LAB-30-13-00011-P Responding to Requests for Information and Employer Relief of Charges  

  • 7/24/13 N.Y. St. Reg. LAB-30-13-00011-P
    NEW YORK STATE REGISTER
    VOLUME XXXV, ISSUE 30
    July 24, 2013
    RULE MAKING ACTIVITIES
    DEPARTMENT OF LABOR
    PROPOSED RULE MAKING
    NO HEARING(S) SCHEDULED
     
    I.D No. LAB-30-13-00011-P
    Responding to Requests for Information and Employer Relief of Charges
    PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
    Proposed Action:
    Repeal of section 472.12; and addition of new section 472.12 to Title 12 NYCRR.
    Statutory authority:
    Labor Law, sections 21(11), 530(1), 575 and 581(e)(3)
    Subject:
    Responding to Requests for Information and Employer Relief of Charges.
    Purpose:
    To provide a procedure for timely and adequate response to requests for information and for relief from charges.
    Text of proposed rule:
    Section 472.12 is repealed and a new Section 472.12 is added to read as follows:
    § 472.12 Responding to Requests for Information and Employer Relief of Charges – Timely and Adequately Requirement for Responding
    (a) A response to a notice of potential charges (hereinafter referred to as a claim notice) must be received by the Department of Labor within 10 calendar days of the date on the claim notice.
    (b) All other requests for information pertaining to an unemployment insurance claim must be received by the Department of Labor within the number of days specified in the written (including electronic transmission) or verbal request for information.
    (c) The Department of Labor may communicate its request for information to employers by letter; electronic communication; fax; telephone; through “SIDES,” the State Information Data Exchange System (if agreed to by the employer); or other method of communication approved by the Department of Labor.
    (d) The claim notice and all other requests for information referenced in subdivisions (a) and (b) shall be sent to the employer’s address, fax number, or email address of record on file with the Department of Labor, or an electronic account authorized by the Department of Labor. The Department of Labor may also request information by calling the employer’s business telephone number. Employers must notify the Department of Labor when any of the above contact information changes. Requests for information sent to the employer’s last known address, business telephone number, fax number, email address or authorized electronic account shall be deemed to have been sent to the correct address for the purposes of this section.
    (e) Employers may respond to a claim notice and/or request for information by fax, electronic communication, SIDES, U.S. Postal Service, private delivery service, telephone (if the request for information required a telephone response), or other method of communication approved by the Department of Labor. An employer’s response to the Department of Labor shall be deemed to have been received on the date indicated by the date stamp placed on incoming faxes by the Department of Labor’s fax machine, the date stamp on paper documents, or the date the electronic submission is received. If no fax or date stamp exists, the receipt date will be deemed to be two days prior to the date the document is entered in the Department’s imaging system. If the employer disputes the date a response was received by the Department of Labor, the burden shall be on the employer to provide proof that the response was timely. Proof may include, but is not limited to, a confirmation of delivery, a stamped receipt by an agent of the Commissioner, or an affidavit of personal service on the Commissioner or his/her agent.
    (f) An employer’s response to a request for information must contain adequate information. To be considered adequate, the response must:
    (1) specify the reason(s) for the separation, or other issue affecting the claimant’s eligibility or entitlement for benefits;
    (2) answer, in good faith, all questions in detail; and
    (3) provide all relevant information and documentation for the Department of Labor to render a correct determination regarding the claimant’s eligibility or entitlement for benefits.
    (g) If the Commissioner of Labor determines that overpayments of benefits occurred because the employer failed to timely or adequately respond to a claim notice or other request for information, the employer’s account shall not be relieved of charges relating to the overpayments, except in accordance with subdivisions (h), (i) and (j). The employer shall not be relieved of charges for each week that an overpayment is made, through the date that the Department of Labor makes a determination that the claimant is no longer eligible for or entitled to benefits or makes a determination that results in a reduction of benefits.
