UIPL23-08C1a1.pdf

ETA Advisory File Text

1 Attachment to UIPL No. 23-08 Change 1 Emergency Unemployment Compensation 2008 Questions and Answers Table of Contents A. Claims Processing for EUC08 ........................................................................p.2 B. Individuals Potentially Eligible for EUC08 ....................................................p.3 C. Applicable Benefit Year for EUC08 Purposes ...............................................p.3 D. Monetary Eligibility........................................................................................p.4 E. Requalifying Requirements for Successive Benefit Years Double Dip provisions ........................................................................................................p.6 F. Base Period Employment Requirement ..........................................................p.6 G. Seasonal Provisions Between Terms Denial ..................................................p.7 H. Work Search Job Service Registration Requirements ....................................p.8 I. Non-Monetary Issues ......................................................................................p.8 J. EUC08 Benefit Intercept ................................................................................p.9 K. Overpayments .................................................................................................p.9 L. Short-Time Compensation STC Program ..................................................p.10 M. Extensions for Approved Training ...............................................................p.11 N. Self-Employment Assistance ........................................................................p.11 O. EUC08 Effect on Trade Readjustment Allowances TRA ..........................p.11 P. Interstate Benefits Combined Wage Claims CWC ....................................p.12 Q. Claims filed by Aliens ..................................................................................p.12 R. Application of Worker Profiling and Reemployment Services WPRS ......p.13 S. EUC08 Relation to Extended Benefits .........................................................p.13 2 A. Claims Processing for EUC08 1. Question What is the earliest effective date for EUC08 claims and what is the first week payable Answer In most states where the week of unemployment begins on Sunday the earliest effective date for a claim in July 6 2008. In these states the first week for which EUC08 may be paid is the week ending July 12 2008. 2. Question If an individual is in continued claim status on a regular UC claim when s he exhausts UC may the claim be automatically switched to an EUC08 claim without an EUC08 initial claim Answer No. An EUC08 initial claim must be filed that meets the state s requirements for claim filing. See Attachment A to UIPL No. 23-08 page A- 8 2 Claims for EUC08 . 3. Question May a state backdate an EUC08 claim if an individual files a late claim and requests backdating Answer Section 4001 d 2 of the Act provides that state law will apply the state must follow its own unemployment compensation UC law with respect to backdating of an EUC08 claim. 4. Question If state law requires a request for redetermination before appeal of a monetary determination is state law followed for EUC08 monetary appeals Answer Yes. Section 4001 d 2 of the Act provides that the provisions of state law will apply regarding EUC08 claim re-determinations and appeals. 5. Question Section 4007 a 2 of the Act provides that EUC08 shall apply to weeks of unemployment ending on or before March 31 2009. How does this apply to weeks of unemployment that are not a calendar week for example the seven day period of March 25-March 31 2009 Answer Where state laws permit flexible weeks of unemployment that follow for example an employer s payroll week structure weeks ending on or before Tuesday March 31 2009 would be payable. 6. Question Regarding the phase-out of the EUC08 program when there are remaining amounts in an individual s EUC08 account Section 4007 b 2 of the Act provides that no EUC08 shall be payable for any week beginning after June 30 2009. Is EUC08 payable for the week of Tuesday June 30 2009 that ends Monday July 6 2009 Answer Yes. If state law permits weeks of unemployment to begin on Tuesday June 30 2009 the week ending Monday July 6 2009 would be the final week. 3 B. Individuals Potentially Eligible for EUC08 1. Question Is an individual potentially eligible for EUC08 if s he filed a new claim and established a benefit year that ended on or after May 1 2007 but received no payments before the benefit year ended Answer Yes. The ending of the benefit year prevents the individual from receiving the regular UC balance that was available. The individual is an exhaustee for EUC08 purposes. 2. Question Is there a waiting week for EUC08 if the individual has never served a waiting week during the applicable benefit year Answer No. There is no waiting period requirement for EUC08. 