DIRECTIVE	:	UNEMPLOYMENT INSURANCE PROGRAM LETTER NO. 35-95
TO	:	ALL STATE EMPLOYMENT SECURITY AGENCIES
FROM	:	MARY ANN WYRSCH Director Unemployment Insurance Service
SUBJECT	:	The Department of Labor's Position on Issues and Concerns Associated With the Utilization of Telephone and Other Electronic Methods in the Unemployment Insurance (UI) Program

1. Purpose. To advise State Employment Security Agencies (SESAs) of the Department of Labor's position regarding issues relating to telephone or other electronic methods of processing in the UI program.

2. Background. Several SESAs are developing, exploring, or implementing a variety of innovative approaches to UI tax and benefit claimstaking and processing utilizing new and developing electronic information/communication technologies. These technologies include, but are not limited to, interactive voice response units (IVRs) for continued claims (inquiry and filing), telephone initial claimstaking, and electronic funds transfer for collecting UI taxes and paying benefits. These approaches continue the movement of the UI program toward a "paperless" system, thereby reducing office traffic and making it more easy and convenient for claimants and employers to transact UI business.

   Insofar as SESAs have planned for or implemented new methods of claimstaking, issues have arisen requiring a response from the Department. Since there has not been an authoritative statement of the Department's position on this matter, the Department's position is set forth below.

3. Position. The Department's overall position is to promote methods of administration which ensure that UI applicants are afforded prompt and efficient service, and also ensures that pertinent Federal requirements are met by the claimant and SESA. To this end, the Department believes that SESAs should move toward fully implementing telephone claimstaking or other electronic methods of filing (e.g., computer terminals at kiosks in one-stop centers, etc.) for both initial and continued claims filing processes. The UI Information Technology Support Center (ITSC) will support the nationwide expansion of telephone claims technology.

   Any system planned or implemented to provide ease and convenience for filing claims must, however, provide safeguards to meet the requirement of Section 303(a)(1) of the Social Security Act (SSA), that the State have in place such methods of administration reasonably calculated to insure the full payment of UI when due. In other words, there must be methods in place to protect against improper payments and fraud. Also, prior to filing an application (oral or IVR telephone system or other electronic method (touchscreen or computer keyboard)), claimants must be advised that the law provides penalties for false statements including penalties for perjury in regard to citizenship/immigration status. Since the State is required to establish a record of the claim, the claimant should also be advised that his/her answers will cause a record to be produced.

   1. Initial Claimstaking.

      (1)  Verification of Claimant Identity/Signature.

      There is no Federal requirement that a claimant provide a signature on a claim form. Any such requirement would be pursuant to State law. However, Section 303(a)(1) of the SSA, requires that a State have such methods of administration to reasonably insure the full payment of unemployment compensation when due. In addition, Section 1137(a)(1), SSA, requires States to require the individual to furnish his/her Social Security Number as a condition of eligibility for benefits. These Federal provisions mean, among other things, that a State must have a system to reasonably insure that the name and Social Security Number used to establish eligibility for unemployment compensation belongs to the individual filing the claim.

      (2)  Identification of Ethnic Background and Handicapped Status.

      The Department's regulations at 29 CFR Parts 31 and 32 require recipients of Department of Labor grant funds to collect, maintain and make available data as may be necessary to ascertain compliance with the requirements of the nondiscrimination statutes (Title VI of the Civil Rights Act of 1964, as amended; Section 504 of the Rehabilitation Act of 1973; and the Age Discrimination Act of 1975, as amended). Unemployment Insurance Program Letter (UIPL) Nos. 46-89 and 46-89, Change 1, set forth the guidelines and requirements that State agencies must follow in collecting the data (at the time an individual files a new initial claim), and reporting the data relative to the unemployment insurance program.

      There is no Federal requirement regarding the method to be utilized by the State to obtain the information (i.e., orally to a claimstaker, IVR, self-entry at a computer keyboard or touchscreen, completing a response on a hardcopy document or other method (e.g., recorded on tape)). However, the information must be given voluntarily by the individual and the State agency may not change the response of the applicant. The applicant also has the right to refuse to provide the information and such refusal will not subject such individual to any adverse action or treatment. Therefore, any telephone or other electronic claims filing system must be able to accommodate a "no response" answer.

      (3)  Child Support and Other Obligations.

      Section 303(e)(2)(A)(i) of the SSA requires each State agency to "require each new applicant for unemployment compensation to disclose whether or not such applicant owes child support obligations (as defined in the last sentence of paragraph (1)." UIPL Nos. 1-82 and 15-82 set forth the basic requirements for States to follow in implementing the statute. Essentially, the disclosure requires a "yes" or "no" response to a question on any child support owed when individuals file a new initial claim.

