[Federal Register Volume 59, Number 170 (Friday, September 2, 1994)]
[Notices]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21732]


[[Page Unknown]]

[Federal Register: September 2, 1994]


-----------------------------------------------------------------------


DEPARTMENT OF LABOR
 

Federal-State Unemployment Compensation Program: Unemployment 
Insurance Program Letters Interpreting Federal Unemployment Insurance 
Law

    The Employment and Training Administration interprets Federal law 
requirements pertaining to unemployment compensation as part of its 
role in the administration of the Federal-State unemployment 
compensation program. These interpretations are issued in Unemployment 
Insurance Program Letters (UIPLs) to the State Employment Security 
Agencies (SESAs). The UIPL described below is published in the Federal 
Register in order to inform the public.

Unemployment Insurance Program Letter No. 41-94

    This UIPL advises SESAs of the actions which must be undertaken by 
States in order to meet the requirements of Sections 303(a)(10) and 
303(j) of the Social Security Act (SSA). Compliance with the provisions 
of the SSA is a condition for the receipt of administration grants for 
the operation of the Unemployment Insurance program.
    Sections 303(a)(10) and 303(j) were added to the SSA by Public Law 
103-152. Under Section 303(j), SSA, States are required to establish 
and utilize a system of profiling all new claimants for regular UC in 
order to identify those claimants most likely to exhaust regular UC and 
in need of reemployment services in order to obtain new work. Section 
303(a)(10), SSA, also requires that an individual identified pursuant 
to the profiling system must participate in reemployment services as a 
condition of UC eligibility.

    Dated: August 26, 1994.
Doug Ross,
Assistant Secretary of Labor.

Directive: Unemployment Insurance Program Letter No. 41-94
To: All State Employment Security Agencies
From: Mary Ann Wyrsch, Director, Unemployment Insurance Service
Subject: Unemployment Insurance Program Requirements for the Worker 
Profiling and Reemployment Services System

    1. Purpose. To provide guidance on Unemployment Insurance (UI) 
program requirements for the Worker Profiling and Reemployment Services 
system.
    2. References.
    a. Laws. Title III of the Social Security Act (SSA); Section 4 of 
Public Law (P.L.) 103-152; the Federal-State Extended Unemployment 
Compensation Act of 1970 (EUCA); 5 U.S.C. 8501 et seq.; and Title III 
of the Job Training Partnership Act (JTPA), ``Employment and Training 
Assistance for Dislocated Workers.''
    b. Issuances. Unemployment Insurance Program Letter (UIPL) No. 13-
94, dated January 28, 1994; UIPL 13-94, Change 1, dated April 15, 1994; 
and the Secretary's Standard for Claim Determinations, Part V, 
Employment Security Manual, Section 6010 et seq.
    3. Background. On November 24, 1993, the President signed into law 
the Unemployment Compensation Amendments of 1993 (P.L. 103-152) which 
added Sections 303(a)(10) and 303(j) to the SSA. Both of these new 
sections contain requirements States must meet as a condition of States 
receiving UI grants. (The text of both sections is contained in the 
Attachment.) Under Section 303(j)(1), SSA, the State must:

     Identify which claimants will be likely to exhaust 
regular UI and will need job search assistance services to make a 
successful transition to new employment. (Subparagraph (A) of 
section 303(j)(1), SSA.)
     Refer the claimants so identified to reemployment 
services, such as job search assistance services, available under 
any State or Federal law. (Subparagraph (B) of Section 303(j)(1), 
SSA.)
     Collect follow-up information relating to the services 
received by such claimants and their employment outcomes and use the 
information for future profiling. (Subparagraph (C) of Section 
303(j)(1), SSA.)
     Meet ``such other requirements as the Secretary of 
Labor determines are appropriate.'' (Subparagraph (D) of Section 
303(j)(1), SSA.)