    (h) An employer shall be relieved of charges imposed in subdivision (g) for the first instance that the employer or its agent fails to provide timely or adequate information, if the employer provides good cause for such failure. Good cause shall include any significant event that the employer could not reasonably have anticipated which affects the employer’s ability to respond timely to requests for information, as determined by the Commissioner. After the first instance of failing to provide timely and adequate information, the employer shall only be relieved of charges for a subsequent failure in accordance with the provisions of subdivisions (i) and (j) below.
    (i) An employer may be relieved of charges if the charges were due to an error by the Department of Labor.
    (j) An employer may be relieved of charges if they were unable to respond in a timely manner due to a disaster emergency as declared by the Governor of their State or the President of the United States.
    Text of proposed rule and any required statements and analyses may be obtained from:
    Amy C. Karp, Legislative Counsel, New York State Department of Counsel, State Office Campus, Building 12, Room 509, Albany, NY 12240, (518) 457-7350, email: Regulations@labor.ny.gov
    Data, views or arguments may be submitted to:
    Same as above.
    Public comment will be received until:
    45 days after publication of this notice.
    This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.
    Regulatory Impact Statement
    Statutory Authority: Labor Law Sections 21(11) (authorizes the Commissioner of Labor to promulgate regulations he deems necessary and proper), 530(1) (provides that the Commissioner may promulgate regulations necessary to administer Article 18, the Unemployment Insurance Law), 575 (requires an employer to maintain and provide information relating to an employees’ wages) and 581(e)(3) (provides that an employer shall not be relieved from charges if it fails to provide information required pursuant to Labor Law § 597).
    Legislative Objectives: 12 NYCRR § 472.12 is being repealed because the Labor Law no longer requires employers to report wages of employees to the Department of Labor for the purpose of determining eligibility for Unemployment Insurance benefits. A new 12 NYCRR § 472.12 is being added pursuant to that portion of Chapter 57 of the Laws of 2013 that amended Labor Law § 581(e)(3) which provides that an employer shall not be relieved of charges if an employer or its agent fails to submit information resulting in an overpayment pursuant to Labor Law § 597.
    Needs and Benefits: The new Section 472.12 is being adopted because of a statutory amendment to Section 581 of the Labor Law enacted by Chapter 57 of the Laws of 2013. This amendment to Section 581(e)(3) provides that an employer shall not be relieved of charges pursuant to this subparagraph if an employer or its agent fails to submit information resulting in an overpayment pursuant to Section 597 of the Labor Law. This rule making sets forth the procedures to be followed by the Department to determine whether an employer shall be relieved of charges.
    Costs: No additional costs will be incurred pursuant to the adoption of this proposed regulation.
    Local Government Mandates: The proposed rule does not impose any program, service, duty, or responsibility upon local governments.
    Paperwork: No additional paperwork is associated with these proposed regulations.
    Duplication: The proposed rule does not duplicate other existing state or federal requirements.
    Alternatives: It has been concluded that these proposed regulations are appropriate to provide employers with guidance and to assist in the equal application of the law.
    Federal Standards: The proposed rule does not exceed any minimum standards indicated by amendment Section 252(a) of the Trade Adjustment Assistance Extension Act of 2011 (TAAEA) (Public Law (Pub. L.) 112-40).
    Compliance Schedule: This regulation will be effective upon filing of the Notice of Adoption with the Secretary of State.
    Regulatory Flexibility Analysis
    1. Effect of Rule: This rule will have minimal effect on small businesses and local governments as both are currently required to return requests for information. This rule is being adopted because of a statutory amendment to Section 581 of the Labor Law enacted by Chapter 57 of the Laws of 2013. This amendment to Section 581(e)(3) provides that an employer shall not be relieved of charges pursuant to this subparagraph if an employer or its agent fails to submit information resulting in an overpayment pursuant to Section 597 of the Labor Law. This rule making sets forth the procedures to be followed by the Department to determine whether an employer shall be relieved of charges. Federal requirements to pay claimants promptly, while also preventing overpayments, require a tight time frame in receiving information affecting eligibility for a claim. This rule encourages employers to respond to requests for information using the most expedient method including fax, electronic communication, the State Information Data Exchange System (SIDES), and the U.S. Postal Service, all of which are readily available and within the resources of small businesses and local governments.
