PROPOSED RULEMAKING
DEPARTMENT OF
LABOR AND INDUSTRY
[ 34 PA. CODE CH. 65 ]
Unemployment Compensation; Active Search for Work
[42 Pa.B. 2378]
[Saturday, May 5, 2012]The Department of Labor and Industry (Department) proposes to amend § 65.11 (relating to active search for work) to read as set forth in Annex A.
A. Statutory Authority
This rulemaking is proposed 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, and section 401(b) of the law (43 P. S. § 801(b)), which directs the Department to establish the requirements a claimant shall meet to ''make an active search for suitable employment.''
B. Background and Description of Proposed Rulemaking
Section 401 of the law contains various eligibility criteria for unemployment compensation (UC) benefits. As amended by the act of June 17, 2011 (P. L. 6, No. 6) (Act 6), section 401 of the law provides that ''[c]ompensation shall be payable to any employe who is or becomes unemployed, and who—'' . . . ''(b)(1) [i]s making an active search for suitable employment.''
The requirement in section 401(b) of the law that a claimant make an active search for suitable employment took effect on January 1, 2012, and applies to benefit years that begin on or after that date.
This proposed rulemaking will amend § 65.11 to contain the requirements a claimant shall meet to be eligible for benefits under section 401(b) of the law. This rulemaking is proposed in accordance with the General Assembly's directive in section 401(b)(1) of the law that ''[t]he requirements for 'active search' shall be established by the department . . . .''
Under proposed subsection (b), a claimant's initial active search requirement is to register for employment search services in the Pennsylvania Careerlink® system within 30 days after the claimant files his application for benefits. Section 401(b)(1) of the law provides that this requirement must be part of the Department's overall work search requirements. If the claimant fails to register within that 30-day period, he is ineligible for benefits for weeks that end beyond that 30-day period unless the claimant has registered no later than Sunday of the week.
In addition to the initial requirement to register for employment search services, generally a claimant shall satisfy the requirements of subsection (d)(1), (2) and (5) during each week for which compensation is claimed, beginning with the third week of the benefit year. During the third through eighth weeks, subsection (d)(1) requires the claimant to apply for at least two positions each week. However, the claimant may limit his applications to positions that would provide employment and wages similar to those the claimant had prior to his unemployment and are within a generally accepted commuting distance. During the ninth week of the benefit year and subsequent weeks, subsection (d)(2) requires the claimant to apply for not less than three positions each week that would provide suitable employment under section 4(t) of the law (43 P. S. § 753(t)). A claimant may apply for a position by mail, phone or electronic transmission, by submitting an application or resume to the employer, or by following a hiring procedure established by the employer.
Subsection (d)(5) enumerates seven types of job search activities other than applying directly to an employer for a position. Generally, a claimant shall engage in at least one of these activities during each week. If a claimant applies in a week for more than the number of positions required under subsection (d)(1) or (2), the additional application may substitute for a work search activity under subsection (d)(6).
There are certain exceptions and alternative requirements under proposed subsection (e). Notwithstanding the registration requirement in subsection (b) and the weekly work search activities required under subsection (d), the Department may determine that a claimant has satisfied the active search requirement in section 401(b) of the law if the claimant engages in work search efforts that are comparable to the way in which jobs in the claimant's trade or occupation are found in the claimant's community and labor market. Work search activities under subsection (d) are not required for a week if the claimant is a member of a union that has a hiring hall or the claimant is registered with a hiring hall, the claimant is required to obtain employment through the hiring hall, and the claimant fulfills the requirements to maintain eligibility for referral by the hiring hall during the week. Work search activities under subsection (d) also are not required for a week if the claimant actively participates during the week in a program or activity that is approved by the Department as an acceptable work search alternative. If the claimant works part time during a week and earns in excess of the partial benefit credit under section 4(m.3) of the law, the claimant will satisfy subsection (d)(1) by applying for one position and subsection (d)(2) by applying for two positions, and the claimant is not required to satisfy subsection (d)(5) for the week. If a claimant's labor market is located outside of this Commonwealth, the claimant shall register for employment search services with the employment service that serves the claimant's labor market in addition to registering with the Pennsylvania Careerlink® system.
Under proposed subsection (f), the active search requirement does not apply to a week in which the claimant is in training with the approval of the Secretary of Labor and Industry or a week in which the claimant is participating in work sharing. The exception for weeks in which the claimant is in approved training is required under section 3304(a)(8) of the Federal Unemployment Tax Act (26 U.S.C.A. § 3304(a)(8)).
Section 401(b)(5) of the law provides that the active search requirement is not applicable to a claimant who is laid off for lack of work and is advised by his employer of the date when he will return to work. Subsection (f)(2) articulates certain criteria to determine if a claimant has been given a return-to-work date for purposes of section 401(b)(5) of the law and specifies certain circumstances when section 401(b)(5) of the law would not apply.