    In addition, Section 303(a)(10), SSA, requires claimants to 
participate in reemployment services to which they have been referred 
as a condition of UI eligibility. P.L. 103-152 requires the Secretary 
of Labor to provide technical assistance and advice to the States in 
implementing the worker profiling systems.
    One of the principal aims of the profiling system is to provide 
reemployment services to certain claimants through an ``early 
intervention'' processes. That is, claimants who are unlikely to return 
to their previous jobs or occupations will be identified and given 
assistance early in their claims series. This approach is expected to 
facilitate an early return to employment and savings to each state's 
unemployment fund.
    In response to this legislation, the U.S. Department of Labor 
(Department) has launched a major initiative to establish an 
integrated, comprehensive worker profiling and reemployment services 
system involving various programs, including the UI, Employment 
Service, and Title III, JTPA programs. To this end, information 
describing how a recommended integrated system might operate was issued 
to the States through the Department's Regional Offices. (This 
recommended system followed the overall approach embodied in the 
proposed Reemployment Act of 1994.) However, since the SSA amendments 
create specific requirements as a condition of receiving UI 
administrative grants, it is necessary to provide guidance to States 
concerning what actions must be taken concerning the UI program. This 
issuance provides definitive guidance concerning these actions.
    Among other things, this UIPL describes the minimum required 
profiling system for identifying and referring claimants. That the 
States must use this required profiling system does not, however, 
abridge the States' authority to use other methods, not related to the 
minimum system, for identifying claimants for referral. For example, 
assuming a service provider has twenty-five slots, a State may refer 
only fifteen claimants identified under the minimum required profiling 
system to the provider if the State also refers ten claimants using 
whatever methods it deems appropriate.
    4. Overview of Profiling and Reemployment Services System. Federal 
law does not specify a detailed structure for the profiling and 
reemployment services system. That is left to the States. However, in 
order to meet the statutory requirements and coordinate between the 
various employment and training programs, the Department anticipates 
that the following general structure will be used by all States:

     The UI agency will profile all claimants to identify 
those likely to exhaust regular UI and in need of reemployment 
services.
     To the extent that reemployment services are available, 
the ``identified'' claimants will either be immediately referred to 
these services or placed in a selection pool from which a referral 
may later be made.
     Services will begin with an orientation session 
advising claimants of the availablility and benefit of reemployment 
services, and, if appropriate, an individual assessment of each 
claimant's needs. Based on an individual service plan, the claimant 
may be referred to reemployment services tailored to the 
individual's needs.
     The entity providing the reemployment services will 
promptly provide the UI agency with any necessary information 
relating to the claimants' continuing eligibility for UI.

    5. Arrangements with Service Provider(s). Under the authority 
granted by Section 303(j)(1)(D), SSA, which allows the Secretary to 
establish other requirements as are determined appropriate, the 
Department has determined that State UI agencies are to establish 
certain arrangements with the entities providing reemployment services. 
When the UI agency is not part of the same overall State agency as the 
service provider (for example, an employment security agency or 
executive department), the Department recommends that these 
arrangements be in a written agreement. Arrangements must be made in 
two areas: The number of claimants to be referred to the provider and 
the information the provider must forward to the UI agency.
    a. Number of Claimants Referred. The burden of reporting to service 
providers should not be placed upon claimants when services are not 
available. Similarly, service providers should not be required to 
expend time and resources working with referred claimants when services 
are not available for them. Therefore, there must be a balance between 
the available supply of services and referrals to these services. To 
avoid excessive referrals, the agreement must provide a method for 
assuring that the number of claimants referred to the provider is based 
on the number the provider is able to serve.
    Section 303(j)(1)(B), SSA, only requires the referral to 
``available'' reemployment services of claimants identified as likely 
to exhaust regular UI and who need job search assistance. Therefore, 
the State will meet the requirements of Section 303(j)(1)(B), SSA, when 
the supply of services and referrals to these services is balanced.
    b. Receipt of Information. New Section 303(a)(10), SSA, requires 
that claimants, identified and referred to reemployment services 
through profiling, participate in such services, or in similar 
services, as a condition of UI eligibility. Also, Section 303(a)(1), 
SSA, requires ``methods of administration * * * as are found by the 
Secretary to be reasonably calculated to insure full payment of 
unemployment compensation when due.'' This means the UI agency must 
have methods of administration for obtaining eligibility information 
from service providers and for promptly determining eligibility based 
on this information. To ensure service providers meet the UI agency's 
needs, arrangements must exist for the prompt provision of any 
necessary eligibility information concerning participation or 
availability. States also will need to establish methods of 
administration for obtaining this information when claimants are 
attending ``similar services'' as discussed in item 11.b.
    Further, as discussed in item 12 below, States must provide 
information to this Department related to reemployment services 
received by claimants and employment outcomes. Arrangements must be 
made for the provision of this information.
    6. Definition of ``Reemployment Services.'' The second conference 
report for Public Law 103-152, which added Sections 303(a)(10) and 
303(j) to the SSA, describes ``reemployment services'' as including--

