Reemployment services for emergency unemployment claimants

Accessible letter PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2012/tegl_20_11_acc.pdf

CLASSIFICATION
     EMPLOYMENT AND TRAINING ADMINISTRATION                          Reemployment/EUC
                 ADVISORY SYSTEM                                     CORRESPONDENCE SYMBOL
                                                                     OUI/OWI
            U.S. DEPARTMENT OF LABOR
                                                                     DATE
               Washington, D.C. 20210                                March 16, 2012



ADVISORY:             TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 20-11

TO:                   STATE WORKFORCE AGENCIES
                      STATE WORKFORCE LIAISONS
                      UNEMPLOYMENT INSURANCE DIRECTORS
                      EMPLOYMENT SERVICE DIRECTORS

FROM:                 JANE OATES /s/
                      Assistant Secretary

SUBJECT:              Reemployment Services and Reemployment and Eligibility Assessment
                      Activities for Recipients of Emergency Unemployment Compensation

1. Purpose. To advise states of new requirements for the provision of reemployment services
and reemployment and eligibility assessments (RES/REA) to individuals who begin receiving
Emergency Unemployment Compensation (EUC) First Tier benefits or who transition from First
Tier to Second Tier benefits 1 on or after March 23, 2012, and to provide information on related
funding and reporting requirements.

2. References.
     Middle Class Tax Relief and Job Creation Act of 2012, Public Law (P.L.) 112-96
       (February 22, 2012), Title II, Sections 2001-2184 (Extended Benefits, Reemployment
       and Program Integrity Improvement Act);
     Supplemental Appropriations Act, 2008, as amended, P.L. 110-252 (June 30, 2008), Title
       IV, Sections 4001-4007 (EUC Act);
     Federal Unemployment Tax Act (FUTA);
     Wagner-Peyser Act, as amended, 29 U.S.C. 49 et seq.;
     Workforce Investment Act of 1998 (WIA), as amended, 29 U.S.C. 2801 et seq.;
     WIA Regulations, 20 CFR parts 652 and 660-671;
     Unemployment Insurance Program Letter (UIPL) No. 23-08, Supplemental
       Appropriation Act, 2008, Title IV—Emergency Unemployment Compensation, and its
       Changes 1-6;



1
 EUC First and Second Tiers are temporary Federal extensions of unemployment benefits payable to individuals
who have exhausted a claim and are no longer eligible for regular compensation. First Tier benefits are payable for
up to 20 weeks following the exhaustion of regular compensation (up to 14 weeks for any new EUC claim filed after
September 2, 2012). Second Tier benefits are payable for up to 14 weeks following the exhaustion of the First Tier
benefits.


    RESCISSIONS                                                     EXPIRATION DATE
    None                                                            Continuing


       UIPL No. 04-10, Extension of Temporary Provisions – Emergency Unemployment
        Compensation, 2008, Federal Additional Compensation, and Extended Benefits, and its
        Changes 1-9; and
       UIPL No. 12-01, Outsourcing of Unemployment Compensation Administrative
        Functions, and Change 1.

3. Background. The U.S. Department of Labor (Department) is issuing this guidance letter in
accordance with the EUC Act, as amended by Section 2142 of the Middle Class Tax Relief and
Job Creation Act of 2012 (the Act), which requires guidance by the Secretary of Labor on the
implementation of the RES/REA activities newly required under the Act.

Providing effective reemployment services to the unemployed (including the long-term
unemployed) and minimizing erroneous payments are high priorities for the Department and its
partners, the state workforce agencies. States have demonstrated the cost benefits of providing
reemployment services to unemployed individuals through the One-Stop Career Centers. 2
Providing reemployment assistance to those who are unemployed can result in more rapid
reemployment, shorter claim duration, 3 and fewer erroneous payments of unemployment
compensation (UC).

Section 2142 of the Act adds new subsection (i) to Section 4001 of the EUC Act, requiring that
states operating an EUC program provide RES/REAs to individuals who begin receiving EUC
First Tier benefits or who transition from First Tier to Second Tier benefits on or after the 30th
day after the date of enactment of the Act, or March 23, 2012. For the current statutory duration
of the EUC program, which is scheduled to expire on January 2, 2013, the Department projects
that approximately 3.2 million individuals will file for First Tier benefits and that 1.4 million
claimants currently receiving EUC First Tier benefits will transition to EUC Second Tier. The
Act requires states to provide RES/REA services (as defined in the Act) to such individuals
receiving EUC.

