State unemployment confidentiality law submissions

CLASSIFICATION
   EMPLOYMENT AND TRAINING ADMINISTRATION                   Unemployment Insurance
               ADVISORY SYSTEM                              CORRESPONDENCE SYMBOL
          U.S. DEPARTMENT OF LABOR
                                                            OUI/DL
                                                            DATE
             Washington, D.C. 20210
                                                            February 23, 2016



ADVISORY:        UNEMPLOYMENT INSURANCE PROGRAM LETTER NO. 26-13,
                 Change 2

TO:              STATE WORKFORCE AGENCIES

FROM:            PORTIA WU /s/
                 Assistant Secretary

SUBJECT:         Request for Current Law on Confidentiality Requirements

1. Purpose. To remind states to provide to the U.S. Department of Labor (Department), in their
   submissions under Form MA 8-7, information pertaining to confidentiality requirements in
   effect as of January 1, 2016, for conformity purposes.

2. References.
   • Section 303(a) of the Social Security Act (SSA), 42 U.S.C. 503(a);
   • Federal Unemployment Tax Act (FUTA), 26 U.S.C. 3301 et seq.;
   • 20 CFR Part 603;
   • 20 CFR § 601.3;
   • 20 CFR § 609.1(d)(1), 614.1(d)(1), and 617.52(c)(1);
   • Unemployment Insurance Program Letter (UIPL) No. 27-07, Required Submission of
      Unemployment Compensation Materials Using Form MA 8-7;
   • UIPL No. 26-13, Extension of Approval and Reminder of Requirement to Use Form MA
      8-7, Transmittal for Unemployment Insurance Materials; and
   • Collection of Information, Transmittal of Unemployment Insurance Materials: Office of
      Management and Budget (OMB) control number 1205-0222.

3. Background. Section 303(a)(6), SSA, requires, as a condition of a state receiving
   unemployment compensation (UC) administrative grants, that state law contain provision for
   the “making of such reports, in such form and containing such information, as the Secretary
   of Labor may from time to time require, and compliance with such provisions as the
   Secretary of Labor may from time to time find necessary to ensure the correctness and
   verification of such reports.” Departmental regulations at 20 CFR 601.3 in part implement
   this requirement by requiring the submission of “all relevant state materials, such as statutes,
   executive and administrative orders, legal opinions, rules, regulations, interpretations, court
   opinions, etc. . . .” Also, the regulations for the Unemployment Compensation for Federal
   Civilian Employees (UCFE) program at 20 CFR 609.1(d)(1), and for the Unemployment
   Compensation for Ex-servicemembers (UCX) program at 20 CFR 614.1(d)(1), require

 RESCISSIONS                                               EXPIRATION DATE
 None                                                      Continuing

   submission of certain documents to assure that states are properly administering these
   programs. The Trade Adjustment Assistance (TAA) program, which includes Trade
   Readjustment Allowances (TRA), provides similar regulatory requirements at 20 CFR
   617.52(c)(1).

   The MA 8-7 is the mechanism for implementing these submittal requirements, the purpose of
   which is to provide the Secretary of Labor (Secretary) with sufficient information to
   determine if: (a) state UC law conforms to FUTA, so that employers in a state may qualify
   for tax credits; (b) state UC law conforms to Title III, SSA, for the state to obtain UC
   administrative grants; and (c) the state fulfills its obligations under Federal UC programs.

4. Confidentiality requirement in Federal law. Section 303(a)(1), SSA, requires state law to
   include “methods of administration. . . reasonably calculated to insure full payment of
   unemployment compensation when due.” Section 603.4 of 20 CFR interprets this provision
   to require that state law—

        “must include provision for maintaining the confidentiality of any UC
       information which reveals the name or any other identifying particular about any
       individual or any past or present employer or employing unit, or which could
       foreseeably be combined with any other publicly available information to reveal
       any such particulars, and must include provision for barring the disclosure of any
       such information. . .[emphasis added].

   The Department, on September 27, 2006, published regulations at 20 CFR part 603 titled
   Federal-State Unemployment Compensation (UC); Confidentiality and Disclosure of State
   UC Information; Final Rule. See 71 Fed. Reg. 56830. The effective date was October 27,
   2006. States were given two years from the effective date of the final rule within which to
   amend their laws, rules, procedures, or existing agreements to conform to the regulatory
   requirements for confidentiality.

