Retention of records for pandemic unemployment programs

CLASSIFICATION
   EMPLOYMENT AND TRAINING ADMINISTRATION                 Unemployment Insurance
               ADVISORY SYSTEM                            CORRESPONDENCE SYMBOL
          U.S. DEPARTMENT OF LABOR                        OUI/DUIO
             Washington, D.C. 20210                       DATE
                                                          January 7, 2025


ADVISORY:        UNEMPLOYMENT INSURANCE PROGRAM LETTER NO. 09-25

TO:              STATE WORKFORCE AGENCIES

FROM:            JOSÉ JAVIER RODRÍGUEZ
                 Assistant Secretary

SUBJECT:         New Instructions for Data Retention Requirements Concerning the Coronavirus
                 Aid, Relief, and Economic Security (CARES) Act Unemployment
                 Compensation (UC) Programs

1. Purpose. To provide urgent instructions to State Workforce Agencies (SWAs) on data
   retention requirements for temporary pandemic-related UC programs, authorized under the
   CARES Act, as amended. This guidance reflects a change in policy and replaces prior
   guidance on this specific topic.

2. Action Requested. The U.S. Department of Labor’s (Department) Employment and Training
   Administration (ETA) requests state administrators provide the information contained in this
   Unemployment Insurance Program Letter (UIPL) to the appropriate staff, including
   information technology staff supporting Unemployment Insurance (UI) operations.

3. Summary and Background.

   a. Summary – This UIPL instructs states to retain data regarding the temporary pandemic-
      related UC programs, created under the CARES Act, as amended, until further notice and
      direction from the Department. This guidance reflects a change in policy and replaces
      prior guidance on the specific topic of data retention concerning the CARES Act UC
      programs. This UIPL also provides instruction on which funding sources states may use
      to support data retention and that ETA plans on providing additional funding
      opportunities to cover costs associated with expanded data retention requirements in the
      future.

   b. Background – From April 2020 through January 2021, the Department published various
      guidance documents instructing states that they were required to retain UI data (data)
      related to temporary pandemic-related UC programs authorized under the CARES Act, as


   RESCISSIONS                                            EXPIRATION DATE
   UIPL 15-20, Attachment I, Section C; subsection 7b;    Continuing
   UIPL 16-20, Attachment I, Section C; subsection 18b;
   UIPL 17-20, Attachment I, Section C; subsection 8b

        amended. The previous guidance documents1 state, in general, that records must be
        retained and available:

                 for three years after final action (including appeals or court action) on the
                 payments, or for less than the three-year period if copied by micro photocopy or
                 by an electronic imaging method. At the end of the three-year period, the records
                 shall be transferred to state accountability under the conditions for the disposal of
                 records that apply to [Unemployment Compensation for Federal Employees]
                 UCFE and [Unemployment Compensation for Ex-Servicemembers] UCX records,
                 as explained in Chapter X of ET Handbook No. 391 (1994 Edition) (OMB No.
                 1205-0179) and Chapter I of ET Handbook No. 384 (1994 Edition) (OMB No.
                 1205-0176).

4. Data Retention. Until further notice and future direction from the Department, this UIPL is
   superseding previous guidance and hereby requiring states to retain data for pandemic-related
   UI programs indefinitely. Therefore, all data for pandemic-related UC programs must be
   retained until further notice and direction.

    States agreed to abide by Department guidance as a condition of receiving funding when
    signing grant agreement(s) with the Secretary of Labor to administer the CARES Act
    pandemic programs. States are also required to follow the Uniform Guidance at 2 CFR part
    200 in administering the CARES Act pandemic programs. The Uniform Guidance is
    incorporated into the pandemic UI grant agreements by reference in the Grant Terms and
    Conditions in part 1, Order of Precedence. Under the Uniform Guidance, the standard data
    retention requirement is to maintain financial records, supporting documents, statistical
    records, and all other non-Federal entity records pertinent to a Federal award for a period of
    three years from the date of submission of the final expenditure report. However, Federal
    agencies can require states to retain data for longer periods of time. See 2 CFR 200.333(b)
    (2021) for funds granted before October 1, 2024, and 2 CFR 200.334(b) (October 2024) for