For purposes of eligibility for extended benefits, subsection (g) states that a claimant shall satisfy work search requirements for extended benefits in addition to meeting the requirements of section 401(b) of the act and § 65.11.
C. Affected Persons
This proposed rulemaking will affect claimants who file an application for UC benefits that takes effect on or after January 1, 2012.
D. Fiscal Impact
The Department anticipates that a claimant will be able to meet the active search requirement in section 401(b) of the law and § 65.11 at minimal or no cost.
The Department will integrate administration of the active search requirement into its day-to-day administration of all of the eligibility provisions of the law. It is not possible to accurately isolate the cost to administer only the active search provision.
E. Paperwork Requirements
Proposed subsection (c) requires a claimant to create a record of his work search activities that contains the information required by the Department, retain the record for 2 years from the effective date of the application for benefits and produce the record for the Department's review at the times and in the format and manner as the Department requires.
F. Sunset Date
The regulation will be monitored through practice and application. Therefore, a sunset date is not designated.
G. Effective Date
The proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on April 19, 2012, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate Labor and Industry Committee and House Labor and Industry Committee. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor of comments, recommendations or objections raised.
I. Public Comment
Interested parties are invited to submit written comments, objections or suggestions about the proposed rulemaking to Susann Morrison, Executive Assistant to the Deputy Secretary for UC Programs, Room 1721B, Labor and Industry Building, 651 Boas Street, Harrisburg, PA 17121, (717) 705-3799 within 30 days following publication of this proposed rulemaking in the Pennsylvania Bulletin. Written comments received by the Department may be made available to the public. Comments may also be submitted electronically at sumorrison@pa.gov. A subject heading referencing the proposed rulemaking, name and return mailing address must be included in each transmission. In addition, electronic comments must be contained in the text of the transmission, not in an attachment.
JULIA K. HEARTHWAY,
SecretaryFiscal Note: 12-96. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 34. LABOR AND INDUSTRY
PART II. BUREAU OF EMPLOYMENT SECURITY
Subpart A. UNEMPLOYMENT COMPENSATION
CHAPTER 65. [EMPLOYE] EMPLOYEE PROVISIONS
Subchapter B. PREREQUISITES FOR ELIGIBILITY
[REGISTRATION] ACTIVE SEARCH FOR WORK § 65.11. [Work registration; effective period] Active search for work.
(a) [A claimant who files an application for benefits in accordance with § 65.41 (relating to filing methods) and declares his availability for suitable work has registered for work for purposes of section 401(b) of the law (43 P. S. § 801(b)). The work registration is effective on the date that the application is effective in accordance with § 65.42 (relating to application for benefits—effective date) or § 65.43a (relating to extended filing) and remains in effect for the benefit year corresponding to the application and any subsequent period for which benefits are payable pursuant to the application.
(b)] Initial procedures. When a claimant files an application for benefits in accordance with § 65.41 (relating to filing methods), the Department will provide information [relevant to the claimant's reemployment and receipt of employment services to the employment office] to the claimant regarding the process to register for employment search services and post a resume in the Pennsylvania CareerLink® system and advise the claimant of services provided by the Department and the Pennsylvania CareerLink® system.
(b) Work registration. A claimant shall register for employment search services in the Pennsylvania CareerLink® system within 30 days after the claimant files his application for benefits. If a claimant does not register for employment search services in the Pennsylvania CareerLink® system within 30 days after the claimant files his application for benefits, the claimant will be ineligible for compensation for any week that ends more than 30 days after the claimant files his application for benefits unless the claimant registers no later than Sunday of that week.
(c) Weekly requirements. To be eligible for compensation for the third consecutive week of the benefit year and each week thereafter, a claimant shall do the following:
(1) Engage in work search activities during the week in accordance with subsections (d) and (e).
(2) Create a record of his work search activities during the week containing the information required by the Department.
(3) Retain the record for 2 years from the effective date of the application for benefits.
(4) Produce the record for the Department's review at the times and in a format and manner as required by the Department.
(d) Weekly work search activities.
(1) During each week from the third consecutive week of the benefit year through the eighth consecutive week of the benefit year, the claimant shall apply for employment as follows:
(i) Except as provided in subparagraph (ii), the claimant shall apply for at least two positions.
(ii) The claimant may limit his applications to positions that would provide employment and wages similar to those the claimant had prior to his unemployment and are within a 45 minute commuting distance or a commuting distance that is generally accepted in the claimant's labor market, whichever is greater.
(2) During the ninth consecutive week of the benefit year and each week thereafter, the claimant shall apply for employment as follows:
(i) The claimant shall apply for at least three positions that would provide suitable employment under section 4(t) of the law (43 P. S. § 753(t)).
