his employment;
d. The agency finds that he has good cause for failing to file a
claim in person.
4. A claimant who has been receiving benefits for partial
unemployment may continue to file claims as if he were a partially
unemployed worker for the first four consecutive weeks of total or part-
total unemployment immediately following his period of partial
unemployment so long as he remains attached to his regular employer.
B. Claim filing--partial unemployment. Each individual claiming
unemployment compensation for a week (or other claim period) during
which, because of lack of work, he is working less than his normal
customary full-time hours for his regular employer and is earning less
than the earnings limit provided in the State law, shall not be required
to file a claim for such week or other claim period earlier than 2 weeks
from the date that wages are paid for such claim period or, if a low
earnings report is required by the State law, from the date the employer
furnished such report to the individual. State agencies may permit
claims for partial unemployment to be filed either in person or by mail,
except that in the circumstances set forth in section A 3, filing by
mail must be permitted, and in the circumstances set forth in section A
2 b, filing in person may be required.
5002 Requirement for Job Finding, Placement, and Other Employment
Services Designed to Satisfy Secretary's Interpretation
A. Claims personnel are required to assure that each claimant is
doing what a reasonable individual in his circumstances would do to
obtain suitable work.
B. In the discretion of the State agency:
1. The claims personnel are required to give each claimant such
necessary and appropriate assistance as they reasonably can in finding
suitable work and at their discretion determine when more complete
placement and employment services are necessary and appropriate for a
claimant; and if they determine more complete services are necessary and
appropriate, the claims personnel are to refer him to employment service
personnel in the public employment office in which he has been filing
claim(s), or, if he has been filing in a claims office, in the public
employment office most accessible to him; or
2. All placement and employment services are required to be afforded
to each claimant by employment service personnel in the public
employment office most accessible to him in which case the claims
personnel in the office in which the claimant files his claim are to
refer him to the employment service personnel when placement or other
employment services are necessary and appropriate for him.
C. The personnel to whom the State agency assigns the
responsibilities outlined in paragraph B above are required to give
claimants such job-finding assistance, placement, and other employment
services as are necessary and appropriate to facilitate their return to
suitable work as soon as possible.
In some circumstances, no such services or only limited services may
be required. For example, if a claimant is on a short-term temporary
layoff with a fixed return date, the only service necessary and
appropriate to be given to him during the period of the layoff is a
referral to suitable temporary work if such work is being performed in
the labor market area.
Similarly, claimants whose unemployment is caused by a labor dispute
presumably will return to work with their employer as soon as the labor
dispute is settled. They generally do not need services, nor do
individuals in occupations where placement customarily is made by other
nonfee charging placement facilities such as unions and professional
associations.
Claimants who fall within the classes which ordinarily would require
limited services or no services shall, if they request placement and
employment services, be afforded such services as are necessary and
appropriate for them to obtain suitable work or to achieve their
reasonable employment goals.
On the other hand, a claimant who is permanently separated from his
job is likely to require some services. He may need only some direction
in how to get a job; he may need placement services if he is in an
occupation for which there is some demand in the labor market area; if
his occupation is outdated, he may require counseling and referral to a
suitable training course. The extent and character of the services to be
given any particular claimant may change with the length of his
unemployment and depend not only on his own circumstances and
conditions, but also on the condition of the labor market in the area.
D. Claimants are required to report to employment service personnel,
as directed, but such personnel and the claims personnel required to so
arrange and coordinate the contacts required of a claimant as not to
place an unreasonable burden on him or unreasonably limit his
opportunity to establish his rights to compensation. As a general rule,
a claimant is not required to contact in person claims personnel or
employment service personnel more frequently than once a week, unless he
is directed to report more frequently for a specific service such as
referral to a job or a training course or counseling which cannot be
completed in one visit.
E. Employment service personnel are required to report promptly to
claims personnel in the office in which the claimant files his claim(s):
(1) his failure to apply for or accept work to which he was referred by
such personnel or when known, by any other nonfee-charging placement
facility such as a union or a professional association; and (2) any
information which becomes available to it that may have a bearing on the
claimant's ability to work or availability for work, or on the
suitability of work to which he was referred or which was offered to
him.
