PART 20. TEXAS WORKFORCE COMMISSION

CHAPTER 815. UNEMPLOYMENT INSURANCE

The Texas Workforce Commission (Agency) proposes amendments to the following sections of Chapter 815, relating to Unemployment Insurance:

Subchapter A. General Provisions, §815.1

Subchapter B. Benefits, Claims and Appeals, §815.12

Subchapter F. Extended Benefits, §§815.170 - 815.172, 815.174

The Agency proposes the repeal of the following sections of Chapter 815, relating to Unemployment Insurance:

Subchapter B. Benefits, Claims, and Appeals, §815.29

Subchapter F. Extended Benefits, §815.173

The Agency proposes the following new subchapter to Chapter 815, relating to Unemployment Insurance:

Subchapter G. CARES Act Provisions, §§815.180 - 815.185

PART I. PURPOSE, BACKGROUND, AND AUTHORITY

The purpose of the proposed Chapter 815 rule change is to address the requirements of the Emergency Unemployment Insurance Stabilization and Access Act of 2020 (EUISAA), the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) as well as to exercise the authority bestowed upon the Agency by Texas Labor Code §209.025.

Federal Funding Under EUISSA

On March 18, 2020, Congress enacted EUISAA, which provides states with emergency funding grants for the administration of their unemployment compensation (UC) programs. The purpose of these grants is to assist states with the unprecedented claim volumes associated with COVID-19.

These grants are allocated into two separate allotments, Allotment I and II. Under EUISAA §4105, if a state meets the requirements of and obtains both Allotment I and II, the Federal Government will pay 100 percent of any Extended Benefits (EB), beginning on March 18, 2020 until December 31, 2020.

One of the requirements of Allotment I under EUISAA §4102(a) is that "the State requires employers to provide notification of the availability of unemployment compensation to employees at the time of separation from employment." The US Department of Labor has stated that this notice must be made individually to the separated employee.

The Agency has the authority under Texas Labor Code §208.001(b) to require this individual notice. Texas Labor Code §208.001(b) provides that "The commission shall supply, without cost to each employer, printed notices that provide general information about filing a claim for unemployment benefits. Each employer shall post and maintain the notices in places accessible to the individuals in the employ of the employer." To clarify how this notice must be provided, the Commission has determined it prudent to amend Agency rules to define "places accessible" to include general notice in the workplace and an individual notice upon separation.

Texas Labor Code §209.025 provides that "Notwithstanding any other provision of this subchapter, the commission by rule may adjust the extended benefit eligibility period as necessary to maximize the receipt of any fully funded federal extended unemployment benefits, if full federal funding for those benefits is available."

Currently, Texas Labor Code Chapter 209 provides for an Insured Unemployment Rate (IUR) trigger for EB, with benefit eligibility lasting a maximum of 13 weeks. Federal law, however, provides for an alternate trigger, the Total Unemployment Rate (TUR) trigger. The TUR trigger also provides that in periods of high unemployment, an additional seven weeks of EB benefit eligibility is available.

In order to maximize the receipt of fully funded federal EB anticipated by Texas Labor Code §209.025, the Agency must implement the optional TUR trigger with the high unemployment rate period. To ensure that the Agency maximizes the federal funding, a provision is being added to allow for additional weeks of benefit eligibility, in excess of the current seven, if provided for by federal law. Other provisions addressing coordination of benefit programs and the treatment of certain governmental and tribal employers are also addressed.

Existing Chapter 815 Subchapter F is explicitly tied to the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (P.L. 111 - 312). Subchapter F is being amended to be generally applicable and effective when full federal funding exists.

Federal Extended Benefit Programs

Subsequently on March 27, 2020 Congress enacted the CARES Act. These provisions provide for new, limited duration, entitlement programs including, Federal Pandemic Unemployment Compensation (FPUC), Pandemic Emergency Unemployment Compensation (PEUC), Federally Reimbursed Waiting Week (FRWW), and Pandemic Unemployment Assistance (PUA). On March 28, 2020, under delegated authority from Texas Governor Greg Abbott, Agency Executive Director Ed Serna executed an agreement with the Secretary of Labor to carry out these provisions of the CARES Act.

FPUC provides an additional $600 payment on top of other UC payments from the period covering the benefit week ending April 4, 2020, through the benefit week ending July 25, 2020, unless extended. PEUC provides an additional 13 weeks of UC payments to eligible individuals who exhaust their regular compensation benefits and it expires with the benefit week ending December 26, 2020. FRWW will also expire with the benefit week ending December 26, 2020. PUA is a disaster UC program for an individual not eligible for regular compensation, EB, or PEUC, including those who have exhausted other UC programs. PUA currently provides for 39 weeks of benefits, minus regular compensation and EB, and covers individuals not traditionally covered under UC, including independent contractors and the self-employed. PUA also expires with the benefit week ending December 26, 2020.

Under the CARES Act, FPUC, PEUC, and the FRWW require that a claimant, who receives benefits to which the claimant is not entitled, repay those benefits unless the payment was made to the claimant without fault and such repayment would be contrary to equity and good conscience. Current §815.12 contains these waiver and overpayment regulations for the Temporary Emergency Unemployment Compensation (TEUC) program of 2001, and by extension, the Emergency Unemployment Compensation (EUC) program of 2008. However, it does not contain corresponding provisions for the new pandemic programs FPUC, PEUC, and the FRWW.