    Job search assistance and job placement services, such as 
counseling, testing, and providing occupational and labor market 
information, assessment, job search workshops, job clubs and 
referrals to employers, and other similar services. [H.R. Conf. Rep. 
No. 404, 103rd Cong., 1st Sess. 5 (1993)]

    Reemployment services need not include skills and education 
training. Therefore, States are not required to apply the participation 
requirement discussed in item 11.a. to such training even if claimants 
are referred to such training through the worker profiling and 
reemployment services system.
    Orientation and assessment activities are both reemployment 
services for purposes of Sections 303(a)(10) and 303(j) SSA. 
Orientation is a service since claimants are made aware of why services 
are available and what the services are and, as a result, are able to 
participate in the identification of appropriate services to assist 
them in returning to employment. Assessment is a service since it 
identifies the specific needs of each claimant. Assessment is also 
listed as a reemployment service in the Committee Report.
    7. Benefit Rights Interview (BRI). Under the Secretary's Standard 
for Claim Determinations, individuals who may be entitled to UI must be 
provided information as will reasonably afford them an opportunity to 
know, establish and protect their rights under the UI law of the State. 
Therefore, BRI information provided to claimants during the initial 
claims taking process must advise claimants of the possible 
consequences of failure to report or to participate in any reemployment 
services to which they may be referred.
    8. Identifying Claimants Likely to Exhaust and in Need of 
Reemployment Services
    a. Who is to be Profiled. Section 303(j)(1)(A), SSA, requires that 
State agencies establish and utilize a system of profiling ``all new 
claimants for regular compensation'' (i.e., regular UI) that 
``identifies which claimants will be likely to exhaust regular 
compensation and will need job search assistance services to make a 
successful transition to new employment.'' Based on the plain language 
of Section 303(j)(1)(A), all claimants for regular UI must be profiled.
    The term ``regular compensation'' is defined in Section 205(2), 
EUCA, as ``compensation payable to an individual under any State 
unemployment compensation law (including compensation payable pursuant 
to 5 U.S.C. chapter 85), * * * other than extended compensation and 
additional compensation.'' Through the reference to 5 U.S.C. chapter 
85, the phrase ``all new claimants for regular compensation'' includes 
claimants filing for UI for ex-servicemembers (UCX) and Federal 
employees (UCFE). The phrase ``all new claimants for regular 
compensation'' includes all intrastate, interstate and combined-wage 
claimants.
    The Department will work with the States in developing arrangements 
for profiling interstate claimants. In determining whether to take 
action against a State which is not profiling and referring interstate 
claimants, the Department will take into account the feasibility of 
such State taking appropriate action.
    b. Who is to be Identified. The profiling system must be structured 
so as to identify which claimants will be likely to exhaust regular UI 
and will need job search assistance services to make successful 
transition to new employment. If a claimant is not permanently laid 
off, there is no need for job search assistance to make a ``transition 
to new employment'' and the likelihood of exhaustion also decreases. 
Similarly, if jobs exist in the current industry or occupation, then 
the claimant is less likely to exhaust and to need job search 
assistance to make a ``transition to new employment.'' The word 
``transition'' as used in Section 303(j)(1), SSA, indicates that the 
requirement for participation in reemployment services is not aimed at 
claimants who are merely between jobs in the same industry or 
occupation, but instead at claimants who are having to make a 
``transition'' to jobs in a different industry or occupation.
    As a result of this analysis, the Department has determined the 
following minimum requirement: A State profiling system must identify 
all new claimants for regular UI who are permanently laid off (and who 
are, therefore, likely to exhaust). From the claimants so identified, 
the State must further identify at least one of the following: (1) 
Those claimants who are unlikely to return to their previous industry 
or (2) those claimants who are unlikely to return to their previous 
occupation.
    Claimants identified under the minimum required profiling system 
described above will also be ``eligible dislocated workers'' under 
Section 303(a)(1)(A) of Title III, JTPA. This section defines the term 
``eligible dislocated workers'' to mean individuals who ``have been 
terminated or laid off or who have received a notice of termination or 
layoff from employment, are eligible for or have exhausted their 
entitlement to unemployment compensation, and are unlikely to return to 
their previous industry or occupation.'' Claimants identified through 
the minimum profiling system described above are--as are certain 
``eligible dislocated workers''--permanently laid off from employment, 
eligible for UI, and unlikely to return to their previous industry or 
occupation. Therefore, claimants identified through the minimum 
required profiling system will also be ``eligible dislocated workers'' 
for purposes of Title III, JTPA.
    c. How Claimants are to be Identified
    (1) Variables. The use of certain types of variables is required to 
ensure that claimants identified are permanently laid off and unlikely 
to return to their previous industry or occupation. The use of other 
variables is optional. In addition, the use of certain variables is 
prohibited.

