RULES AND REGULATIONS
DEPARTMENT OF LABOR AND INDUSTRY
[ 34 PA. CODE CH. 65 ]
Unemployment Compensation; Employee Provisions
[41 Pa.B. 848]
[Saturday, February 12, 2011]The Department of Labor and Industry (Department), Office of Unemployment Compensation Benefits, amends Chapter 65 (relating to employee provisions).
A. Statutory Authority
This final-form rulemaking is promulgated under section 201(a) of the Unemployment Compensation Law (law) (43 P. S. § 761(a)), which authorizes the Department to promulgate and amend rules and regulations necessary to administer the law.
B. Background and Description of this Final-Form Rulemaking
The purpose of this final-form rulemaking, which covers 24 sections of the Department's regulations, is to update the regulations to conform to current law and practice.
This final-form rulemaking rescinds 11 sections of Chapter 65 and deletes portions of additional regulations. The Department is rescinding and deleting regulations that are obsolete, inconsistent with the law or superseded by a subsequent statutory enactment. In some cases, the Department is deleting a provision and combining its content with other regulatory provisions to consolidate regulations with similar subject matter. In cases when a regulation is superfluous because it repeats an existing statutory provision, the regulation is rescinded or amended to refer to the law.
References to obsolete subdivisions of the Department are being deleted or replaced with references to the current agency or the Department generally. References to specific forms, some of which are outdated, are being deleted whenever possible.
In addition to the previous types of changes throughout the rulemaking, there are particular amendments described as follows.
The law provides that a claimant shall register for work to be eligible for compensation. Under existing regulations, a claimant fulfills this requirement by filing an application for benefits. However, the current regulations also provide that a work registration lapses under certain circumstances and shall be renewed. This is a technical and little known provision that may prejudice a claimant's eligibility. Section 65.11 (relating to work registration; effective period) is amended to provide that a work registration created by an application for benefits remains effective throughout the benefit year. Language in § 65.11 providing for the lapse and renewal of a work registration is deleted and § 65.12 is rescinded. Section 65.13, which provided for retroactive registration renewals, is no longer necessary and is rescinded.
Section 65.14 (relating to additional information) is amended to state that a claimant provide the information required by the Department to facilitate reemployment.
Sections 65.31 and 65.41 (relating to filing methods) formerly provided that claimants shall file applications for benefits and claims for compensation in person on paper forms at a local Department office. These regulations reflect outdated procedures. The Department no longer requires claimants to appear in person to conduct unemployment compensation (UC) related business. Therefore, § 65.31 is rescinded and § 65.41(a) is deleted and replaced with amended § 65.41. As amended, § 65.41 provides that a claimant may file an application for benefits by telephone, Internet, United States mail or fax transmission and may file a claim for compensation by telephone or the Internet.
As amended, § 65.42 (relating to application for benefits—effective date) specifies that that an application for benefits is effective on the first day of the week in which the application is filed or deemed filed under § 65.43a (relating to extended filing).
Section 65.32 reflected an outdated procedure in which a claim for compensation was filed every week. That is, a claim for compensation had to be filed during the week immediately following the week of unemployment being claimed. This regulation is rescinded and replaced with amended § 65.43 (relating to claims for compensation—when to file). As amended, § 65.43 reflects the current procedure in which claims are filed biweekly and each biweekly pair of claims covers the preceding 2 weeks.
Section 65.33 provided that a claim for compensation may be filed late under certain circumstances. Sections 65.41 and 65.42(a) set forth the circumstances in which an application for benefits may be filed late. This final-form rulemaking consolidates the provisions regarding late filing of claims and applications in new § 65.43a. This new section contains provisions similar to the regulations it replaces. It also reflects circumstances that may prevent a claimant from filing a timely application or claim under current procedures in which applications and claims are taken by telephone, Internet and fax transmission.
Section 65.56 (relating to withdrawing an application for benefits) specifies circumstances under which the Department may approve a claimant's request to withdraw an application for benefits and cancel the corresponding benefit year.
Under section 4(u) of the law (43 P. S. § 753(u)), a claimant may be ''unemployed'' for purposes of eligibility for UC if he is working ''less than his full-time work.'' Neither the law nor the existing regulations define ''full-time work'' for purposes of section 4(u) of the law. As a result, this provision has been applied inconsistently. New § 65.73 (relating to full-time work) specifies how a claimant's full-time work is determined.