      Effective January 1, 1997, among other Federal law amendments, Section 3304(a)(18) of the Federal Unemployment Tax Act (added by P.L. 103-465 enacted December 8, 1994) requires States to offer voluntary withholding of Federal income tax for all unemployment compensation (includes State UI, UCFE/UCX, TRA, DUA, etc.) payments made after January 1, 1997. UIPL No. 17-95 advised State agencies of the provisions and furnished guidelines on implementation. States will need to include questions during the new initial claim filing process on whether the individual elects or declines to have income tax withheld (mandatory for Federal, and optional for State or local tax withholding if authorized by State law).

      Additionally, other Federal law provisions permit States, if the States have provisions in their State laws, to withhold amounts from unemployment compensation to pay health insurance premiums and food stamp overissuances. Such provisions would also require asking claimants to provide responses to questions at the time of filing initial claims.

      For any of the above obligations, other than obtaining the needed information at the time of filing an initial claim, there is no Federal requirement for the method to be utilized by the State to obtain the information. The State agency may obtain the information orally, by IVR, keyboard or touchscreen entry, on a hardcopy document or other method.

      (4)  Citizenship or National Status.

      Section 1137(d)(1)(A) of the SSA requires that each State require, as a condition of eligibility for unemployment compensation, "a declaration in writing by the individual, (or, in the case of an individual who is a child, by another on the individual's behalf), under penalty of perjury, stating whether or not the individual is a citizen or national of the United States, that the individual is in a satisfactory immigration status." State laws require that individuals be able and available for work in order to be determined eligible for benefits. If an alien is not in "satisfactory immigration status," such individual cannot be considered eligible for unemployment compensation. The Department issued guidance and instruction to States for implementation of Section 1137(d) and determining eligibility for aliens in UIPL Nos. 1-86; 12-87; 12-87, Change 1; and 6-89. The instructions provide that all applicants for unemployment compensation provide a "yes" or "no" response to a question on the new initial claim form or other form, asking if the applicant is a "U.S. citizen or national." If the answer is "no", then an alien ID number is to be provided from registration documentation issued by the Immigration and Naturalization Service (INS) or such other documentation as the State determines constitutes reasonable evidence (Section 1137(d)(2). The above actions required of the applicant constitute "in writing."

      In the case of telephone or other electronic method initial claims filing, it is the Department's position, that if the claimant takes action to produce a record indicating citizenship and immigration status, such as entry of data through a touchtone phone (IVR system) or through a computer keyboard or touchscreen response (at a kiosk) in response to a question, such action is a "declaration in writing by the individual." However, a claimant's oral response to a claimstaker's question, and then the claimstaker's entry onto a form or into an electronic format, does not constitute such a declaration because the individual claimant is not making the electronic record him or herself, but such record is being made by a third party where an error could be made unbeknown to the claimant. In other words, the claimant must make the "declaration in writing," not the claimstaker. If the SESA utilizes the latter procedure to take initial claims, the SESA must have an alternate means of obtaining an answer from the claimant that will satisfy the Federal requirement. Examples of such alternate means include recording the conversation on tape or obtaining the claimant's "declaration in writing" on a continued claim or other hard copy document.

      In addition to the "declaration in writing" requirement of Section 1137(d)(1)(A), the provision also states that the declaration is made "under penalty of perjury." However, it is the Department's position that State law must be followed regarding whether a claimant's statement ("declaration in writing") is in a form that can uphold a perjury conviction. Therefore, the two tests for what constitutes a "declaration in writing" and for what is needed under State law to uphold a "penalty for perjury," must be met in order to comply with Section 1137(d)(1)(A) of the SSA. A SESA must consider both factors when designing and implementing a telephone or other electronic methods initial claims filing process.

      (5)  Not a Citizen or National--Presentation of Documentation.

      Section 1137(d)(2) of the SSA provides that if--

      an individual is not a citizen or national of the United States, there must be presented either--

      (A) alien registration documentation or other proof of immigration registration from the Immigration and Naturalization Service that contains the individual's alien admission number or alien file number ..., or

      (B) such other documents as the State determines consititutes reasonable evidence indicating a satisfactory immigration status.

      Therefore, neither Sections 1137(d)(2)(A) or (B) of the SSA may be satisfied by information obtained by telephone (orally or IVR) or entry via a computer keyboard or touchscreen.