    Under the minimum required profiling system, the following 
variables must be used:

     First Payment for Total or Part-Total Unemployment: 
Since claimants cannot exhaust UI unless they are first eligible for 
UI, the use of this variable is required. Claimants receiving first 
payments for partial claims are not required to be identified for 
referral since there has been no separation from employment.
    First payment to some claimants will occur late in their claims 
series due to appeals, wage investigations or other causes. Since, 
as noted in item 8.a, ``all new claimants'' for UI must be profiled, 
claimants receiving late payments must be profiled. However, given 
that the profiling system's goal of early intervention will not be 
achieved for these claimants, States have the option of introducing 
an additional variable to the profiling system which would exclude 
claimants who receive first payments after a certain period of time 
(for example, 5 weeks).
     Recall Status: Since claimants who are on recall will 
not need reemployment services and are less likely to exhaust UI, 
the use of this variable is required.
     Hiring Halls: Claimants making exclusive use of a union 
hiring hall will not need reemployment services since these 
claimants are expecting to find work in their current occupation. If 
union hiring halls are used in the State, then the State must use 
this variable.

    Claimants remaining after these three variables are applied will be 
passed through either a statistical modeling or characteristic 
screening process to determine difficulty in finding reemployment. (See 
item 8.c.(2) below.) Following are variables which the Department has 
identified for use in this process:

     Education: Educational level is closely associated with 
reemployment difficulty. Generally, claimants with less education 
are more likely to exhaust. Use of this variable is a State option.
     Job Tenure: This is a measure of a claimant's 
attachment to a specific employer. Studies show that the longer a 
worker's specific job attachment, the more difficult it is to find 
equivalent employment elsewhere. Use of this variable is a State 
option.
     Industry: A claimant's search for employment is 
affected by the former industry of employment. Claimants who worked 
in industries that are declining, relative to others in the State, 
experience greater difficulty in obtaining new employment than 
claimants who worked in expanding industries. States must use either 
this variable or ``occupation.''
     Occupation: Workers in low demand occupations 
experience greater reemployment difficulty than workers in 
occupations with higher demand. States must use either this variable 
or ``industry.''
     Uemployment Rate: Dislocation and reemployment 
difficulty are closely related to economic conditions, as measured 
by unemployment rates. In areas with high unemployment, unemployed 
workers will have greater difficulty becoming reemployed than those 
workers in areas with low unemployment, even if all other conditions 
are equal. Use of this variable is a State option.

