[Federal Register: January 16, 2007 (Volume 72, Number 9)]
[Rules
and Regulations]
[Page 1889-1895]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ja07-9]
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Part III
Department of Labor
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Employment and Training Administration
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20 CFR Part 604
Unemployment Compensation--Eligibility; Final Rule
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 604
RIN 1205-AB41
Unemployment Compensation--Eligibility
AGENCY: Employment and Training Administration, Labor.
ACTION: Final rule.
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SUMMARY: The Department of Labor (Department) is issuing this Final
Rule to implement the requirements of the Social Security Act (SSA) and
the Federal Unemployment Tax Act (FUTA) that limit a State's payment of
unemployment compensation (UC) only to individuals who are able and
available (A&A) for work. This rule applies to all State UC laws and
programs.
DATES: Effective Date: This Final Rule is effective February 15, 2007.
FOR FURTHER INFORMATION CONTACT: Gerard Hildebrand, Office of Workforce
Security, ETA, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Room C-4518, Washington, DC 20210. Telephone: (202) 693-3038 (voice)
(this is not a toll-free number); 1-800-326-2577 (TDD); facsimile:
(202) 693-2874; e-mail: hildebrand.gerard@dol.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On July 22, 2005, the Department published a Notice of Proposed
Rulemaking (NPRM) concerning the A&A requirement at 70 FR 42474. The
Department invited comments through September 20, 2005.
II. General Discussion of the Final Rule
The Department and its predecessors (the Social Security Board and
the Federal Security Agency) have consistently interpreted provisions
of Federal UC law, contained in the SSA and the FUTA, to require that
States, as a condition of participation in the Federal-State UC
program, limit the payment of UC to individuals who are A&A. As
explained in the NPRM, the UC program is designed to provide temporary
wage insurance for individuals who are unemployed due to a lack of
suitable work. The Federal A&A rules implement this design by testing
whether the fact that an individual did not work for any week was
involuntary due to the unavailability of suitable work. Although this
interpretation is longstanding, it has never been comprehensively
addressed in a rule in the Code of Federal Regulations (CFR).
The A&A requirement is implicit in the structure and purpose of the
SSA and the FUTA, and Congress has repeatedly adopted, acquiesced in,
and relied on the Department's interpretation that Federal UC law
includes an A&A requirement. Nevertheless, because the A&A requirement
is not explicitly stated in Federal law or the CFR, some confusion
exists regarding the validity of the A&A requirement as well as its
scope and application.
This confusion became especially clear in rulemakings that created
and then removed the Birth and Adoption UC (BAA-UC) regulation, which
permitted States to pay UC to new parents who stopped work following
the birth or adoption of a child. See 65 FR 37210 (June 13, 2000) for
the BAA-UC Final Rule, and 68 FR 58540 (Oct. 9, 2003) for the final
rule removing the BAA-UC rule. In both rulemakings, commenters argued
that there are no specific A&A requirements set out in Federal law and
that Congress expressly rejected A&A requirements. In the course of
these rulemakings, it also became clear that misconceptions existed
about the application and scope of the Federal A&A requirement. For
example, misconceptions existed about why the Department permitted
individuals to be treated as A&A in certain situations. The Department
discussed these situations in detail at 68 FR 58540, 58543-58545 (Oct.
9, 2003). As another example, some commenters viewed an active work
search as a necessary component of the A&A requirement. However, this
is not the Department's position.
As a result of this confusion, the Department issued an NPRM
clearly setting forth its interpretation of the A&A requirement and is
now issuing this Final Rule. This Final Rule does not regulate other
areas of the UC program, such as monetary entitlement or
disqualifications for such actions as voluntarily quitting employment.
This Final Rule also does not address Federal labor laws (such as
minimum wage or overtime laws) or disability nondiscrimination laws
(such as the Section 504 of the Rehabilitation Act of 1973), which
might affect the administration of the A&A requirement.
III. Summary of the Comments and Regulatory Changes
Comments Received on the Proposed Rule
The Department received 25 pieces of correspondence commenting on
the NPRM by the close of the comment period. Thirteen comments were
from State UC agencies. Five comments were from business or employer
interest groups, and seven comments were from worker advocacy groups.