3. Question If an individual files a new UC claim and is found monetarily ineligible e.g. no wages or insufficient wages for regular UC does the agency need to check for any earlier prior benefit year s to determine if the individual may qualify for EUC08 Answer Yes. To determine if the individual qualifies for EUC08 the state will need to check for any prior benefit year s that ended on or after May 1 2007 and determine if the individual is an exhaustee. See Attachment A to UIPL 23-08 page A-1 Definitions - 4 and page A-3 1 b Determining Exhaustees. C. Applicable Benefit Year for EUC08 Purposes 1. Question May an individual choose the benefit year under which an EUC08 claim will be filed For example the individual has two different benefit years that ended on or after May 1 2007 or the individual has one benefit year that ended on or after May 1 2007 and another benefit year that has not ended but all UC benefits have been exhausted Answer No. The applicable benefit year is the most recent benefit year. See Attachment A to UIPL No. 23-08 page A-1 Definitions - 4. 2. Question If due to the receipt of severance pay an individual s eligibility for regular UC is postponed or reduced to zero and no regular UC is paid during the entire benefit year which has ended is the individual considered to be an exhaustee Answer Yes. Once the individual s benefit year ends the individual is an exhaustee. See Section 4001 c 2 of the Act. Note Disqualifications including those related to deductible income that are imposed by state law will also apply to EUC08 claims. 3. Question An individual has two different benefit years that ended on or after May 1 2007. However on the most recent benefit year the individual does not meet the 20 weeks of work requirement. The individual s prior benefit 4 year does meet this requirement. Since the most recent benefit year does not meet the EUC08 monetary requirements might the individual qualify for EUC08 based on the prior benefit year Answer No. The applicable benefit year which is used as the basis for an EUC08 claim is the most recent benefit year. D. Monetary Eligibility 1. Question Is there a uniform 13-week duration for all EUC08 claims Answer No. The EUC08 maximum benefit amount MBA is computed as the lesser of 50 percent of the individual s regular UC MBA including dependents allowance s or 13 times the individual s average weekly benefit amount WBA . Fifty percent of the regular MBA may result in less than 13 weeks of benefits for example where an individual only qualifies for an MBA of 10 weeks of regular UC. See Section 4002 b 1 of the Act. 2. Question If there has been a recent increase in the state s WBA that applies to all benefit years on file with a balance what impact does it have on the EUC08 WBA and MBA Answer The increase will affect the calculation of the EUC08 WBA and MBA if it increases the claimant s WBA for regular compensation for the applicable benefit year. The individual s EUC08 WBA is the most recent WBA of regular compensation for the applicable benefit year. The individual s EUC08 MBA is also affected by the WBA increase for regular compensation because the EUC08 MBA is the lesser of 50 percent of the total regular UC for the benefit year which would be increased by the WBA increase or 13 times the average WBA paid during the benefit year which also would be increased by the WBA increase . See Section 4002 b 1 of the Act. For example if an individual received regular UC for 20 weeks at 200 and the remaining 6 weeks at 220 his her EUC08 WBA will be 220 and the EUC08 MBA will be 2 660 which is the lesser of 50 of 5320 2 660 or 13 times 210 200 220 divided by 2 2 730 the average of both WBAs . State law rounding provisions will apply. 3. Question If an individual receives a monetary penalty on his her regular claim is the EUC08 claim based on the regular amount before or after the penalty e.g. wage cancellation or reduction of the MBA Answer The EUC08 claim is based on the amount determined before the penalty. Section 4002 b 1 of the Act requires that the amount in the EUC08 account equal the lesser of 50 percent of the regular benefits payable or 13 times the average WBA. The Department has consistently held that the determination of the monetary award for federally-financed extensions should be based on the regular UC amount prior to the application of a penalty because to base entitlement on the lesser re-determined amount would be 5 tantamount to imposing a second penalty for the same disqualifying act. See 20 CFR 615.5 a 1 i and b 3 which applies the same principle in the extended benefits EB program in determining exhaustion. 