C. Comments
Notice of proposed rulemaking was published at 40 Pa.B. 2643 (May 22, 2010). The Department received comments from Community Legal Services (CLS) and the Independent Regulatory Review Commission (IRRC). The Senate Labor and Industry Committee and the House Labor Relations Committee did not comment.
§ 65.41. Filing methods
Comment: Subsection (a) allows a claimant to file an application for benefits by phoning a UC Service Center, by completing an online application at the Department's web site or by mailing or faxing a hard copy application to the Department. These filing methods are consistent with current procedure. CLS commented that § 65.41 also should permit claimants to file applications for UC benefits person to person at CareerLink® offices.
Response: CLS' suggestion would require the presence of UC personnel at CareerLink®. However, the Department does not currently staff the CareerLink® offices with UC personnel and adding UC personnel to CareerLink® offices would be cost prohibitive. Also, if a claimant wants to complete the UC application by speaking to a UC staff person, that can be done by phoning a UC Service Center. Stationing UC personnel at CareerLink® offices to take applications by interview would duplicate an existing service. Moreover, filing an application in a CareerLink® office would not be a viable option for claimants who do not reside in close proximity to one of the current CareerLink® locations.
Comment: Subsection (b) allows a claimant to file a claim for compensation by telephoning a UC office, through the Department's telephone claim system or by completing an online claim at the Department's web site. These filing methods are consistent with current procedure. CLS commented that subsection (b) also should allow claims to be filed by mail to accommodate claimants who do not speak English or Spanish.
Response: Currently, the Internet and telephone claims systems are available in both English and Spanish. Permitting claims to be filed by mail is not necessary to enable individuals who speak other languages to file claims. A procedure is currently in place to assist claimants who do not speak English or Spanish. These individuals may call the UC Service Center to file claims and receive over-the-phone interpretation assistance from Language Line Services. Language Line Services provides an interpreter who speaks the claimant's language to assist the UC Service Center representative to take claim information from the claimant. Language Line Services provides interpretation services for 170 languages. Also, it is unclear how filing claims by mail would be an effective accommodation for persons who do not speak English, because a paper claim form, to be completed and returned by mail, would be printed in English.
Comment: Subsection (a) allows a claimant to file an application for benefits by phone, online or by mailing or faxing a hard copy application to the Department. Subsection (b) also allows a claimant to file a claim for compensation by telephone or online, but does not provide that claims may be mailed or faxed to the Department. IRRC questions why filing by mail or fax are not included in the permissible means to file claims for compensation in subsection (b).
Response: The Department has an established infrastructure and existing procedures to accept claims that are filed by telephone (both claims filed by phoning the UC Service Center and claims filed through the telephone claim system) and online. To accept claims by mail and fax routinely, the Department would have to create new procedures, hire additional personnel and incur additional costs. Claims filed by telephone and the Internet reach the Department immediately, in contrast to claims filed by first class mail which, according to the United States Postal Service estimated delivery time, would take 2 to 3 days to arrive. Claims filed by telephone and through the Internet are processed electronically, whereas paper claims filed by mail or fax would require manual processing, which increases the processing time. Although applications for benefits filed by mail and fax, which the regulation will allow, present issues similar to the issues associated with claims filed by those methods, the deficiencies associated with applications filed by mail and fax are not as problematic. Applications for benefits are not as time-sensitive as claims for compensation. Moreover, an application for benefits is filed only once for each benefit year, but claims are filed biweekly throughout the time a claimant is receiving benefits.
Comment: Subsection (d) would allow the Department to prescribe additional methods to file applications for benefits and claims for compensation and require the Department to designate the date on which an application or claim is filed using the additional method established by the Department. Subsection (e) would allow the Department to suspend use of one or more filing methods under certain circumstances. CLS and IRRC commented that changing filing methods and designating when a claim is filed should be done through the rulemaking process.
Response: The Department deleted subsections (d) and (e) from the final-form regulation.
§ 65.43a. Extended filing
Comment: Under the existing regulations, a claim for compensation for a week when the claimant worked part-time shall be filed within 4 weeks after the employer paid wages for that week. Under subsection (a), a claim for a week when the claimant worked part-time shall be filed ''not later than the last day of the second week after the employer paid wages for that week.'' CLS commented that it preferred the longer filing period under existing regulations and that the drafting of the new provision is difficult to read.
