RULES AND REGULATIONS
Title 34—LABOR AND INDUSTRY
UNEMPLOYMENT COMPENSATION
BOARD OF REVIEW
[34 PA. CODE CH. 101]
Appeals from Determinations of Department
[52 Pa.B. 1480]
[Saturday, March 12, 2022]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 final-form rulemaking for the purpose of providing additional means for the filing of electronic appeals.
The Board amends §§ 101.2, 101.24, 101.53, 101.82, 101.89, 101.90 and 101.110, as set forth in Annex A.
Statutory Authority
This final-form 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. It 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 final-form amendments in Annex A on August 16, 2021.
Under sections 501(e) and 502 of the UC Law (43 P.S. §§ 821(e) and 822) parties may file an appeal from a Department determination or referee decision. Section 101.82 (relating to time for filing appeal from determination of Department) 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 has established a new electronic ''Pennsylvania UC Claims System'' that allows parties to securely file and manage unemployment compensation (UC) claims online. It also enables parties to file appeals electronically by means of the system at no cost. This final-form rulemaking adds filing by means of the Pennsylvania UC Claims System as a method of appeal, while preserving existing methods of filing an appeal for parties that do not have access to the system. This results in additional appeal options for all parties in the UC system and clarifies the way that an appeal filing date is calculated based on the filing method. The additional filing method and the clarity around filing dates will benefit both claimants and employers who participate in the UC system.
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 amendment also distinguishes filing by means of e-mail from filing by other methods. The original filing methods remain as alternative options of filing an appeal.
After the Board filed the proposed rulemaking, the General Assembly passed the act of June 30, 2021 (P.L. 173, No. 30) (Act 30). Act 30 amended, inter alia, sections 501 and 502 of the UC Law, to (1) increase the time to appeal a Department determination or referee decision from 15 days to 21 days, and (2) allow the Department to issue a determination or a referee and the Board to issue a decision by mail to the claimant's or employer's last known post office address or by electronic transmission, as designated by the recipient.1 Given that the Independent Regulatory Review Commission (IRRC) had also raised the issue of clarity of the deadline of the appeal which required additional amendments, this final-form rulemaking amends §§ 101.24, 101.53, 101.82, 101.89, 101.90 and 101.110 to ensure that these sections both satisfy IRRC's concerns and are consistent with the General Assembly's recent amendments to sections 501 and 502 of the UC Law.
Purpose
This final-form 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. This final-form rulemaking also amends the existing regulation to increase the time to appeal a Department determination or referee decision from 15 days to 21 days. Finally, it references the Department's ability to issue a determination or a referee and the Board's ability to issue a decision by mail to the claimant's or employer's last known post office address or by electronic transmission, as designated by the party.
Comments
The notice of proposed rulemaking was published at 51 Pa.B. 1318 (March 13, 2021). The Board received no comments from the public or from the Senate Labor and Industry Committee or the House Labor and Industry Committee (Committees). The Board received comments from IRRC, and the Board's responses to IRRC's comments are as follows.
1. § 101.82. Time for filing appeal from determination of Department.—Reasonableness of requirements, implementation procedures and timetables for compliance by the public and private sectors; Clarity and lack of ambiguity.
Comment: First, the Preamble explains that a party is ''effectively [placed] on notice that if the confirmation is not received, the appeal has not been filed, prompting additional action by the party.'' What additional actions will a party need to take when confirmation is not received? We ask the Board to explain the implementation procedures when a confirmation e-mail is not received or the System does not generate an acknowledgment. We also ask the Board to explain the reason- ableness of omitting additional actions a party will need to take when there are specific timetables for compliance. The Board should consider revising these filing methods to establish standards that are achievable for the regulated community.
Response: The Board amends § 101.82(b)(4) and (4.1) to address IRRC's comment about the additional actions that a party will need to take when confirmation of an appeal is not received. When a party files an e-mail appeal, § 101.82(b)(4) states that the Department will confirm receipt of the appeal by sending the party an auto-reply e-mail. If the party does not receive an auto-reply e-mail, the Department has not successfully received the party's appeal, and the party is responsible to resubmit the appeal. The regulation expressly requires the party to resubmit the appeal prior to the appeal deadline. The party may use any method provided in § 101.82(b) to resubmit the appeal.