To remedy this, §815.12 is being amended to be generally applicable to conforming federal extended unemployment compensation programs. By doing so, if Congress were to pass another extended unemployment compensation program in line with previous extension programs, the rule language for waiver and overpayment would not require additional rulemaking. References to TEUC will be replaced with "federal extended unemployment compensation." Subsection 815.12(i) will be removed because such a presumption of financial hardship is not generally applicable. Finally, the waiver provisions of §815.12 are being amended to reflect the more efficient practice whereby the waiver is automatically considered by the Agency rather than requiring the claimant request a waiver in writing.

Section 815.29 contains the rule defining the coordination between Extended Unemployment Compensation and regular compensation as required by P.L. 111 - 205 §3. This section is being repealed as it is no longer applicable.

For convenience and ease of use, new Subchapter G is being created to contain rules for the CARES Act. New Subchapter G will address definitions, coordination of programs, appeals, overpayments, and fraud.

The definitions will define the CARES Act programs. The coordination rules will address the interactions between existing benefit programs and those provided for in the CARES Act. These rules are necessary to provide the order in which each of these benefit programs are paid to claimants.

The appeals rules will address the appellate procedure for CARES Act programs. The overpayment rules will address the deduction of CARES Act program benefit payments to recover previously overpaid benefits to which the claimant is not entitled. The fraud rules will address fraud penalties and PUA fraud.

PART II. EXPLANATION OF INDIVIDUAL PROVISIONS

(Note: Minor editorial changes are made that do not change the meaning of the rules and, therefore, are not discussed in the Explanation of Individual Provisions.)

SUBCHAPTER A. GENERAL PROVISIONS

The Agency proposes the following amendments to Subchapter A:

§815.1. Definitions

Section 815.1 is amended to add new paragraph (14), which defines "places accessible" as locations in which an employer shall provide required notices to an employee, as provided in the Act, Chapter 208.

New subparagraph (A) provides that "places accessible" includes notices containing the required information are to be displayed in a manner reasonably calculated to be encountered by all employees.

New subparagraph (B) provides that "places accessible" means an employer must provide the required notice information individually to an employee upon separation from employment. As the notice is provided directly to the individual, the employer has significant flexibility in how this information may be made known. Such information may be provided in a paper format, including by mail or with separation paperwork, email, text, or other means reasonably calculated to ensure the individual receives the required notification.

Existing paragraphs (14) and (15) are renumbered to (15) and (16).

SUBCHAPTER B. BENEFITS, CLAIMS, AND APPEALS

The Agency proposes the following amendments to Subchapter B:

§815.12. Waiver of Repayment and Recovery of Temporary Extended Unemployment Compensation Overpayments

Section 815.12 is amended as follows:

Subsections (a) - (h) have been amended to change references to Temporary Extended Unemployment Compensation (TEUC) to federal extended unemployment compensation.

Subsections (b) - (d) have been amended to reflect that an overpayment waiver determination will be made by the Agency or the Commission without a written request from a claimant. The decision may be appealed in accordance with Chapter 212 of the Act and under the administrative regulations of §§815.16 - 815.18.

Subsections (i) and (j) are removed and subsection (k) is relettered to subsection (i). New subsection (j) is added to reflect that for the purposes of this section, a federal extended unemployment compensation program is an unemployment compensation program enacted by Congress that provides additional federally funded benefits. It does not include EB under Chapter 815 Subchapter F or Chapter 209 of the Act.

§815.29. Coordination of Emergency Unemployment Compensation with Regular Compensation

Section 815.29 is repealed as it relates to legislation no longer in effect.

SUBCHAPTER F. EXTENDED BENEFITS

The Agency proposes the following amendments to Subchapter F:

§815.170. State "On" and "Off" Indicator Weeks: Conditional Trigger

Section 815.170 is amended as follows:

Subsection (a) provides that pursuant to §209.025 of the Act, if full federal funding for EB is available, a week is a state "on" indicator week if:

-- the average rate of total unemployment in Texas (seasonally adjusted), as determined by the U.S. Secretary of Labor, for the period consisting of the most recent three months for which data for all states are published before the close of such week equals or exceeds 6.5 percent; and

--the average rate of total unemployment in Texas (seasonally adjusted), as determined by the U.S. Secretary of Labor, for the three-month period referred to in paragraph (1) of this subsection, equals or exceeds 110 percent of such average rate for either, or both, of the corresponding three-month periods ending in the two preceding calendar years.

Subsection (b) states that there is a state "off" indicator for a week if either the requirements of subsection (a)(1) or (a)(2) are not satisfied.

Subsection (c) clarifies that notwithstanding this section, any week for which there would otherwise be a state "on" indicator under §209.022 of the Act, shall continue to be such a week and shall not be determined to be a week for which there is a state "off" indicator.

Subsection (d) is deleted.

§815.171. High Unemployment Period: Maximum Total Extended Benefit Amount

Section 815.171 is amended as follows:

Subsection (a) addresses periods of high unemployment under a TUR trigger under §815.170(a). If the conditions under §815.170(a) are met, and the average rate of total unemployment equals or exceeds 8 percent, a high unemployment period exists.

Subsection (b) provides that with respect to weeks beginning in a high unemployment period, the total extended benefit amount payable to an eligible claimant for the claimant's eligibility period is the lesser of:

--80 percent of the total amount of regular compensation payable to the claimant during the claimant's benefit year under the Act;

--20 times the claimant's average weekly benefit amount; or

--46 times the claimant's average weekly benefit amount, reduced by the regular compensation paid, during the claimant's benefit year under the Act.

Subsection (c) provides that if the full federal funding for EB provides for an additional extended benefit amount payable to an eligible claimant in excess of that provided for in subsection (b), then that amount shall be the total extended benefit amount.