Response: When the existing 4-week filing period was established, claimants were required to report to local Department offices personally to file claims. This may have presented difficulties for claimants working part-time. Claimants are now able to file claims by phone or the Internet. Because in-person filing is no longer required, a 4-week period to file a claim for a week of part-time work is not necessary. A 2-week period is sufficient.
Comment: Subsections (c) and (d) allow extended time periods for filing applications and claims. Subsection (e) lists the reasons that permit extended filing and indicates the duration of the extension for each reason. Under subsection (e), if a claimant attempts to file by telephone, Internet or fax on the last day that filing is otherwise allowed and the method used to attempt to file is unavailable or malfunctions, a 2-week extension to file is granted. CLS does not agree that extended filing should be granted only if the unsuccessful attempt to file occurred on the last day and asked about a claimant who attempted to file prior to the last day. CLS also asked how the Department will determine that a claimant made an unsuccessful attempt to file.
Response: Claimants have a responsibility to file applications for benefits and claims for compensation during the established time periods. If a claimant attempts to file prior to the last day and is unable to do so due to a technological malfunction, the claimant should make an additional attempt to file before the filing period expires. If, for example, a claimant attempts without success to file on Sunday and the filing deadline is the following Saturday, it would be unreasonable and unnecessary to immediately grant a 2-week extension of the filing deadline without regard to further efforts by the claimant to file timely. If the claimant makes an unsuccessful attempt to file on the last day, however, this regulation will grant an extension.
The Department is aware when its telephone and Internet systems are ''down.'' Also, the Department will obtain information from the claimant regarding the dates and circumstances of unsuccessful attempts to file an application or claim.
Comment: CLS commented that the list of reasons for extended filing in subsection (e) should include ''inability to get through to the UC Service Centers because of high call volume or technological problems, and claimant difficulties in using the telephone claims system (also known as the ''PAT'' system)''.
Response: An inability to successfully phone a UC Service Center due to technological problems would be covered by the extension in subsection (e) for situations when the claimant attempted to file by telephone, Internet or fax on the last day and the method used by the claimant was unavailable or malfunctioned. It is unclear what CLS means when it refers to ''claimant difficulties'' using the telephone claims system. To the extent that CLS is referring to malfunctioning or unavailability of the telephone system that would also be covered by the aforementioned extension. To the extent that CLS is referring to other difficulties, the 2-week extension in subsection (e) for ''other'' reasons, ''if the claimant makes all reasonable and good faith efforts to file timely but is unable to do so through no fault of the claimant,'' may apply, depending on the circumstances. In the final-form regulation, the Department added a reference to high call volume to the first reason for an extension listed in subsection (e), as CLS suggested.
Comment: CLS commented that language barriers should be added to the list of reasons for extended filing in subsection (e) and the corresponding extension should be more than 2 weeks. IRRC referenced the following reason in subsection (e): ''other, if the claimant makes all reasonable and good faith efforts to file timely but is unable to do so through no fault of the claimant.'' IRRC commented that it is unclear whether a limited English proficiency (LEP) individual could be granted an extension of the time to file under this provision and stated that the Department should consider addressing LEP in the final-form regulation.
Response: Allowing LEP individuals additional time to file applications for benefits and claims for compensation would not be an effective means to facilitate their participation in the UC program. If a claimant is unable to communicate verbally in English, giving the claimant additional time to speak to a UC Service Center representative to file an application or claim does not address the claimant's language barrier. Similarly, if a claimant is unable to communicate in writing in English, allowing the claimant additional time to submit a written application or claim (by mail, fax or the Internet) is not a solution. Rather, enhancing filing methods to bridge language barriers, which the Department has done, is a more effective remedy. The Internet application for benefits and claim for compensation, as well as the telephone claims system, are available in both English and Spanish. Individuals who speak other languages, as well as individuals who speak Spanish, may call the UC Service Center and receive over-the-phone interpretation assistance from Language Line Services. Language Line Services provides an interpreter who speaks the claimant's language to assist the UC Service Center representative to take information from the claimant. Language Line Services provides interpretation services for 170 languages.
Moreover, adding LEP as an explicit reason for extended filing is not necessary. If an individual is unable to file a timely application or claim for an LEP related reason, the claimant could be granted extended filing under the provision cited by IRRC, if the claimant's facts and circumstances satisfy the requirements of that provision.