  For FPUC, see page I-4 of Attachment I to Unemployment Insurance Program Letter (UIPL) No. 15-20,
Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 – Federal Pandemic Unemployment
Compensation (FPUC) Program Operating, Financial, and Reporting Instructions, issued April 4, 2020,
https://www.dol.gov/agencies/eta/advisories/unemployment-insurance-program-letter-no-15-20.
For MEUC, see Section C of Attachment I of UIPL No. 15-20 (Coronavirus Aid, Relief, and Economic Security
(CARES) Act of 2020 - Federal Pandemic Unemployment Compensation (FPUC) Program Operating, Financial,
and Reporting Instructions), and UIPL No. 15-20 Change 3, Continued Assistance for Unemployed Workers
(Continued Assistance) Act of 2020 – Federal Pandemic Unemployment Compensation (FPUC) Program
Reauthorization and Modification and Mixed Earners Unemployment Compensation (MEUC) Program Operating,
Reporting, and Financial Instructions, issued January 5, 2021, which applies the data and record retention
instructions for FPUC to MEUC, https://www.dol.gov/agencies/eta/advisories/unemployment-insurance-program-
letter-no-15-20-change-3.
For PEUC, see page I-6 of Attachment I to UIPL No. 17-20, Coronavirus Aid, Relief, and Economic Security
(CARES) Act of 2020–Pandemic Emergency Unemployment Compensation (PEUC) Program Operating, Financial,
and Reporting Instructions, issued April 10, 2020, https://www.dol.gov/agencies/eta/advisories/unemployment-
insurance-program-letter-no-17-20.
For PUA, see page I-28 of Attachment I to UIPL No. 16-20, Change 4, Continued Assistance to Unemployed
Workers Act of 2020 –Pandemic Unemployment Assistance (PUA) Program: Updated Operating Instructions and
Reporting Changes, issued January 8, 2021, https://www.dol.gov/agencies/eta/advisories/unemployment-insurance-
program-letter-no-16-20-change-4.

grant funds awarded on and after October 1, 2024. This UIPL notifies states that the
Department is requiring states to retain this data indefinitely until further notice from the
Department. The Department will send a notice, in writing, to each state of this extension
requirement.

a. Applicable Programs. These revised data retention requirements apply to the following
   temporary pandemic UC programs created by the CARES Act, as amended:

   •   Federal Pandemic Unemployment Compensation (FPUC) (Section 2104 of the
       CARES Act);
   •   Mixed Earners Unemployment Compensation (MEUC) (Section 261 of the
       Continued Assistance for Unemployed Workers Act of 2020, amending Section 2104
       of the CARES Act);
   •   Pandemic Emergency Unemployment Compensation (PEUC) (Section 2107 of the
       CARES Act);
   •   Pandemic Unemployment Assistance (PUA) (Section 2102 of the CARES Act);
   •   Emergency Unemployment Relief for State and Local Governmental Entities, Certain
       Nonprofit Organizations, and Federally Recognized Indian Tribes (Section 2103 of
       the CARES Act);
   •   Temporary Full Federal Funding of the First Week of Compensable Regular
       Unemployment for States with No Waiting Week (Section 2105 of the CARES Act);
       and
   •   Short-Time Compensation (STC) Program Provisions and Guidance Regarding 100
       Percent Federal Reimbursement of Certain State STC Payments (Section 2108 of the
       CARES Act).

b. Additional Context. The Department acknowledges that under prior guidance states
   and/or third-party vendors supporting states’ operations of the temporary pandemic-
   related UC programs may have already begun to purge records and data. This activity
   may conflict with efforts to investigate and prosecute fraud in these programs. If a state
   has begun to purge records or data, it must immediately discontinue further deletions of
   pandemic-related UC program data and, where the cost and resources are reasonable,
   states must attempt to recover previously purged or deleted information. Please contact
   your ETA Regional Office to discuss further if your state is in this situation.

   The Department supports efforts for federal prosecution of UI-related fraud. In Training
   and Employment Notice (TEN No.) 12-23, the Department reminded states about the
   statute of limitations for federal prosecution of UI fraud and encouraged states to submit
   timely referrals of pandemic-era UI fraud cases to the Department’s Office of Inspector
   General (DOL-OIG). The TEN noted the statute of limitations for federal fraud
   prosecutions is five (5) years under 18 U.S.C. § 3282. Payments of benefits under the
   regular UI program and the temporary pandemic UI programs began as early as March
   2020. Because of the five-year statute of limitations, this means that individuals who
   received payments in March 2020 cannot be prosecuted after March 2025, absent a
   change in the statute of limitations.