§815.172. Concurrent Emergency Unemployment Compensation Programs

Section 815.172 is amended to capitalize Extended Benefits.

§815.173. Eligibility Requirements during a Period of 100 Percent Federally Shared Benefits

Section 815.173 is repealed as it relates to legislation no longer in effect.

§815.174. Financing of Extended Benefits

Section 815.174 is amended as follows:

Subsection(a) provides that if full federal funding for EB is available, the provisions of §209.082, Charges to Reimbursing Employer, and §209.083, Charges to Taxed Employer, of the Act shall not apply; however, subsection (b) states that the provisions of §209.084, Charges to Governmental Employer, and §209.0845, Charges to Indian Tribe, of the Act shall continue to apply.

Subsection (c) is deleted.

SUBCHAPTER G. CARES ACT PROVISIONS

The Agency proposes new Subchapter G:

§815.180. Definitions

New §815.180 defines the terms for Subchapter G.

New paragraph (1) defines CARES Act as the Coronavirus Aid, Relief, and Economic Security Act, Public Law 116 - 136; TITLE II--Assistance for American Workers, Families, and Businesses; Subtitle A--Unemployment Insurance Provisions.

New paragraph (2) defines FPUC as the Federal Pandemic Unemployment Compensation provisions of §2104 of the CARES Act.

New paragraph (3) defines FRWW as the Federally Reimbursed Waiting Week provisions of §2105 of the CARES Act.

New paragraph (4) defines PEUC as the Pandemic Emergency Unemployment Compensation provisions of §2107 of the CARES Act.

New paragraph (5) defines PUA as the Pandemic Unemployment Assistance provisions of §2102 of the CARES Act.

§815.181. Coordination of CARES Act Programs

New §815.181 describes how CARES Act programs will be integrated into existing benefit programs.

New subsection (a) provides for the program order in which a claimant can claim benefits. That order is as follows:

For an individual who is eligible for regular compensation, including Unemployment Compensation for Federal Employees (UCFE) and Unemployment Compensation for Ex-servicemembers (UCX), the following order of payment applies:

--The claimant must first apply for and receive regular compensation. The amount and duration of these benefits are as defined by the Act;

--if the claimant exhausts regular compensation, the claimant may then be eligible to receive PEUC;

--if the claimant exhausts PEUC and the state has "triggered on" to EB under Chapter 209 of the Act, the claimant may then be eligible to receive EB;

--if the State is not "triggered on" to EB or the individual exhausts EB, the claimant may then be eligible to receive PUA. If the State " triggers on" to EB during the period in which the claimant is collecting PUA and the claimant has not previously exhausted entitlement to EB for the respective benefit year, then the claimant must stop collecting PUA and file for EB; and

--if the claimant meets the qualifications to receive Trade Readjustment Allowances (TRA), such benefits will be payable after regular compensation, PEUC, EB if "triggered on", and PUA.

New subsection (b) describes that for a claimant who is not eligible for regular compensation, EB, or PEUC, and who meets the federal requirements, the individual may be eligible to collect PUA.

New subsection (c) addresses the additional compensation provided by FPUC. FPUC provides for additional compensation to an individual collecting regular compensation, PEUC, PUA, EB, a Shared Work program under Chapter 215 of the Act, TRA, and Disaster Unemployment Assistance (DUA). Claimants will receive FPUC payments concurrently with the respective underlying program for which the claimant is eligible. This applies for the benefit week ending April 4, 2020, through the benefit week ending July 25, 2020 unless subsequently amended by federal law.

§815.182. Appeals

New §815.182 specifies the appeals process for CARES Act programs.

New subsection (a) states a claimant may appeal an adverse FPUC, FRWW, PEUC, or PUA determination pursuant to the provisions and timeframes of Chapter 212 of the Act and the provisions set out in §815.16 of this chapter (relating to Appeals to Appeal Tribunals from Determinations), §815.17 of this chapter (relating to Appeals to the Commission from Decisions), and §815.18 of this chapter (relating to General Rules for Both Appeal Stages).

New subsection (b) clarifies an employer is not a "party of interest," pursuant to §815.15(c), to a FPUC, FRWW, PEUC, or PUA determination and therefore does not have appeal rights. An employer may appear at a FPUC, FRWW, PEUC, or PUA hearing to offer evidence.

New subsection (c) relates to FPUC. It specifies that, when considering an appeal involving FPUC, the Appeal Tribunal and Commission shall look to the merits of the denial of the underlying benefit when determining eligibility for FPUC payments.

§815.183. Waiver

New §815.183 lays out which CARES Act programs are subject to a potential waiver of overpayments.

New subsection (a) states FPUC, the FRWW, and PEUC are federal extended unemployment compensation programs and therefore subject to §815.12.

New subsection (b) clarifies that PUA, as provided by P.L. 116 - 136 §2102, is related to Disaster Unemployment Assistance programs regulated under Title 20, Part 625, Code of Federal Regulations. Therefore, PUA does not constitute a federal extended unemployment compensation program and the waiver provisions of §815.12 do not apply.

§815.184. Overpayments

New §815.184 explains how CARES Act program overpayments will be administered.

New subsection (a) states that unless a FPUC, FRWW, or PEUC overpayment is otherwise recovered, or is waived, the Agency shall, during the three-year period after the date the claimant received the payment of FPUC, FRWW, or PEUC to which the claimant was not entitled, recover the overpayment by deductions from any sums payable to the claimant. No single deduction may exceed 50 percent of the amount otherwise payable to the claimant.