When a party files an appeal using the Pennsylvania UC Claims System, § 101.82(b)(4.1) states that, following submission of the appeal, the system will contain (1) a notation showing that the Department successfully received the party's appeal, and (2) information in the Appeals Section that the party's appeal has been filed. If the system does not indicate that the party's appeal has been filed, the party is responsible to resubmit the appeal prior to the appeal deadline. Again, the party may use any method provided in § 101.82(b) to resubmit the appeal.
In addition to the regulation, the Department's UC web site will provide instructions and suggestions for a party to successfully file an appeal. For e-mail appeals, the majority of filing problems are caused by the party using the incorrect e-mail address to file the appeal, and thus the party does not receive the auto-reply e-mail. After an unsuccessful attempt to file an e-mail appeal, a party should check to make sure that the party used the correct e-mail address. For appeals through the Pennsylvania UC Claims System, the system provides an intuitive filing method with several links to ''file appeal'' which requires answering a series of questions. If a question is not answered, the user gets an error message and will not be allowed to proceed to the next step until the question is answered. After an unsuccessful attempt to file an appeal through the system, the party should check the Internet connection and make sure that all questions are answered and that the session did not time out. If a party has difficulty filing an appeal using a particular method, the party may use one of the other five methods available under the regulation or may contact the UC Service Center for assistance.
Comment: Second, these paragraphs do not state the deadline for timely filing of an appeal. We ask the Board to improve the clarity of these paragraphs by stating the deadline.
Response: The Board has reviewed the sections pertaining to timely filing of an appeal and has made amendments as follows. The Board amends § 101.82(a) in this final-form rulemaking to implement Act 30's changes to increase the time to appeal a Department determination or referee decision from 15 days to 21 days. Section 101.82(a.1) then states that the Department will mail a copy of the determination to the party's last known post office address or transmit it electronically, as designated by the party. The Board is using the term ''party'' in this final-form rulemaking, as opposed to ''recipient'' as provided in Act 30, to make clear that the individual who makes the designation to receive the documentation by mail or electronic transmission is a party. Section 101.82(b) then lists the filing methods for an appeal. Because the deadline is stated in the preceding paragraph, the Board declines to restate the deadline in subsection (b). The Board also improved clarity and consistency with Act 30 in §§ 101.24(c) and 101.90 (relating to reopening of hearing; and further appeal), by increasing the time to appeal from 15 days to 21 days. In addition, the appeal deadline will be provided on the determination or referee decision issued to the parties.
Comment: Third, do the confirmation sent by e-mail and the acknowledgment sent by the System include the date the appeal was deemed filed? We ask the Board to describe the information stated in the confirmation and acknowledgment and clarify these paragraphs to include these details.
Response: Upon successfully filing an e-mail appeal, the party receives an auto-reply e-mail that states the following: ''This message serves as confirmation that your e-mail has been received by the Unemployment Compensation Board of Review. Please retain this confirmation for your records.'' The auto-reply e-mail does not contain the date the appeal was filed, because this auto-reply e-mail is sent in response to all e-mails sent to the Board's appeals e-mail address, not only in response to appeals. Therefore, the auto-reply e-mail contains the previously stated standard language. However, once the e-mail appeal is received, UC staff upload it into the UC Claims System, and an appeal acknowledgement letter is sent to the party by the system and includes the date the appeal was filed, as provided in § 101.82(c).
Upon successfully submitting the appeal in the Pennsylvania UC Claims System, the system immediately generates notations that ''Your appeal has been successfully filed'' and ''This message confirms the Pennsylvania Department of Labor and Industry (DLI) has received your unemployment compensation appeal.'' The notations do not include the date the party filed the appeal, but the party can access that date in the Appeals section of the system. Additionally, after the appeal is processed, an appeal acknowledgement letter is sent to the party by the system and includes the date the appeal was filed, as provided in § 101.82(c). Additionally, the Board submitted copies of the e-mail confirmations and acknowledgements for upper and lower-level appeals and a screenshot of the UC Claims System acknowledgement with the Regulatory Analysis Form.