4. Question May individuals who have had their base period wage credits canceled or who have had their regular maximum benefit amount reduced to one week establish a EUC08 claim If yes how is the EUC08 monetary account calculated Answer Yes. Consistent with the EB regulations 20 CFR 615.5 a 1 i and b 3 the individual is an exhaustee if no regular compensation is payable. Also the individual s EUC08 monetary account is calculated using the monetary determination before wage cancellation or benefit reduction as explained in 3 above. 5. Question If the calculation of the individual s EUC08 MBA at 50 percent of the MBA for regular compensation results in a fraction that requires rounding are state law rounding provisions followed Answer Yes. States are to round up or down in accordance with their state law. 6. Question A state s formula for determining the MBA for regular compensation is the lesser of 26 times the WBA or one-third of the base period wages credits. When an individual is unemployed due to a plant closing the state pays up to 13 additional weeks of benefits as the lesser of 39 times the WBA or one-half of the base period wage credits. State law does not specifically define these benefits as additional compensation. Are the plant closing benefits considered additional compensation for EUC08 purposes Answer Yes. These benefits meet the definition of additional compensation in Attachment A to UIPL No. 23-08 that is compensation totally financed by a state and payable under a state law by reason of high unemployment or other special factors. Emphasis added. The special factor here is that these benefits are paid for plant closings. As additional compensation these benefits are excluded from use in the calculation of EUC08 monetary entitlement. Further EUC08 may be paid prior to these benefits because Section 4001 b 2 of the Act does not require as a condition of EUC08 eligibility exhaustion of additional compensation. 7. Question May an individual have more than one EUC08 claim Answer Yes. An individual may establish a claim for EUC08 qualify for a new UC benefit year exhaust that benefit year exhaust the first EUC08 claim and subsequently qualify for a second EUC08 claim based on the new most recent benefit year. 6 Example An individual is determined eligible for EUC08 based on a UC benefit year that ended on May 12 2007. S he receives 10 weeks of EUC08 prior to the calendar quarter change at which point s he qualifies for a new UC benefit year. Because the individual qualifies for regular UC EUC08 payments must stop. The individual exhausts benefits based on his her new UC benefit year therefore s he is again an exhaustee for EUC08 purposes. S he may collect the remaining entitlement on his her existing first EUC08 claim and after exhausting these benefits s he may file a new second EUC08 claim based on the new most recent UC benefit year. The new most recent benefit year is the applicable benefit year for a second EUC08 claim if the initial claim for that second claim is for a week of unemployment ending on or before March 31 2009. E. Requalifying Requirements for Successive Benefit Years Double Dip Provisions 1. Question State law requires an individual who received UC in a benefit year to have had work since the beginning of the benefit year to qualify for a new benefit year. How does this double dip requirement affect eligibility for EUC08 Answer Section 3304 a 7 of the Federal Unemployment Tax Act FUTA requires as a condition of a state s participation in the federal-state UC program that the state law provide that an individual who has received UC during his benefit year is required to have had work since the beginning of such year in order to qualify for UC in his next second benefit year. Where an individual is unable to satisfy this double dip requirement some states will nevertheless establish a second benefit year although the individual will have no monetary entitlement on that benefit year until s he satisfies the requirement. Whether or not the state establishes a new benefit year when the individual does not satisfy the double dip requirement an individual is an exhaustee and will qualify for EUC08 if otherwise eligible. This follows the approach taken in the EB program. See 20 CFR 615.2 c 2 F. Base Period Employment Requirement 1. Question An individual has covered employment and wages in two states and filed a combined wage claim CWC . Although wages were transferred to State A from State B the individual has established a benefit year based only on wages from State A because the base period wages from State B do not increase the weekly or maximum benefit amount. Therefore a CWC was not established and State A returned wages to State B. May State A use the wage transfer record TC-IB4 it received from State B as evidence of employment and wages in the base period of the claim which will satisfy the 20-week work requirement or its equivalent for EUC08 entitlement 7 Answer Yes. Section 4001 d 2 A of the Act requires an individual to have 20 weeks of full-time insured employment or the equivalent in insured wages under the provisions of applicable State law to qualify. It does