5004 Evaluation of Alternative State Provisions
If the State law provisions do not conform to the ``suggested State
law requirements'' set forth in sections 5001 and 5002, but the State
law contains alternative provisions, the Manpower Administrator, in
collaboration with the State agency, will study the actual or
anticipated affect of the alternative provisions. If the Manpower
Administrator concludes that the alternative provisions satisfy the
requirements of the Federal law as construed by the Secretary (see
section 5000 B) he will so notify the State agency. If he does not so
conclude, he will submit the matter to the Secretary. If the Secretary
concludes that the alternative provisions satisfy such requirements, the
State agency will be so notified. If the Secretary concludes that there
is a question as to whether the alternative provisions satisfy such
requirements, the State agency will be advised that unless the State law
provisions are appropriately revised, a notice of hearing will be issued
as required by the Code of Federal Regulations, title 20, section 601.3.
[59 FR 943, Jan. 6, 1994]
Appendix B to Part 617--Standard for Claim Determinations--Separation
Information
6010 Federal Law Requirements. Section 303(a)(1) of the Social
Security Act requires that a State law include provision for:
``Such methods of administration . . . as are found by the Secretary
to be reasonably calculated to insure full payment of unemployment
compensation when due.''
Section 303(a)(3) of the Social Security Act requires that a State
law include provision for:
``Opportunity for a fair hearing before an impartial tribunal, for
all individuals whose claims for unemployment compensation are denied.''
Section 3304(a)(4) of the Federal Unemployment Tax Act and section
303(a)(5) of the Social Security Act require that a State law include
provision for:
``Expenditure of all money withdrawn from an unemployment fund of
such State, in the payment of unemployment compensation. . . .
Section 3306(h) of the Federal Unemployment Tax Act defines
``compensation'' as
``cash benefits payable to individuals with respect to their
unemployment.''
6011 Secretary's Interpretation of Federal Law Requirements. The
Secretary interprets the above sections to require that a State law
include provisions which will insure that:
A. Individuals who may be entitled to unemployment compensation are
furnished such information as will reasonably afford them an opportunity
to know, establish, and protect their rights under the unemployment
compensation law of such State, and
B. The State agency obtains and records in time for the prompt
determination and review of benefit claims such information as will
reasonably insure the payment of benefits to individuals to whom
benefits are due.
6012 Criteria for Review of State Law Conformity with Federal
Requirements:
In determining the conformity of a State law with the above
requirements of the Federal Unemployment Tax Act and the Social Security
Act as interpreted by the Secretary, the following criteria will be
applied:
A. Is it required that individuals who may be entitled to
unemployment compensation be furnished such information of their
potential rights to benefits, including the manner and places of filing
claims, the reasons for determinations, and their rights of appeal, as
will insure them a reasonable opportunity to know, establish, and
protect their rights under the law of the State?
B. Is the State agency required to obtain, in time for prompt
determination of rights to benefits such information as will reasonably
insure the payment of benefits to individuals to whom benefits are due?
C. Is the State agency required to keep records of the facts
considered in reaching determinations of rights to benefits?
6013 Claim Determinations Requirements Designed To Meet Department
of Labor Criteria:
A. Investigation of claims. The State agency is required to obtain
promptly and prior to a determination of an individual's right to
benefits, such facts pertaining thereto as will be sufficient reasonably
to insure the payment of benefits when due.
This requirement embraces five separate elements:
1. It is the responsibility of the agency to take the initiative in
the discovery of information. This responsibility may not be passed on
to the claimant or the employer. In addition to the agency's own
records, this information may be obtained from the worker, the employer,
or other sources. If the information obtained in the first instance
discloses no essential disagreement and provides a sufficient basis for
a fair determination, no further investigation is necessary. If the
information obtained from other sources differs essentially from that
furnished by the claimant, the agency, in order to meet its
responsibility, is required to inform the claimant of such information
from other sources and to afford the claimant an opportunity to furnish
any further facts he may have.