(ii) The claimant may not limit his applications to positions described in paragraph (1)(ii) if doing so would result in an insufficient number of applications during the week.
(3) For purposes of paragraphs (1) and (2), a claimant may apply for a position by expressing an interest in employment to the employer the following ways:
(i) In person.
(ii) By mail, phone or electronic transmission.
(iii) By submitting a job application or resume to the employer.
(iv) By following a hiring procedure established by the employer.
(4) A repeated application for the same position does not satisfy the requirements of paragraphs (1) and (2) unless there is a reasonable basis to believe that the employer's hiring circumstances have changed.
(5) In addition to the requirements of paragraphs (1) and (2), the claimant shall do at least one of the following during the week:
(i) Attend a job fair.
(ii) Search positions posted on the Pennsylvania CareerLink® system or Internet job banks.
(iii) Post a resume in the Pennsylvania CareerLink® system or other resume posting service.
(iv) Contact colleagues, former coworkers or other individuals in similar professions or occupations to make known the claimant's availability for employment or obtain information about available positions, prospective employers or other employment opportunities.
(v) Utilize an employment agency, employment registry or school placement service.
(vi) Take a civil service test or other pre-employment test.
(vii) Participate in a program or activity offered through the Pennsylvania CareerLink® system.
(6) If a claimant applies for more than the minimum number of positions under paragraph (1) or (2), the additional application may substitute for a work search activity under paragraph (5).
(e) Alternative requirements.
(1) Work search activities under subsection (d) are not required for a week if either of the following apply:
(i) The claimant meets all of the following:
(A) Is a member of a union that has a hiring hall or the claimant is registered with a hiring hall.
(B) Is required to obtain employment through the hiring hall.
(C) Fulfills the requirements to maintain eligibility for referral by the hiring hall during the week.
(ii) The claimant actively participates during the week in a program or activity approved by the Department as an acceptable work search alternative.
(2) If a claimant works part time during a week and earns in excess of the claimant's partial benefit credit as defined in section 4(m.3) of the law, the following apply:
(i) The claimant shall satisfy the requirements of subsection (d)(1) by applying for one position during the week and subsection (d)(2) by applying for two positions during the week.
(ii) The claimant will not be required to satisfy the requirement of subsection (d)(5) during the week.
(3) For purposes of subsection (b), if a claimant's labor market is located outside of this Commonwealth the claimant shall register for employment search services with the employment service that serves the claimant's labor market in addition to registering with the Pennsylvania CareerLink® system.
(4) Notwithstanding any other provision of this section, the Department may determine that a claimant has satisfied the requirements of section 401(b) of the law (43 P. S. § 801(b)) if the claimant's work search efforts include actions comparable to traditional actions in the claimant's trade or occupation by which jobs have been found by others in the community and labor market in which the claimant is seeking employment.
(f) Applicability.
(1) This section does not apply:
(i) As provided in section 401(b)(4) and (5) of the law.
(ii) To a week in which a claimant is in training with the approval of the Secretary.
(iii) To a week in which a claimant is participating in a work sharing plan under Article XIII of the law (43 P. S. §§ 916.1—916.13).
(2) For purposes of section 401(b)(5) of the law:
(i) A claimant is advised by the employer of the date on which he will return to work only if both of the following conditions are satisfied:
(A) The employer designates a specific recall date and notifies the claimant of the recall date in writing.
(B) The employer's designation of a recall date is bona fide.
(ii) Section 401(b)(5) of the law does not apply to a week following the week in which either of the following occur:
(A) The designated recall date is rescinded by the employer or is rescinded in fact.
(B) The designated recall date has passed.
(g) Extended benefits. For purposes of extended benefits under Article IV-A of the law (43 P. S. §§ 811—818), if the eligibility requirements for extended benefits include work search requirements in addition to the requirements of section 401(b) of the law and this section, the claimant also shall satisfy the additional work search requirements applicable to extended benefits.
(h) Definitions. For purposes of this section and section 401(b) of the law, the following words and phrases have the following meanings, unless the context clearly indicates otherwise:
Employment service—The State employment service established under 20 CFR Part 652 (relating to establishment and functioning of state employment services).
Pennsylvania CareerLink® system—The system of offices, personnel and resources, including the Commonwealth Workforce Development System or successor electronic resources, through which the Department provides services under the Wagner-Peyser Act (29 U.S.C.A. §§ 49—49l-2) and the Workforce Investment Act of 1998 (29 U.S.C.A. §§ 2801—2945) or similar or successor statutes.
Register for employment search services—Information regarding education, work history and qualifications and other information required by the Department that is relevant to receipt of employment search services.
[Pa.B. Doc. No. 12-804. Filed for public inspection May 4, 2012, 9:00 a.m.]
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