not require all of the employment and wages to have been used in the determination of monetary entitlement for the applicable benefit year. 2. Question How is full-time work determined for purposes of the 20-weeks- of-work requirement Answer It is determined under the provisions of the State law implementing Section 202 a 5 of the Federal-State Extended Unemployment Compensation Act of 1970. Section 4002 d 2 A of the Act. This requires the state to follow the monetary qualifying requirements that the individual meets at least one of the following One and one-half times the individual s high quarter wages 40 times the most recent weekly benefit amount or 20 weeks of full-time insured employment as provided by the state s law. Note Full-time may not always be defined as 40 hours per week states will refer to their state law for the definition of full-time. See 20 CFR 615.4 b regarding these options. G. Seasonal Provisions Between Terms Denial 1. Question Are employees of educational institutions who are denied regular benefits because of the between-and-within terms denial provisions eligible for EUC08 during those between-and-within terms periods Answer No. Section 3304 a 6 A of the Federal Unemployment Tax Act FUTA requires as a condition of participation in the federal-state UC program that state law limit the eligibility of individuals based upon services performed for educational institutions between and within academic terms. With exceptions not relevant here Section 4001 d 2 of the Act applies the terms and conditions of the state law to claims for EUC08. Therefore the same between and within terms denial provisions of state law apply to EUC08 claims. Note Employees of educational institutions who establish a benefit year based on non-school wages may qualify for EUC08 between-and-within terms after exhausting all UC that is based on their non-school wages. The WBA for the EUC08 claim must be based on the non-school wages. 2. Question Under a state s seasonality provisions benefits based on seasonal wages may be paid only during the normal seasonal period for which the seasonal wage credits were earned. Is a seasonal worker whose monetary determination is based solely on seasonal wages and who is ineligible because of the seasonality provisions considered an exhaustee for EUC08 purposes Answer Yes. The EB exhaustion provisions 20 CFR 615.5 b 2 regarding seasonal workers make seasonal workers potentially eligible as exhaustees 8 during the off season. The same rule is applicable for EUC08 claims. H. Work Search Job Service Registration Requirements 1. Question Do EB work search requirements apply to EUC08 Answer No. The Act does not apply the EB work search requirements to EUC08. Rather under Section 4001 d 2 of the Act the work search requirements of state law apply to EUC08. 2. Question Do state law provisions requiring an individual to be able and available for work apply to EUC08 Answer Yes. See Section 4001 d 2 of the Act. 3. Question Is it inconsistent with Federal law for a state to electronically reactivate prior work registrations and require the same number of job contacts for EUC08 as was required for regular UC Answer No. Federal law requires this result. Under Section 4001 d 2 of the Act state law work search and employment service registration requirements apply to EUC08 eligibility. I. Non-Monetary Issues 1. Question Must states adjudicate any new separation issue s that occurred after the individual exhausted his or her UC claim Answer Yes. State must adjudicate separation issues in accordance with state law for all EUC08 claims. 2. Question If state law provides for adjudication of all separations from the beginning of the base period to the time a claim is filed does this provision of state law apply to EUC08 claims Answer Yes. See Section 4001 d 2 of the Act. 3. Question If an individual has satisfied purged a disqualification for example disqualifications related to fraud separation or refusal of suitable work is s he eligible for EUC08 if otherwise eligible Answer Yes. The individual is eligible for EUC08 if all other requirements are met. 4. Question Our state assesses penalty weeks for making false statements. An otherwise eligible individual must certify for benefits to satisfy this penalty. May an individual who is otherwise eligible to file an EUC08 claim use EUC08 weeks to satisfy this penalty Answer Yes the individual may use EUC08 weeks to satisfy this penalty but will be ineligible for EUC08 during those penalty weeks. 