2. Evidentiary facts must be obtained as distinguished from ultimate
facts or conclusions. That a worker was discharged for misconduct is an
ultimate fact or conclusion; that he destroyed a machine upon which he
was working is a primary or evidentiary fact, and the sort of fact that
the requirement refers to.
3. The information obtained must be sufficient reasonably to insure
the payment of benefits when due. In general, the investigation made by
the agency must be complete enough to provide information upon which the
agency may act with reasonable assurance that its decision is consistent
with the unemployment compensation law. On the other hand, the
investigation should not be so exhaustive and time-consuming as unduly
to delay the payment of benefits and to result in excessive costs.
4. Information must be obtained promptly so that the payment of
benefits is not unduly delayed.
5. If the State agency requires any particular evidence from the
worker, it must give him a reasonable opportunity to obtain such
evidence.
B. Recording of facts. The agency must keep a written record of the
facts considered in reaching its determinations.
C. Determination notices:
1. The agency must give each claimant a written notice of:
a. Any monetary determination with respect to his benefit year;
b. Any determination with respect to purging a disqualification if,
under the State law, a condition or qualification must be satisfied with
respect to each week of disqualification; but in lieu of giving written
notice of each determination for each week in which it is determined
that the claimant has met the requirements for purging, the agency may
inform the claimant that he has purged the disqualification for a week
by notation on his applicant identification card or otherwise in
writing.
c. Any other determination which adversely affects his rights to
benefits, except that written notice of determination need not be given
with respect to:
(1) A week in a benefit year for which the claimant's weekly benefit
amount is reduced in whole or in part by earnings if, the first time in
the benefit year that there is such a reduction, he is required to be
furnished a booklet or leaflet containing the information set forth
below in paragraph 2f(1). However, a written notice of determination is
required if: (a) there is a dispute concerning the reduction with
respect to any week (e.g., as to the amount computed as the appropriate
reduction, etc.); or (b) there is a
change in the State law (or in the application thereof) affecting the
reduction; or
(2) Any week in a benefit year subsequent to the first week in such
benefit year in which benefits were denied, or reduced in whole or in
part for reasons other than earnings, if denial or reduction for such
subsequent week is based on the same reason and the same facts as for
the first week, and if written notice of determination is required to be
given to the claimant with respect to such first week, and with such
notice of determination, he is required to be given a booklet or
pamphlet containing the information set forth below in paragraph 2f(2)
and 2h. However, a written notice of determination is required if: (a)
there is a dispute concerning the denial or reduction of benefits with
respect to such week; or (b) there is a change in the State law (or in
the application thereof) affecting the denial or reduction; or (c) there
is a change in the amount of the reduction except as to the balance
covered by the last reduction in a series of reductions.
Note: This procedure may be applied to determinations made with
respect to any subsequent weeks for the same reason and on the basis of
the same facts: (a) that claimant is unable to work, unavailable for
work, or is disqualified under the labor dispute provision; and (b)
reducing claimant's weekly benefit amount because of income other than
earnings or offset by reason of overpayment.
2. The agency must include in written notices of determinations
furnished to claimants sufficient information to enable them to
understand the determinations, the reasons therefor, and their rights to
protest, request reconsideration, or appeal.
The written notice of monetary determination must contain the
information specified in the following items (except h) unless an item
is specifically not applicable. A written notice of any other
determination must contain the information specified in as many of the
following items as are necessary to enable the claimant to understand
the determination and to inform him of his appeal rights. Information
specifically applicable to the individual claimant must be contained in
the written notice of determination. Information of general application
such as (but not limited to) the explanation of benefits for partial
unemployment, information as to deductions, seasonality factors, and
information as to the manner and place of taking an appeal, extension of
the appeal period, and where to obtain information and assistance may be
contained in a booklet or leaflet which is given the claimant with his
monetary determination.
a. Base period wages. The statement concerning base-period wages
must be in sufficient detail to show the basis of computation of
eligibility and weekly and maximum benefit amounts. (If maximum benefits
are allowed, it may not be necessary to show details of earnings.)
b. Employer name. The name of the employer who reported the wage is
necessary so that the worker may check the wage transcript and know
whether it is correct. If the worker is given only the employer number,
he may not be able to check the accuracy of the wage transcript.
c. Explanation of benefit formula--weekly and maximum benefit
amounts. Sufficient information must be given the worker so that he will
understand how his weekly benefit amount, including allowances for
dependents, and his maximum benefit amount were figured. If benefits are
computed by means of a table contained in the law, the table must be
furnished with the notice of determination whether benefits are granted
or denied.