   This guidance is a reminder to states to provide copies of their confidentiality laws,
   regulations, policies and procedures, and precedential court decisions to enable the
   Department of Labor to ensure state laws conform to the requirements in 20 CFR part 603.
   States are asked to submit all laws governing confidentiality of state UC information as
   requested using the attached Form MA 8-7.

   States should also submit all conformity materials as changes are made to state law, using the
   Form MA 8-7, to update the information previously provided and to allow for continuous
   review of state law for conformity purposes.

5. OMB Approval. Persons are not required to respond to this collection of information unless
   it displays a currently valid OMB control number. As described in UIPL No. 26-13, OMB
   has approved the use of Form MA 8-7 for data collection under control number 1205-0222.





6. Action Requested. The Department reminds states to use the Form MA 8-7 to submit the
   information requested in section 4 of this UIPL, to include statutes, regulations, policy and
   procedure memoranda, and precedential agency and court decisions, to the Department no
   later than March 31, 2016. States should e-mail submissions to
   [email protected].

7. Inquiries. Please direct inquiries to the appropriate regional office.

8. Attachments. Form MA 8-7 and instructions.

Transmittal for Unemployment Insurance Materials
                                      US. Department of Labor Employment and Training Administration




                 To: U.S. Department of Labor                                                            From: (State)

                 Office of Unemployment Insurance
                 Room S4231
                 Attn:____________________________

                 200 Constitution Avenue, N.W.
                 Washington, D.C. 20210


           Check Appropriate Box(es)

           [ ] Statutory Material - Proposed and Enacted Legislation

           [ ] Rules and Regulations - Proposed and Final

           [ ] Official Interpretations

           [ ] Decisions and Orders Issued by States Courts, including material related to Consent Orders

           [ ] Precedential Administrative Decisions

           [ ] Appellate Decisions in Federal UC Programs




           Comments:



           Signature of Designated Official                                  Typed Name and Title                               Date




OMB No.: 1205-0222                 OMB Expiration Date: 05/31/2016                 Estimated Average Response Time: 15 minutes per response
These reporting instructions have been approved under the Paperwork reduction Act of 1995. Persons are not required to respond to this collection of information
unless it displays a valid OMB control number. Public reporting burden for this collection of information includes the time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Submission is required to obtain or
retain benefits under PL 74-271 Sec. 303(a)(6). Respondents have no expectation of confidentiality. Send comments regarding this burden estimate or any other
aspect of this collection of information, including suggestions for reducing this burden, to the U.S. Department of Labor, Office of Workforce Security, Room S-4231,
200 Constitution Ave., NW, Washington, DC, 20210.
                                                                                                                                                 ETA-MA 8-7
                                                                                                                                                 Rev. 2004
                                                                                                                                                 Prev. versions usable

                       Instructions for Completing the Form MA 8-7

1. Material to be Submitted.

        a. Statutory Material – Proposed and Enacted Legislation. Amendments pertaining to
      the establishment and operation of the UC law and UC program are required to be
      submitted. For purposes of conformity, the state’s UC law includes statutes that affect the
      administration and the interpretation of the state’s UC law, even though the statute may
      not be part of the state’s UC code. For example, if an amendment made to a state law
      other than the UC code classifies a worker as an employee or independent contractor for
      UC purposes, the legislation is part of the state’s UC law and must be submitted for
      review.

      Submitting proposed legislation assists the Department in providing early assistance to the
      states in identifying and preventing issues. States should submit proposed legislation as
      soon as it becomes available and provide comment on the proposal’s chance for passage
      with a request for an expedited review and comment, if appropriate.

      Exception: Introduced and enacted state legislation are available to the Department
      through an automated legislative reporting service for all states except Puerto Rico and the
      Virgin Islands. States with information that is made available through this reporting
      service are not required to submit introduced and enacted legislation, although states are
      encouraged to advise the Department as soon as possible of bills likely to be enacted.
      Note this exception does not pertain to amendments to a bill after it has been introduced.
      These amendments must be submitted.

         b. Rules and Regulations – Proposed and Final. All proposed and final rules and
      regulations that implement or interpret the UC law or other laws affecting the UC program
      must be submitted. These rules and regulations may pertain to matters such as covered
      employment, employer records and required reports, contributions, benefit eligibility and
      interpretation, and claims filing and processing.