        The DOL-OIG has urged the Department to “work with Congressional stakeholders to
        inform them of the urgency of the statute of limitations concerning pandemic-related UI
        fraud.”2 In April 2024, the Department published a plan to transform the UI program,
        which notes the need for the extension of the statute of limitations for UI fraud as an
        administration priority.3

        In addition to the Department’s communications, the U.S. Department of Justice (DOJ)-
        established COVID-19 Fraud Enforcement Task Force, in April 2024, released a report
        detailing its efforts to combat fraudsters and other criminals seeking to exploit the
        government’s relief efforts for personal gain.4 The taskforce encouraged legislation that
        extends the statute of limitations for all COVID-19 fraud-related offenses, including but
        not limited to those associated with the UI program. There currently is legislation
        pending in both houses of Congress to extend the statute of limitations. If enacted, these
        proposals would extend the time period for prosecutors to investigate and prosecute
        complex criminal syndicates that seek to exploit the government’s relief efforts. The
        Administration has indicated its support for an extension of the statute of limitations in
        anti-fraud proposals in 20235 and 2024.6 In light of these ongoing activities and the
        possibility of an extension of the statute of limitations, the Department has determined
        that states must retain the data related to the temporary pandemic-related UC programs
        described above until further notice and direction from the Department. This will ensure
        data necessary for prosecution of these crimes is available if needed.

    c. Administrative Funding. States can utilize funding provided through ongoing state
       workload-based administrative funding and the recently issued supplemental budget
       request as announced under UIPL No. 02-25 and UIPL No. 17-24, respectively, to
       support data retention activities. States may need to amend the UIPL 17-24 grant
       agreements already in place to add system maintenance as an included activity for the
       allowable use of funds in order to support the retention of CARES Act data. Please
       contact your ETA Regional Office to discuss further if your state is in this situation.

  DOL-OIG Report No. 19-23-012-03-315, Alert Memorandum: ETA Needs to Incorporate Data Analytics
Capability to Improve Oversight of the Unemployment Insurance Program, issued September 25, 2023,
https://www.oig.dol.gov/public/reports/oa/2023/19-23-012-03-315.pdf.
3
  UI Transformation Plan. Building Resilience: A plan for transforming unemployment insurance, published April
2024, https://oui.doleta.gov/unemploy/transformation_plan.asp.
4
  U.S. Department of Justice: COVID-19 Fraud Enforcement Task Force 2024 Report, issued April 9 2024, COVID-
19 Fraud Enforcement Task Force 2024 Report April 2024 - Council of the Inspecors General on Integrity and
Efficiency.
5
  The White House, FACT SHEET: President Biden’s Sweeping Pandemic Anti-Fraud Proposal: Going After
Systemic Fraud, Taking on Identity Theft, Helping Victims, issued March 2, 2023,
https://www.whitehouse.gov/briefing-room/statements-releases/2023/03/02/fact-sheet-president-bidens-sweeping-
pandemic-anti-fraud-proposal-going-after-systemic-fraud-taking-on-identity-theft-helping-victims/.
6
  The White House, FACT SHEET: President Biden’s Sweeping Proposals to Crack Down on Pandemic Fraud and
Help Victims Recover Introduced in Congress, issued April 9, 2024, https://www.whitehouse.gov/briefing-
room/statements-releases/2024/04/09/fact-sheet-president-bidens-sweeping-proposals-to-crack-down-on-pandemic-
fraud-and-help-victims-recover-introduced-in-congress/.

       The Department recognizes that workload-based funding may be insufficient to cover all
       ongoing costs associated with data retention efforts, especially as workload activities
       continue to decline following the expiration of these programs. The Department also
       recognizes that states have different costs associated with data retention, particularly in
       states that implemented separate standalone systems to support certain temporary
       pandemic-related UC programs.

       The CARES Act, as amended, provides that states will be funded for the full cost of the
       administration of the temporary pandemic-related UC programs. As a result of the likely
       ongoing costs resulting from this change in guidance revising the data retention
       requirements, ETA plans to address additional funding needs and opportunities at a later
       date.