The reemployment services and in-person reemployment and eligibility assessments required by
Section 4001(i)(2)(A) of the EUC Act, as amended, are:

            1) The provision of labor market and career information;
            2) An assessment of the skills of the individual;
            3) Orientation to the services available through the One-Stop Centers established
               under Title I of WIA; and
            4) A review of the eligibility of the individual for EUC relating to the job search
               activities of the individual. (See the description of new Section 4001(b)(4) of the
               EUC Act below.)
2
  Jacob Benus, Eileen Poe-Yamagata, Ying Wang, and Etan Blass, IMPAQ International, Inc., Reemployment and
Eligibility Assessment (REA) Study – FY 2005 Initiative,
http://wdr.doleta.gov/research/eta_default.cfm?fuseaction=dsp_resultDetails&pub_id=2349&bas_option=Title&star
t=1&usrt=4&stype=basic&sv=1&criteria=rea (March 2008).
3
 Louis Jacobson, (February 1991). “Congressional Testimony on the Effectiveness of the Employment Service in
Aiding UI Claimants.” Before the Subcommittee on Human Resources, House Committee on Ways And Means,
Washington D.C.




States have the option to provide the following additional services described in Section
4001(i)(2)(B) of the EUC Act, as amended:

           1) Comprehensive and specialized assessments;
           2) Individual and group career counseling;
           3) Training services (the Department has interpreted this to mean referrals to
               appropriate training);
           4) Additional reemployment services; and
           5) Job search counseling and the development or review of an individual
               reemployment plan that includes participation in job search activities and
               appropriate workshops.

Section 4001(i)(1)(B) of the EUC Act, as amended, requires individuals (who begin receiving
EUC First Tier benefits or who transition from First Tier to Second Tier benefits on or after
March 23, 2012) who are referred to RES/REA services to participate in these RES/REA
services to receive these benefits. The statute also conditions weekly eligibility of these
individuals – as it now does for all EUC claimants – on meeting the “actively seeking work”
requirement described below (under New Work Search Provisions for the EUC Program).
Section 4001(i)(3) more specifically conditions continued EUC eligibility for the week in which
an individual is referred to RES/REA activities upon that individual’s participation in these
services or activities, unless the state UC agency determines that the individual has completed
participation, or there is justifiable cause for failure to participate or complete participation, as
determined by the Department in this guidance. (See section 5.g., in this Training and
Employment Guidance Letter (TEGL)).

New Work Search Provisions for the EUC Program

New Section 4001(b)(4) of the EUC Act conditions EUC eligibility upon a claimant being “able
to work, available to work, and actively seeking work.” New Section 4001(h)(1) defines
“actively seeking work” to mean that an individual must:

      Register for employment services as prescribed by the state agency;
      Engage in an active search for work that is appropriate in light of the labor market and
       the individual’s skills and capabilities, and includes an appropriate number of employer
       contacts as determined/prescribed by the state;
      Maintain a record of his/her work search, including employers contacted, method of
       contact, and date of contact; and
      When requested, provide such work search record to the state agency.

Notification of Work Search Requirements

States must immediately begin providing notification to all EUC claimants that they must meet
the new EUC work search requirements. (See UIPL No. 04-10, Change 9). Note: An individual
is not required to seek work when such individual is participating in a state approved training




program while receiving benefits (see Section 3304(a)(8), FUTA). 4 In addition, new section
4001(h)(1)(A) requires ES registration “in such a manner and to such extent as prescribed by the
State agency.” Therefore, if the agency does not require registration for union members, the
state does not have to require registration. Under Section 4001(h)(1)(B), which requires an
active search for work consistent with standards established by the state, a state may use
standards that only require the worker to seek work through a hiring hall. Further, the state may
also determine that the appropriate number of work search contacts for an individual on a short
term layoff or with a letter of “intent to hire” from an employer is zero since the individual is job
attached.

Note: The requirement under the Act that states must audit a random sample of all EUC
recipients’ work search activities is a new requirement that will be addressed in separate
guidance issued in the near future through a UIPL.

4. Agreements and Implementation Planning. New Section 4001(i) of the EUC Act requires
that these new services be provided under each state’s EUC Agreement with the Secretary of
Labor, which provides the authority to administer the EUC program in the state. Accordingly,
the Department executed a second Addendum to the existing Agreements to implement the
requirement that the states provide RES/REA services. Included in the Addendum is the
requirement for the governor to designate either the state UC agency or the state Employment
Service (ES) agency as the agency responsible for ensuring these activities are properly
administered under the EUC Act (see section 7 below, Staffing Guidelines).

To implement this new program, states will need to develop processes and service delivery
strategies to meet the requirements for providing RES/REA services to individuals who begin
receiving EUC First Tier benefits or who transition from First Tier to Second Tier benefits on or
after March 23, 2012. Developing these processes is a cross-program responsibility and,
regardless of which agency receives the funds, states must ensure collaboration among the state’s
UC and workforce programs, as well as Local Workforce Boards and One-Stop Career Centers
in the development of an implementation strategy in order to ensure successful implementation.
States are strongly encouraged to consider development of a cross-program agreement or a
Memorandum of Understanding to formalize the implementation strategy, as appropriate.

The requirements for RES/REAs are similar to the requirements for the UC Reemployment and
Eligibility Assessment (REA) initiative that applies to UC claimants receiving regular benefits
(these UC REA programs are currently operated by 41 states). States currently implementing
REAs for their regular UC program should consider using the procedures and infrastructure
already in place for the current REA program, such as processes and forms currently used for
call-in notices and referrals, feedback loops between the UC program and reemployment service
providers, and staff training materials. It is important to note, however, that the new RES/REA
program will be serving significantly larger numbers of claimants, which may require modifying
these existing REA processes.