Comment: Under subsection (f), if a claimant is unable to file a timely claim due to illness or injury the time for filing the claim is extended until the end of the second week after the incapacity ends. CLS suggested that this reason for extended filing should be added to the list of reasons for extended filing in subsection (e) because otherwise this reason could be viewed as inconsistent with the provision in subsection (e) that grants only two weeks of extended filing for ''other'' reasons.
Response: Each reason for extended filing in subsection (e) expands the filing period for a fixed number of weeks. Illness or injury allows an extension of the filing time for an indefinite period, that is, until 2 weeks after the incapacity ends. Also, subsection (e) applies to applications and claims, whereas subsection (f) applies only to claims. These are reasons why the extension for illness or injury is contained in a separate subsection. The fact that the extension for ''other'' reasons and the extension for illness or injury might both apply in a given set of circumstances is not problematic. Subsection (h) states that if two or more reasons for extended filing apply, the claimant is given the longest extension.
§ 65.56. Withdrawing an application for benefits
Comment: CLS stated that this section is confusing and it does not understand what this section means. It also mentions that there are disagreements over the characterization of overpayments as fault or nonfault and that there are differing recoupment rules depending on the characterization.
Response: This section lists four requirements that shall be satisfied for a claimant to withdraw an application for benefits and cancel the corresponding benefit year. It also indicates when a request takes effect and provides the criteria to disapprove a request.
The regulation does not distinguish between fault and nonfault overpayments. The provisions concerning recoupment of an overpayment apply whether the overpayment is classified as fault or nonfault. Moreover, the regulation contains provisions that prevent an overpayment from arising as a result of withdrawing an application. If a claimant were allowed to withdraw an application after having received benefits, an overpayment would occur. Therefore, the regulation provides that any benefits paid to the claimant on an application shall be repaid to withdraw the application. Similarly, if benefits otherwise payable to the claimant on the application are applied to a previous overpayment, the prerecoupment balance of the overpayment must be restored to withdraw the application.
Comment: CLS asked what would happen if a claimant stopped claiming benefits on an application instead of withdrawing the application.
Response: If a claimant simply ceases to claim benefits on an application the corresponding benefit year remains in effect. The claimant would not be able to file a new application for benefits in this Commonwealth until the benefit year ends. Assuming the claimant had not received all the benefits for which he is financially eligible on the application, the claimant would not be able to file an application for benefits in another jurisdiction until the benefit year ends. However, if a claimant withdraws a current application for benefits and cancels the current benefit year, the claimant would be able to file a new application for benefits immediately. This may be advantageous to the claimant. For example, a claimant might file an application for benefits but return to work without claiming compensation. If the claimant is laid off again within the benefit year, the claimant may wish to withdraw the existing application to file a new application and take advantage of higher wages in a more recent base year.
§ 65.73. Full-time work
Comment: A claimant shall be unemployed to be eligible for benefits. Under section 4(u) of the law, a claimant is ''unemployed'' during a week if the claimant does not work that week or if the claimant works ''less than his full-time work'' and remuneration does not exceed a certain amount. This regulation defines the term ''full-time work'' for purposes of section 4(u) of the law. Subject to certain exceptions, the general rule under the regulation is that ''[t]he number of hours the claimant worked in the base year for all employers is divided by the number of weeks in the base year in which the claimant worked to determine the claimant's full-time work.'' Subsection (a)(2) and (3) supplies rules to be followed when making this calculation. Subsection (a)(2) would exclude from this calculation ''the number of hours that a claimant worked during a week . . . for an employer in excess of the customary number of hours the claimant worked per week for that employer. . . .'' Subsection (a)(3) provides that ''if a claimant's normal work schedule . . . consisted of multiple week cycles, and the cycle normally included one or more weeks during which the claimant did not work, all weeks in the cycle are deemed weeks in which the claimant worked.''
CLS commented that subsection (a)(2) and (3) disadvantages the claimant. CLS and IRRC would like to know the rationale for these paragraphs and how they will be implemented.
