Approved training policy for UI claimants

Accessible letter PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2009/TEGL02-09acc.pdf

CLASSIFICATION
      Employment and Training Administration                  UC/Approved Training
                 Advisory System                              CORRESPONDENCE SYMBOL
            U.S. Department of Labor                          OWS/DL
             Washington, D.C. 20210                           DATE
                                                              August 26, 2009


ADVISORY:            TRAINING AND EMPLOYMENT GUIDANCE LETTER No. 2-09

TO:                  STATE WORKFORCE AGENCIES
                     STATE WORKFORCE ADMINISTRATORS
                     STATE WORKFORCE LIAISONS
                     STATE AND LOCALWORKFORCE BOARD CHAIRS AND DIRECTORS
                     STATE LABOR COMMISSIONERS

FROM:                JANE OATES /s/
                     Assistant Secretary

SUBJECT:             Approved Training for the Unemployment Insurance Program Recommended
                     Policies


1.    Purpose. To encourage states to review their policies and procedures on state-approved
      training for the unemployment insurance (UI) program and to provide recommended policies.

2.    References. Section 3304(a)(8) of the Federal Unemployment Tax Act (FUTA); the
      Workforce Investment Act (WIA); Training and Employment Guidance Letter (TEGL) No.
      21-08 and TEGL No. 21-08, Change 1; the Draft Legislation to Implement the Employment
      Security Amendments of 1970 (commonly called the “Orange Book”); Unemployment
      Insurance Program Letter (UIPL) No. 1276 (July 22, 1974); and UIPL No. 2-96 (October 5,
      1995).

3.    Background. TEGL No. 21-08 encouraged states to widen the types of training approved and
      the conditions under which education or training is considered “approved training” for
      purposes of the state’s UI law during economic downturns. This TEGL is issued to further
      encourage states to widen the types of training approved for UI beneficiaries and to provide
      more specific guidance on revising state policies.

      Section 3304(a)(8), FUTA, requires, as a condition of employers in the state receiving credit
      against the Federal unemployment tax, that—

             Compensation shall not be denied to an individual for any week because he is in
             training with the approval of the State agency (or because of the application to any
             such week in training, of State law provisions relating to availability for work, active
             search for work, or refusal to accept work);


 RESCISSIONS                                               EXPIRATION DATE
 None                                                      Continuing

     As explained in TEGL No. 21-08, this provision was added to Federal law to assure that UI
     eligibility criteria, such as actively seeking work, were not an impediment to the individual
     improving his or her prospects of employment by participating in training. Except for UIPL
     No. 1276, which stated that any criteria for approving training must be “reasonable,” and
     UIPL No. 2-96, which discussed the approval of training for individuals who reside in or file
     from another state, the Department has not updated its guidance since the FUTA provision
     was added in 1970. Similarly, even though the labor market and economy have significantly
     changed, many states have not updated their training approval requirements.

     In developing this TEGL, the Department consulted with states to determine current practices
     and to learn where policies may need to be updated. The Department has found that the share
     of UI beneficiaries participating in approved training varies widely among states. According
     to data derived from the Department’s Benefit Accuracy Measurement system, in three states,
     UI beneficiaries in state- approved training account for over four percent of all weeks claimed
     in the state; while in four states, UI beneficiaries in state- approved training account for less
     than one percent of all weeks claimed. While general labor market conditions in states may
     in part account for this disparity, state training approval policies may also be a factor. As a
     result, the Department, through this advisory, is encouraging states to determine if their
     policies contribute to low rates of approved training and to revise policies where appropriate.

4.   Recommendations for Law, Regulations, and Policy. Following is a list of areas for the states
     to examine in reviewing their state law, regulations, administrative procedures, and policy
     (hereafter referred to as “policy”) regarding approved training. This is not an all-inclusive
     listing of all policies related to approved training. Instead, it emphasizes areas where the
     Department believes review may be especially appropriate.

             a. Consideration of Current Economic Outlook When Reviewing an Individual’s
             Circumstances. When making determinations whether training is approved for UI
             purposes, states generally require a finding related to the availability of work in the
             individual’s usual occupation. For example, there must be a finding that suitable
             work in the individual’s usual occupation does not exist, or that the demand for such
             work has substantially diminished. Some states also require that an individual’s skills
             be in need of upgrading due to technological or other advances. State UI agencies
             already have tools and resources available to help make these determinations
             regarding availability of work and possible need for training. States may take into
             account whether the worker is identified as likely to exhaust benefits through the
             state’s Worker Profiling and Reemployment Services system. States may also take
             advantage of the assessments performed by the workforce system when they
             determine whether to fund training for an individual under the Workforce Investment
             Act (WIA), as discussed below.

