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1 November December 203 Unemployment Claims Management: A Focus on Compliance By Greg Good Greg Good, Director of Product Marketing for Employer Services at Equifax Workforce Solutions, explains how compliance is the key to avoiding penalties imposed due to inadequate or delayed responses for requests for unemployment claim information. Greg Good is Director of Product Marketing for Employer Services at Equifax Workforce Solutions, a leader in human resource, data, and workforce analytic services. 203 G.Good. In late 2008, the Dow Jones Industrial Average had fallen nearly 50 percent, fueling a widespread economic recession that would see U.S. unemployment rates reach a new 25-year high (Fig.). During this period of time, unemployment insurance (UI) claims followed suit and spiked significantly, with state benefit payments reaching a high of $76.8 billion in As a result, states experienced severe trust fund deficits for several years, as unemployment tax revenues were eclipsed by unemployment benefit payments (Fig. 2). Further exacerbating the situation, the increases in unemployment benefit payments were accompanied by a corresponding increase in improper benefit payments. In 202, state UI benefit overpayments totaled approximately $4.88 billion, representing 0.8 percent of unemployment payments (Fig.3). While these improper charges include payments made to claimants who are in prison, or even deceased (through identity theft), the most common source of these overpayments are related to claimants collecting wages from a new employer while continuing to accrue their previous benefits. While the effects of the recent recession continue to impact state unemployment reserves, a renewed focus has been placed on the integrity of the UI system as states look to replenish insolvent trust funds moving forward. Eighteen states currently maintain insolvent unemployment trust funds. 3 27

2 Unemployment Claims Management: A Focus on Compliance Figure : National Unemployment Rate 2% Peak Recessionary Period 0% 7.8% 8% 6% 4% Source: U.S. Department of Labor, Quaterly Unemployment Rates, Figure 2: National Unemployment Benefit Contributions vs. Payments (000s) $80,000,000 $70,000,000 $60,000,000 $50,000,000 $40,000,000 $30,000,000 $20,000,000 $0,000,000 $ Q08 Q308 Q09 Q309 Q0 Q30 Q Q3 Q2 Q32 Revenue Benefits Paid Source: Compiled from U.S. DOL UI Data Summary, 2 mo. Rolling period The Unemployment Insurance System Both employers and state agencies share in the responsibility, as well as the administration, of the UI program. While states are required to ensure that individuals meet eligibility requirements and receive their UI benefits, employers remain responsible for providing the states with the information needed to make an accurate determination. To facilitate this collaboration, states notify employers when a request for unemployment benefits is made and maintain established parameters for timeliness and accuracy of employer response. However, despite the current system, UI benefit overpayments continue to occur as result of late, incomplete, or inaccurate responses to state UI information requests. New UI Integrity Legislation With a heightened focus on UI Integrity, a federal mandate was developed to address the timeliness and accuracy of employer response to unemployment claims. The Trade Adjustment Assistance Extension Act (TAAEA) of 20 provides for a statutory subsection in the Federal Unemployment Tax Act (FUTA), which mandates that state UI agencies prohibit relieving employers of benefit charges to their unemployment tax account when both of the following scenarios exist: CCH Incorporated. All Rights Reserved.