New subsection (b) states that unless a PUA overpayment is otherwise recovered, the Agency shall recover the overpayment by deductions from any sums payable to the claimant. A PUA overpayment may not be waived per §815.183(b) and is not subject to the three-year period limitation stated in §815.184(a). No single deduction may exceed 50 percent of the amount otherwise payable to the claimant.

New subsection (c) states that if a claimant has an unemployment benefits overpayment with an appropriate agency in another state, and the Agency has a reciprocal arrangement with that other state agency under §211.004 of the Act, the Agency shall deduct 50 percent per each single deduction of the amount of FPUC, FRWW, PEUC, or PUA otherwise payable to the claimant.

§815.185. Fraud

New §815.185 explains how certain instances of fraud will be handled by the Agency.

New subsection (a) states a penalty for fraudulently obtaining benefits under §214.003 of the Act shall not apply to fraudulently obtained FPUC, FRWW, PEUC, and PUA benefits forfeited.

New subsection (b) pertains to FPUC and clarifies that the Agency and the Commission shall examine the underlying payment or statement which precipitated the fraud determination when examining FPUC fraud.

New subsection (c) states that under PUA, the Agency will apply the provisions of 20 C.F.R. §625.14(i) when determining disqualification for fraud.

PART III. IMPACT STATEMENTS

Chris Nelson, Chief Financial Officer, has determined that for each year of the first five years the rules will be in effect, the following statements will apply:

There are no additional estimated costs to the state and to local governments expected as a result of enforcing or administering the rules.

There are no estimated cost reductions to the state and to local governments as a result of enforcing or administering the rules.

There are no estimated losses or increases in revenue to the state or to local governments as a result of enforcing or administering the rules.

There are no foreseeable implications relating to costs or revenue of the state or local governments as a result of enforcing or administering the rules.

There are no anticipated economic costs to individuals required to comply with the rules.

There is no anticipated adverse economic impact on small businesses, microbusinesses, or rural communities as a result of enforcing or administering the rules.

Based on the analyses required by Texas Government Code §2001.024, the Agency has determined that the requirement to repeal or amend a rule, as required by Texas Government Code §2001.0045, does not apply to this rulemaking.

Takings Impact Assessment

Under Texas Government Code, §2007.002(5), "taking" means a governmental action that affects private real property, in whole or in part or temporarily or permanently, in a manner that requires the governmental entity to compensate the private real property owner as provided by the Fifth and Fourteenth Amendments to the United States Constitution or the Texas Constitution, §17 or §19, Article I, or restricts or limits the owner's right to the property that would otherwise exist in the absence of the governmental action, and is the producing cause of a reduction of at least 25 percent in the market value of the affected private real property, determined by comparing the market value of the property as if the governmental action is not in effect and the market value of the property determined as if the governmental action is in effect. The Commission completed a Takings Impact Analysis for the proposed rulemaking action under Texas Government Code, §2007.043. The primary purpose of this proposed rulemaking action, as discussed elsewhere in this preamble, is to ensure compliance with federal law with respect to extended unemployment compensation programs under the CARES Act and to maximize the state's ability to take advantage of full federal funding under EUISSA.

The proposed rulemaking action will not create any additional burden on private real property. The proposed rulemaking action will not affect private real property in a manner that would require compensation to private real property owners under the United States Constitution or the Texas Constitution. The proposal also will not affect private real property in a manner that restricts or limits an owner's right to the property that would otherwise exist in the absence of the governmental action. Therefore, the proposed rulemaking will not cause a taking under Texas Government Code, Chapter 2007.

Government Growth Impact Statement

The Agency has determined that during the first five years the proposed amendments will be in effect:

--the proposed amendments will not create or eliminate a government program;

--implementation of the proposed amendments will not require the creation or elimination of employee positions;

--implementation of the proposed amendments will not require an increase or decrease in future legislative appropriations to the Agency;

--the proposed amendments will not require an increase or decrease in fees paid to the Agency;

--the proposed amendments will not create a new regulation;

--the proposed amendments will not expand, limit, or eliminate an existing regulation;

--the proposed amendments will not change the number of individuals subject to the rules; and

--the proposed amendments will not positively or adversely affect the state's economy.

Economic Impact Statement and Regulatory Flexibility Analysis

The Agency has determined that the proposed rules will not have an adverse economic impact on small businesses or rural communities, as the proposed rules place no requirements on small businesses or rural communities.

Mariana Vega, Director of Labor Market and Career Information, has determined that there is no significant negative impact upon employment conditions in the state as a result of the rules.

Clay Cole, Director, Unemployment Insurance Division, and Paul Carmona, Director, Regulatory Integrity Division, have determined that for each year of the first five years the rules are in effect, the public benefit anticipated as a result of enforcing the proposed rules will be to ensure that Texas remains eligible to receive full federal extended unemployment benefits during the COVID-19 pandemic and its aftermath.

PART IV. COORDINATION ACTIVITIES

Comments on the proposed rules may be submitted to TWCPolicyComments@twc.state.tx.us. Comments must be received no later than 30 days from the date this proposal is published in the Texas Register.

SUBCHAPTER A. GENERAL PROVISIONS

40 TAC §815.1

STATUTORY AUTHORITY

The rule is proposed under Texas Labor Code §301.0015(a)(6) which provides the Agency with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of Agency services and activities.

The proposed rule affects Texas Labor Code, Title 4.

§815.1.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the statute or context in which the word or phrase is used clearly indicates otherwise.

(1) Act--The Texas Unemployment Compensation Act, Texas Labor Code Annotated, Title 4, Subtitle A, as amended.