4
  That section provides: “…(8) 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)….”




States are strongly encouraged to provide RES/REAs as an integrated package, both for
efficiency and because it can provide better reemployment outcomes for EUC claimants. A
recent evaluation of the state UC REA program in Nevada found that when services are provided
by the same staff for the entire set of UC REA services and reemployment services, the results
were very positive. An evaluation of this program is contained in the report Impact of the
Reemployment and Eligibility Assessment (REA) Initiative in Nevada, which will be posted on
the Department’s Web site in the near future.

5. Reemployment Services and Reemployment and Eligibility Assessment Activities
The statute, at new section 4001(i)(2), requires REAs to be “in person.” Consistent with this
requirement, states must, at a minimum, require an EUC claimant’s presence to perform the
review of eligibility and review of the claimant’s work search. Other RES/REA activities may
be carried out in person or remotely at the state’s discretion. That is, provided the claimant
reports to the One-Stop Career Center or One-Stop affiliate office and is physically present for
this activity (eligibility and work search review), a state may, if it deems it appropriate, provide
other RES/REA services remotely. In cases where the state agency determines that reporting in
person would impose a hardship on a claimant, such as when the office responsible for service
delivery is located in a remote location or the claimant must travel an extraordinary distance, a
state may determine that the “in person” requirement may be managed remotely by phone or
other means.

States may elect to provide group orientation sessions, thus providing a complete overview of
services to a large number of claimants at the same time. However, a review of the individual’s
work search activities must be done on an individual basis to determine whether the individual
has met the work search requirements under the Act and as prescribed by the state.

a. Who is required to participate in the RES/REA?

Individuals who begin receiving EUC First Tier benefits or who transition from First Tier to
Second Tier benefits on or after March 23, 2012 will be required to report to the appropriate
One-Stop Career Center (or to an affiliate One-Stop or Mobile Center) for their reemployment
and eligibility assessment. These individuals must participate in RES/REA activities as a
condition of eligibility for receipt of EUC benefits, unless they have already completed
participation in such services or there is justifiable cause for failure to participate or complete
participation as explained in this section below (see item 5.g.). As stated below, for purposes of
this requirement, the Department interprets “completion” to include receipt and completion of
similar services while collecting regular UC or other types of unemployment benefits.
Individuals receiving RES/REA as they enter EUC First Tier on or after March 23, 2012 are not
required to receive these services a second time if and when they augment to EUC Second Tier.

States must contact individuals by the third (3rd) week in their claim series for their current EUC
Tier to notify them that they have been scheduled to report to a One-Stop Career Center for an
eligibility assessment and appropriate reemployment services. The in-person RES/REA must be
scheduled by the individual’s sixth (6th) week in their EUC (First/Second Tier) claim series.
States must advise selected claimants that failure to participate in the required RES/REA, absent
justifiable cause, as well as any additional reemployment services to which they are referred, will




make them ineligible for benefits (see item 5.g.). Failure to participate means failure to attend all
scheduled activities in the required RES/REA. Individuals who fail to participate in the
RES/REA may be rescheduled, as appropriate. Rescheduling these services may require going
beyond the sixth (6th) week in an individual’s claim series; however, states must reschedule the
RES/REA as soon as feasible.

b. What constitutes RES/REA activities?

As was the case with RES activities funded in Program Year (PY) 2001 through PY 2005 and
again under the American Recovery and Reinvestment Act of 2009, and as is currently required
by the existing REA program, RES/REAs must be provided to individuals through One-Stop
Career Centers (which may include affiliate or mobile One-Stop Centers).

Required RES/REA services and activities are described below in more detail:

   Provision of labor market and career information, including provision of materials or
    information intended to assist individuals in making occupation or career decisions. This
    information may be provided in person or via online resources. To comply with this
    requirement, states may use their own services and/or elect to:
            o Direct individuals to online resources within their state and/or national tools such
                as the Labor Market Information Center, which provides detailed labor market
                data to identify current employment trends and fast growing occupations in a state
                or local area, at www.careeronestop.org/lmi/LMIHome.asp; and/or
            o Direct individuals to online career exploration available within their state or
                national career exploration tools such as mySkills myFuture, which offers
                personalized career suggestions based on a person’s interests and level of work
                experience; or MyNextMove, a skill transferability tool that allows job seekers to
                learn more about their career options.
   An assessment of the skills of the individual. This assessment must focus on occupational
    assessments of skill level, aptitudes, and individual abilities. To comply with this
    requirement, states may conduct these assessments in person or via online tools.5 States may
    elect to:
            o Direct individuals to the Skills Profiler (www.careerinfonet.org/skills/) to create a
                list of their skills and match individuals to jobs with those skills requirements;
                and/or
            o Direct individuals to mySkills myFuture, which offers personalized career
                suggestions based on a person’s interests and level of work experience, or
                MyNextMove, a skill transferability tool that allows job seekers to learn more
                about their career options.
   Orientation, in groups or individually, to the services available through the One-Stop Career
    Centers and its partner organizations. States must ensure that individuals are able to access
    the full array of services available through the public workforce system; and
5
 For definitions pertaining to skill and competency assessments, states should refer to Training and Employment
Notice 21-07, Effective Use of Assessment in the Public Workforce Investment System and Transmittal of Testing
and Assessment: A Guide to Good Practices for Workforce Investment Professionals,
http://wdr.doleta.gov/directives/attach/TEN/ten2007/TEN21-07.pdf].