2. Regulatory Analysis Form (RAF).
Comment: We ask the Board to submit screen shots of the portion of the System used to file an appeal in response to RAF Question # 22b.
Response: In addition to the appeal instructions already submitted, the Board submits a copy of the Appeal Process User Guide, which includes screen shots of the appeal process. This guide is posted on the UC web site.
Comment: In addition, responses to RAF Question # 29 state that the ''amendments will become effective upon publication of final-form rulemaking in the Pennsylvania Bulletin on the date of implementation'' of the System. We note that the updated System is scheduled to be launched in June 2021. Given that the System will be operational before publication of the final-form regulation, we ask the Board to explain when these amendments will become effective and update the response to RAF Question # 29 and the Preamble accordingly.
Response: The regulations will become effective upon publication in the Pennsylvania Bulletin. The RAF has been updated to reflect this change.
3. Miscellaneous clarity.
Comment: The definition of ''personal delivery'' in Section 101.2 (relating to definitions) should be updated to cross-reference Section 101.82(b)(1)—(4.1). (Emphasis added.)
Response: This change is made to this final-form rulemaking.
Summary of Final Form Rulemaking
§ 101.2
The Board amends this section to update the citation to § 101.82(b)(1)—(4.1).
§ 101.24
The Board amends § 101.24(b), (c) and (d) to state that a decision is ''issued'' to a party, as opposed to ''mailed'' to a party. This amendment is consistent with Act 30 which allows the Department to issue a determination or a referee and the Board to issue a decision by mail to the claimant's or employer's last known post office address or by electronic transmission, as designated by the recipient. To conform with Act 30 and address IRRC's clarity concerns, the Board amends § 101.24(c) to update the appeal period from 15 days to 21 days.
§ 101.53
Because a referee and the Board are no longer required to only issue decisions by mail, the Board amends § 101.53 (relating to notice) to also reference issuance of decisions by electronic transmission.
§ 101.82
To conform with Act 30, the Board amends § 101.82(a) to update the appeal period from 15 days to 21 days. In addition, the Board amends § 101.82 to include subsection (a.1) to reference that the Department will mail a copy of the determination to the party's last known post office address or transmit it electronically, as designated by the party.
The Board amends § 101.82(b)(4) to address IRRC's comment about the additional actions that a party will need to take when confirmation of an e-mail appeal is not received. When a party files an e-mail appeal, § 101.82(b)(4) states that the Department will confirm receipt of the appeal by sending the party an auto-reply e-mail. If the party does not receive an auto-reply e-mail, the Department has not successfully received the party's appeal, and the party is responsible to resubmit the appeal. The regulation expressly requires the party to resubmit the appeal prior to the appeal deadline. The party may use any method provided in § 101.82(b) to resubmit the appeal.
The Board amends § 101.82(b)(5) and renumbers it as § 101.82(b)(4.1). The amendments also address IRRC's comment about the additional actions that a party will need to take when confirmation of appeal through the Pennsylvania UC Claims System is not received. When a party files an appeal using the Pennsylvania UC Claims System, § 101.82(b)(4.1) states that, following submission of the appeal, the system will contain (1) a notation showing that the Department successfully received the party's appeal, and (2) information in the Appeals Section that the party's appeal has been filed. If the system does not indicate that the party's appeal has been filed, the party is responsible to resubmit the appeal prior to the appeal deadline. Again, the party may use any method provided in § 101.82(b) to resubmit the appeal. The amendments also update the terms ''delayed'' to ''untimely'' and ''redetermined'' to ''determined'' when discussing system or technological failures of the Pennsylvania UC Claims System.
For this final-form rulemaking, the Board returns § 101.82(b)(6) to its original numbering (that is, § 101.82(b)(5)), so no change is necessary to the existing regulation.
The Board amends § 101.82 to include subsection (c) regarding the appeal acknowledgement letter. After a party files an appeal using one of the methods provided in § 101.82(b), the Department or Board will send the party a letter acknowledging that it received the party's appeal and the date on which the party filed the appeal.