(2) Additional claim--A notice of new unemployment filed at the beginning of a second or subsequent series of claims within a benefit year or within a period of eligibility when a break of one week or more has occurred in the claim series with intervening employment. The employer named on an additional claim will have 14 days from the date notice of the claim is mailed to reply to the notice. The additional claim reopens a claim series and is not a payable claim since it is not a claim for seven days of compensable unemployment.

(3) Adequate notification--A notification of adverse facts, including any subsequent notification, affecting a claim for benefits, as provided in the Act, Chapter 208.

(A) Notification to the Commission is adequate as long as the employer or its agent gives a reason, supported by facts, directly related to the allegation raised regarding the claimant's right to benefits.

(B) The employer or its agent may demonstrate good cause for failing to provide adequate notice. Good cause is established solely by showing that the employer or its agent was prevented from providing adequate notification due to compelling circumstances beyond the control of the employer or its agent.

(C) Examples of adequate notification of adverse facts include, but are not limited to, the following:

(i) The claimant was discharged for misconduct connected with his work because he was fighting on the job in violation of written company policy.

(ii) The claimant abandoned her job when she failed to contact her supervisor in violation of written company policy and previous warnings.

(D) A notification is not adequate if it provides only a general conclusion without substantiating facts. A general statement that a worker has been discharged for misconduct connected with the work is inadequate. The allegation may be supported by a summary of the events, which may include facts documenting the specific reason for the worker's discharge, such as, but not limited to:

(i) policies or procedures;

(ii) warnings;

(iii) performance reviews;

(iv) attendance records;

(v) complaints; and

(vi) witness statements.

(4) Agency--The unit of state government that is presided over by the Commission and under the direction of the executive director, which operates the integrated workforce development system and administers the unemployment compensation insurance program in this state as established under Texas Labor Code, Chapter 301. It may also be referred to as the Texas Workforce Commission.

(5) Appeal--A submission by a party requesting the Agency or the Commission to review a determination or decision that is adverse to that party. The determination or decision must be appealable and pertain to entitlement to unemployment benefits; chargeback as provided in the Act, Chapter 204, Chapter 208, and Chapter 212; fraud as provided in the Act, Chapter 214; tax coverage or contributions or reimbursements. This definition does not grant rights to a party.

(6) Base period with respect to an individual--The first four consecutive completed calendar quarters within the last five completed calendar quarters immediately preceding the first day of the individual's benefit year, or any other alternate base period as allowed by the Act.

(7) Benefit period--The period of seven consecutive calendar days, ending at midnight on Saturday, with respect to which entitlement to benefits is claimed, measured, computed, or determined.

(8 Benefit wage credits--Wages used to determine an individual's monetary eligibility for benefits. Benefit wage credits consist of those wages an individual received for employment from an employer during the individual's base period as well as any wages ordered to be paid to an individual by a final Commission order, pursuant to its authority under Texas Labor Code, Chapter 61. Benefit wage credits awarded by a final Commission order that were due to be paid to the individual by an employer during the individual's base period shall be credited to the quarter in which the wages were originally due to be paid.

(9) Board--Local Workforce Development Board created pursuant to Texas Government Code §2308.253 and certified by the Governor pursuant to Texas Government Code §2308.261. This includes a Board when functioning as the Local Workforce Investment Board as described in the Workforce Investment Act §117 (29 U.S.C.A. §2832), including those functions required of a Youth Council, as provided for under the Workforce Investment Act §117(i) (also referred to as an LWDB).

(10) Commission--The three-member body of governance composed of Governor-appointed members in which there is one representative of labor, one representative of employers, and one representative of the public as established in Texas Labor Code §301.002, which includes the three-member governing body acting under the Act, Chapter 212, Subchapter D, and in Agency hearings involving unemployment insurance issues regarding tax coverage, contributions or reimbursements.

(11) Day--A calendar day.

(12) Landman--An individual who is qualified to do field work in the purchasing of right-of-way and leases of mineral interests, record searches, and related real property title determinations, and who is primarily engaged in performing the field work.

(13) Person--May include a corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity.

(14) Places accessible--Locations in which an employer shall provide required notices to an employee as provided in the Act, Chapter 208. This includes:

(A) Notices providing general information about filing a claim for unemployment benefits shall be displayed in a manner reasonably calculated to be encountered by all employees; and

(B) Upon separation from employment, an employer shall provide an employee individual notice of general information about filing a claim for unemployment benefits as set out in the printed notice referenced in §208.001(b) of the Act. As the notice is provided directly to the individual, the employer has significant flexibility in how this information may be made known. Such information may be provided:

(i) in a paper format, including by mail or with separation paperwork;

(ii) by email;

(iii) by text; or

(iv) by other means reasonably calculated to ensure the individual receives the required notification.

(15) [(14)] Reopened claim--The first claim filed following a break in claim series during a benefit year which was caused by other than intervening employment, i.e., illness, disqualification, unavailability, or failure to report for any reason other than job attachment. The reopened claim reopens a claim series and is not a payable claim since it is not a claim for seven days of compensable unemployment.

(16) [(15)] Week--A period of seven consecutive calendar days ending at midnight on Saturday.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 15, 2020.

TRD-202002924

Dawn Cronin

Director, Workforce Program Policy

Texas Workforce Commission

Earliest possible date of adoption: August 30, 2020

For further information, please call: (512) 689-9855

40 TAC §815.12

The rule is proposed under Texas Labor Code §301.0015(a)(6) which provides the Agency with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of Agency services and activities.

The proposed rule affects Texas Labor Code, Title 4.

§815.12.Waiver of Repayment and Recovery of Federal Extended Unemployment Compensation [Temporary Extended Unemployment Compensation] Overpayments.