   A review of the individual’s continued eligibility for EUC with respect to the “actively
    seeking work” requirements as defined under the Act (see section 2141 of the Act, and
    Section 3 of this TEGL) and under state law. This aspect of the assessment must include a
    review of the individual’s work search log(s), conducted in person, to ensure it contains the
    required information and otherwise complies with the state’s standards. It must also include
    a review of whether the individual is registered for employment services as prescribed by the
    state agency.

c. What are the participation requirements to continue receiving EUC benefits?

Those individuals required to participate in a scheduled RES/REA must report “in person” to a
One-Stop Career Center, as directed by the state UC agency. Although states may elect to
provide group orientation sessions for the reemployment assessment, the review of the
individual’s work search record(s) must be conducted on an individual basis to determine
whether the individual has met the work search requirements prescribed by the state.

Individuals must be notified of the new EUC work search requirements as well as the state’s
standards for their work search before their scheduled RES/REA so that they are aware of these
new requirements and the need to maintain a record of their work search activities, as
appropriate. Individuals who do not meet the work search requirements must be referred to the
UC agency for adjudication. An individual who fails to report for a scheduled RES/REA, as
instructed, must be referred for adjudication by the UC agency to determine whether the
individual had “justifiable cause” for his/her failure to participate as required (see item 5.g.
below). In addition, any other eligibility issues detected during the RES/REA must also be
referred to the UC Agency for adjudication, as needed (see item 5.e.).

Since states must provide RES/REAs to all individuals who begin receiving EUC First Tier
benefits or who transition from First Tier to Second Tier benefits on or after March 23, 2012,
states must begin notifying these individuals by the third week in their EUC claim series that
they must report for the required RES/REA at a One-Stop Career Center. Unless the state
determines the individual has already received similar services or waives the required
participation for an individual, RES/REAs must be scheduled for new EUC claimants or EUC
First Tier claimants as of March 23, 2012 that augment to EUC Second Tier by week six (6) in
an individual’s EUC claim series or week six (6) of Second Tier respectively, except when not
possible, for example, due to rescheduling.

As noted above, states must advise individuals that, under the amended EUC statute, failure to
participate in the RES/REA activities required by the state, as well as any additional
reemployment services to which they are referred, may affect their eligibility for EUC.
However, states may choose to allow claimants some flexibility with respect to individual
appointments and sessions in the course of the broader RES/REA process. State UC agencies are
responsible for developing clear and consistent processes for managing the scheduling process to
be implemented by staff performing RES/REA services. Based on its policies and procedures,
states may choose to accommodate and reschedule individuals who contact the appropriate
agency before their RES/REA appointment to request a change in the scheduled date or time, for
example, for reasons such as a scheduled job interview. State UC agencies need to ensure that




the notice advising claimants of their scheduled assessment also provides information about how
to contact the agency, if needed, to request that the RES/REA be rescheduled.

d. What constitutes an eligibility assessment?

States must review individuals’ continued eligibility for EUC under the new EUC work search
requirements. States are encouraged to use eligibility review forms or on-line eligibility review
programs that individuals can complete before the assessment to facilitate the efficiency of the
assessment and eligibility review. States are also encouraged to provide standard work search
logs to claimants for maintaining the required work search information (i.e., employer name,
method of contact, and date of contact). States must also advise these claimants that these work
search records/information will be reviewed during the RES/REA.

e. What types of issues will states need to adjudicate with respect to the RES/REA?

Any UC eligibility issues that arise during the assessment(s) must be referred to the UC agency
for adjudication. A claimant who failed to meet the prescribed work search requirements must
be referred to the UC agency for adjudication. Also, states must adjudicate whether an
individual had “justifiable cause” for failure to participate in a required RES/REA. The
determination of “justifiable cause” will be made under the “good cause” provisions of State law.
Unless otherwise excused from attendance, individuals who fail to participate in a particular
RES/REA activity, or miss a related appointment, for a given week must be rescheduled as a
condition of continued eligibility unless the state determines that “justifiable cause” exists to
waive the requirement to participate in RES/REA services or activities (see item 5.g.).

Determinations of eligibility will be made for the week under review or the week in which the
individual failed to participate. As a part of the adjudication process, states must conduct
appropriate fact-gathering including providing claimants the opportunity to provide information,
for example, about the reason(s) for failing to participate in the scheduled assessment or in
failing to participate in reemployment services to which they are referred.