             In recessionary times, assessments of the availability of work in the individual’s usual
             occupation might be based on evidence about a shortage of jobs in the individual’s
             customary occupation, as well as the individual’s work search history. The
             Department encourages states to approve training that would enable individuals to
             obtain jobs in a different occupation or enhance the individual’s skills in preparation
             for economic recovery and the return to the customary job. As discussed below, in
             those cases, it may be particularly appropriate to approve post-secondary education.



                                                2

b. WIA-Funded Training. Many state laws already provide that WIA-funded training
will automatically be considered UI-approved training. (Note that an individual
enrolled in training approved under the Trade Act must be considered to be in
approved training for UI purposes. See Section 236(d) of the Trade Act, as
amended.) For purposes of determining if the training shall be funded under WIA, a
One-Stop Career Center counselor reviews the individual’s job history, education,
abilities, and job prospects to determine whether that training is the most appropriate
avenue to permanent employment. In such a case, because an examination of
appropriateness has already been performed by a trained workforce professional, the
state UI agency should consider this training to be approved for UI purposes.

c. Remedial Courses. Many remedial training courses are known to generally
improve the individual’s employability even if they do not lead to a specific
occupation. Such courses include but are not limited to those that improve an
individual’s understanding of the fundamentals of English or mathematics, provide
adult basic education, or result in a general equivalency diploma (GED). The
Department recommends that states approve such courses for UI purposes.

d. Post-Secondary Education. In many cases, programs in community colleges and
other post-secondary institutions are specifically designed to lead to occupations in
fields such as criminal justice, health care, information technology,
weatherization/green construction, and numerous others. Similarly, many four-year
programs may lead to a degree that qualifies the individual for specific occupations,
such as teaching or nursing. Some states have a policy of not approving certain post-
secondary education programs even when they lead to a specific occupation. Given
the increasing number of occupations for which post-secondary certificate-oriented or
degree programs is essential and which is provided by educational institutions, the
Department encourage states to approve such programs.

In addition, states are encouraged to adopt a flexible policy, based on individual
circumstances, that permits, in recessionary periods, approvals of academic courses
leading to a degree or certificate that may not lead to specific occupations.
Particularly during downturns when exhaustion rates are high, periods of
unemployment provide opportunities for laid-off workers to develop new skills, so
that employers will benefit from a skilled workforce when the economy recovers.

e. Limits for Completing Training. In some states, approval of training is limited to
courses that can be completed within a relatively short period of time, such as twelve
months. Given that many certificate and degree programs require a minimum of two
to four years for completion, such limitations can prevent approval of a significant
number of valuable educational and other training opportunities.

The Department recommends that any such time limitation be lengthened.
Specifically, state policy should provide for approval if, at a minimum, the individual
expects to complete training, or a degree or certificate course within two years. The
Department recommends a flexible policy that would allow for even lengthier
timeframes during recessions when extended unemployment benefits are available.



                                   3

             f. Part-Time Training. In some states, approval of training is limited to full-time
             training, as defined by the state. Generally, participation in part-time training does
             not raise a UI eligibility issue since the individual will be available for other work.
             (For example, an individual attending courses in the evening would be available for
             work during normal working hours.) However, in some cases, limiting approval to
             full-time training may preclude training opportunities for individuals working
             reduced work-weeks who are unable to attend full-time training and may preclude
             participation in certain training opportunities that are only available during periods
             when the individual is expected to be available for work (that is, during regular
             working hours). States should consider approval of part-time training for individuals
             working a reduced work-week or that occurs during regular working hours.

             g. Distance Training. As technology evolves, individuals may participate in “virtual
             classrooms” where the individual must participate on-line at specific times. States
             should consider developing a policy for determining under what conditions such
             distance learning qualifies as “approved training.”