Response: ''Full time'' is not defined in the law. Under 1 Pa.C.S. § 1903(a) (relating to words and phrases), words and phrases in a statute should be construed according to their common and approved usage. The dictionary defines the term as ''the amount of time considered the normal or standard amount for working during a given period.'' Webster's Ninth New Collegiate Dictionary, 497 (1990). For the purpose of relief from benefit charges, ''part-time work'' is defined in § 63.35(a) (relating to requests as to part-time workers) as ''[w]ork other than normal full-time work of a claimant with a regular base year employer which is ordinarily performed for less than the total number of hours or days customarily worked in the business, occupation or industry.'' The Commonwealth Court has used this regulation to construe the meaning of ''full-time work.'' See Baldwin-Whitehall School District v. Unemployment Compensation Board of Review, 848 A.2d 1081 (Pa. Cmwlth. 2004); see also Watkins v. Unemployment Compensation Board of Review, 491 A.2d 935 (Pa. Cmwlth. 1985). Under 1 Pa.C.S. § 1903(a) and Commonwealth Court's guidance, the Department construes the term ''full-time'' to mean the hours customarily worked.
As the total number of hours worked in the base year increases, so does the number of hours that constitute the claimant's weekly full-time work and, correspondingly, the number of hours the claimant may work and remain potentially eligible for benefits. Allowing hours in excess of those customarily worked to determine ''full-time work'' could result in an individual being considered unemployed and eligible for benefits even though he is working the hours he customarily works. It would not be a case of ''economic insecurity due to unemployment,'' the amelioration of which is the purpose of the law, if an individual is working customary hours. See section 3 of the law (43 P. S. § 752).
In addition, allowing hours in excess of those customarily worked to be used in the calculation of ''full-time work'' could result in the anomaly that an individual who worked more than customary hours could receive unemployment benefits, while an individual similarly situated who only worked customary hours might not receive benefits. It is presumed that the intention of the General Assembly was not to interpret the law to achieve an unreasonable result. See 1 Pa.C.S. § 1922(1) (relating to presumptions in ascertaining legislative intent).
Subsection (a)(3) addresses the situation when an individual's normal work schedule in the base year consists of multiple week cycles and the cycle normally includes 1 or more weeks when the claimant does not work. The regulation would include the normal nonwork weeks in the number of weeks of work in the base year for purposes of calculating the claimant's ''full-time work.'' This will prevent the calculation from producing an artificially inflated number of hours as the claimant's full-time work. Subsection (a)(3) is consistent with Corning Glass v. Unemployment Compensation Board of Review, 616 A.2d 175 (Pa. Cmwlth. 1992). In that case, the claimants worked a rotating schedule of 7 days work followed by 2 to 4 days off. This schedule provided an average of 42 hours of work per week and a minimum of 40 hours per week. The employer changed the rotating schedule to 4 days work followed by 48 hours off. This schedule also resulted in an average of 42 hours per week, but some weeks the claimants only worked 32 hours. The claimants sought benefits for the 32 hour weeks. When determining if the claimants had worked less than full-time for the weeks for which claims were filed, the Commonwealth Court looked at the claimants' overall work schedule in relation to the prior overall schedule, rather than looking at the particular weeks in question individually.
The Department will implement subsection (a)(2) and (3) by obtaining information from the claimant and the claimant's employer regarding the number of hours and weeks worked, hours customarily worked and the claimant's work schedule.
D. Affected Persons
The proposed rulemaking will affect all persons claiming UC benefits. Approximately 617,000 new applications for benefits are filed each year.
E. Fiscal Impact
Commonwealth and the regulated community
The majority of this final-form rulemaking concerns procedural matters, such as the methods and time for filing UC applications and claims. Although the final-form rulemaking contains procedural requirements, these do not affect the amount or duration of benefits available to the claimant under the law. Also, some of the procedural provisions of this final-form rulemaking codify current practice. For these reasons the new and amended regulations addressing procedures would not involve any fiscal impact to the UC Fund or the regulated community. Only a small portion of this final-form rulemaking involves substantive matters. Either these provisions reflect the current application of the law in which event there would be no fiscal impact or the Department is unable to estimate the amount of any fiscal impact that may occur.
Political subdivisions
This final-form rulemaking does not affect political subdivisions, except to the extent that they are employers covered by the law.
General public
This final-form rulemaking does not affect the general public.
F. Paperwork Requirement
This final-form rulemaking will not impose additional paperwork requirements on the regulated community.
G. Sunset Date
The regulations will be monitored through practice and application. Therefore, a sunset date is not designated.