§ 101.89
To conform with Act 30, the Board amends § 101.89 (relating to notice of decision) to reference that a referee is to issue a decision by mail to the claimant's or employer's last known post office address or by electronic transmission, as designated by the party, including each party's counsel or authorized agent. In addition, the decision date shall be the date the decision is posted on the Pennsylvania UC Claims System and available for viewing.
§ 101.90
To conform with Act 30, the Board amends § 101.90 to update the appeal period from 15 days to 21 days.
§ 101.110
To conform with Act 30, the Board amends § 101.110 (relating to notice of decision of Board) to reference that the Board is to issue a decision by mail to the claimant's or employer's last known post office address or by electronic transmission, as designated by the party, including each party's counsel or authorized agent. Because the Board is no longer required to only issue decisions by mail, the Board clarifies that the decision date is not the mailing date but rather the date the decision is posted on the Pennsylvania UC Claims System and available for viewing.
Affected Persons
This final-form rulemaking will affect all Commonwealth employees 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
This final-form rulemaking does not have any appreciable fiscal impact.
Reporting, Recordkeeping and Paperwork Requirements
This final-form rulemaking will not require the creation of new forms or reporting requirements.
Sunset Date
A sunset date is not appropriate for this final-form rulemaking. However, the Board will continue to monitor its effectiveness.
Effective Date
This final-form rulemaking will become effective upon publication in the Pennsylvania Bulletin.
Contact Person
The contact person for this final-form rulemaking is Brian Parr, UC Appeals System Administrator, Unemployment Compensation Board of Review, 651 Boas Street, Room 1114, Harrisburg, PA 17121, (717) 787-5122, RA-LIUCBR-REGCOMM@pa.gov.
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 the proposed rulemaking, published at 51 Pa.B. 1318 to IRRC and the Chairpersons of the House Professional Licensure Committee (HPLC) and the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) for review and comment.
Under section 5(c) of the Regulatory Review Act, the Board shall submit to IRRC, the HPLC and the SCP/PLC copies of comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Board has considered all comments received from IRRC. The Board did not receive any comments from the Committees or the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P.S. § 745.5a(j.2)), on January 25, 2022, the final-form rulemaking was deemed approved by the HPLC and the SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on January 26, 2022, and approved the final-form rulemaking.
Findings
The Board 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), referred to as the Commonwealth Documents Law, and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).
(2) A public comment period was provided as required by law and all comments were considered.
(3) The final-form rulemaking is necessary and appropriate for the administration and enforcement of the authorizing statutes.
(4) The amendments to this final-form rulemaking do not enlarge the original purpose of the proposed rulemaking published at 51 Pa.B. 1318.
Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Board in 34 Pa. Code Chapter 101 are amended by amending §§ 101.2, 101.24, 101.53, 101.82, 101.89, 101.90 and 101.110 to read as set forth in Annex A.
(b) The Board shall submit this final-form rulemaking to the Office of General Counsel and the Office of Attorney General for review and approval as to form and legality, as required by law.
(c) The Board shall submit this final-form rulemaking to IRRC and the Committees as required by law.
(d) The Chairman of the Department shall certify this final-form rulemaking and deposit it with the Legislative Reference Bureau as required by law.
(e) This order shall become effective upon publication in the Pennsylvania Bulletin.
RICHARD W. BLOOMINGDALE,
Chairperson(Editor's Note: See 52 Pa.B. 1079 (February 12, 2022) for IRRC's approval order.)
Fiscal Note: Fiscal Note 12-112 remains valid for the final adoption of the subject regulations.
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)—(4.1) (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 B. PROVISIONS GOVERNING HEARINGS BEFORE THE DEPARTMENT
OR REFEREE
HEARINGS § 101.24. Reopening of hearing.
* * * * * (b) A request for reopening which is received by the referee before his decision has been issued to the parties shall be decided by the referee before whom the case is pending. If the request for reopening is allowed, a new hearing shall be scheduled with written notice thereof to each of the parties. At a reopened hearing, the opposing party shall be given the opportunity to object to the reopening if he so desires. If the request for reopening is denied, the referee shall append to the record the request, supporting material and the ruling on the request, so that it shall be subject to review on further appeal.