States often require individuals to report to the state agency to participate in services or to
provide additional information about an issue. When an individual fails to report as required, the
state may apply its law provisions on ineligibility for UC due to failure to report until the
individual complies with the reporting requirement (sometimes referred to as an indefinite
denial).

f. What optional services may be provided to individuals receiving EUC?

Although the statute does not require them, the Department encourages states to provide
enhanced services to these long-term unemployed individuals to the extent possible, either using
REA/RES funds or referring individuals to existing services available through the One-Stop
Career Center. These may include:
    Comprehensive and specialized assessments, including staff-assisted interviews and
       testing of educational skills and work readiness;




      Work search and career planning, including using skills assessment and testing
       techniques and other methods to identify the individual’s transferable skills and other
       occupations and/or industries in which these skills can be used;
      Individual and/or group career counseling, including provision of materials, suggestions,
       or advice intended to assist the job seeker in making occupational or career decisions;
      Training by third-party service providers for individuals who need to update their skills to
       remain competitive in the local labor market;
      Additional staff-assisted reemployment services, such as assessments to determine need
       and eligibility for supportive services, referrals to WIA-funded services, and referrals to
       employers; and
      Job search counseling and the development or review of an individual reemployment
       plan, including participation in job search activities and appropriate workshops including
       reemployment job clubs and/or networking support groups.

States should consider the particular barriers to reemployment faced by the long-term
unemployed in the state, and ensure that the reemployment services provided are appropriate to
the individuals’ needs (20 CFR 652.209). With the limited funds available, and large numbers of
individuals who must participate in an RES/REA, the Department encourages states to use the
reemployment and eligibility assessments to help identify the most effective mix of services for
different groups of individuals. For example, states may elect to identify and offer the enhanced
services described above to individuals who, based on their reemployment and eligibility
assessment, would not likely be a candidate for immediate reemployment in the local labor
market. For individuals who, based on their reemployment and eligibility assessment, are more
competitive for work in the local labor market, states may choose to direct them only to the
mandatory services described above.

g. Under what circumstances may states waive the participation requirements?

The EUC Act makes participation in RES/REA services a condition of eligibility for individuals
who begin receiving EUC First Tier benefits or who transition from First Tier to Second Tier
benefits on or after March 23, 2012. Such individuals must be referred to RES/REA services,
unless the state UC agency determines they have completed all of the activities required for
participation, or there is “justifiable cause” for their failure to participate or complete the
necessary activities, in accordance with the Department’s guidance.

Each state will determine whether a waiver is appropriate. States must have documentation of
the reason(s) for an individual’s waiver of the participation requirement. For example, when an
individual has completed similar services, the claim record should indicate that this is the reason
the individual’s participation was waived. The statute authorizes a waiver in cases where an
individual “has completed participating in such services or activities.” The Department
interprets this to include participation in similar services while collecting regular UC or other
types of unemployment benefits.

The statute also provides for a waiver if the state UC agency determines that there is “justifiable
cause” for failure to participate or to complete participation. States may waive participation if
the reason for failure to report or participate in reemployment services or reemployment and
eligibility assessments is considered “good cause” under the state’s UC law. In addition, states



may determine that there is “justifiable cause” when, for example, an individual would have to
commute an unreasonably long distance (as determined by the state) to report to a One-Stop
Career Center for the RES/REA.

It would be appropriate to grant a waiver when within the last 3 months an individual
participated in an REA while receiving regular UC in a state that is operating a UC REA
program. It would also be appropriate to grant a waiver when an individual participated in an
eligibility review for UC as part of a state’s Reemployment and Eligibility Assessment program
for state UC claimants or Eligibility Review Program (ERP) that includes an orientation to or
some reemployment service(s), or previously received reemployment services that the state
deems appropriate to meet the needs of the individual. A waiver could also be granted for an
individual already receiving similar services as they transition to EUC Tier I. A waiver is also
appropriate for EUC Tier II claimants who have received these services while participating in
Tier I; as stated in section 5.a. above, individuals receiving RES/REA as they enter EUC Tier I
on or after March 23, 2012 are not required to receive these services a second time if and when
they augment to EUC Tier II.

6. Administrative Funding. The EUC statute, as amended, appropriates funds from the general
fund of the U.S. Treasury to pay administrative funding related to these RES and REA activities.
The statute also instructs the Department to determine each state’s administrative costs by
multiplying the number of individuals who will receive reemployment services and
reemployment and eligibility assessments by $85.00.

   a. Obligational Authority. The Grant Officer will assign a separate line on either the UC or
   the ES program notices of obligational authority for RES/REA administrative grant funds,
   and a separate sub-account for these funds will be set up in the Payment Management System
   (PMS) for states to draw down administrative funds. Upon establishment of the PMS
   account and access to the funds being apportioned by the Office of Management and Budget
   (OMB), the Department will advance to state agencies funding equal to three months of
   projected RES/REAs multiplied by $85.00.

   b. Administrative Fund Accounting. Because of the separate appropriation for these
   RES/REA administrative funds, states must track and report these administrative
   expenditures and obligations separately. Therefore, states must establish a separate fund
   ledger and must submit a separate Form ETA 9130 for the EUC RES/REA program.

   c. Time Distribution. To ensure that EUC RES/REA costs are correctly tracked, states must
   charge time used for EUC RES/REA activities to a separate EUC RES/REA fund ledger.

