LAB-38-13-00009-A Work Search Requirement for Unemployment Insurance (UI) Claimants
12/31/13 N.Y. St. Reg. LAB-38-13-00009-A
NEW YORK STATE REGISTER
VOLUME XXXV, ISSUE 53
December 31, 2013
RULE MAKING ACTIVITIES
DEPARTMENT OF LABOR
NOTICE OF ADOPTION
I.D No. LAB-38-13-00009-A
Filing No. 1233
Filing Date. Dec. 17, 2013
Effective Date. Jan. 01, 2014
Work Search Requirement for Unemployment Insurance (UI) Claimants
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Renumbering of section 473.4 to 473.5; and addition of new section 473.4 to Title 12 NYCRR.
Statutory authority:
Labor Law, sections 21(11), 530(1) and section 591(2) as amended by L. 2013, ch. 57
Subject:
Work search requirement for unemployment insurance (UI) claimants.
Purpose:
To comply with requirement in Labor Law section 591.2 that the Commissioner promulgate work search regulations for those receiving UI.
Text or summary was published
in the September 18, 2013 issue of the Register, I.D. No. LAB-38-13-00009-P.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Teresa Stoklosa, Department of Labor, State Office Campus, Building 12, Room 509, Albany, NY 12240, (518) 457-4385, email: regulations@labor.ny.gov
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2016, which is no later than the 3rd year after the year in which this rule is being adopted.
Assessment of Public Comment
The New York State Department of Labor received nine (9) sets of comments from groups in response to published work search regulations. The New York State Department of Labor reviewed these comments. The substance of the comments in all nine sets was essentially identical.
In this Summary of Comments and Assessment and Response to Comments, the comments are summarized and an assessment and response to these comment follows.
Comment 1: A concern that the work search regulations are a possible violation of Americans with Disabilities Act Title II is raised. More specifically it is stated that the work search regulations tend to screen claimants with intellectual impairments and low literacy levels.
Assessment and Response to Comment 1: The comments reference the “required interactive process to develop reasonable modifications” under Title II of the ADA. These requirements are discussed, for example, in Vinson v. Thomas, 288 F3d 1145 (9th Circ. 2002) at III [4]-[6].
This requirement of Title II of the ADA is described as follows: “This interactive process is triggered upon notification of the disability and the desire for accommodation. Barnett, 228 F.3d at 1114. An employer who fails to engage in such an interactive process in good faith may incur liability "if a reasonable accommodation would have been possible." Vinson at 1154.
From the unemployment insurance perspective, when we receive notification from a claimant that a disability is a barrier to certain types of work search activities, at that juncture, we engage a good faith interactive process to reasonably accommodate the disability.
The work search regulations emphasize the need for a work search plan before any denial or reduction of benefits or before a penalty are imposed. This is coupled with the work search plan being an individualized plan that accommodates each person’s unique situation. Every work search plan is individualized. No punitive action takes place without a work search plan. Accordingly, the work search regulations have the “required interactive process to develop reasonable modifications.”
Comment 2: A concern that the work search regulations are a possible violation of the Civil Rights Act Title VI is raised. Based upon this it is requested that NYSDOL track records of racial impact of ineligibility decisions.
Assessment and Response to Comment 2: The comments raise concerns that the work search regulations may violate Title VI of the Civil Rights Act, the comments specifically state that the “provisions will yield a disparate racial impact.”
With respect to any initial inquiry regarding any given practice by a state agency: “To establish discrimination under a disparate impact scheme, the investigating agency must first ascertain whether the recipient utilized a facially neutral practice that had a disproportionate impact on a group protected by Title VI. Larry P. v. Riles, 793 F.2d 969, 982; Elston, 997 F.2d at 1407 (citing Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985)). The agency must show a causal connection between the facially neutral policy and the disproportionate and adverse impact on a protected Title VI group.” US Department of Justice website: http://www.justice.gov/crt/about/cor/coord/vimanual.php#B. Disparate Impact/Effects
In order for the regulations to have a disparate impact, there would need to be certain protected classes that experience barriers (that are not accommodated) at a disproportionate rate to the population as a whole. As discussed above with respect to the alleged violations of Title II, our provisions for requiring a work search plan before any detrimental action is taken and requiring that each work search plan be individualized should address any disproportionate barriers that arise for any given protected class.