3 November December 203 Figure 3: 202 Unemployment Benefit Overpayments 0.8% Total Annual Unemployment Benefit Payments Figure 4: FUTA Subsection (Definitions) Because the federal UI mandate is open to state interpretation, additional guidance is as follows: Timely Response: A timely response has been interpreted by most states to be in the range of 7 0 days (similar to previous guidelines). Adequate Response: While it is clear that information must be provided in response to every questions in the RFI, the exact level of detail and documentation required is more difficult to define. Both employers and their Unemployment Cost Management providers will need to monitor state responses, including the level of detail that prompts successful appeals, in order to develop a reasonable understanding of the support required by states moving forward. Source: U.S. Department of Labor, 202 $4.88B in improper benefits ) UI benefits were improperly paid because the employer, or their agent, was at fault for failing to respond in a timely or adequate manner to the agency s request for information (RFI) relating to the unemployment claim. 2) The employer or agent has established a pattern of failing to respond to such requests in a timely or adequate manner. In addition, section 3303(f)(2) of FUTA permits states to impose even stricter standards in limiting relief from charges, such as, but not limited to, denying relief from charges to an employer after the first instance of an inadequate or delayed response to an RFI. States were required to have the necessary legislation in place by October 2, 203 (Fig. 5), otherwise employers in their state may be at risk for additional penalties. A Significant Shift in Perspective To ensure the successful implementation of this federal initiative, states are shifting increasing responsibility for UI Integrity to employers by enforcing more stringent penalties for noncompliance. Employer response to unemployment claims is no longer perceived as a choice, but as a requirement In 202, state UI benefit overpayments totaled approximately $4.88 billion, representing 0.8 percent of unemployment payments. Pattern of Failure: The criteria for sustaining a pattern of failure, on the other hand, has been more distinctly defined with most states interpreting this as two or more instances (or 2 percent or more of claims) within a calendar year. that must be fulfilled in order to remain compliant with the new state regulations. Specifically, the employer perspective toward response to state requests for information (RFIs) has transitioned in the following manner: Previously: Employers often made a choice between responding or not responding to an unemployment claim (i.e., while it was always technically required, a response was only considered worthwhile if the employer felt that benefits should not be paid to the claimant). Moving Forward: Employers are required to respond to all claims in order to not only remain in compliance with new state regulations, but now to avoid real financial repercussions as well. While employers have historically been inclined to respond (i.e., protest) only to those unemployment claims that were considered inaccurate, they will now be required to respond to all claims, regardless of their perceived legitimacy, in order to remain compliant with emerging state regulations and minimize financial exposure. Journal of State Taxation 29

4 Unemployment Claims Management: A Focus on Compliance Figure 5: State Adoption of UI Legislation WA OR NV CA HI ID UT AZ MT WY CO NM ND MN SD WI NY MI IA PA NE IL IN OH WV KS MO VA KY NC TN OK AR SC MS AL GA LA TX FL ME CT DC DE MA MD NH NJ PR RI VI VT In Effect (23 Jurisdictions) Passed (3 Jurisdictions) Pending (6 Jurisdictions) No action taken yet ( Jurisdictions) AK Source: U.S. DOL / ETA. 203; Data updated as of 8/7/3 The Bottom Line: Loss of Benefit Charge Relief The TAAEA of 20 directs all states to prohibit the relief of unemployment benefit charges resulting directly from an employer s (or their agent s) pattern of failure to adequately respond to state UI information requests. If states do not have the necessary legislation in place by October 2, 203, employers in their jurisdiction risk losing the 5.4-percent maximum federal unemployment insurance (FUTA) credit 4 thereby increasing the FUTA tax cost to employers by as much as $378 per employee. Under these new requirements, employers are expected to improve the quality of information provided to state unemployment agencies at the front end of the UI claim process, rather than waiting until after the initial determination is rendered to perfect their response. Even if an employer is able to reverse an unfavorable determination at an unemployment hearing, the consequence of not providing sufficient details up front is a loss of benefit charge relief from the date of initial charges through the date of suc- Figure 6: Additional State UI Penalties The Following states have implemented additional penalties, beyond non-relief of charges, for late or insufficient response to UI related requests for information: California: Louisiana: Maryland: Mass: Minnesota: Nebraska: Oregon: Vermont: Virginia: Up to 0 times the weekly benefit amount (false statement penalty) $50 $000 (false statement penalty) $5 penalty per instance $25 penalty per instance and loss of appeal rights Employer must pay the trust fund the amount of the overpaid benefits (insufficient response penalty); Up to $500 (false statement penalty) Loss of appeal rights 2 to 0 times the benefit amount (false statement penalty) $00 penalty per instance $75 penalty after third offense Implemented by state prior to new UI Integrity legislation (MN already had the $500 false statement penalty) 2 Because many states have yet to enact their new UI legislation, this list is expected to increase in size CCH Incorporated. All Rights Reserved.