The Department considered all timely comments and included them in the
rulemaking record. One late comment was not considered.
These comments are discussed below in the Discussion of Comments.
Also discussed below are all substantive changes made to the rule that
stem from the comments received. Non-substantive changes are not
discussed.
Discussion of Comments
Need for Rule. Several commenters supported the rule. One of these
supporters noted that ``Although the `A&A' test has always been a
Federal requirement, the absence of any clear, readily available and
legally binding statement articulating this policy has encouraged many
inappropriate'' legislative proposals. Another supporter stated that
``In recent years, we have seen legislation introduced in a number of
States, which we believe to be in violation of the longstanding
interpretation of the eligibility rules under FUTA. This proposed rule
will greatly clarify the situation for the States * * *.''
Conversely, several commenters stated that the rule was either not
necessary, or that the Department failed to specify any controversy or
confusion over the validity of the A&A requirement, aside from issues
related to the BAA-UC regulation. Nonetheless, one of these commenters
did acknowledge that there is a ``difference of opinion between the
Department and some commentators'' concerning the existence and nature
of the A&A requirement.
The Department believes that the commenters' divergence of opinion
on this matter serve to reinforce its view that rulemaking is necessary
to put any doubt about its position to rest and to avoid controversies
regarding the existence and nature of a Federal A&A requirement.
Individuals with Disabilities. Several commenters suggested the
rule address the making of a ``reasonable accommodation'' under the
Americans with Disabilities Act for individuals with disabilities. The
principal reason
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the Department undertook the creation of the rule was to eliminate
confusion about the existence and nature of the A&A requirement in
Federal UC law. This limited purpose was noted in the NPRM at 70 FR
42474: ``This rule also does not address federal labor laws * * * or
disability nondiscrimination laws * * *'' In addition, the Department's
regulations at 29 CFR part 32 already place obligations on States
regarding nondiscrimination on the basis of disability. Determining
whether an individual with a disability is A&A under the rule is a
case-by-case determination. The Department believes that program
letters rather than a regulation are better vehicles for applying
general nondiscrimination obligations to case-by-case State
determinations on whether an individual with a disability is A&A.
Therefore, no change is made to the rule as a result of these comments.
Minimum Requirement and State Flexibility. Several commenters
viewed the rule as restricting State flexibility in ways that would
adversely affect eligibility. For example, one commenter stated that,
``As currently written, the standards actively restrict or discourage
States from taking steps to make the UI system accessible to the
changing workforce, including individuals who are domestic violence
survivors, who must seek work on a part-time basis * * * '' This
commenter went on to state ``that the proposed regulations * * * may
serve to restrict UI coverage and deal a serious blow to State laws
currently in effect that have expanded coverage to previously
underserved categories of workers.'' Conversely, one commenter
suggested that the rule be clarified to more clearly state that it
creates only minimum requirements.
Although the Department agrees that States should retain wide
latitude in crafting their UC laws, it also believes that State laws
must assure that an individual's unemployment for any week is
involuntary due to the unavailability of suitable work. This
requirement protects the integrity of the UC program and the State's
unemployment fund. The Department believes that the rule provides
States with considerable flexibility because it merely provides that
States must require an individual to meet a minimum test of A&A.
More specifically, nothing in the rule requires that a State apply
a single A&A test to all individuals. As a result, States continue to
have the flexibility to apply a more liberal A&A test to victims of
domestic violence than to other individuals. All that is required is
that the individual meet the rule's minimum A&A test.
Concerning part-time work, the proposed rule established a very
broad test of availability: an individual may be considered available
if the ``individual is available for any work for all or a portion of
the week claimed,'' as long as the individual is not withdrawing from
the labor market. 70 FR 42474, 42481 (emphasis added); Sec.
604.5(a)(1). Similar language exists for the ``able'' requirement. See
70 FR 42474, 42481; Sec. 604.4(a). The language referring to ``a
portion of the week'' recognizes that an individual may be eligible if
``A&A'' only for part-time work. Accordingly, the Department has not
changed the proposed rule as a result of these comments regarding State
flexibility.