      In order to satisfy the Federal law requirements, if a SESA utilizes a method of claimstaking other than in-person filing, and the claimant indicates a noncitizenship status, the SESA (State) must require that the claimant submit "alien registration documentation or other proof of immigration registration from the INS that contains the individual's alien admission number or alien file number." (Requirement of Section 1137(d)(2)(A).) Since an alien cannot allow his/her original INS documentation to leave his/her person, it is the Department's position that a photostatic copy of the document(s) submitted by mail or facsimile (FAX) transmission would suffice to meet the requirements of the Section in lieu of viewing the original document(s), particularly when taken in conjunction with the provisions of Section 1137(d)(2)(B). That Section provides that the individual can submit such other documents as the State determines constitutes reasonable evidence indicating a satisfactory immigration status. This will allow the SESA to proceed with verification with INS required by Section 1137(d)(3). The provisions of Section 1137(d)(2)(B) are also utilized when an individual cannot produce documentation that provides an alien admission or file number. Copies of such documents must then be sent to the INS for verification of status in accordance with Section 1137(d)(4)(B)(i).

      The Department is in the process of resolving with the INS the differences between the Systematic Alien Verification for Entitlements (commonly called SAVE) program manual distributed by the INS requiring all entitlement agencies to have applicants present original documents (which must be kept on the person of the alien at all times) and the provision of Section 1137(d)(2)(B) that authorizes the State to accept such other documents as the State determines constitutes reasonable evidence indicating a satisfactory immigration status (which could be copies). The SAVE manual does not appear to give any consideration to a method of filing other than in-person.

   2. Other Program Areas.

      (1)  Unemployment Compensation for Ex-servicemembers (UCX) Claim--Use of Form ETA-841 (Formerly ES Form 970).

      Form ETA-841 is an optional form and is not needed to establish UCX eligibility since all required information is on the DD Form 214 or information received from the Louisiana Claims Control Center (LCCC) based on a SESA's inquiry. Therefore, States implementing telephone or other electronic methods of initial claim filing do not have to complete and have the claimant sign Form ETA-841.

      (2)  UCX Claim--Eligibility in the Absence of DD Form 214.

      Under a telephone or other electronic method of initial claim filing, if the claimant does not present copy no. 4 of his/her DD Form 214 or SESA filing procedures do not require submittal of a copy, eligibility for UCX may be established based on an inquiry to the LCCC to verify the validity of data that was transmitted to the SESA in response to the SESA's original notification to the LCCC that a claim was filed. However, such eligibility may be established only if the LCCC provides a copy of copy no. 5 of DD Form 214 to the SESA. While it is not mandatory, the Department believes it is a preferable procedure to have the claimant present, or submit by mail or FAX, a copy of copy no. 4 of DD Form 214 to the SESA.

      (3)  Trade Readjustment Allowances (TRA) Claim--Employer Signature on Form TRA-855A.

      Neither Federal law nor regulations require an employer's signature on the form. Therefore, the required information employers provide may be obtained by telephone or computer interface.

      (4)  Extended Benefits (EB) and TRA--Tangible Evidence of Work Search.

      The Department's regulations at 20 CFR Part 615 implement the provisions of the Federal-State Extended Unemployment Compensation Act (EB Act). 20 CFR 615.8(g)(1) requires that an individual claiming EB shall make a systematic and sustained effort (as defined in 20 CFR 615.2(o)(8)) to search for suitable work (as defined in 20 CFR 615.8(d)(4)) each week after notification of his/her job prospects, and will furnish the State agency with each claim, tangible evidence of such efforts. The Department's regulations at 20 CFR 617.17(a) implementing the provisions of the Trade Act of 1974, as amended, require that the EB work test be satisfied for each week of TRA claimed. 20 CFR 615.2(o)(9) defines "tangible evidence" as a written record that can be verified that includes the actions taken, methods of applying for work, types of work sought, dates and places where work was sought, and the name of the employer or person contacted and the outcome.

      Most States' telephone or other electronic methods of claim filing systems will not suffice for the EB or TRA programs. Therefore, States utilizing a telephone or other electronic method of claims filing must have a alternative system in place to obtain the detailed information of a systematic and sustained search for work required as tangible evidence on weekly claims for EB and TRA to comply with the EB regulatory requirements. As examples, a State could set up a telephone tape system, which would enable claimants to describe their detailed work search over the phone, or, a State could require hard copy documents to be submitted for each week claimed that provide the required information.

4. Action. SESA Administrators should inform appropriate staff of the Department's position set forth in this program letter. The position set forth should be followed by SESAs in the design or implementation of any telephone or other electronic claims filing method.

5. Contact. Questions concerning this issuance should be directed to the appropriate Regional Office.