To expedite implementation of the new requirements, the Department’s Grant Officer will issue
a Notice of Obligation (NOO) indicating the amount obligated to the state and the purpose for
which the funds are to be used. The signature of the governor’s designee on the Addendum to
the EUC Agreement will commit the state to carrying out the EUC Act’s new requirements.

7. Staffing Guidelines. Federal laws and regulations governing UC and ES require that services
in those systems be administered by government personnel. The merit staffing requirement for
the UC program is established in Social Security Act section 303(a)(1): That section conditions



a state’s receipt of a UC administrative grant on the state law providing for “…[s]uch methods of
administration (including after January 1, 1940, methods relating to the establishment and
maintenance of personnel standards on a merit basis,...) as are found by the Secretary of Labor to
be reasonably calculated to insure full payment of unemployment compensation when due.”
This means that, generally, state activities supporting the administration of the UC program must
be merit staffed. The Department enforces this requirement, subject to the personnel standards
established by the U.S. Office of Personnel Management, to which interpretive authority for this
requirement was transferred by the Intergovernmental Personnel Act of 1970. The Department,
extending to states implementing this Federal merit staffing requirement the general principles
developed for the Federal merit staffing system, has waived the requirement for state UC
activities that are “commercial” in nature, but continued to require that “inherently
governmental” functions be performed by state government personnel. See, for example, UIPL
No. 12-01, Outsourcing of Unemployment Compensation Administrative Functions, and Change
1 to that UIPL.

For ES, the Department has long interpreted the Wagner-Peyser Act to require merit staffing for
the labor exchange activities funded under that Act, and has codified that requirement in the
regulations at 20 CFR 652.215 and 652.216. Section 652.215 provides, in part:

        …[T]he Sec retary requires that labor exchange services provided under the
        authority of the Act, including servi ces to veterans, be provided by State
        merit-staff employees. This interpretation is authorized by and consistent with
        the provisions in sections 3(a) and 5(b) of the Act and the Intergov ernmental
        Personnel Act (42 U.S.C. 4701 et seq.). The Secretary has exercis ed the legal
        authority under section 3(a) of the Act to set additional staffing standards and
        requirements and to conduct demonstrations to ensure the effective delivery of
        services provided under the Act. No additional         demonstrations will be
        authorized.

For these reasons, any inherently governmental UC activities, and any activities funded under the
Wagner-Peyser Act, must be performed by merit staff.

Consistent with these requirements, certain of the required or optional activities concerning the
new EUC RES/REA provisions require the use of merit staff. Determinations related to an EUC
claimant’s initial or continuing eligibility for benefits, as well as activities closely related to such
determinations whether performed by UC or ES staff, are inherently governmental and must be
made by merit staff. Therefore, activities such as notifying individuals of the new work search
requirements, reviewing individuals’ work search records to determine compliance with those
requirements, referring such matters for adjudication, and detecting, reviewing, and referring any
other eligibility issues for adjudication are all inherently governmental activities for which merit
staffing is required. In addition, the EUC statute, under new section 4001(i)(3), requires, as a
condition of continuing eligibility for EUC for any week, that an individual referred to RES or
REAs participate in such services or activities,

        …unless the State agency responsible for the administration of State
        unemployment compensation law determines that –




       (A) such individual has completed participating in such services or activities; or
       (B) there is justifiable cause for failure to participate or to complete participating in such
       services or activities, as determined in accordance with guidance to be issued by the
       Secretary.”

The state-administered eligibility review providing the context for these determinations is
required by section 4001(i)(2)(A)(iv). The state agency’s overall process for determining
eligibility is an inherently governmental function that must be performed by merit staff.
Similarly, the determination about whether a waiver of participation is warranted under new
section 4001(i)(3), a determination that directly impacts eligibility status, as well as closely
related activities, must be made by state merit staff.

The new EUC program requires a number of RES/REA activities that are similar to one or more
discrete activities states may already be performing for regular UC claimants and others. That is,
a state may have services and procedures in place that the EUC statute now requires be extended
or opened to certain EUC claimants. If a state chooses to provide labor exchange services
related to reemployment or to reemployment and eligibility assessments – services that, based on
Wagner-Peyser’s universal access requirement could potentially be extended to those EUC
claimants – through staff funded under Wagner-Peyser grants, those activities must be staffed
with merit staffed employees. Consistent with longstanding practice, labor exchange services
not performed by state merit staff cannot be charged to the Wagner-Peyser grant.