Concerning the comment that the rule should more clearly state that
it creates only a minimum requirement, the Department believes the
proposed rule was clear in its statement that it ``does not limit the
States' ability to impose additional able and available requirements
that are consistent with applicable Federal laws.'' 70 FR 42474, 42481;
Sec. 604.3(c). Accordingly, the Department has not changed the
proposed rule as a result of this comment.
Work Search. Several commenters stated that conducting an active
search for work is a necessary component of availability and should be
addressed in future rulemakings. The Department agrees that, as a
policy matter, States should require an active search for work, but
does not agree that the suggested rulemaking is appropriate. The
Department's contemporaneous interpretation of the original SSA in 1935
was that Federal law does not require a work search for the regular UC
program.
Thereafter, in the early 1980's, Congress examined the issue of
work search in the UC program. This examination did not result in a
search for work requirement for the regular UC program. Instead, it
resulted in the creation of a ``sustained and systematic'' search for
work requirement only for the Federal-State extended benefits program.
Pub. L. 96-499, Sec. 1024(a) (1980) (amending the Federal-State
Extended Unemployment Compensation Act of 1970 Sec. 202(a)(3), tit. II
at Sec. 202(a)(3)(E)). Therefore, the Department believes that
Congress is well aware of the Department's longstanding interpretation
that there is no Federal work search requirement and has not chosen to
add a work search requirement. Any work search requirement would need
to be legislated by Congress.
Labor Market Attachment. Several commenters objected to the
requirement that A&A be tested in terms of whether the individual has
withdrawn from the labor market as discussed in Sec. Sec. 604.4(a) and
604.5(a)(1)-(2) . Specifically, these commenters averred that this
``withdrawal'' test imposed a new and more rigid standard for A&A and
suitable work cases than had previously existed. Commenters also
expressed concerns that application of the ``withdrawal'' test would
result in States denying UC to an individual even though no
``suitable'' work is available in the labor market, which would be
inconsistent with one of the Department's stated rationales for this
rulemaking in that UC should be paid for a lack of ``suitable'' work.
The Department does not believe that this test is new, rigid, or
would require a denial of UC where no ``suitable'' work is available.
Several commenters claiming the test was new stated that it was a
departure from a Departmental issuance from 1962. However, as noted in
the preamble to the proposed rule, that issuance actually provided for
the labor market test described in the proposed rule:
``The availability requirement means that the claimant must be
available for suitable work which is ordinarily performed in his
chosen locality in sufficient amount to constitute a substantial
labor market for his services. A claimant does not satisfy the
requirement by being available for an insignificant amount of work.
Ordinarily, for example, a concert pianist in a rural area who
limits his availability to concert work in that area is not
available for enough suitable work to meet the requirement.''
70 FR 42474, 42476 (July 22, 2005) (quoting U.S. Department of
Labor, Bureau of Employment Security, Unemployment Insurance
Legislative Policy--Recommendations for State Legislation 1962 (October
1962)).
The Department believes the ``withdrawal'' test balances the need
to assure genuine attachment by the individual to the labor market--
which is what the A&A requirement is testing--with the need to
recognize that, due to labor market fluctuations, work in the
individual's usual and customary occupation may not be available at any
given time. In fact, contrary to the commenters' assertions, the
``withdrawal'' test provides the States with greater flexibility as it
permits States to pay UC to individuals who have A&A restrictions, such
as limiting availability to part-time work, as long as the restrictions
do not amount to a withdrawal from the labor market. Without this
``withdrawal'' test, individuals with any restrictions would
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be denied and the regulation would be rigid, as the commenters assert.
The proposed and final rule at Sec. 604.3(b) emphasizes the
minimal nature of the ``withdrawal'' test by stating that:
Whether an individual is able to work and available for work * *
* will be tested by determining whether the individual is offering
services for which a labor market exists. This does not mean that
job vacancies must exist, only that, at a minimum, the type of
services the individual is able and available to perform is
generally performed in the labor market.
