July 25 -- The U.S. Department of Labor (Department or USDOL) invites interested parties to provide information relating to the disclosure of confidential wage records under the Department's regulations governing the confidentiality and disclosure of State UC information. The Department is considering comprehensive updates to the UC confidentiality regulations and the information received in response to this RFI will inform and be considered by the Department as it reviews the UC confidentiality regulations, which may result in the development of a notice of proposed rulemaking (NPRM) to revise the regulations in a manner that would address the evolution of both information technology (IT) and the public workforce system as these changes relate to the required and permissible disclosure of confidential UC data. Interested persons are invited to submit written comments on the request for information on or before September 25, 2023.
In September 2006, the Department issued a final rule (71 FR 56830, Sept. 27, 2006) that set forth the statutory confidentiality and disclosure requirements of title III of the Social Security Act (SSA) and the Federal Unemployment Tax Act (FUTA) concerning unemployment compensation (UC) information and revised the Income and Eligibility Verification System (IEVS) regulations at 20 CFR part 603 (hereinafter “2006 Final Rule”).
The 2006 Final Rule implemented Federal UC laws concerning confidentiality and disclosure of UC information and established uniform minimum requirements for the payment of costs, safeguards, and data-sharing agreements to ensure responsible use when UC information is disclosed. The confidentiality requirement implemented by the 2006 Final Rule was derived from the “methods of administration” requirement of Section (Sec.) 303(a)(1) of the SSA. . . .
In implementing these confidentiality requirements for UC information and parameters for its disclosure, the 2006 Final Rule defined types of information related to employment, unemployment claims, and wage records and outlined the conditions under which disclosures are permitted or required. For the purpose of this RFI, disclosure means the State UC agency providing or revealing any information in its records to any other entity. Permissible disclosures of confidential UC information include disclosures of information: in the public domain; about essential program activities; about an individual or employer to that individual or employer; on the basis of informed consent; to a public official in the performance of their duties and to an agent or contractor of such a public official; collected for statistical purposes in cooperation with the Bureau of Labor Statistics (BLS); or required to be disclosed by a court order or Federal law. Required disclosures of confidential UC information include disclosures of information necessary for the proper administration of the UC program or relevant to the IEVS.
Additionally, the 2006 Final Rule set forth parameters for the payment of costs related to disclosures of confidential UC information, generally requiring recipients to pay the non-incidental costs of disclosures for purposes other than administration of the UC program and for which the disclosing State UC agency does not receive a reciprocal benefit. Finally, the 2006 Final Rule also established safeguards that State UC agencies must require of recipients who obtain confidential UC information, requirements for data-sharing agreements with parties obtaining confidential UC information, and requirements for State UC agencies to notify claimants and employers about how their confidential UC information may be requested and used.
In 2016, the Department issued a final rule (81 FR 56072; Aug. 19, 2016) to amend 20 CFR part 603 to help States comply with new requirements under the Workforce Innovation and Opportunity Act (WIOA) to assess the performance of certain federally funded employment and training programs (hereinafter “WIOA Final Rule”). WIOA requires States to use “quarterly wage records” in these performance assessments, which the Department defined in the WIOA implementing regulation at 20 CFR 677.175(b) to include a program participant's Social Security number (SSN), participant wages after exiting the program, and identifying employer information, information that already was included in the definition of “wage information” in part 603 (§ 603.2(k)) and collected by State UC agencies. To facilitate the performance reporting required of States under WIOA, the WIOA Final Rule expanded the set of “public officials,” enumerated in § 603.2(d), to whom a State may disclose these confidential wage records to include officials from public postsecondary educational organizations; State performance accountability and customer information agencies; the chief elected officials of local workforce development areas; and a public State educational authority, agency, or institution. In conjunction with this expanded definition, § 603.5(e) was amended to explicitly allow confidential UC information to be disclosed to a public official for limited, specified WIOA purposes, and § 603.6(b)(8) was adopted to make such disclosures mandatory when doing so would not interfere with the efficient administration of State UC law.
The Department is considering a regulatory update to 20 CFR part 603 that would incorporate a requirement for States to disclose confidential UC information to the Department's Office of Inspector General (OIG) for oversight and audits. In addition, the Department is considering addressing several other items that States and stakeholders have raised over the years, including addressing questions around sharing information across the workforce system (including with local workforce development boards), the permissibility of sharing information with federally recognized Indian tribes, data warehousing, the use of contractors/subcontractors, and updates to recognize the evolution in IT. In particular, since the part 603 confidentiality and disclosure requirements were last significantly revised in 2006, both the public workforce development system and IT infrastructure have changed substantially. Given these changes, part 603 could be revised to better support UC stakeholders by increasing clarity and addressing more modern scenarios in which State UC information is stored and disclosure of confidential UC information may be requested. The Department also solicits comment on the utility of future regulatory changes that could potentially reduce barriers to data sharing with Federal statistical agencies and other Federal agencies as needed for evidence-based research and evaluation, performance, and administration purposes. Finally, the Department intends to update some outdated terminology used in part 603. For example, part 603 currently includes in several places outdated references to the “food stamp program,” which should be revised to reference the Supplemental Nutrition Assistance Program (SNAP).
The Department is seeking from the public information and suggestions relating to potential revisions to 20 CFR part 603, the Federal regulations governing the confidentiality and disclosure of State UC information. Interested stakeholders likely will include State UC agencies (including groups representing State UC agencies), State and local workforce development boards (including groups representing workforce development boards), federally recognized Indian tribes, workers and worker advocates, employers and employer advocates, data privacy advocates, educational institutions, private sector entities (for example, research institutions and third-party vendors), any potential requestor of confidential UC information, and others. . . .
[T]he Department invites the public to answer one or more of the [121] questions below in their submission. . . .
20 CFR Part 603:
https://www.law.cornell.edu/cfr/text/20/part-603
FRN:
https://www.federalregister.gov/d/2023-15631 [9 pages]