States are encouraged to use additional funding sources available for the delivery of RES/REA
services. States may use EUC administrative funds to perform eligibility assessments. States
may look to Wagner-Peyser and Workforce Investment Act funding to support delivery of core
and intensive reemployment services. The $500 million distribution to states under the
American Recovery and Reinvestment Act may be used for either REAs or RES services.

The Department’s experience is that EUC claimants may face structural and skill-related
challenges that are unique to the long-term unemployed. In carrying out these new EUC-related
functions, service could be enhanced and prove more cost-effective if administered by a core
team that has built-in experience with these issues. Accordingly, the Department encourages
states to identify or dedicate certain staff (though this may not be exclusively what these staff do)
to provide the key services to EUC claimants who apply or establish eligibility under this new
program requirement. The Department recommends that the team be composed of UC and
Wagner-Peyser staff (given the Wagner-Peyser staff’s extensive experience in providing these
necessary services). This may help provide greater consistency in the administration of services
or issuance of determinations.

8. Reporting RES/REA Activity. Compliance with the Act will necessitate additional reporting
by state agencies on the provision of RES/REA activities. The Department is in the process of
submitting an Information Collection Request (ICR) to OMB requesting changes to existing
collections and new collections. The Department notes that a Federal agency cannot conduct or
sponsor a collection of information unless it is approved by OMB under the Paperwork
Reduction Act of 1995, and displays a currently valid OMB control number, and the public is not
required to respond to a collection of information unless it displays a currently valid OMB




control number (see 44 U.S.C. 3507). Also, notwithstanding any other provisions of law, no
person shall be subject to penalty for failing to comply with a collection of information if the
collection of information does not display a currently valid OMB control number (see 44 U.S.C.
3512). The Department will notify states of OMB’s decision upon review of the Department’s
ICR, including any changes that may result from this review process.

9. Action Requested. State Administrators are requested to provide this information to the
appropriate staff.

10. Inquiries. Inquiries should be directed to the appropriate Regional Office.

11. Attachment. Middle Class Tax Relief and Job Creation Act of 2012 - Relevant Statutory
Provisions




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Relevant provisions of the Middle Class Tax Relief and Job Creation Act of 2012

Official attachment PDF: https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2012/tegl_20_11_att.pdf

ATTACHMENT

                             Middle Class Tax Relief and Job Creation Act of 2012

                                        Relevant Statutory Provisions

  TITLE II--UNEMPLOYMENT BENEFIT CONTINUATION AND PROGRAM IMPROVEMENT

SEC. 2001. SHORT TITLE.

       This title may be cited as the `Extended Benefits, Reemployment, and Program Integrity Improvement
       Act'.

 Subtitle C--Improving Reemployment Strategies Under the Emergency Unemployment Compensation
                                            Program

SEC. 2141. IMPROVED WORK SEARCH FOR THE LONG-TERM UNEMPLOYED.

       (a) In General- Section 4001(b) of the Supplemental Appropriations Act, 2008 (Public Law 110-252;
       26 U.S.C. 3304 note) is amended--
               (1) by striking `and' at the end of paragraph (2);
               (2) by striking the period at the end of paragraph (3) and inserting `; and'; and
               (3) by adding at the end the following:
               `(4) are able to work, available to work, and actively seeking work.'.
       (b) Actively Seeking Work- Section 4001 of such Act is amended by adding at the end the following:
       `(h) Actively Seeking Work-
               `(1) IN GENERAL- For purposes of subsection (b)(4), the term `actively seeking work' means,
               with respect to any individual, that such individual--
                       `(A) is registered for employment services in such a manner and to such extent as
                       prescribed by the State agency;
                       `(B) has engaged in an active search for employment that is appropriate in light of the
                       employment available in the labor market, the individual's skills and capabilities, and
                       includes a number of employer contacts that is consistent with the standards
                       communicated to the individual by the State;
                       `(C) has maintained a record of such work search, including employers contacted,
                       method of contact, and date contacted; and
                       `(D) when requested, has provided such work search record to the State agency.
               `(2) RANDOM AUDITING- The Secretary shall establish for each State a minimum number
               of claims for which work search records must be audited on a random basis in any given
               week.'.

SEC. 2142. REEMPLOYMENT SERVICES AND REEMPLOYMENT AND ELIGIBILITY ASSESSMENT
ACTIVITIES.