(a) When conforming with an applicable federal extended unemployment compensation program, this [This] section implements [the Temporary Extended Unemployment Compensation (TEUC)] waiver of repayment requirements [program] by setting out the process that the Agency and Commission shall use to determine whether to waive the repayment and recovery of non-fraudulent overpayments. The terms repayment and recovery will be referred to as repayment in this section, and the federal extended unemployment compensation [Temporary Extended Unemployment Compensation] overpayment will be referred to as overpayment.

(b) When a decision of the Agency or Commission results in a federal extended unemployment compensation [an] overpayment, the Agency or Commission will also determine whether the overpayment will be waived [an appealable determination and a request for waiver of repayment of an overpayment are mailed to the claimant].

(c) A claimant may appeal the underlying issue that created the [an] overpayment determination pursuant to the provisions of Chapter 212 of the Act and the provisions set out in §815.16 of this chapter (relating to Appeals to Appeal Tribunals from Determinations), §815.17 of this chapter (relating to Appeals to the Commission from Decisions), and §815.18 of this chapter (relating to General Rules for Both Appeal Stages).

(d) A claimant may also appeal a denial of a request to waive the repayment of an overpayment in the same manner as stated in subsection (c) of this section. [A claimant's written request for waiver of repayment of an overpayment must be filed within 14 days of the date a request to waive the repayment of an overpayment notification is mailed by the Agency. The waiver request must be filed in accordance with §815.16(1)(A) of this chapter (relating to Appeals to Appeal Tribunals from Determinations) or mailed to the address on the request form.]

(e) The Agency or Commission will deny a request to waive the repayment of a non-fraudulent overpayment if it determines that:

(1) the payment of the federal extended unemployment compensation [TEUC] benefits is the fault of the claimant, or

(2) the repayment is not contrary to equity and good conscience.

(f) The Agency or Commission will waive the repayment of a non-fraudulent overpayment if it determines that:

(1) the payment of the federal extended unemployment compensation [TEUC] benefits is not the fault of the claimant, and

(2) the repayment is contrary to equity and good conscience.

(g) In determining whether fault exists, the Agency or Commission shall consider the following:

(1) whether a material statement or representation was made by the claimant in connection with the application for the federal extended unemployment compensation [TEUC] that resulted in an overpayment, and whether the claimant knew or should have known that the statement or representation was inaccurate;

(2) whether the claimant failed or caused another to fail to disclose a material fact, in connection with an application for the federal extended unemployment compensation [TEUC] that resulted in an overpayment, and whether the claimant knew or should have known that the fact was material;

(3) whether the claimant knew or could have been expected to know that the claimant was not entitled to the federal extended unemployment compensation [the TEUC] payment; and

(4) whether, for any other reason, the overpayment resulted directly or indirectly, and partially or totally, from any act or omission of the claimant or of which the claimant had knowledge, and which was erroneous or inaccurate or otherwise wrong.

(h) In determining whether equity and good conscience exists, the Agency or Commission shall consider the following factors:

(1) whether the overpayment is the result of a decision on appeal;

(2) whether the Agency gave notice to the claimant that the claimant may be required to repay the overpayment in the event of a reversal of the federal extended unemployment compensation [a TEUC] eligibility determination on appeal; and

(3) whether repayment of the federal extended unemployment compensation [TEUC] overpayment will cause financial hardship to the claimant.

[(i) The Commission has determined that requiring the claimant to repay a TEUC overpayment will cause financial hardship to the claimant, because in order to receive TEUC benefits, the claimant had to have been unemployed for an extended period of time.]

[(j) A claimant may appeal a denial of a request to waive the repayment of an overpayment pursuant to subsection (c) of this Section.]

(i) [(k)] Hearings under this section [Section] will be conducted in a fair and impartial manner in accordance with the provisions of §815.15 of this chapter (relating to Parties with Appeal Rights), §815.16 of this chapter (relating to Appeals to Appeal Tribunals from Determinations), §815.17 of this chapter (relating to Appeals to the Commission from Decisions), and §815.18 of this chapter (relating to General Rules for Both Appeal Stages), except to the extent that the sections are clearly inapplicable.

(j) For the purposes of this section, a federal extended unemployment compensation program is an unemployment compensation program enacted by Congress that provides additional federally funded benefits. It does not include Extended Benefits under Subchapter F of this chapter or Chapter 209 of the Act.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 15, 2020.

TRD-202002925

Dawn Cronin

Director, Workforce Program Policy

Texas Workforce Commission

Earliest possible date of adoption: August 30, 2020

For further information, please call: (512) 689-9855

The rule is repealed under Texas Labor Code §301.0015(a)(6) which provides the Agency with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of Agency services and activities.

The proposed repeal affects Texas Labor Code, Title 4.

§815.29.Coordination of Emergency Unemployment Compensation with Regular Compensation.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 15, 2020.

TRD-202002926

Dawn Cronin

Director, Workforce Program Policy

Texas Workforce Commission

Earliest possible date of adoption: August 30, 2020

For further information, please call: (512) 689-9855

40 TAC §§815.170 - 815.172, 815.174

The rules are proposed under Texas Labor Code §301.0015(a)(6) which provides the Agency with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of Agency services and activities.

The proposed rules affect Texas Labor Code, Title 4.

§815.170.State "On" and "Off" Indicator Weeks: Conditional Trigger.