5. Question Our state assesses penalty weeks for false statements and suitable work disqualifications. Our penalty is a set number of weeks and the individual does not have to certify or be eligible for benefits to serve these 9 penalty weeks. Would individuals qualify for EUC08 payments during the period when they are serving these weeks Answer No. As in the answer above the individual is ineligible for EUC08 for the penalty weeks. Where an individual is disqualified for benefits under state law s he would not qualify for EUC08 until the time period for the disqualification has been satisfied has passed. J. EUC08 Benefit Intercept 1. Question Are EUC08 payments subject to child support intercept and similar levies and attachments Answer Yes but only to the extent that doing so is consistent with federal and state law. As explained in UIPL No. 45-89 the Federal withdrawal standard limits deductions from UC to those authorized or required by Federal law. One of the required offsets pertains to child support. Further the terms and conditions of state law apply to EUC08 including intercepts and offsets except where inconsistent with the Act or operating instructions. 2. Question What is the order of priority for deductions of overpayment offset child support and income taxes Answer The state will follow the same procedures that apply to regular compensation. See UIPL 17-95 Change 1. K. Overpayments 1. Question May EUC08 benefits be offset to recover state UC overpayments Answer Yes if the state has a Cross-Program Overpayment Offset Agreement with the Secretary. The state must follow the agreement in recovering overpayments. 2. Question Must all offsets from EUC08 be 50 percent even if state law requires a 100 percent offset of benefits Answer No. The Act provides that the 50 percent limit applies only to offsets to recover EUC08. It does not apply to offsets of EUC08 to recover state UI overpayments. 3. Question May a state apply its own state law waiver provisions to EUC08 overpayments Answer A state law s waiver provision may be applied to non-fraudulent EUC08 overpayments if the provision requires the state to determine that 1 the payment of EUC08 was without fault on the part of the individual and 2 repayment would be contrary to equity and good conscience. See Attachment A to UIPL NO. 23-08 page A-11 6 b 1 Application of State Waiver Provision. 4. Question How should states handle prosecutions of EUC08 fraud overpayments 10 Answer States must pursue EUC08 fraud cases in the same manner as all other Federal UC fraud cases are handled. For referrals of fraud cases to the U.S. Department of Labor s Office of Inspector General OIG see UIPL No 29-05. 5. Question Are states required to use only benefit offsets to recover EUC08 overpayments Answer No Section 4004 c 1 merely authorizes offset against EUC08 benefits as one method of recovery. EUC08 overpayment recovery shall be enforced by any action or proceeding which may be brought under state or Federal law . See Attachment A to UIPL No. 23-08 page A-13 6 b 3 D Recovery of Overpayments Section 4005 c of the Act. 6. Question States are still recovering overpayments from the 2002 Temporary Extended Unemployment Compensation TEUC program. Is it necessary to separately report those 2002 overpayments recovered from any EUC08 overpayments recovered Answer Yes. Transactions concerning the 2002 TEUC program should be reported separately from EUC08 transactions. L. Short-Time Compensation STC Program 1. Question May EUC08 be paid to individuals participating in a short-time compensation STC or worksharing program Answer Yes. If an individual participating in an STC program is an exhaustee for EUC08 purposes and is otherwise eligible EUC08 must be paid to an otherwise eligible individual on the same terms and conditions as apply to regular compensation. The payment of EUC08 to STC participants is unlikely to occur since STC participants rarely exhaust their UC benefits and an individual participating in an STC program whose benefit year has ended will have wages that must be used to establish if possible a new benefit year before any EUC08 is payable. 2. Question When a state law requires regular compensation to be paid to individuals participating in an STC program the criteria for earnings deductions from the benefits is based on a percentage of the earnings instead of the rules that apply to regular claims. Do the provisions of the state law governing STC deductions apply to EUC08 If yes does the state law provision that limits the number of weeks payable to STC participants apply to an STC participant receiving EUC08 Answer Yes to both questions. EUC08 is to be paid to STC participants under the provisions of the state law governing STC. 11 M. Extensions for Approved Training 1. Question If a state has a special extension for individuals who exhaust regular compensation and are participating in approved training may EUC08 be paid to these individuals Answer Yes. The benefits paid under this special extension are additional compensation. Section 4001 b 2 of the Act does not require exhaustion of additional compensation to qualify for EUC08. Therefore a state may pay additional compensation concurrent with or after EUC08. See Attachment A to UIPL No. 23-08 page A-5 6 Effect of Additional Compensation Eligibility in a State. N. Self-Employment