(c) A request for reopening the hearing which is not received before the decision was issued, but is received or postmarked on or before the 21st day after the decision of the referee was issued to the parties, shall constitute a request for further appeal to the Board and a reopening of the hearing, and the Board will rule upon the request. If the request for reopening is allowed, the case will be remanded and a new hearing scheduled, with written notice thereof to each of the parties. At a reopened hearing, the opposing party shall be given the opportunity to object to the reopening if he so desires. If the request to have the hearing reopened is denied, the Board will append to the record the request, supporting material and the ruling on the request, so that it shall be subject to review in connection with any further appeal to the Commonwealth Court.
(d) If a request for reopening is not received before the decision was issued but is received or postmarked within 15 days after the decision of the Board was issued to the parties, it will be accepted as a request for reconsideration and a reopening of the hearing and the Board will rule upon the request. If the request for reopening is allowed, the Board will vacate its decision and remand the case for further hearing, with written notice thereof to each of the parties. At a reopened hearing, the opposing party shall be given the opportunity to object to the reopening if he so desires. If the request to have the hearing reopened is denied, the Board will append to the record the request, supporting material, and the ruling on the request, so that it shall be subject to review in connection with any further appeal to the Commonwealth Court.
PROCEDURE § 101.53. Notice.
Mailing of notices, orders or decisions of a referee, or of the Board to the parties at their last known addresses, or issuance by electronic transmission when permitted by law and this chapter, as furnished by the parties to the referee, the Board or the Department, shall constitute notice of the matters therein contained.
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 no later than 21 days after the ''determination date'' on the determination.
(a.1) The Department will mail a copy of the determination to the party's last known post office address or transmit it electronically, as designated by the party.
(b) A party may file a written appeal by any of the following methods:
* * * * * (4) Electronic mail (e-mail).
(i) The date of filing is the receipt date recorded by the Department appeal office or the Board's e-mail system, if the e-mail message is in a form capable of being processed by that system.
(ii) The Department will confirm receipt of the party's e-mail appeal by sending the party an auto-reply e-mail. if the party does not receive an auto-reply e-mail, the Department has not successfully received the party's appeal, and the party may resubmit the appeal using any method provided in this subsection. Failure to resubmit the appeal prior to the appeal deadline will result in an untimely appeal.
(iii) A party filing by e-mail shall comply with instructions concerning format. A party filing an appeal by 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.
(i) The date of filing is the receipt date recorded by the Pennsylvania UC Claims System. Following submission of the appeal, a notation will appear in the Pennsylvania UC Claims System to show that the Department successfully received the party's appeal. Following submission of the appeal, the appeals section of the Pennsylvania UC Claims System will also show that the party's appeal has been filed. If the Pennsylvania UC Claims System does not indicate that the party's appeal has been filed, the party may resubmit the appeal using any method provided in this subsection. Failure to resubmit the appeal prior to the appeal deadline will result in an untimely appeal.
(ii) If the filing is untimely 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.
(c) Appeal acknowledgement letter. After a party files an appeal using one of the methods provided in subsection (b), the Department or Board will send the party a letter acknowledging that it received the party's appeal and the date on which the party filed the appeal.
§ 101.89. Notice of decision.
A copy of the decision of the tribunal shall be mailed to each party's last known post office address or transmitted electronically, as designated by the party, including each party's counsel or authorized agent. The decision date shall be the date the decision is posted on the Pennsylvania UC Claims System and available for viewing.
§ 101.90. Further appeal.
(a) Within 21 days after the decision of a referee, the claimant, the Department or an affected employer may file an application for a further appeal with the Board.
* * * * * § 101.110. Notice of decision of Board.
A copy of the decision of the Board shall be mailed to each party's last known post office address or transmitted electronically, as designated by the party, including each party's counsel or authorized agent. The decision date shall be the date the decision is posted on the Pennsylvania UC Claims System and available for viewing.
[Pa.B. Doc. No. 22-374. Filed for public inspection March 11, 2022, 9:00 a.m.] _______
1 Act 30's amendments to sections 501 and 502 of the UC Law became effective upon the Department's publication of a notice at 51 Pa.B. 4033 (July 24, 2021).
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