The written notice of determination must show clearly the weekly
benefit amount and the maximum potential benefits to which the claimant
is entitled.
The notice to a claimant found ineligible by reason of insufficient
earnings in the base period must inform him clearly of the reason for
ineligibility. An explanation of the benefit formula contained in a
booklet or pamphlet should be given to each claimant at or prior to the
time he receives written notice of a monetary determination.
d. Benefit year. An explanation of what is meant by the benefit year
and identification of the claimant's benefit year must be included in
the notice of determination.
e. Information as to benefits for partial unemployment. There must
be included either in the written notice of determination or in a
booklet or pamphlet accompanying the notice an explanation of the
claimant's rights to partial benefits for any week with respect to which
he is working less than his normal customary full-time workweek because
of lack of work and for which he earns less than his weekly benefit
amount or weekly benefit amount plus earnings, whichever is provided by
the State law. If the explanation is contained in the notice of
determination, reference to the item in the notice in which his weekly
benefit amount is entered should be made.
f. Deductions from weekly benefits:
(1) Earnings. Although written notice of determinations deducting
earnings from a claimant's weekly benefit amount is generally not
required (see paragraph 1 c (1) above), where written notice of
determination is required (or given) it shall set forth the amount of
earnings, the method of computing the deduction in sufficient detail to
enable the claimant to verify the accuracy of the deduction, and his
right to protest, request redetermination, and appeal. Where a written
notice of determination is given to the claimant because there has been
a change in the State law or in the application
of the law, an explanation of the change shall be included.
When claimant is not required to receive a written notice of
determination, he must be given a booklet or pamphlet the first time in
his benefit year that there is a deduction for earnings which shall
include the following information:
(a) The method of computing deductions for earnings in sufficient
detail to enable the claimant to verify the accuracy of the deduction;
(b) That he will not automatically be given a written notice of
determination for a week with respect to which there is a deduction for
earnings (unless there is a dispute concerning the reduction with
respect to a week or there has been a change in the State law or in the
application of the law affecting the deduction) but that he may obtain
such a written notice upon request; and
(c) A clear statement of his right to protest, request a
redetermination, and appeal from any determination deducting earnings
from his weekly benefit amount even though he does not automatically
receive a written notice of determination; and if the State law requires
written notice of determination in order to effectuate a protest,
redetermination, or appeal, he must be so advised and advised also that
he must request a written notice of determination before he takes any
such action.
(2) Other deductions:
(a) A written notice of determination is required with respect to
the first week in claimant's benefit year in which there is a reduction
from his benefits for a reason other than earnings. This notice must
describe the deduction made from claimant's weekly benefit amount, the
reason for the deduction, the method of computing it in sufficient
detail to enable him to verify the accuracy of such deduction, and his
right to protest, request redetermination, or appeal.
(b) A written notice of determination is not required for subsequent
weeks that a deduction is made for the same reason and on the basis of
the same facts, if the notice of determination pursuant to (2) (a), or a
booklet or pamphlet given him with such notice explains (i) the several
kinds of deductions which may be made under the State law (e.g.,
retirement pensions, vacation pay, and overpayments); (ii) the method of
computing each kind of deduction in sufficient detail that claimant will
be able to verify the accuracy of deductions made from his weekly
benefit payments; (iii) any limitation on the amount of any deduction or
the time in which any deduction may be made; (iv) that he will not
automatically be given a written notice of determination for subsequent
weeks with respect to which there is a deduction for the same reason and
on the basis of the same facts, but that he may obtain a written notice
of determination upon request; (v) his right to protest, request
redetermination, or appeal with respect to subsequent weeks for which
there is a reduction from his benefits for the same reason, and on the
basis of the same facts even though he does not automatically receive a
written notice of determination; and (vi) that if the State law requires
written notice of determination in order to effectuate a protest,
redetermination, or appeal, he must be so advised and advised also that
he must request a written notice of determination before he takes any
such action.