The work search regulations are “facially neutral.” The comments request that “DOL … maintain records of the racial impact of its ineligibility decisions to monitor compliance with civil rights law.” See following “Comment 3” and “Assessment and Response to Comment 3.”
Comment 3: DOL should maintain records of racial impact of ineligibility decision to monitor compliance with Title VI.
Assessment and Response to Comment 3: The NYS Department of Labor’s Research & Statistics Division will be reviewing all UI Reform applications and eligibility/ineligibility decisions. This review will include work search data. The Research & Statistics Division will review and monitor patterns in those programs.
Comment 4: Low-wage and low-skill claimants are unable to comply with the bureaucratic requirements of the work search regulations.
Assessment and Response to Comment 4: The work search activities in the work search regulations were developed with the interests of all claimants. The requirement of one activity per week from activities 1-5, under section 473.4 (c)(1)-(5) of the regulations, will assist all claimants including low-wage and low-skill claimants as these are common methods of work search. See following “Comments 6 and 7” and “Assessment and Response to Comments 6 and 7”.
Comment 5: Claimants with unstable housing situations will be prevented from complying with the record keeping requirements of the work search regulations.
Assessment and Response to Comment 5: NYS Department of Labor accepts all forms of paper documents. For example, noting an activity on any available piece of paper is acceptable. The online Job Zone resource is especially beneficial to claimants with unstable housing as the record may be maintained without keeping a paper document. Computer and on-line resources are available through the NYS Department of Labor. This online tool provides claimants with a place to document, record and safely store their records in lieu of maintaining handwritten records.
Comment 6: The work search requirements are arbitrary. Specifically, the list of methods of work search is narrow and it does not reflect common successful methods of obtaining work.
Assessment and Response to Comment 6: The work search regulations allow for the employment of a variety of common work search activities. In addition, the work search regulations state that the listed activities include "but are not limited to." Each claimant must have one activity from activities 1-5 but may engage in any of the activities listed or other unlisted work search activities identified in the claimant’s work search plan in order to comply with work search requirements of three work search activities per week. The work search regulations do not preclude other methods of work search.
Comment 7: Not all work search activities are able to be recorded. Specifically, examples are raised in the comments of word-of-mouth contacts and informal networking.
Assessment and Response to Comment 7: Various networking activities are included in the regulation. The department recognizes the significance of this step in the work search process and has illustrated that recognition by including it as recordable work search activities that meet work search requirements. See proposed 12 NYCRR 473.4(C)(4) “Attending job search seminars, scheduled career networking meetings, job fairs, or employment-related workshops that offer instruction in improving individual skills for obtaining employment” and 12 NYCRR 473.4(8) “Using the telephone, business directories, internet, or online job matching systems to search for jobs, get leads, request referrals, or make appointments for job interviews.”
It is expected that “word-of-mouth contacts and informal networking” lead to work search activities described in 12 NYCRR 473.4 (C) (4) and (8) and that these work search activities lead to work search activities described in 12 NYCRR 473.4(C) (2), (3), and (5) (submitting job applications and interviewing with employers).
Comment 8: NYS Department of Labor resources will be shifted away from assistance for claimant to enforcement of work search activities. This will impact customer service at Career Centers.
Assessment and Response to Comment 8: The primary focus of the regulation is both to establish minimal work search requirements and to provide assistance to those claimants that need help with their job search efforts. Review of work search record is a method to determine which claimants require greater assistance and individualized service for their work search. Individualized work search plans will be developed to assist these claimants.
Comment 9: NYS Department of Labor should develop protocols for providing reasonable modifications to persons with disabilities.
Assessment and Response to Comment 9: The NYS Department of Labor currently serves persons with disabilities and have existing protocols in place to provide reasonable modifications. The individualized work search plan will address needs or accommodations required by all claimants.
