PROPOSED RULEMAKING
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW
[ 34 PA. CODE CH. 101 ]
Appeals from Determinations of Department
[51 Pa.B. 1318]
[Saturday, March 13, 2021]In accordance with section 203(d) of the Pennsylvania Unemployment Compensation Law (UC Law) (43 P.S. § 763(d)) and section 506 of the Administrative Code of 1929 (71 P.S. § 186) the Unemployment Compensation Board of Review (Board) is submitting this proposed rulemaking for the purpose of providing additional means for the filing of electronic appeals.
The Board proposes the following amendments to §§ 101.2 and 101.82(b) (relating to definitions; and time for filing appeal from determination of Department) as set forth in Annex A.
Statutory Authority
This proposed rulemaking is issued under the authority provided in section 203(d) of the UC Law which authorizes the Board to adopt, amend or rescind rules of procedure related to appeals. Section 506 of the Administrative Code of 1929 provides authority for the promulgation of rules and regulations for departmental administrative boards, stating: ''[T]he several departmental administrative boards and commissions, are hereby empowered to prescribe rules and regulations, not inconsistent with law, for the government of their respective departments, boards, or commissions. . .[and] the distribution and performance of their business. . . .''
Background
The Board is a departmental administrative board under section 203(c) of the UC Law, which provides that it ''shall have all the powers and perform all the duties generally vested in, and imposed upon, departmental administrative boards and commissions'' by the Administrative Code of 1929. The Board is established under sections 202, 207.1 and 503 of the Administrative Code of 1929 (71 P.S. §§ 62, 67.1 and 183). The Board voted to adopt the proposed amendments in Annex A on January 6, 2021.
Under sections 501(e) and 502 of the UC Law (43 P.S. §§ 821(e) and 822) parties have 15 days to file an appeal from a Department of Labor and Industry (Department) determination or referee decision. Section 101.82 establishes the methods by which an appeal may be filed and how the date of filing is determined for each filing method. The regulation was last amended on September 20, 2003, to expand the methods of filing beyond only personal delivery or delivery by United States mail. Existing § 101.82(b) allows for filing by United States mail, common carrier, fax transmission, ''electronic transmission other than fax transmission'' and personal delivery. It also determines the date of filing by each method, including by postage meter mark if there is no United States postmark on a mailed appeal.
The Department is in the process of establishing a new electronic ''Pennsylvania UC Claims System'' that will allow parties to securely file and manage unemployment compensation (UC) claims online. It will also enable the parties to file appeals electronically by means of the system at no cost. These amendments to the regulation are necessary to permit filing appeals by means of this online system, establish the date of filing and allocate the accountability of errors by the electronic system to the Department. The proposed amendment also distinguishes filing by means of e-mail from filing through the new system.
Compliance with Executive Order 1996-1, Regulatory Review and Promulgation
On March 6, 2020, the Board sent an e-mail explaining the amendments to the regulations and soliciting comments by April 10, 2020, to Geoffrey Moomaw, President, Interstate Tax Service; Brian Phillips, Executive Assistant to the President, PA AFL-CIO; Alex Halper, Director, Government Affairs, PA Chamber of Commerce; Barney Oursler, Co-founder, Mon Valley Unemployment Project; Rebecca Oyler, Legislative Director, National Federation of Independent Business; Sharon Dietrich, Managing Attorney and Litigation Director, Community Legal Services; Julia Simon-Mishel, Supervising Attorney of the Unemployment Compensation Unit, Philadelphia Legal Assistance; John Dodds, Director, Philadelphia Unemployed Project; Irwin Aronson, PA Building Trades and PA AFL-CIO; and John Stember, Board Chairperson, Mon Valley Unemployed Committee. On March 12, 2020, the Board sent the same e-mail to Joseph Fogarty, Equifax Manager UI Program Relationship. No comments were received from any of the recipients.
Purpose
This proposed rulemaking amends the existing regulation establishing methods by which a party can file an appeal. It simplifies and clarifies e-mail appeals and establishes appeals filed by means of the Pennsylvania UC Claims System.
Summary of Proposed Rulemaking
34 Pa. Code § 101.2
This section is proposed to be amended to add a definition of ''Pennsylvania UC Claims System.''
34 Pa. Code § 101.82(b)(4)
The proposed amendment to this paragraph eliminates ''electronic transmission other than fax transmission'' and replaces it with ''e-mail.'' This will simplify and clarify that the subsection is only applicable to electronic mail communication, as opposed to other forms of electronic communication. It also provides that the party will receive a confirmation e-mail that the appeal has been received. This effectively places the party on notice that if the confirmation e-mail is not received, the appeal has not been filed, prompting additional action by the party. This should reduce the number of untimely or misdirected appeals.