H. Effective Date
This final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin. The following regulations, as promulgated, amended or rescinded by this final-form rulemaking, apply to weeks of unemployment ending on or after February 12, 2011: §§ 65.11, 65.12, 65.13, 65.14, 65.15, 65.32, 65.33, 65.43, 65.43.1(a), 65.43.1(b), 65.43.1(d), 65.43.1(f), 65.43.1(i) and 65.73. The following regulations, as amended or rescinded by this final-form rulemaking, apply to claims for compensation filed on or after February 12, 2011: §§ 65.31 and 65.41. The following regulations, promulgated or as amended by this final-form rulemaking, apply to applications for benefits filed on or after February 12, 2011: §§ 65.41, 65.42, 65.43a(c), 65.43a(g), 65.43a(i) and 65.56. Amended § 65.22 applies to an offer of work made on or after February 12, 2011. Amended § 65.102 applies to weeks of unemployment ending on or after December 16, 2005. Section 65.56 applies to a request made on or after February 12, 2011, to withdraw an application for benefits.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on May 7, 2010, the Department submitted a copy of the notice of proposed rulemaking, published at 40 Pa.B. 2643, to IRRC and the Chairpersons of the Senate Labor and Industry Committee and the House Labor Relations Committee for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the House and Senate Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on December 15, 2010, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on December 16, 2010, and approved the final-form rulemaking.
J. Findings
The Department finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law, and all comments received were considered.
(3) This final-form rulemaking does not enlarge the purpose of the proposed rulemaking published at 40 Pa.B. 2643.
(4) This final-form rulemaking is necessary and suitable for the administration of the law.
K. Order
The Department, acting under the authority of the law, orders that:
(1) The regulations of the Department, 34 Pa. Code Chapter 65, are amended by amending §§ 65.11, 65.14, 65.22, 65.42, 65.43, 65.63, 65.102 and 65.156, by deleting §§ 65.1, 65.12, 65.13, 65.15, 65.21, 65.31—65.33, 65.35, 65.44 and 65.117 and by adding §§ 65.56, 65.73 and 65.139 to read as set forth at 40 Pa.B. 2643; and by amending § 65.41 and adding § 65.43a to read as set forth in Annex A.
(2) The Secretary of the Department shall submit this order, 40 Pa.B. 2643 and Annex A to the Office of General Counsel and the Office of Attorney General for approval as to form and legality as required by law.
(3) The Secretary of the Department shall certify this order, 40 Pa.B. 2643 and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(4) This final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin. The following regulations, as promulgated, amended or rescinded by this final-form rulemaking, apply to weeks of unemployment ending on or after February 12, 2011: §§ 65.11, 65.12, 65.13, 65.14, 65.15, 65.32, 65.33, 65.43, 65.43.1(a), 65.43.1(b), 65.43.1(d), 65.43.1(f), 65.43.1(i) and 65.73. The following regulations, as amended or rescinded by this final-form rulemaking, apply to claims for compensation filed on or after February 12, 2011: §§ 65.31 and 65.41. The following regulations, promulgated or as amended by this final-form rulemaking, apply to applications for benefits filed on or after February 12, 2011: §§ 65.41, 65.42, 65.43a(c), 65.43a(g), 65.43a(i) and 65.56. Amended § 65.22 applies to an offer of work made on or after February 12, 2011. Amended § 65.102 applies to weeks of unemployment ending on or after December 16, 2005. Section 65.56 applies to a request made on or after February 12, 2011, to withdraw an application for benefits.
SANDI VITO,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 41 Pa.B. 118 (January 1, 2011).)
Fiscal Note: Fiscal Note 12-74 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 34. LABOR AND INDUSTRY
PART II. BUREAU OF EMPLOYMENT SECURITY
Subpart A. UNEMPLOYMENT COMPENSATION
CHAPTER 65. EMPLOYEE PROVISIONS
Subchapter C. APPLICATION PROCEDURE
APPLICATION FOR BENEFITS AND CLAIMS FOR COMPENSATION § 65.41. Filing methods.
(a) An application for benefits shall be filed by one of the following methods:
(1) Telephoning a UC Office and providing the information required by the Department representative.
(2) Completing the Department's Internet application and electronically transmitting it to the Department.
(3) Completing the Department's application form and sending the form to a UC Office by United States Mail or transmitting the form to a UC Office by facsimile machine.
(b) A claim for compensation shall be filed by one of the following methods:
(1) Telephoning a UC Office and providing the information required by the Department representative.
(2) Telephoning the Department's telephone claim system and providing all information required by the system.
(3) Completing the Department's Internet claim and electronically transmitting it to the Department.