Under this test, if the services offered by an individual are
restricted to the point that the services are not generally performed
in the labor market (that is, the individual has withdrawn from the
labor market), then the individual is unemployed as a result of those
restrictions and is not eligible for UC. Those restrictions on services
could be for any number of reasons, such as hours of availability, the
distance the individual is willing to commute, or what types of jobs
the individual is willing or able to accept. Holding an individual
unavailable due to such restrictions is neither novel nor inconsistent
with the notion that UC is for individuals who are involuntarily
unemployed due to lack of suitable work. At the same time, as noted,
the ``withdrawal'' test provides flexibility as it permits payment of
benefits to individuals who place some restrictions on their
availability, but who have not withdrawn from the labor market.
The Department also notes that the rule does not require a denial
of UC simply because no ``suitable'' work was available at a particular
time. As noted, the rule balances the need to assure genuine attachment
to the labor force with labor market conditions that cause a lack of
work in the individual's usual and customary occupation. Thus, on the
one hand, jobs of the type that the individual is making him or herself
available for must be performed in the labor market, even if no new job
openings currently exist. On the other hand, if the individual
restricts his or her availability to jobs for which there is no labor
market, the individual is not available.
The proposed and final rule at Sec. 604.5(a)(2) affords further
flexibility by providing that what is ``suitable'' is determined under
State law. This provision allows the State to take into consideration
the education and training of the individual, among other factors.
What a State law may not do, however, is to define ``suitable''
work in such a way that it permits the individual to limit his or her
availability in a way that constitutes a withdrawal from the labor
market. To emphasize this point, Sec. 604.5(a)(2) of the proposed rule
has been changed from ``The individual limits his or her availability
to work which is suitable for such individual as determined under the
State UC law, provided such limitation does not constitute a withdrawal
from the labor market'' to ``The individual limits his or her
availability to work which is suitable for such individual as
determined under the State UC law, provided the State law definition of
suitable work does not permit the individual to limit his or her
availability in such a way that the individual has withdrawn from the
labor market.''
Availability and Illness. A State comment addressed the proposed
rule's provision at Sec. 604.4(b), which permits an individual to be
considered ``able'' to work if the ``individual has previously
demonstrated his or her ability to work and availability for work
following the most recent separation from employment,'' unless the
individual has refused an offer of suitable work due to such illness or
injury. This commenter noted the lack of a parallel provision in the
``available for work'' section of the rule and questioned whether this
meant the individual, although considered ``able to work,'' must be
denied for not being available for work. The Department did not intend
this individual to be denied for not being available for work. As a
result of this comment, Sec. 604.5(g) of the Final Rule allows a State
to find an individual available for work if it finds that the
individual is able to work under Sec. 604.4(b), despite the
individual's illness or injury. Further, as a result of this change,
Sec. 604.5(g) of the proposed rule was re-designated to Sec. 604.5(h)
in this Final Rule.
Aliens. Section 604.5(f) of the proposed rule provided that to be
considered available for work for a week (and thus potentially eligible
for UC for that week), an ``alien must be legally authorized to work
that week in the United States by the appropriate agency of the United
States government.'' Several commenters requested that specific
situations involving alien eligibility be addressed in the Final Rule,
notably regarding aliens with H-1B visas. Since legislation and Federal
regulations governing alien status and work authorization frequently
change, the Department believes it unwise to specify in Part 604 which
classes of aliens have work authorization and may therefore be found
legally available for work. Rather, the Department will issue program
letters relaying information on alien work authorization from the
United States Citizenship and Immigration Service. Accordingly, no
change is made to the rule as a result of this comment. The Department
did delete unnecessary language, however.
Finally, the Department put a number of the provisions of the
regulatory text into the active voice and substituted ``must'' for
``shall'' in several places. These changes are purely stylistic; the
Department intends no substantive change in meaning of the amended
provisions.
IV. Administrative Information
Executive Order 12866
The Department has determined that this Final Rule is a
``significant regulatory action'' within the meaning of Executive Order
12866 because it raises novel legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set forth
in the Executive Order at section 3(f)(4). Accordingly, the Final Rule
has been submitted to, and reviewed by, the Office of Management and
Budget (OMB).