(a) Pursuant to §209.025 of the Act, if full federal funding for Extended Benefits is available, a week is a state "on" indicator week if:

(1) the average rate of total unemployment in Texas (seasonally adjusted), as determined by the U.S. Secretary of Labor, for the period consisting of the most recent three months for which data for all states are published before the close of such week equals or exceeds 6.5 percent; and

(2) the average rate of total unemployment in Texas (seasonally adjusted), as determined by the U.S. Secretary of Labor, for the three-month period referred to in paragraph (1) of this subsection, equals or exceeds 110 percent of such average rate for either, or both, of the corresponding three-month periods ending in the two preceding calendar years.

(b) There is a state "off" indicator for a week if either the requirements of subsection (a)(1) or (a)(2) of this section are not satisfied.

(c) Notwithstanding this section, any week for which there would otherwise be a state "on" indicator under §209.022 of the Act, shall continue to be such a week and shall not be determined to be a week for which there is a state "off" indicator.

[(a) In addition to the state "on" indicator provisions for extended benefits in the Act, and with respect to weeks of unemployment beginning on or after February 17, 2009, a week is a state "on" indicator week if:]

[(1) the average rate of total unemployment in Texas (seasonally adjusted), as determined by the U.S. Secretary of Labor, for the period consisting of the most recent three months for which data for all states are published before the close of such week equals or exceeds 6.5 percent; and]

[(2) the average rate of total unemployment in Texas (seasonally adjusted), as determined by the U.S. Secretary of Labor, for the three-month period referred to in paragraph (1) of this subsection, equals or exceeds 110 percent of such average for either or both of the corresponding three-month periods ending in the two preceding calendar years.]

[(b) With respect to compensation for weeks of unemployment beginning after the date of enactment of Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (P.L. 111-312) and ending on or before the date established in federal law permitting this provision, a week is a state "on" indicator week if:]

[(1) the average rate of total unemployment in Texas (seasonally adjusted), as determined by the U.S. Secretary of Labor, for the period consisting of the most recent three months for which data for all states are published before the close of such week equals or exceeds 6.5 percent; and]

[(2) the average rate of total unemployment in Texas (seasonally adjusted), as determined by the U.S. Secretary of Labor, for the three-month period referred to in paragraph (1) of this subsection, equals or exceeds 110 percent of such average for any or all of the corresponding three-month periods ending in the three preceding calendar years.]

[(c) In addition to the state "off" indicator provisions for extended benefits in the Act, there is a state "off" indicator for only a week if, for the period consisting of such week and the immediately preceding twelve weeks, none of the options specified in subsection (a) or (b) of this section result in an "on" indicator.]

[(d) This section continues in effect until the week ending four weeks prior to the last week of unemployment for which 100 percent federal sharing is available under P.L. 111-5, Division B, Title II, §2005(a), without regard to the extension of federal sharing for certain claims as provided under §2005(c) of such law.]

§815.171.High Unemployment Period: Maximum Total Extended Benefit Amount.

(a) If the conditions under §815.170(a) of this subchapter are met, and the average rate of total unemployment equals or exceeds 8 percent, a high unemployment period shall exist.

(b) Effective with respect to weeks beginning in a high unemployment period, the total extended benefit amount payable to an eligible claimant for the claimant's eligibility period is the lesser of:

(1) 80 percent of the total amount of regular compensation payable to the claimant during the claimant's benefit year under the Act;

(2) 20 times the claimant's average weekly benefit amount; or

(3) 46 times the claimant's average weekly benefit amount, reduced by the regular compensation paid, during the claimant's benefit year under the Act.

(c) Pursuant to §209.025 of the Act, if the full federal funding for Extended Benefits provides for an additional extended benefit amount payable to an eligible claimant in excess of that provided for in subsection (b) of this section, that amount shall be the total extended benefit amount.

[(a) If the conditions under §815.170(a) or (b) of this subchapter are met except that the average rate of total unemployment equals or exceeds 8 percent, a high unemployment period shall exist.]

[(b) Effective with respect to weeks beginning in a high unemployment period, the total extended benefit amount payable to an eligible individual for the individual's eligibility period is 80 percent of the total amount of regular benefits that were payable to the individual under the Act in the individual's benefit year.]

[(c) This section applies as long as §815.170 of this subchapter is in effect.]

§815.172.Concurrent Emergency Unemployment Compensation Programs.

The Agency may pay unemployment compensation benefits under other emergency unemployment compensation programs that may be in effect prior to paying Extended Benefits [extended benefits] under this subchapter.

§815.174.Financing of Extended Benefits.

(a) Pursuant to §209.025 of the Act, if full federal funding for Extended Benefits is available, the provisions of §209.082, Charges to Reimbursing Employer, and §209.083, Charges to Taxed Employer, of the Act shall not apply.

(b) The provisions of §209.084, Charges to Governmental Employer, and §209.0845, Charges to Indian Tribe, of the Act shall continue to apply.

[(a) If there is 100 percent federal sharing for extended benefits pursuant to P.L. 111-5, Division B, Title II, §2005, the provisions of Subchapter E, Chapter 209 of the Act relating to taxed employers shall not apply.]

[(b) The provisions of §209.084, regarding Charges to Governmental Employer, and §209.0845, regarding Charges to Indian Tribe, of the Act shall continue to apply.]

[(c) This section applies as long as §815.170 of this subchapter is in effect.]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 15, 2020.

TRD-202002927

Dawn Cronin

Director, Workforce Program Policy

Texas Workforce Commission

Earliest possible date of adoption: August 30, 2020

For further information, please call: (512) 689-9855

40 TAC §§815.180 - 815.185

The new rules are proposed under Texas Labor Code §301.0015(a)(6) which provides the Agency with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of Agency services and activities.

The proposed rules affect Texas Labor Code, Title 4.