5. Inquiries. Please direct inquiries to the appropriate ETA Regional Office.

6. References.

       •   The Coronavirus Aid, Relief, and Economic Security (CARES) Act, Pub. L. 116-136,
           including Title II, Subtitle A, Relief for Workers Affected by Coronavirus Act;
       •   Consolidated Appropriations Act, 2021 (Pub. L. 116-260), including Division H,
           Title II, Subtitle A, Chapter 1 (“Continued Assistance to Unemployed Workers Act of
           2020”);
       •   American Rescue Plan Act of 2021 (ARPA), including Title IX, Subtitle A, Crisis
           Support for Unemployed Workers (Pub. L. 117-2);
       •   Unemployment Insurance Program Letter (UIPL) No. 15-20, Coronavirus Aid, Relief,
           and Economic Security (CARES) Act of 2020 – Federal Pandemic Unemployment
           Compensation (FPUC) Program Operating, Financial, and Reporting Instructions,
           issued April 4, 2020. https://www.dol.gov/agencies/eta/advisories/unemployment-
           insurance-program-letter-no-15-20;
       •   UIPL 15-20, Change 3, Continued Assistance for Unemployed Workers (Continued
           Assistance) Act of 2020 – Federal Pandemic Unemployment Compensation (FPUC)
           Program Reauthorization and Modification and Mixed Earners Unemployment
           Compensation (MEUC) Program Operating, Reporting, and Financial Instructions,
           issued January 5, 2021. https://www.dol.gov/agencies/eta/advisories/unemployment-
           insurance-program-letter-no-15-20-change-3;
       •   UIPL No. 16-20, Coronavirus Aid, Relief, and Economic Security (CARES) Act of
           2020 - Pandemic Unemployment Assistance (PUA) Program Operating, Financial,
           and Reporting Instructions, issued April 5, 2020.
           https://www.dol.gov/agencies/eta/advisories/unemployment-insurance-program-
           letter-no-16-20
       •   UIPL No. 16-20, Change 4, Continued Assistance to Unemployed Workers Act of
           2020 – Pandemic Unemployment Assistance (PUA) Program: Updated Operating
           Instructions and Reporting Changes, issued January 8, 2021.
           https://www.dol.gov/agencies/eta/advisories/unemployment-insurance-program-
           letter-no-16-20-change-4;

      •   UIPL No. 17-20, Coronavirus Aid, Relief, and Economic Security (CARES) Act of
          2020 – Pandemic Emergency Unemployment Compensation (PEUC) Program
          Operating, Financial, and Reporting Instructions, issued April 10, 2020.
          https://www.dol.gov/agencies/eta/advisories/unemployment-insurance-program-
          letter-no-17-20;
      •   UIPL No. 17-24, Supplemental Budget Request (SBR) Opportunity for Additional
          Administrative Funding to Support States’ Ongoing Administrative Activities
          Associated with Certain Coronavirus Aid, Relief, and Economic Security (CARES)
          Act Unemployment Compensation (UC) Programs, issued August 26, 2024.
          https://www.dol.gov/agencies/eta/advisories/uipl-17-24;
      •   UIPL No. 02-25, Instructions to States for Ongoing Workload-Based Administrative
          Funding for the Federal Benefit Programs Under the Coronavirus Aid, Relief, and
          Economic Security (CARES) Act, as amended, issued, November 6, 2024,
          https://www.dol.gov/agencies/eta/advisories/uipl-02-25;
      •   Training and Employment Notice (TEN) No. 12-23, Reminder on Federal Statute of
          Limitations on Criminal Prosecutions of Unemployment Insurance (UI) Fraud, issued
          December 1, 2023. https://www.dol.gov/agencies/eta/advisories/ten-12-23;
      •   U.S. Department of Labor, Employment and Training Administration UI
          Transformation Plan: Building Resilience: A plan for transforming unemployment
          insurance, issued April 2024.
          https://oui.doleta.gov/unemploy/transformation_plan.asp;
      •   U.S. Department of Labor Office of Inspector General (OIG), Alert Memorandum:
          ETA Needs to Incorporate Data Analytics Capability to Improve Oversight of the
          Unemployment Insurance Program," issued September 25, 2023;
          https://www.oversight.gov/sites/default/files/documents/reports/2023-10/19-23-012-
          03-315.pdf
      •   U.S. Department of Justice: COVID-19 Fraud Enforcement Task Force 2024 Report,
          issued April 2024. https://www.justice.gov/coronavirus/media/1347161/dl?inline; and
      •   U.S. Department of Labor OIG Report. COVID-19: Pandemic Unemployment
          Assistance for Non-Traditional Claimants Weakened by Billions in Overpayments,
          Including Fraud, issued September 27, 2023.
          https://www.oig.dol.gov/public/reports/oa/2023/19-23-014-03-315.pdf.

7. Attachment(s). N/A.