However, the Department has determined that this Final Rule is not
``economically significant'' because it does not have an annual effect
on the economy of $100 million or more. The Department has also
determined that the Final Rule has no adverse material impact upon the
economy and that it does not materially alter the budgeting impact of
entitlements, grants, user fees or loan programs, or the rights and
obligations of recipients. This Final Rule implements the A&A
requirements of the program consistent with the authorizing legislation
and serves to codify longstanding program interpretations.
Further, the Department has evaluated the rule and found it
consistent with the regulatory philosophy and principles set forth in
Executive Order 12866, which governs agency rulemaking. Although it
impacts States and State UC agencies, it does not adversely affect them
in a material way. The rule limits a State's payment of UC only to
individuals who are A&A for work, and all State laws currently contain
A&A requirements.
Executive Order 13132
The Department reviewed this rule in accordance with Executive
Order 13132, and determined that the rule may have Federalism
implications. To this end, organizations representing State elected
officials were contacted. These organizations expressed no concerns.
About one-half of the comments received were from individual State
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agencies. The Department believes this Final Rule adequately addresses
the concerns expressed in those comments.
Executive Order 12988
The Department drafted and reviewed this regulation according to
Executive Order 12988 on Civil Justice Reform, and it does not unduly
burden the Federal court system. The Department drafted the rule to
minimize litigation and provide a clear legal standard for affected
conduct. The Department has reviewed this Final Rule carefully to
eliminate drafting errors and ambiguities.
Unfunded Mandates Reform Act of 1995 and Executive Order 12875
The Department reviewed this rule under the Unfunded Mandates
Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq.) and Executive Order
12875. The Department has determined that this Final Rule does not
include any Federal mandate that may result in increased expenditures
by State, local, or tribal governments, in the aggregate, or by the
private sector, of $100 million or more in any one year. Accordingly,
the Department has not prepared a budgetary impact statement.
Paperwork Reduction Act
This regulatory action contains no information collection
requirements.
Regulatory Flexibility Act/SBREFA
We have notified the Chief Counsel for Advocacy, Small Business
Administration, and made the certification under the Regulatory
Flexibility Act (RFA) at 5 U.S.C. 605(b), that this proposed rule will
not have a significant economic impact on a substantial number of small
entities. Under the RFA, no regulatory flexibility analysis is required
when the rule ``will not * * * have a significant economic impact on a
substantial number of small entities.'' 5 U.S.C. 605(b). A small entity
is defined as a small business, small not-for-profit organization, or
small governmental jurisdiction. 5 U.S.C. 601(3)-(5). Therefore, the
definition of the term ``small entity'' does not include States, State
UC agencies, or individuals.
This Final Rule codifies a longstanding interpretation for
determining eligibility for unemployed individuals. This Final Rule,
therefore, governs an entitlement program administered by the States
and not by small governmental jurisdictions. In addition, the
entitlement program offers benefits to unemployed individuals and does
not directly affect the small entities as defined by the RFA.
Therefore, the Department certifies that this Final Rule will not have
a significant impact on a substantial number of small entities and, as
a result, no regulatory flexibility analysis is required.
In addition, the Department certifies that this Final Rule is not a
major rule as defined by section 804 of the Small Business Regulatory
Enforcement Act of 1996 (SBREFA). Under section 804 of SBREFA, a major
rule is one that is an ``economically significant regulatory action''
within the meaning of Executive Order 12866. The Department certifies
that, because this Final Rule is not an economically significant rule
under Executive Order 12866, it also is not a major rule under SBREFA.
Effect on Family Life
The Department certifies that this rule was assessed in accordance
with Pub. L. 105-277, 112 Stat. 2681, and that the rule does not
adversely affect the well-being of the nation's families.
List of Subjects in 20 CFR Part 604
Employment and Training Administration, Labor, and Unemployment
Compensation.
Catalogue of Federal Domestic Assistance Number
This program is listed in the Catalogue of Federal Domestic
Assistance at 17.225, Unemployment Insurance.
Emily Stover DeRocco,
Assistant Secretary of Labor, Employment and Training Administration.
0
For the reasons set forth in this preamble, Chapter V of Title 20, Code
of Federal Regulations, is amended by adding a new Part 604 to read as
follows:
PART 604--REGULATIONS FOR ELIGIBILITY FOR UNEMPLOYMENT COMPENSATION
Sec.