    2. Compliance Requirements: No additional reporting, recordkeeping, or other affirmative acts will have to be undertaken by small businesses and local governments.
    3. Professional Services: No professional services will be needed by small businesses and local governments.
    4. Compliance Costs: No costs will be incurred by compliant small businesses or local governments.
    5. Economic and Technological Feasibility: Compliance with this proposed rule will be economically and technologically feasible for small businesses and local governments.
    6. Minimizing Adverse Impact: The proposed rule will have a minimal economic impact on some small businesses and local governments. The rule encourages employers to respond to requests for information using the most expedient method and suggests the use of no cost or low cost response methods including fax, electronic communication, the State Information Data Exchange System (SIDES), and the U.S. Postal Service, all of which are readily available and within the resources of small businesses and local governments. Some small businesses may choose to make investments in equipment such as fax machines to meet the requirements. Federal requirements to pay claimants promptly, while also preventing overpayments, require a tight time frame in receiving information affecting eligibility for a claim. The approaches for minimizing adverse economic impact suggested in SAPA § 202-b(1) were considered.
    7. Small Business and Local Government Participation: Comments can be forwarded to the agency during the 45 day public comment period immediately following publication of the Notice of Proposed Rule Making in the State Register. The Department did not have sufficient time to solicit input from various sectors regarding these regulations. These regulations are required due to a statutory amendment to Section 581 of the Labor Law enacted by Chapter 57 of the Laws of 2013. This amendment to Section 581 of the Labor Law is effective October 1, 2013 and this rule making must be in effect by that date.
    8. For rules that either establish or modify a violation or penalties associated with a violation: N/A
    9. Initial review of the Rule, pursuant to SAPA § 207 as amended by L. 2012, ch. 462: This rule will be reviewed in accordance with chapter 462 of the laws of 2012.
    Rural Area Flexibility Analysis
    1. Types and Estimated Numbers of Rural Areas: The proposed rule applies to employers in rural areas as it does to other employers.
    2. Reporting, Recordkeeping and Other Compliance Requirements; and Professional Services: There are no additional reporting, recordkeeping or compliance requirements for rural areas with the proposed rule.
    3. Costs: No costs will be incurred by rural areas because of the proposed rule.
    4. Minimizing Adverse Impact: The proposed rule will have no adverse impact on rural areas.
    5. Rural Area Participation: Comments can be forwarded to the agency during the 45 day public comment period immediately following publication of the Notice of Proposed Rule Making in the State Register. The Department did not have sufficient time to solicit input from various sectors of the population regarding these regulations. These regulations are required due to a statutory amendment to Section 581 of the Labor Law enacted by Chapter 57 of the Laws of 2013. This amendment to Section 581 of the Labor Law is effective October 1, 2013 and this rule making must be in effect by that date.
    6. Initial review of the Rule, pursuant to SAPA § 207 as amended by L. 2012, ch. 462: This rule will be reviewed in accordance with chapter 462 of the laws of 2012.
    Job Impact Statement
    1. Nature of Impact: The proposed rule will have no impact on jobs and employment opportunities.
    2. Categories and Numbers Affected: No jobs or employment opportunities will be affected by the proposed rule.
    3. Regions of Adverse Impact: The proposed rule will not cause any region of the state to have a disproportionate adverse impact on jobs or employment opportunities.
    4. Minimizing Adverse Impact: The agency did not need to take any measures to minimize adverse impact on existing jobs and to promote the development of new employment opportunities.
    5. Self Employment Opportunities: N/A
    6. Initial review of the Rule, pursuant to SAPA § 207 as amended by L. 2012, ch. 462: This rule will be reviewed in accordance with chapter 462 of the Laws of 2012.