      As in the case of statutory amendments, submitting proposed rules for Departmental
      review assures any problems are identified and resolved early in the rulemaking process.

      Exception: As is the case with state legislation, proposed and final rules are generally
      available to the Department through an automated legislative reporting service for all
      states except Puerto Rico and the Virgin Islands. States with information that is made
      available through this reporting service are not required to submit proposed and final
      rules.

         c. Official Interpretations. All official interpretations of any provision of the UC law
     made by representatives of the state agency or other state agency must be submitted for
     review. These include administrative policy statements concerning the interpretation of any




provision of the UC law, which may include guidance to field staff, any letters giving
opinions on questions of general application of the provision of state laws or regulations to
third parties, as well as all opinions of the state Attorney General expressing the official
interpretation of any state UC statute, amendment or regulation.

    d. Decisions and Orders Issued by State Courts, including Material Related to Consent
Orders. All decisions and orders issued by state courts involving UC benefits and taxes
must be submitted for review to ensure that interpretation of state law does not conflict
with Federal law. Copies of the administrative decision reviewed are to be included in the
submission. All court cases should be submitted, even if the state determines these are not
precedent-setting.

States are also to submit proposed consent orders. As in the case of proposed laws and
regulations, reviewing these proposed orders allows the Department to identify and assist
in resolving any issues under Federal law.

Exception: States should not submit decisions or orders that are issued without an opinion
or analysis. These include cases where a court dismisses an appeal for a party’s failure to
pursue the case or affirms an administrative ruling without decision.

Federal court matters are not covered under this submittal requirement as they pertain to
Federal interpretations of Federal law. States should immediately advise the Department
when a matter involving Federal UC law, including the conformity provisions of FUTA
and the SSA, reaches Federal court so that the Department may determine whether Federal
participation in the case is desirable or necessary.

      e. Precedential Administrative Decisions. The decisions issued by the first and
second level appeals authorities that are considered precedent-setting must be submitted so
that the Department may ascertain whether the interpretation of state law is consistent with
Federal UC law.

     f. Appellate Decisions in Federal UC programs . Decisions pertaining to the UCFE,
UCX, and TAA/TRA programs that are based on an interpretation of the Federal laws or
regulations must be submitted; decisions based on state law need not be submitted. For
example, a state need not submit a decision applying a state law’s “able and available”
provisions pertaining to these programs.

It is expected that very few UCFE and UCX decisions will be submitted since most issues
that are adjudicated for UCFE/UCX benefits are based on the states’ UI laws, including
separation issues for UCFE; states do not adjudicate separations from military service for
UCX claims.





    When it is appropriate to submit a decision based on an interpretation of Federal laws or
    regulations, in all cases where second level decisions are submitted, include the lower
    authority decision that was reviewed.

    Note: Disaster Unemployment Assistance (DUA) appeals material should not be submitted
    using the MA 8-7. The state agencies are to submit a copy of any appeal decision issued to
    the appropriate Regional Administrator (RA). The RA will then submit these appeal
    decisions as appropriate to the National Office. See 20 CFR 625.10(b)(2).

    The Department reserves the right to obtain additional information, as needed, for these
    Federal UC programs.

2. Submission Requirements.

      a. Use of separate forms. To assure that information related to Federal UC programs
      (UCFE, UCX, and TAA/TRA) is properly routed, material relating to these programs
      should not be included with material relating to the administration of the state’s law.
      Otherwise, material may be bundled together.

      b. Fill out the Form MA 8-7 completely. Fill in the “From” section of the form, identify
      the type of material that is being submitted, and sign the form. If appropriate, briefly
      describe the material in the comments section of the form.

      c. Time frame for Submission. The MA 8-7 is not required to be submitted on a specific
      time frame. Instead, it is to be used only when the state has material to submit.
      However, states should submit material promptly to allow for Departmental review prior
      to the expiration of time frames for appeal or legislative action.

      d. Address. The address for submittal is preprinted on the MA 8-7 as follows:

              U.S. Department of Labor
              Employment and Training Administration
              Office of Workforce Security
              Room S-4231
              200 Constitution Avenue N.W.
              Washington, DC 20210