             Generally, if distance learning does not require specific times for participation, it will
             not affect eligibility since the individual can perform on-line learning tasks at his/her
             convenience while still meeting availability and work-search requirements. However,
             in cases where required on-line participation may conflict with an occupation’s
             regular working hours, the state should consider treating such training the same as
             any classroom training.

             h. Disqualification Provisions. Most states require individuals to be available for
             work and actively seeking work for specified periods between training. (For
             example, if the break between training courses is more than four weeks, a state may
             require an individual to seek and accept work.) However, some states disqualify
             individuals who accepted work during a break in training when they leave work to
             return to training. The Department recommends that state laws include a provision
             that an individual will not be disqualified for leaving a job to resume a training course
             or program.

5.   Streamline Approval Procedures. In many states, the UI agency does not advise individuals
     if the training is approvable for UI purposes until after the individual has attended a week of
     training and claimed UI for that week. This procedure may discourage individuals from
     entering training since they will not know the effect on UI until after they have attended
     class. States are strongly encouraged to establish procedures that approve/disapprove the
     training before the individual registers for a class. The Department has identified the
     following state practices that facilitate attainment of this goal:

         •   Delegating training approvals to One-Stop Career Centers. In these cases, the One-
             Stop Career Center counselor will make an assessment of the individual’s work
             history, job expectations, and training needs prior to approving a training course with
             an approved training provider even if it is not WIA-funded training. The UI agency
             will accept this determination.




                                                 4

         •   One-Stop Career Center counselors make a recommendation that training be
             approved. This recommendation is immediately forwarded to the UI agency, which
             determines whether the training is approvable for UI purposes.

         •   The UI system establishes its own pre-approval process. In this case, the individual
             would complete an application with the assistance of UI staff and the UI agency
             would issue a determination.

     States should be aware that, for purposes of reporting nonmonetary determinations, it is not
     necessary that the individual claim a week in which the training occurs. As a result, states
     may report UI agency determinations as nonmonetary determinations for purposes of the
     workload counts on the UI-3 report and for the ETA 207 report. (Office of Management and
     Budget Control Nos. 1205-0132 and 1205-0150, respectively.)

6.   Approved Training Providers. As a result of its consultations with states, the Department
     learned that, while each state has a method for identifying approved training providers within
     its borders (e.g. use of the state’s Department of Education or WIA Eligible Training
     Provider lists), it does not always include distance training (due to concerns that the provider
     may be a “diploma mill”) or training provided in another state. To help states in identifying
     approved training providers out-of-state, states should consider using other states’ WIA
     eligible providers lists which may be found via on-line search engines. The following may
     also be of assistance to states:

         •   The Department of Education’s National Center for Education Statistics’ College
             Navigator, a free consumer information tool with information on nearly 7,000
             postsecondary institutions in the United States, can be found at:

             http://nces.ed.gov/collegenavigator /

         •   For purposes of benefits provided under the GI Bill, the Department of Veterans
             Affairs maintains a web site with approved education and job training programs as
             well as a list of approved institutions (including correspondence schools) at:

             http://www.gibill.va.gov/GI_Bill_Info/Search_Programs.htm

         •   The Council for Higher Education Accreditation maintains a database of institutions
             and programs accredited by recognized United States accrediting organizations at:

             http://www.chea.org/search/default.asp

7.   Noncharging. Benefits paid to individuals attending state-approved training are not required,
     as a condition of receiving the additional credit against the Federal unemployment tax under
     Section 3303(a)(1), FUTA, to be charged to an otherwise chargeable employer’s account.
     Instead, such amounts may be distributed among all employers. Since an individual in
     approved training is relieved from requirements relating to availability for work, seeking
     work, and refusing work, the individual’s claim does not represent the employer’s
     “experience with respect to unemployment,” nor does it fall within “other factors bearing a
     direct relation to unemployment risk.”


                                                5

8.   Action. State administrators are strongly encouraged to review their laws, regulations,
     policies, and procedures regarding approved training in light of this advisory, and to take
     steps to expand training opportunities for UI beneficiaries as appropriate.

9.   Inquiries. Questions should be addressed to your Regional Office.




                                                6