    To summarize, under the minimum required profiling system, States 
must use first payment, recall status, hiring halls (if they are used 
in the State), and either industry or occupation to identify claimants 
for purposes of referral to reemployment services. Using the above 
optional variables will decrease the number identified under the 
profiling system; however, the result will be a greater precision in 
identification. The Department will notify States if any additional 
optional variables are identified.
    Finally, a profiling system may not produce results which 
discriminate in violation of any Federal or State law or which 
otherwise unfairly favors some claimants over those similarly situated 
with respect to their need for reemployment services. To this end, 
under the authority granted by Section 303(j)(1)(D), SSA, which allows 
the Secretary to establish other requirements as are determined 
appropriate, the Department has determined that the following elements 
may not be used in the profiling system: Age, race, ethnic group, sex, 
color, national origin, disability, religion, political affiliation and 
citizenship.
    (2) Statistical Modeling versus Characteristic Screening. 
Statistical modeling uses a set of variables in combination 
simultaneously. Each variable receives a weight (or ``coefficient'') 
that has been established by a statistical process. The weighted 
average produces a ranking. Characteristic screening, on the other 
hand, uses each variable as an exclusion variable. That is, depending 
on whether the answer is ``yes'' or ``no'' to a given question, 
claimants will be either included or excluded. Unlike statistical 
screening, no ranking is produced.
    Referral to services based on statistical modeling will be based on 
a numerical score since the higher the score, the more likely the 
claimant will exhaust and the greater the need for services. If 
claimants have the same scores, and there are not sufficient 
opportunities to participate in reemployment services, States must 
randomly select among those claimants for referral to assure claimants 
are treated equitably and the profiling system is legally defensible. 
Since claimants identified through characteristic screening cannot be 
ranked, States using this system must also randomly select from among 
the identified claimants for referrals. Under the authority granted by 
Section 303(j)(1)(D), SSA, which allows the Secretary to establish 
other requirements as are determined appropriate, the Department has 
determined that random selection is required for use in profiling 
systems.
    The Department encourages the use of statistical models since they 
are more efficient and precise in identifying claimants as well as 
easier to manage and adapt. However, States may use characteristic 
screening. Whichever system is used, each State must assure that the 
system implemented in fact identifies claimants who are permanently 
laid off and unlikely to return to work in either their previous 
industry or occupation.
    9. The Selection Pool. Under the profiling system anticipated by 
the Department (see item 4), all claimants identified in accordance 
with the requirements of Section 303(j)(1), SSA, will be either 
immediately referred to reemployment services or, if services are not 
available, placed in a selection pool. Claimants in the selection pool 
may be referred to services at a latter date.
    As noted in the background section, early intervention is one of 
the principal aims of the worker profiling and reemployment services 
initiative. Holding claimants in the pool for more than a minimum 
period of time will not achieve this early intervention. Therefore, the 
Department recommends that claimants be removed from the selection pool 
after 4 weeks.
    In addition, the Department recognizes that large-scale permanent 
layoffs and plant closings do not occur at regular intervals. 
Therefore, there may be times when a State elects to retain claimants 
in the pool for longer periods. States may also elect to vary the 
length of time individuals are held in the pool by locality within the 
State.
    10. Notifications of Referrals to Reemployment Services. 
Notification to claimants of referrals to reemployment services should 
occur only if a referral is actually made. (It is not necessary to 
notify claimants that they have been placed in the selection pool since 
they are not required to take any action until a referral is made.) 
These notification and referral notices must be in writing and must 
advise claimants:

     That they have been identified as likely to need 
reemployment services in order to make a successful transition to 
new employment.
     When and where to report for the services.
     To bring all relevant information concerning ongoing or 
recently completed reemployment services or current training in 
which they have participated and believe would help them return to 
work. Alternatively, States may choose to have certain claimants, 
such as those already in training, contact the UI agency first. 
Either way, the notice must clearly explain what information the 
claimant is expected to provide and to whom.
     That failure to participate in reemployment services 
may result in denial of UI.