§815.180.Definitions.

The following definitions shall apply to this subchapter:

(1) CARES Act--refers to the Coronavirus Aid, Relief, and Economic Security Act, Public Law 116 - 136; TITLE II--Assistance for American Workers, Families, and Businesses; Subtitle A--Unemployment Insurance Provisions.

(2) FPUC--refers to the Federal Pandemic Unemployment Compensation provisions of §2104 of the CARES Act.

(3) FRWW--refers to the Federally Reimbursed Waiting Week provisions of §2105 of the CARES Act.

(4) PEUC--refers to the Pandemic Emergency Unemployment Compensation provisions of §2107 of the CARES Act.

(5) PUA--refers to the Pandemic Unemployment Assistance provisions of §2102 of the CARES Act.

§815.181.Coordination of CARES Act Programs.

(a) For an individual who is eligible for regular compensation, including Unemployment Compensation for Federal Employees (UCFE) and Unemployment Compensation for Ex-servicemembers (UCX), the following order of payment applies:

(1) The claimant must first apply for and receive regular compensation. The amount and duration of these benefits are as defined by the Act;

(2) if the claimant exhausts regular compensation, the claimant may then be eligible to receive PEUC;

(3) if the claimant exhausts PEUC and the state has "triggered on" to Extended Benefits (EB) under Chapter 209 of the Act, the claimant may then be eligible to receive EB;

(4) if the State is not "triggered on" to EB or the individual exhausts EB, the claimant may then be eligible to receive PUA. If the State "triggers on" to EB during the period in which the claimant is collecting PUA and the claimant has not previously exhausted entitlement to EB for the respective benefit year, then the claimant must stop collecting PUA and file for EB; and

(5) if the claimant meets the qualifications to receive Trade Readjustment Allowances (TRA), such benefits will be payable after regular compensation, PEUC, EB if "triggered on", and PUA.

(b) For a claimant who is not eligible for regular compensation, EB, or PEUC, and who meets the federal requirements, the individual may be eligible to collect PUA.

(c) FPUC provides for additional compensation to an individual collecting regular compensation, PEUC, PUA, EB, a Shared Work program under Chapter 215 of the Act, TRA, and Disaster Unemployment Assistance (DUA). Claimants will receive FPUC payments concurrently with payments under these programs. This applies for the benefit week ending April 4, 2020 through the benefit week ending July 25, 2020 unless subsequently amended by federal law.

§815.182.Appeals.

(a) A claimant may appeal an adverse FPUC, FRWW, PEUC, or PUA determination pursuant to the provisions and timeframes of Chapter 212 of the Act and the provisions set out in §815.16 of this chapter (relating to Appeals to Appeal Tribunals from Determinations), §815.17 of this chapter (relating to Appeals to the Commission from Decisions), and §815.18 of this chapter (relating to General Rules for Both Appeal Stages).

(b) An employer is not a "party of interest", pursuant to §815.15(c) of this chapter (relating to Parties with Appeal Rights), to a FPUC, FRWW, PEUC, or PUA determination and therefore does not have appeal rights. An employer may appear at a FPUC, FRWW, PEUC, or PUA hearing to offer evidence when appropriate.

(c) When considering an appeal involving FPUC, the Appeal Tribunal and Commission shall look to the merits of the denial of the underlying benefit when determining eligibility for FPUC payments.

§815.183.Waiver.

(a) FPUC, the FRWW, and PEUC are federal extended unemployment compensation programs and therefore subject to §815.12 of this chapter (relating to Waiver of Repayment and Recovery of Federal Extended Unemployment Compensation Overpayments).

(b) PUA, as provided by P.L. 116 - 136 §2102, is related to Disaster Unemployment Assistance programs regulated under Title 20, Part 625, Code of Federal Regulations. Therefore, PUA does not constitute a federal extended unemployment compensation program and the waiver provisions of §815.12 of this chapter do not apply.

§815.184.Overpayments.

(a) Unless a FPUC, FRWW, or PEUC overpayment is otherwise recovered, or is waived, the Agency shall, during the three-year period after the date the claimant received the payment of FPUC, FRWW, or PEUC to which the claimant was not entitled, recover the overpayment by deductions from any sums payable to the claimant. No single deduction may exceed 50 percent of the amount otherwise payable to the claimant.

(b) Unless a PUA overpayment is otherwise recovered, the Agency shall recover the overpayment by deductions from any sums payable to the claimant. A PUA overpayment may not be waived per §815.183(b) of this chapter and is not subject to the three-year period limitation stated in subsection(a) of this section. No single deduction may exceed 50 percent of the amount otherwise payable to the claimant.

(c) If a claimant has an unemployment benefits overpayment with an appropriate agency in another state, and the Agency has a reciprocal arrangement with that other state agency under §211.004 of the Act, the Agency shall deduct 50 percent per each single deduction of the amount of FPUC, FRWW, PEUC, or PUA otherwise payable to the claimant.

§815.185.Fraud.

(a) A penalty for fraudulently obtaining benefits under §214.003 of the Act shall not apply to fraudulently obtained FPUC, FRWW, PEUC, and PUA benefits forfeited.

(b) The Agency and the Commission shall examine the underlying payment or statement which precipitated the fraud determination when examining FPUC fraud.

(c) In determining disqualification for fraud under PUA, the provisions of 20 C.F.R. §625.14(i) shall apply.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 15, 2020.

TRD-202002929

Dawn Cronin

Director, Workforce Program Policy

Texas Workforce Commission

Earliest possible date of adoption: August 30, 2020

For further information, please call: (512) 689-9855