604.1 Purpose and scope.
604.2 Definitions.
604.3 Able and available requirement--general principles.
604.4 Application--ability to work.
604.5 Application--availability for work.
604.6 Conformity and substantial compliance.
Authority: 42 U.S.C. 1302(a); 42 U.S.C. 503(a)(2) and (5); 26
U.S.C. 3304(a)(1) and (4); 26 U.S.C. 3306(h); 42 U.S.C. 1320b-7(d);
Secretary's Order No. 4-75 (40 FR 18515); and Secretary's Order No.
14-75 (November 12, 1975).
Sec. 604.1 Purpose and Scope.
The purpose of this Part is to implement the requirements of
Federal UC law that limit a State's payment of UC to individuals who
are able to work and available for work. This regulation applies to all
State UC laws and programs.
Sec. 604.2 Definitions.
(a) Department means the United States Department of Labor.
(b) FUTA means the Federal Unemployment Tax Act, 26 U.S.C. 3301 et
seq.
(c) Social Security Act means the Social Security Act, 42 U.S.C.
501 et seq.
(d) State means a State of the United States of America, the
District of Columbia, the Commonwealth of Puerto Rico, and the United
States Virgin Islands.
(e) State UC agency means the agency of the State charged with the
administration of the State's UC law.
(f) State UC law means the law of a State approved under Section
3304(a), FUTA (26 U.S.C. 3304(a)).
(g) Unemployment Compensation (UC) means cash benefits payable to
individuals with respect to their unemployment.
(h) Week of unemployment means a week of total, part-total or
partial unemployment as defined in the State's UC law.
Sec. 604.3 Able and available requirement--general principles.
(a) A State may pay UC only to an individual who is able to work
and available for work for the week for which UC is claimed.
(b) Whether an individual is able to work and available for work
under paragraph (a) of this section must be tested by determining
whether the individual is offering services for which a labor market
exists. This requirement does not mean that job vacancies must exist,
only that, at a minimum, the type of services the individual is able
and available to perform is generally performed in the labor market.
The State must determine the geographical scope of the labor market for
an individual under its UC law.
(c) The requirement that an individual be able to work and
available for work applies only to the week of unemployment for which
UC is claimed. It does not apply to the reasons for the individual's
separation from employment, although the separation may indicate the
individual was not able to work or available for work during the week
the separation occurred. This Part does not address the authority of
States to impose disqualifications with respect to separations. This
Part does not limit the States' ability to impose additional able
[[Page 1894]]
and available requirements that are consistent with applicable Federal
laws.
Sec. 604.4 Application--ability to work.
(a) A State may consider an individual to be able to work during
the week of unemployment claimed if the individual is able to work for
all or a portion of the week claimed, provided any limitation on his or
her ability to work does not constitute a withdrawal from the labor
market.
(b) If an individual has previously demonstrated his or her ability
to work and availability for work following the most recent separation
from employment, the State may consider the individual able to work
during the week of unemployment claimed despite the individual's
illness or injury, unless the individual has refused an offer of
suitable work due to such illness or injury.
Sec. 604.5 Application--availability for work.
(a) General application. A State may consider an individual to be
available for work during the week of unemployment claimed under any of
the following circumstances:
(1) The individual is available for any work for all or a portion
of the week claimed, provided that any limitation placed by the
individual on his or her availability does not constitute a withdrawal
from the labor market.
(2) The individual limits his or her availability to work which is
suitable for such individual as determined under the State UC law,
provided the State law definition of suitable work does not permit the
individual to limit his or her availability in such a way that the
individual has withdrawn from the labor market. In determining whether
the work is suitable, States may, among other factors, take into
consideration the education and training of the individual, the
commuting distance from the individual's home to the job, the previous
work history of the individual (including salary and fringe benefits),
and how long the individual has been unemployed.
(3) The individual is on temporary lay-off and is available to work
only for the employer that has temporarily laid-off the individual.