g. Seasonality factors. If the individual's determination is
affected by seasonality factors under the State law, an adequate
explanation must be made. General explanations of seasonality factors
which may affect determinations for subsequent weeks may be included in
a booklet or pamphlet given claimant with his notice of monetary
determinations.
h. Disqualification or ineligibility. If a disqualification is
imposed, or if the claimant is declared ineligible for one or more
weeks, he must be given not only a statement of the period of
disqualification or ineligibility and the amount of wage-credit
reductions, if any, but also an explanation of the reason for the
ineligibility or disqualification. This explanation must be sufficiently
detailed so that he will understand why he is ineligible or why he has
been disqualified, and what he must do in order to requalify for
benefits or purge the disqualification. The statement must be
individualized to indicate the facts upon which the determination was
based, e.g., state, ``It is found that you left your work with Blank
Company because you were tired of working; the separation was voluntary,
and the reason does not constitute good cause,'' rather than merely the
phrase ``voluntary quit.'' Checking a box as to the reason for the
disqualification is not a sufficiently detailed explanation. However,
this statement of the reason for the disqualification need not be a
restatement of all facts considered in arriving at the determination.
i. Appeal rights. The claimant must be given information with
respect to his appeal rights.
(1) The following information shall be included in the notice of
determination:
(a) A statement that he may appeal or, if the State law requires or
permits a protest or redetermination before an appeal, that he may
protest or request a redetermination.
(b) The period within which an appeal, protest, or request for
redetermination must be filed. The number of days provided by statute
must be shown as well as either the beginning date or ending date of the
period. (It is recommended that the ending date of the appeal period be
shown, as this is the more understandable of the alternatives.)
(2) The following information must be included either in the notice
of determination
or in separate informational material referred to in the notice:
(a) The manner in which the appeal, protest, or request for
redetermination must be filed, e.g., by signed letter, written
statement, or on a prescribed form, and the place or places to which the
appeal, protest, or request for redetermination may be mailed or hand-
delivered.
(b) An explanation of any circumstances (such as nonworkdays, good
cause, etc.) which will extend the period for the appeal, protest, or
request for redetermination beyond the date stated or identified in the
notice of determination.
(c) That any further information claimant may need or desire can be
obtained together with assistance in filing his appeal, protest, or
request for redetermination from the local office.
If the information is given in separate material, the notice of
determination would adequately refer to such material if it said, for
example, ``For other information about your (appeal), (protest),
(redetermination) rights, see pages ____ to ____ of the ____ (name of
pamphlet or booklet) heretofore furnished to you.''
6014 Separation Information Requirements Designed To Meet
Department of Labor Criteria:
A. Information to agency. Where workers are separated, employers are
required to furnish the agency promptly, either upon agency request or
upon such separation, a notice describing the reasons for and the
circumstances of the separation and any additional information which
might affect a claimant's right to benefits. Where workers are working
less than full time, employers are required to furnish the agency
promptly, upon agency request, information concerning a claimant's hours
of work and his wages during the claim periods involved, and other facts
which might affect a claimant's eligibility for benefits during such
periods.
When workers are separated and the notices are obtained on a request
basis, or when workers are working less than full time and the agency
requests information, it is essential to the prompt processing of claims
that the request be sent out promptly after the claim is filed and the
employer be given a specific period within which to return the notice,
preferably within 2 working days.
When workers are separated and notices are obtained upon separation,
it is essential that the employer be required to send the notice to the
agency with sufficient promptness to insure that, if a claim is filed,
it may be processed promptly. Normally, it is desirable that such a
notice be sent to the central office of the agency, since the employer
may not know in which local office the worker will file his claim. The
usual procedure is for the employer to give the worker a copy of the
notice sent by the employer to the agency.