    Each State must maintain a record of each claimant referral 
notification in the same manner that it would any other formal 
correspondence that is pertinent to the adjudication of UI eligibility 
issues.
    11. Adjudication of Issues Associated With Profiling and 
Reemployment Services
    a. Participation Requirement. Section 303(a)(10), SSA, creates a 
requirement that ``as a condition of eligibility for regular 
compensation for any week, any claimant who has been referred to 
reemployment services * * * participate in such services or similar 
services.'' (Emphasis added.) The Department interprets the phrase 
``for any week'' to mean that a claimant must participate in 
reemployment services (as defined in item 6 above) only during the week 
or weeks that the claimant is required to attend. Therefore, 
eligibility with respect to participation in reemployment services is 
determined on a weekly basis.
    Claimants must be held ineligible for any week in which there is a 
failure to participate in reemployment services which they are required 
to attend unless they: have justifiable cause, have completed such 
services, or are attending similar services, as discussed below. 
Federal law does not require, however, that the maximum UI benefit 
amount be reduced.
    Federal law does not require State UI laws to provide for a finding 
of ineligibility when claimants are no longer required to participate. 
For example, a claimant may refuse to participate during one week and 
be held ineligible for that week. If the claimant is required to 
participate the next week and again refuses, then the claimant will 
continue to be ineligible. However, if the claimant is not required to 
participate the next week, then there is no failure to participate and 
the State is not required to find the claimant ineligible. Similarly, a 
claimant who has refused to participate in available services and has 
been held ineligible may later agree to participate. In this case, if 
the services are no longer available to the claimant, Federal law does 
not require the claimant to be held ineligible for any additional weeks 
since there is no longer a failure to participate.
    There is also no failure to participate when the service provider 
relieves claimants of the requirement that they attend. This may occur 
when, for example, a claimant notifies a provider of an inability to 
participate due to a family emergency and the service provider advises 
the claimant that it is not necessary to participate. (Note: This may 
raise an availability issue for the week(s) in question. This is why 
service providers must provide information concerning availability 
under item 5.b. above.)
    Claimants are not required to be held ineligible if the failure to 
participate is minimal and does not significantly affect their ability 
to benefit from the reemployment services in attempting to obtain new 
work. For example, if a claimant misses one hour of an eight hour 
seminar, the State may find that this limited absence is not a failure 
to participate.
    b. Similar Services. Under Section 303(a)(10), SSA, a claimant 
referred under the profiling system is not required to participate in 
reemployment services if the claimant is participating in ``similar 
services.''
    ``Similar services'' are reemployment services that claimants are 
attending on their own initiative. Examples of ``similar services'' 
include, but are not limited to, services offered by a company prior to 
a permanent layoff or services offered by private employment agencies. 
The ``similar services'' need not be identical to those to which the 
claimant was referred by the State; they need be only reasonably 
similar. The quality of the services being provided should be a 
relevant factor in determining whether the services are ``similar.''
    Under the Secretary's Standard for Claim Determinations, the UI 
agency is required to obtain and record such information as will 
reasonably insure the payment of benefits to individuals when due. 
Therefore, the UI agency must perform sufficient factfinding to 
determine if, in fact, the services are similar. This means the UI 
agency must determine, among other things, to what services the 
claimant was referred and what the ``similar services'' are which the 
claimant is (or will be) attending.
    c. Exceptions to Participation Requirement. Section 303(a)(10), 
SSA, contains two exceptions to the participation requirement. The 
first is whether the claimant has completed such services. The second 
is whether ``justifiable cause'' exists for the claimant's failure to 
participate in the services. (Note: As indicated in item 11.b, there is 
no participation requirement if claimants are participating in similar 
services.)
    (1) Completion of ``Such Services.'' Section 303(a)(10)(A) provides 
that a claimant who has completed ``such services'' is not required to 
participate in services to which the claimant has been referred. How 
recently the services were completed should be considered in making 
this determination since, for example, certain approaches to finding a 
job may have changed due to changing labor market conditions. Although 
the language ``such services'' appears to refer to those services to 
which the claimant was referred, it is reasonable to also include the 
completion of ``similar services.'' Therefore, the Department 
interprets Section 303(a)(10)(A), SSA, as allowing States to consider 
the completion of ``similar services'' as the completion of ``such 
services.''
    (2) Justifiable Cause. Section 303(a)(10)(B) provides that a 
claimant who has ``justifiable cause'' is not required to participate 
in services to which the claimant has been referred. As noted in (1) 
above, although the language ``such services'' appears to refer to 
those services to which the claimant was referred, it is reasonable to 
also include the completion of ``similar services.'' Otherwise, 
claimants attending ``similar services'' would not be relieved of the 
requirement to participate when justifiable cause exists. Therefore, 
the Department interprets Section 303(a)(10)(B), SSA, as allowing 
States to consider justifiable cause as a reason for not participating 
in ``similar services.''
    For purposes of ensuring consistency with Section 303(a)(10), SSA, 
States must apply the ``reasonable person'' test in determining if 
justifiable cause exists for failure to participate. That is, States 
must determine if the reasons offered by claimants for failure to 
participate are such that a reasonable person would not have 
participated. As in other areas where the ``reasonable person'' test is 
used, such as failure to report to the UI office as required, States 
must expect the claimants take the actions a prudent and reasonable 
person would take prior to concluding that participation is not 
possible. For example, although a reasonable person would not be 
expected to leave children at home unattended, a reasonable person 
would also be expected to make an effort to obtain child care.
    A finding of justifiable cause will last only for the period the 
justifiable cause is relevant. For example, justifiable cause due to 
short term illness will last only for the period of the illness. There 
may be cases when the State determines that the justifiable cause 
continues for a longer period or through the life of the claim, for 
example, when the claimant is in approved training under State law. 
(Note: The Department anticipates that claimants in approved training 
will not be required to participate in reemployment services while they 
are in training.)
    d. Relation of Participation Requirement to Other State Eligibility 
Requirements. Depending on the nature and extent of the reemployment 
services in which the claimant is participating, States should apply 
other eligibility requirements in such a way as to not overly burden 
the claimant. For example, the State may choose to reduce the number of 
work search contacts required or relieve the claimant of the work 
search requirement during a period of participation in reemployment 
services, as appropriate.
    As noted in UIPL 13-94, Change 1, the justifiable cause exception 
does not supersede State able and available requirements, but rather is 
an additional eligibility requirement related to participation in 
reemployment services. Claimants may be determined to have justifiable 
cause for failure to participate in reemployment services; however, 
they must still meet a State's able and available requirements to be 
eligible for UI. For example, although a claimant who is ill may have 
justifiable cause for failure to participate in reemployment services, 
the claimant is still subject to the State's able and available 
requirements and may, as a result, be ineligible for UI.
    e. Appeal Rights. Under paragraphs (1) and (3) of Section 303(a), 
SSA, any eligibility determination that a claimant has failed to 
participate in reemployment services must be appealable. In addition, 
all determinations of UI eligibility must contain appeal rights in 
accordance with the Secretary's Standard for Claim Determinations.
    Although States must allow claimants to appeal denials for failure 
to participate in orientation and assessment, States are not required 
to permit claimants to contest the propriety of the referral to 
orientation and assessment. Orientation and assessment are aimed at 
determining what, if any, additional reemployment services may be 
needed by the claimants. Obviously, if claimants do not report, this 
determination cannot be made. In this regard, referrals to orientation 
and assessment are similar to reporting and ``call-in'' requirements.
    Claimants must, however, be allowed to question whether any 
services tailored to the individual are, in fact, needed. If any 
evidence appears at any stage of the nonmonetary determination or 
appeals process indicating that the claimant does not need these 
services, the UI agency must take the initiative in determining whether 
the referral was proper. If it is found not to be proper, then the 
participation requirement does not apply and there is no need to 
address exceptions such as justifiable cause.
    12. Feedback and Reporting. Section 303(j)(1)(C), SSA, requires 
that States collect follow-up information relating to the reemployment 
services received by the referred claimants and the employment outcomes 
for these claimants. This information is to be used in refining the 
profiling system. Section 303(a)(6), SSA, also requires the States to 
provide ``such reports, in such form and containing such information as 
the Secretary of Labor may from time to time require * * *.''
    Under these authorities, States will be required to submit 
information concerning profiling to the Department. This UIPL does not 
address what information must be collected or reported. Specific 
instructions for reporting any information on services and outcomes 
will be issued as changes to ETA Handbook 401, ``Unemployment Insurance 
Reports Handbook''.
    13. Action Required. Administrators are requested to provide this 
information to the staff developing the worker profiling and 
reemployment services system.
    14. Inquiries. Inquiries should be directed to the appropriate 
Regional Office.
    15. Attachment. Sections 303(j)(1) and 303(a)(10), SSA.