(b) Jury service. If an individual has previously demonstrated his
or her availability for work following the most recent separation from
employment and is appearing for duty before any court under a lawfully
issued summons during the week of unemployment claimed, a State may
consider the individual to be available for work. For such an
individual, attendance at jury duty may be taken as evidence of
continued availability for work. However, if the individual does not
appear as required by the summons, the State must determine if the
reason for non-attendance indicates that the individual is not able to
work or is not available for work.
(c) Approved training. A State must not deny UC to an individual
for failure to be available for work during a week if, during such
week, the individual is in training with the approval of the State
agency. However, if the individual fails to attend or otherwise
participate in such training, the State must determine if the reason
for non-attendance or non-participation indicates that the individual
is not able to work or is not available for work.
(d) Self-Employment Assistance. A State must not deny UC to an
individual for failure to be available for work during a week if,
during such week, the individual is participating in a self-employment
assistance program and meets all the eligibility requirements of such
self-employment assistance program.
(e) Short-time compensation. A State must not deny UC to an
individual participating in a short-time compensation (also known as
worksharing) program under State UC law for failure to be available for
work during a week, but such individual will be required to be
available for his or her normal workweek.
(f) Alien status. To be considered available for work in the United
States for a week, the alien must be legally authorized to work that
week in the United States by the appropriate agency of the United
States government. In determining whether an alien is legally
authorized to work in the United States, the State must follow the
requirements of section 1137(d) of the SSA (42 U.S.C. 1320b-7(d)),
which relate to verification of and determination of an alien's status.
(g) Relation to ability to work requirement. A State may consider
an individual available for work if the State finds the individual able
to work under Sec. 604.4(b) despite illness or injury.
(h) Work search. The requirement that an individual be available
for work does not require an active work search on the part of the
individual. States may, however, require an individual to be actively
seeking work to be considered available for work, or States may impose
a separate requirement that the individual must actively seek work.
Sec. 604.6 Conformity and substantial compliance.
(a) In general. A State's UC law must conform with, and the
administration of its law must substantially comply with, the
requirements of this regulation for purposes of certification under:
(1) Section 3304(c) of the FUTA (26 U.S.C. 3304(c)), with respect
to whether employers are eligible to receive credit against the Federal
unemployment tax established by section 3301 of the FUTA (26 U.S.C.
3301), and
(2) Section 302 of the SSA (42 U.S.C. 502), with respect to whether
a State is eligible to receive Federal grants for the administration of
its UC program.
(b) Resolving Issues of Conformity and Substantial Compliance. For
the purposes of resolving issues of conformity and substantial
compliance with the requirements of this regulation, the following
provisions of 20 CFR 601.5 apply:
(1) Paragraph (b) of this section, pertaining to informal
discussions with the Department of Labor to resolve conformity and
substantial compliance issues, and
(2) Paragraph (d) of this section, pertaining to the Secretary of
Labor's hearing and decision on conformity and substantial compliance.
(c) Result of Failure to Conform or Substantially Comply.
(1) FUTA Requirements. Whenever the Secretary of Labor, after
reasonable notice and opportunity for a hearing to the State UC agency,
finds that the State UC law fails to conform, or that the State or
State UC agency fails to comply substantially, with the requirements of
the FUTA, as implemented in this regulation, then the Secretary of
Labor shall make no certification under such act to the Secretary of
the Treasury for such State as of October 31 of the 12-month period for
which such finding is made. Further, the Secretary of Labor must notify
the Governor of the State and such State UC agency that further
payments for the administration of the State UC law will not be made to
the State.
(2) SSA Requirements. Whenever the Secretary of Labor, after
reasonable notice and opportunity for a hearing to the State UC agency,
finds that the State UC law fails to conform, or that the State or
State UC agency fails to comply substantially, with the requirements of
title III, SSA (42 U.S.C. 501-504), as implemented in this regulation,
then the Secretary of Labor must notify the Governor of the State and
such State UC agency that further payments for the administration of
the State UC law will not be made to the State until the Secretary of
Labor is satisfied that there is no longer any such failure. Until the
Secretary of Labor is so satisfied, the
[[Page 1895]]
Department of Labor will not make further payments to such State.
[FR Doc. E7-155 Filed 1-12-07; 8:45 am]
BILLING CODE 4510-30-P