5 November December 203 Figure 7: State Adoption of SIDES WA OR NV CA HI ID UT AZ MT WY CO NM ND MN SD WI NY MI NE IA PA IL IN OH WV KS MO VA KY NC TN OK AR SC MS AL GA LA TX FL ME CT DC DE MA MD NH NJ PR RI VI VT Already live (38 Jurisdictions) Live in 203 (4 Jurisdictions) Live in 204 (4 Jurisdictions) Unknown (7 Jurisdictions) AK Source: NASWA / UISIDES. org. 203; Data provided as of 8/9/203 cessful appeal or hearing. Should this increase in benefit charges negatively impact employer UI tax rates moving forward, the monetary impact could be significant. Because the new UI Integrity legislation does not specifically indicate that employers lose appeal rights due to insufficient response, employers may still (in most states) appeal an unfavorable claim determination and potentially eliminate the remainder of the charges. However, as the TAAEA does allow states to increase the severity of the penalties for noncompliance to UI related information requests, several jurisdictions have taken it upon themselves to legislate the loss of appeal rights to employers who provide an insufficient claim response. As a result, employers in these states may lose the opportunity for claims relief for the full duration of the unemployment claim. A Successful Strategy for UI Compliance Providing timely, accurate, and complete documentation in response to all claims is critical to not only avoiding noncompliance penalties, but to ensure proper determinations and minimize improper payments as well. With compliance functioning as a critical element of the unemployment claims management process moving forward, there are several strategies for preventing unnecessary benefit payments, minimizing unemployment costs and risks, and conforming to these new regulations. Rapid and accurate claims response: Providing timely, accurate, and complete documentation in response to all claims is critical to not only avoiding noncompliance penalties, but to ensure proper determinations and minimize improper payments as well. The use of the State Information Data Exchange System (SIDES), which is now available in the majority of states (Fig. 7), expedites the delivery of critical claims informa- Journal of State Taxation 3

6 Unemployment Claims Management: A Focus on Compliance tion online, while simultaneously supporting data integrity. Front-end applications developed by thirdparty administrators can further enhance the SIDES interface through a customized information response system. This ensures that employers provide adequate claims response in the most efficient manner, while simultaneously avoiding the generation of unneeded documentation. Comprehensive employee training: It is critical that HR personnel, as well as any managers involved in the hiring and termination process, are provided with training regarding how to most effectively take the required steps for employee review, document cases of misconduct, and respond to requests from state agencies. Easy access to employee data and case history: The availability of key data, notes, and documentation, which is needed in response to state RFIs regarding unemployment claims, ensures that employers are able to provide required information in a timely and accurate manner. Comprehensive workforce data reporting and benchmarking: Robust reporting of unemployment claims management results, such as protest rates, win rates, and hearing results, can help employers identify opportunities for improvement while assessing performance in comparison to industry standards. Updating state databases: By responding promptly to Wage Earning Verification requests and reporting new hires and re-hires to the states (including the National Directory of New Hires within 20 days of hire), employers ensure that state agencies are provided with data necessary for accurate unemployment eligibility determinations. Adherence to these guidelines will not only reduce benefit overpayments, but will help improve state agencies efficiency in administering the process while ensuring that employers financial exposure (in light of new compliance legislation) is kept to a minimum. Endnotes U.S. Bureau of Labor Statistics, U.S. Department of Labor, Benefit Accuracy Measurement Data Summary, U.S. Treasury, Internal Revenue Service (FUTA), 203. This article is reprinted with the publisher s permission from the Journal of State Taxation, a bimonthly journal published by CCH, a part of Wolters Kluwer. Copying or distribution without the publisher s permission is prohibited. To subscribe to the Journal of State Taxation or other CCH, a part of Wolters Kluwer journals please call or visit CCHGroup.com. All views expressed in the articles and columns are those of the author and not necessarily those of CCH, a part of Wolters Kluwer or any other person CCH Incorporated. All Rights Reserved.

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