B. Information to worker:
1. Information required to be given. Employers are required to give
their employees information and instructions concerning the employees'
potential rights to benefits and concerning registration for work and
filing claims for benefits.
The information furnished to employees under such a requirement need
not be elaborate; it need only be adequate to insure that the worker who
is separated or who is working less than full time knows he is
potentially eligible for benefits and is informed as to what he is to do
or where he is to go to file his claim and register for work. When he
files his claim, he can obtain more detailed information.
In States that do not require employers to furnish periodically to
the State agency detailed reports of the wages paid to their employees,
each employer is required to furnish to his employees information as to
(a) the name under which he is registered by the State agency, (b) the
address where he maintains his payroll records, and (c) the workers'
need for this information if and when they file claims for benefits.
2. Methods for giving information. The information and instructions
required above may be given in any of the following ways:
a. Posters prominently displayed in the employer's establishment.
The State agency should supply employers with a sufficient number of
posters for distribution throughout their places of business and should
see that the posters are conspicuously displayed at all times.
b. Leaflets. Leaflets distributed either periodically or at the time
of separation or reduction of hours. The State agency should supply
employers with a sufficient number of leaflets.
c. Individual notices. Individual notices given to each employee at
the time of separation or reduction in hours.
It is recommended that the State agency's publicity program be used
to supplement the employer-information requirements. Such a program
should stress the availability and location of claim-filing offices and
the importance of visiting those offices whenever the worker is
unemployed, wishes to apply for benefits, and to seek a job.
6015 Evaluation of Alternative State Provisions with Respect to
Claim Determinations and Separation Information. If the State law
provisions do not conform to the suggested requirements set forth in
sections 6013 and 6014, but the State law contains alternative
provisions, the Bureau of Employment Security, in collaboration with the
State agency, will study the actual or anticipated effects of the
alternative provisions. If the Administrator of the Bureau concludes
that the alternative provisions satisfy the criteria in
section 6012, he will so notify the State agency. If the Administrator
of the Bureau does not so conclude, he will submit the matter to the
Secretary. If the Secretary concludes that the alternative provisions
satisfy the criteria in section 6012, the State agency will be so
notified. If the Secretary concludes that there is a question as to
whether the alternative provisions satisfy the criteria, the State
agency will be advised that unless the State law provisions are
appropriately revised, a notice of hearing will be issued as required by
the Code of Federal Regulations, title 20, Sec. 601.5.
[51 FR 45848, Dec. 22, 1986. Redesignated at 59 FR 943, Jan. 6, 1994]
Appendix C to Part 617--Standard for Fraud and Overpayment Detection
7510 Federal Law Requirements. Section 303(a)(1) of the Social
Security Act requires that a State law include provision for:
``Such methods of administration . . . as are found by the Secretary
to be reasonably calculated to insure full payment of unemployment
compensation when due.''
Section 1603(a)(4) of the Internal Revenue Code and section
3030(a)(5) of the Social Security Act require that a State law include
provision for:
``Expenditure of all money withdrawn from an unemployment fund of
such State, in the payment of unemployment compensation . . .''
Section 1607(h) of the Internal Revenue Code defines
``compensation'' as ``cash benefits payable to individuals with respect
to their unemployment.''
7511 The Secretary's Interpretation of Federal Law Requirements.
The Secretary of Labor interprets the above sections to require that a
State law include provision for such methods of administration as are,
within reason, calculated (1) to detect benefits paid through error by
the agency or through willful misrepresentation or error by the claimant
or others, and (2) to deter claimants from obtaining benefits through
willful misrepresentation.
7513 Criteria for Review of State Conformity With Federal
Requirements. In determining State conformity with the above
requirements of the Internal Revenue Code and the Social Security Act,
as interpreted by the Secretary of Labor, the following criteria will be
applied:
A. Are investigations required to be made after the payment of
benefits, (or, in the case of interstate claims, are investigations made
by the agent State after the processing of claims) as to claimants'
entitlement to benefits paid to them in a sufficient proportion of cases
to test the effectiveness of the agency's procedures for the prevention
of payments which are not due? To carry out investigations, has the
agency assigned to some individual or unit, as a basic function, the
responsibility of making or functionally directing such investigations?