       (a) Provision of Services and Activities- Section 4001 of such Act, as amended by section 2141(b), is
       further amended by adding at the end the following:
       `(i) Provision of Services and Activities-
               `(1) IN GENERAL- An agreement under this section shall require the following:
                       `(A) The State which is party to such agreement shall provide reemployment services
                       and reemployment and eligibility assessment activities to each individual--
                              `(i) who, on or after the 30th day after the date of enactment of the Extended

                                                                                              ATTACHMENT
                         Benefits, Reemployment, and Program Integrity Improvement Act, begins
                         receiving amounts described in subsections (b) and (c); and
                         `(ii) while such individual continues to receive emergency unemployment
                         compensation under this title.
                 `(B) As a condition of eligibility for emergency unemployment compensation for any
                 week--
                         `(i) a claimant who has been duly referred to reemployment services shall
                         participate in such services; and
                         `(ii) a claimant shall be actively seeking work (determined applying subsection
                         (i)).
         `(2) DESCRIPTION OF SERVICES AND ACTIVITIES- The reemployment services and in-
         person reemployment and eligibility assessment activities provided to individuals receiving
         emergency unemployment compensation described in paragraph (1)--
                 `(A) shall include--
                         `(i) the provision of labor market and career information;
                         `(ii) an assessment of the skills of the individual;
                         `(iii) orientation to the services available through the one-stop centers
                         established under title I of the Workforce Investment Act of 1998; and
                         `(iv) review of the eligibility of the individual for emergency unemployment
                         compensation relating to the job search activities of the individual; and
                 `(B) may include the provision of--
                         `(i) comprehensive and specialized assessments;
                         `(ii) individual and group career counseling;
                         `(iii) training services;
                         `(iv) additional reemployment services; and
                         `(v) job search counseling and the development or review of an individual
                         reemployment plan that includes participation in job search activities and
                         appropriate workshops.
         `(3) PARTICIPATION REQUIREMENT- As a condition of continuing eligibility for
         emergency unemployment compensation for any week, an individual who has been referred to
         reemployment services or reemployment and eligibility assessment activities under this
         subsection shall participate in such services or activities, unless the State agency responsible
         for the administration of State unemployment compensation law determines that--
                 `(A) such individual has completed participating in such services or activities; or
                 `(B) there is justifiable cause for failure to participate or to complete participating in
                 such services or activities, as determined in accordance with guidance to be issued by
                 the Secretary.'.
(b) Issuance of Guidance- Not later than 30 days after the date of enactment of this Act, the Secretary
shall issue guidance on the implementation of the reemployment services and reemployment and
eligibility assessment activities required to be provided under the amendment made by subsection (a).
(c) Funding-
         (1) IN GENERAL- Section 4004(c) of the Supplemental Appropriations Act, 2008 (Public
         Law 110-252; 26 U.S.C. 3304 note) is amended--
                 (A) by striking `States- There' and inserting the following: `States-
         `(1) ADMINISTRATION- There'; and
                 (B) by adding at the end the following new paragraph:
         `(2) REEMPLOYMENT SERVICES AND REEMPLOYMENT AND ELIGIBILITY
         ASSESSMENT ACTIVITIES-
                 `(A) APPROPRIATION- There are appropriated from the general fund of the Treasury,
                 for the period of fiscal year 2012 through fiscal year 2013, out of the employment
                                                                                                  ATTACHMENT
                      security administration account (as established by section 901(a) of the Social Security
                      Act), such sums as determined by the Secretary of Labor in accordance with
                      subparagraph (B) to assist States in providing reemployment services and
                      reemployment and eligibility assessment activities described in section 4001(h)(2).
                      `(B) DETERMINATION OF TOTAL AMOUNT- The amount referred to in
                      subparagraph (A) is the amount the Secretary of Labor estimates is equal to--
                              `(i) the number of individuals who will receive reemployment services and
                              reemployment eligibility and assessment activities described in section
                              4001(h)(2) in all States through the date specified in section 4007(b)(3);
                              multiplied by
                              `(ii) $85.
                      `(C) DISTRIBUTION AMONG STATES- Of the amounts appropriated under
                      subparagraph (A), the Secretary of Labor shall distribute amounts to each State, in
                      accordance with section 4003(c), that the Secretary estimates is equal to--
                              `(i) the number of individuals who will receive reemployment services and
                              reemployment and eligibility assessment activities described in section
                              4001(h)(2) in such State through the date specified in section 4007(b)(3);
                              multiplied by
                              `(ii) $85.'.
             (2) TRANSFER OF FUNDS- Section 4004(e) of the Supplemental Appropriations Act, 2008
             (Public Law 110-252; 26 U.S.C. 3304 note) is amended--
                      (A) in paragraph (1)(G), by striking `and' at the end;
                      (B) in paragraph (2), by striking the period at the end and inserting `; and'; and
                      (C) by adding at the end the following paragraph:
             `(3) to the Employment Security Administration account (as established by section 901(a) of
             the Social Security Act) such sums as the Secretary of Labor determines to be necessary in
             accordance with subsection (c)(2) to assist States in providing reemployment services and
             reemployment eligibility and assessment activities described in section 4001(h)(2).'.

SEC. 2143. PROMOTING PROGRAM INTEGRITY THROUGH BETTER RECOVERY OF
OVERPAYMENTS.

      Section 4005(c)(1) of the Supplemental Appropriations Act, 2008 (Public Law 110-252; 26 U.S.C.
      3304 note) is amended--
             (1) by striking `may' and inserting `shall'; and
             (2) by striking `except that' and all that follows through `made' and inserting `in accordance
             with the same procedures as apply to the recovery of overpayments of regular unemployment
             benefits paid by the State'.




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