34 Pa. Code § 101.82(b)(4.1)
This proposed amendment establishes the filing of an appeal by means of the Department's new Pennsylvania UC Claims System. The amendment provides that the party will receive a confirmation from the system that the appeal has been received. This effectively places the party on notice that if the confirmation is not received, the appeal has not been filed, prompting additional action by the party. This should reduce the number of untimely or misfiled appeals. Additionally, the amendment provides that if there is a delay in transmission due to system or technological failure of the Pennsylvania UC Claims System, the date of filing will be redetermined by means of the adjudicatory process. Further, the Board will make available to its referees any relevant records regarding system outages. This places the accountability on the Department and Board, rather than the party.
Affected Persons
This proposed regulation will affect all employees in this Commonwealth who have filed claims for UC benefits, received adverse decisions, and who wish to file appeals, and all employers with former or current employees who have filed claims for UC benefits, received adverse decisions and who wish to file appeals.
Fiscal Impact
These proposed amendments do not have any appreciable fiscal impact.
Reporting, Recordkeeping and Paperwork Requirements
This proposed rulemaking will not require the creation of new forms or reporting requirements.
Sunset Date
A sunset date is not appropriate for this proposed rulemaking. However, the Board will continue to monitor its effectiveness.
Effective Date
This proposed rulemaking will become effective upon publication in the Pennsylvania Bulletin on the date of implementation of the Pennsylvania UC Claims System.
Contact Person
Interested persons are invited to submit written comments, suggestions or objections regarding the proposed amendments to Brian Parr, UC Appeals System Administrator, Unemployment Compensation Board of Review, 651 Boas Street, Room 1114, Harrisburg, PA 17121, (717) 787-5122 or by e-mail to RA-LIUCBR-REGCOMM@pa.gov within 30 days of publication in the Pennsylvania Bulletin.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)) on March 1, 2021, the Board 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 House and Senate Labor and Industry Committees. 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 shall 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 Board, the General Assembly and the Governor of comments, recommendations or objections raised.
RICHARD W. BLOOMINGDALE,
ChairpersonFiscal Note: 12-112. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 34. LABOR AND INDUSTRY
PART VI. UNEMPLOYMENT COMPENSATION BOARD OF REVIEW
CHAPTER 101. GENERAL REQUIREMENTS
Subchapter A. GENERAL PROVISIONS § 101.2. Definitions.
The following words and terms, when used in this part, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Party—The Department, the claimant, the last employer of the claimant and another employer affected by the appeal proceedings.
Pennsylvania UC Claims System—The Department's information technology system of record for the filing, management and processing of unemployment compensation claims and appeals.
Personal delivery—Delivery by or on behalf of a party that is not enumerated in § 101.82(b)(1)—(4) (relating to time for filing appeal from determination of Department) where a person personally files the appeal at a Board office or workforce investment office.
* * * * *
Subchapter C. APPEALS FROM DETERMINATIONS OF DEPARTMENT § 101.82. Time for filing appeal from determination of Department.
(a) A party seeking to appeal a Department determination shall file an appeal in the form and manner specified in § 101.81 (relating to filing of appeal from determination of Department) and this section on or before the 15th day after the date on which notification of the decision of the Department was delivered personally to the appellant or mailed to him at his last known post office address.
(b) A party may file a written appeal by any of the following methods:
* * * * * (4) Electronic [transmission other than fax transmission] mail (e-mail). The date of filing is the receipt date recorded by the Department appeal office or the Board's [electronic transmission] e-mail system, if the [electronic record] e-mail message is in a form capable of being processed by that system. Filing will be acknowledged by a confirmation e-mail. A party filing by [electronic transmission] e-mail shall comply with Department instructions concerning format. A party filing an appeal by [electronic transmission] e-mail is responsible for using the proper format and for delay, disruption, interruption of electronic signals and readability of the document and accepts the risk that the appeal may not be properly or timely filed.
(4.1) Pennsylvania UC Claims System. The date of filing is the receipt date recorded by the Pennsylvania UC Claims System. Filing will be acknowledged by a confirmation from the Pennsylvania UC Claims System. If the filing is delayed as a result of system or technological failure of the Pennsylvania UC Claims System, the date of filing will be redetermined through the adjudicatory process. The Board will make available to the Referee relevant Department records regarding system outages where a party alleges a late filing due to system or technological failure.
(5) Personal delivery to a workforce investment office or the Board. The filing date will be the date the appeal was personally delivered to the workforce investment office or the Board during its normal business hours.
[Pa.B. Doc. No. 21-367. Filed for public inspection March 12, 2021, 9:00 a.m.]
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