Explanation: It is not feasible to prescribe the extent to which the
above activities are required; however, they should always be carried on
to such an extent that they will show whether or not error or willful
misrepresentation is increasing or decreasing, and will reveal problem
areas. The extent and nature of the above activities should be varied
according to the seriousness of the problem in the State. The
responsible individual or unit should:
1. Check paid claims for overpayment and investigate for willful
misrepresentation or, alternatively, advise and assist the operating
units in the performance of such functions, or both;
2. Perform consultative services with respect to methods and
procedures for the prevention and detection of fraud; and
3. Perform other services which are closely related to the above.
Although a State agency is expected to make a full-time assignment
of responsibility to a unit or individual to carry on the functions
described above, a small State agency might make these functions a part-
time responsibility of one individual. In connection with the detection
of overpayments, such a unit or individual might, for example:
(a) Investigate information on suspected benefit fraud received from
any agency personnel, and from sources outside the agency, including
anonymous complaints;
(b) Investigate information secured from comparisons of benefit
payments with employment records to detect cases of concurrent working
(whether in covered or noncovered work) and claiming of benefits
(including benefit payments in which the agency acted as agent for
another State).
The benefit fraud referred to herein may involve employers, agency
employees, and witnesses, as well as claimants.
Comparisons of benefit payments with employment records are comonly
made either by post-audit or by industry surveys. The so-called ``post-
audit'' is a matching of central office wage-record files against
benefit payments for the same period. ``Industry surveys'' or ``mass
audits'' are done in some States by going directly to employers for pay-
roll information to be checked against concurrent benefit lists. A plan
of investigation based on a sample post-audit will be considered as
partial fulfillment of the investigation program; it would need to be
supplemented by other methods capable of detecting overpayments to
persons who have moved into noncovered occupations or are claiming
interstate benefits.
B. Are adequate records maintained by which the results of
investigations may be evaluated?
Explanation. To meet this criterion, the State agency will be
expected to maintain records of all its activities in the detection of
overpayments, showing whether attributable to error or willful
misrepresentation, measuring the results obtained through various
methods, and noting the remedial action taken in each case. The adequacy
and effectiveness of various methods of checking for willful
misrepresentation can be evaluated only if records are kept of the
results obtained. Internal reports on fraudulent and erroneous
overpayments are needed by State agencies for self-evaluation. Detailed
records should be maintained in order that the State agency may
determine, for example, which of several methods of checking currently
used are the most productive. Such records also will provide the basis
for drawing a clear distinction between fraud and error.
C. Does the agency take adequate action with respect to publicity
concerning willful misrepresentation and its legal consequences to deter
fraud by claimants?
Explanation. To meet this criterion, the State agency must issue
adequate material of claimant eligibility requirements and must take
necessary action to obtain publicity on the legal consequences of
willful misrepresentation or willful nondisclosure of facts.
Public announcements on convictions and resulting penalties for
fraud are generally considered necessary as a deterrent to other
persons, and to inform the public that the agency is carrying on an
effective program to prevent fraud. This alone is not considered
adequate publicity. It is important that information be circulated which
will explain clearly and understandably the claimant's rights, and the
obligations which he must fulfill to be eligible for benefits. Leaflets
for distribution and posters placed in local offices are appropriate
media for such information.
*7515 Evaluation of Alternative State Provisions with Respect to
Erroneous and Illegal Payments. If the methods of administration
provided for by the State law do not conform to the suggested methods of
meeting the requirements set forth in section 7511, but a State law does
provide for alternative methods of administration designed to accomplish
the same results, the Bureau of Employment Security, in collaboration
with the State agency, will study the actual or anticipated effect of
the alternative methods of administration. If the Bureau concludes that
the alternative methods satisfy the criteria in section 7513, it will so
notify the State agency. If the Bureau does not so conclude, it will
submit to the Secretary the results of the study for his determination
of whether the State's alternative methods of administration meet the
criteria.
[51 FR 45848, Dec. 22, 1986. Redesignated at 59 FR 943, Jan. 6, 1994]
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