(c) The filing date of an application for benefits or a claim for compensation is:
(1) For applications and claims filed by telephone, the date when the telephone call occurs if the claimant provides the information required by the Department representative or the Department's telephone claim system.
(2) For applications and claims filed by the Internet, the date indicated on the confirmation page displayed upon completion of the filing process.
(3) For applications and claims filed by United States Mail:
(i) The date of the official United States Postal Service postmark on the envelope, a United States Postal Service Form 3817 (Certificate of Mailing) or a United States Postal Service certified mail receipt.
(ii) If there is no official United States Postal Service postmark, United States Postal Service Form 3817 or United States Postal Service certified mail receipt, the date of a postage meter mark on the envelope.
(iii) If the filing date cannot be determined by any of the methods in subparagraph (i) or (ii), the date recorded by the UC Office when it receives the application or claim.
(4) For applications filed by facsimile machine:
(i) The date of receipt imprinted by the UC Office fax machine.
(ii) If the UC Office fax machine does not imprint a legible date, the date of transmission imprinted by the sender's fax machine.
(iii) If the filing date cannot be determined by any of the methods in subparagraph (i) or (ii), the date recorded by the UC Office when it receives the application.
§ 65.43a. Extended filing.
(a) For a week in which a claimant was employed less than his full time work, the claimant shall file a claim for compensation not later than the last day of the second week after the employer paid wages for that week. If the earliest week for which a claim for compensation is filed in accordance with this subsection precedes the week in which the claimant's application for benefits is filed or deemed filed, as determined without regard to this subsection, the Department will deem the application to be filed during the earliest week for which a claim is filed.
(b) If a determination regarding the eligibility of claimants under section 402(d) of the law (43 P. S. § 802(d)) is issued, similarly situated claimants shall file claims for compensation for weeks during the work stoppage not later than the last day of the 6th week after the determination becomes final. If the earliest week for which a claim for compensation is filed in accordance with this subsection precedes the week in which the claimant's application for benefits is filed or deemed filed, as determined without regard to this subsection, the Department will deem the application to be filed during the earliest week for which a claim is filed.
(c) The Department will deem an application for benefits to be filed prior to the week in which it actually is filed if the claimant did not file the application earlier for a reason listed in subsection (e). The Department will deem the application to be filed during the week that precedes the week of actual filing by the number of weeks indicated in subsection (e).
(d) If a claimant fails to file a claim for compensation within the time allowed in subsection (a) or (b) or § 65.43 (relating to claims for compensation—when to file), for a reason listed in subsection (e), the time for filing the claim is extended for the number of weeks indicated in subsection (e).
(e) For purposes of subsections (c) and (d) the number of weeks is determined as follows:
Reason
Number of weeks The Department suspends accepting filings or is unable to handle all filings, due to an excessive volume of telephone calls or other reasons. 6 The claimant attempts to file by telephone, Internet or fax transmission in accordance with § 65.41 (relating to filing methods), the method used to attempt to file is unavailable or malfunctions, and the attempt to file occurs on the last day that the claimant could timely file by the method used 2 A UC Office fails to accept a filing as a result of error or mistake by the Department. 52 Sickness or death of a member of the claimant's immediate family or an act of God. 2 Other, if the claimant makes all reasonable and good faith efforts to file timely but is unable to do so through no fault of the claimant. 2 (f) If a claimant fails to file a claim for compensation within the time allowed in subsection (a) or (b) or § 65.43 due to the claimant's illness or injury, the time for filing the claim is extended until the last day of the second week after the incapacity ends.
(g) The Department will deem an application for benefits to be filed no more than 2 weeks prior to the week in which it actually is filed if the claimant did not file the application earlier because an employer erroneously advised the claimant that the claimant would be recalled to work within 1 week.
(h) If two or more of the reasons enumerated in subsections (e) and (f) have prevented a claimant from filing a claim for compensation within the time allowed in subsection (a) or (b) or § 65.43, the longest extension applies. If adherence to the longest extension would be inequitable to the claimant, the sum of the applicable extensions applies.
(i) Notwithstanding any provision of this section, the Department may not extend the time for filing a claim for compensation more than 52 weeks and may not deem an application for benefits to be filed in a week included in a previous benefit year.
[Pa.B. Doc. No. 11-250. Filed for public inspection February 11, 2011, 9:00 a.m.]
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