Assistance 1. Question May EUC08 be paid to individuals participating in a self- employment assistance SEA program Answer No. Since SEA is paid to an individual in lieu of regular UC Section 3306 t 1 of the FUTA the individual has not exhausted regular compensation until s he has exhausted SEA. This renders him her ineligible for EUC08 until either SEA is exhausted or if the individual has stopped participating in an SEA program s he has exhausted regular compensation. O. EUC08 Effect on Trade Readjustment Allowances TRA 1. Question The individual exhausted 26 weeks of regular UC on a first benefit year and began receiving TRA based on that benefit year. S he qualified for a second benefit year and payment of TRA stopped. The individual has now exhausted all benefits available on the second benefit year and meets the requirements for EUC08 based on the second benefit year. After exhaustion of EUC08 are TRA benefits again payable based on the first benefit year Answer Yes. If the individual continues to meet all the TRA eligibility requirements TRA payments may resume based on the first benefit year. 2. Question An individual has received 26 weeks of regular UC and 22 weeks of basic TRA prior to qualifying for 13 weeks of EUC08. What remaining TRA entitlement does the individual have Answer Under 20 CFR 617.14 a the TRA MBA is 52 times the TRA WBA minus the total sum of UC to which the individual was entitled. Since EUC08 is UC the 13 weeks of EUC08 is subtracted along with the 26 weeks of regular UC and the 22 weeks of basic TRA already paid. At this point basic TRA entitlement is exhausted additional TRA may be available to the individual if s he is in training and is otherwise eligible. 3. Question If an individual has received 26 weeks of UC and 26 weeks of basic TRA is the individual entitled to EUC08 if otherwise eligible Answer Yes. TRA does not reduce the amount of EUC08. Therefore EUC08 is payable to the individual if all other eligibility requirements are met. 12 See Attachment A to UIPL No. 23-08 page A-5 8 a Trade Readjustment Allowances TRA . 4. Question An individual has been in training for the past year received 26 weeks of regular UC 26 weeks of basic TRA and 13 weeks of EUC08. Is this individual entitled to any weeks of additional TRA Answer If this individual meets the additional TRA eligibility requirements s he is entitled to additional TRA for any weeks remaining in the fixed 52 consecutive-week eligibility period. See 20 CFR 617.3 m and Training and Employment Guidance Letter No. 11-02 page 22 Note EUC08 is not deductible from additional TRA. However although the benefit amount is not reduced the length of time for which the individual may claim additional TRA is reduced if the s he collects EUC08 during the fixed consecutive-week period for which additional TRA is payable. P. Interstate Benefits Combined Wage Claims CWC 1. Question Under regular interstate and CWC procedures when an individual is indefinitely disqualified under State A s law and has sufficient employment and wages to qualify under State B s law the individual files against State B. Using this scenario an individual has existing benefit years ending on or after May 1 2007 in both State A and State B. If the second claim is indefinitely disqualified in State B may the individual file for EUC08 using the claim in State A if for example the disqualification in State A could be purged satisfied Answer No. Only the claim in State B meets the definition of an applicable benefit year for EUC08 purposes. See Attachment A to UIPL No. 23-08 page A-1 Definitions - 4 . Q. Claims Filed by Aliens 1. Question What requirements must an alien meet to qualify for EUC08 Answer To qualify for EUC08 for a week the alien must be authorized to work in the United States for that week. The alien s authorization to work must be verified through the System for Alien Verification of Eligibility at Social Security Act section 1137 d which state agencies for regular UC. However if the state has information obtained from the verification made in connection with the regular UC claim that the alien s work authorization remains in effect no additional verification is required until the expiration date of his her qualified alien status is reached. 13 R. Application of Worker Profiling and Reemployment Services WPRS 1. Question Are individuals filing for EUC08 subject to profiling and selection and referral to services under the WPRS program Answer No. Only individuals filing new initial claims for regular UC must be profiled and as appropriate selected and referred to services under the WPRS program. S. EUC08 Relation to Extended Benefits 1. Question If a state in an EB period chooses to pay EB before EUC08 must the state pay EUC08 to individuals who have an applicable benefit year for EUC08 but not for EB Answer Yes. The state must pay EUC08 to eligible exhaustees whether or not they previously received EB.