Attachment to UPIL

Sections 303(j)(1) and 303(a)(10), SSA

1. Section 303(j)(1), SSA--Establishment of Profiling System
    The State agency charged with the administration of the State law 
shall establish and utilize a system of profiling all new claimants for 
regular compensation that--
    (A) Identifies which claimants will be likely to exhaust regular 
compensation and will need job search assistance services to make a 
successful transition to new employment;
    (B) Refers claimants identified pursuant to subparagraph (A) to 
reemployment services, such as job search assistance services, 
available under any State or Federal law;
    (C) Collects follow-up information relating to the services 
received by such claimants and the employment outcomes for such 
claimants subsequent to receiving such services and utilizes such 
information in making identifications pursuant to subparagraph (A); and
    (D) Meets other requirements as the Secretary of Labor determines 
are appropriate.
2. Section 303(a)(10), SSA--Participation Requirement
    [State law must contain] (10) A requirement that, as a condition of 
eligibility for regular compensation for any week, any claimant who has 
been referred to reemployment services pursuant to the profiling system 
under subsection (j)(1)(B) participate in such services or in similar 
services unless the State agency charged with the administration of the 
State law determines--
    (A) Such claimant has completed such services; or
    (B) There is justifiable cause for such claimant's failure to 
participate in such services.

[FR Doc. 94-21732 Filed 9-1-94; 8:45 am]
BILLING CODE 4510-30-M