40 TAC §§815.170 - 815.174
The Texas Workforce Commission (Commission) adopts
on an emergency basis the following new subchapter to Chapter 815
relating to Unemployment Insurance:
Subchapter F. Extended Benefits, §§815.170 - 815.174
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
PART I. PURPOSE, BACKGROUND, AND AUTHORITY
The Commission adopts the new rules on an emergency basis pursuant
to the authority granted to it under House Bill (HB) 4586, enacted
by the 81st Texas Legislature, Regular Session (2009) to adjust unemployment
eligibility periods, as necessary, to maximize receipt of 100 percent
federally shared extended unemployment benefits in accordance with
the American Recovery and Reinvestment Act of 2009, enacted February
17, 2009 (P.L. 111-5), Division B, Title II, relating to Assistance
for Unemployed Workers and Struggling Families, §2005.
The Commission must take immediate action in order to continue
paying unemployed individuals who are exhausting their regular and
emergency unemployment benefits. During this period of high, sustained
unemployment, these 100 percent federally shared extended benefits
are vital to out-of-work Texans who are struggling to pay their bills
while seeking work. These benefits also serve as a much-needed stabilizing
factor in local economies. Therefore, the Commission finds that imminent
peril to the public welfare requires adoption of rules without 30
days' notice in the Texas Register.
On the same basis, the Commission also finds that imminent peril to
the public welfare requires adoption of rules with an expedited effective
date that is effective immediately on filing with the Secretary of
State, so that these rules can be implemented immediately under the
emergency rulemaking provisions of Texas Government Code §2001.034
and §2001.036.
PART II. EXPLANATION OF INDIVIDUAL PROVISIONS
SUBCHAPTER F. EXTENDED BENEFITS
The Commission adopts on an emergency basis new Subchapter F, as follows:
§815.170. State "On" and "Off" Indicator Weeks: Conditional Trigger.
New §815.170 adds a new, conditional trigger under which Texas
could enter into an extended benefit eligibility period, allowing
the state to receive 100 percent federally shared extended benefits
as authorized under P.L. 111-5.
There are two methods under which a state may trigger on to an
extended benefit period:
(1) a specified threshold under the Insured Unemployment Rate (IUR)
methodology; and
(2) a specified threshold under the Total Unemployment Rate (TUR) methodology.
Texas Labor Code, Chapter 209, provides for the use of the IUR
methodology. However, its threshold is so high that Texas would have
to have substantial levels of chronic unemployment before triggering
on to an extended benefit period. The U.S. Department of Labor (DOL)
has advised states that they may enact a temporary, conditional TUR
trigger in order to take advantage of 100 percent federally shared
extended benefits. The TUR trigger described in this section is conditional
upon 100 percent federal sharing of extended benefits as recommended
and approved by DOL.
§815.171. High Unemployment Period: Maximum Total Extended
Benefit Amount.
New §815.171 adds a definition of "high unemployment period"
and provides a different methodology for calculating an individual's
maximum total extended benefit amount if the state has triggered on
to a "high unemployment period."
The Federal-State Extended Unemployment Compensation Act of 1970
(Federal EB Law), et seq., requires
that if a state has opted to enact the optional TUR trigger, it must
also provide for increased benefits under a "high unemployment period."
§815.172. Concurrent Emergency Unemployment Compensation Programs.
New §815.172 stipulates that Texas will pay extended unemployment
benefits after all regular and emergency unemployment compensation
has been exhausted. There are additional administrative requirements
associated with implementing extended benefits that are not applicable
to other 100 percent federally funded emergency unemployment compensation
programs. Ordering payment of extended benefits after all other types
of unemployment benefits have been exhausted helps the Agency make
better use of the resources available to serve claimants. This ordering
of benefits is allowable under P.L. 111-5.
§815.173. Eligibility Requirements during a Period of 100
Percent Federally Shared Benefits.
New §815.173 provides that individuals who exhaust emergency
unemployment compensation are otherwise eligible for extended unemployment
benefits even if their benefit year for regular benefits has exhausted.
This provision is intended to consider individuals eligible for extended
benefits if they exhaust emergency unemployment compensation after
their benefit year ends.
§815.174. Financing of Extended Benefits.
New §815.174 clarifies that the benefit charging provisions
of Texas Labor Code, Chapter 209, Subchapter E relating to taxed employers,
do not apply to circumstances in which 100 percent of extended benefits
are shared by the federal government. The charging provisions are
intended to account for the 50 percent of benefits that would be funded
from the state's share under the standard provisions of the Federal
EB Law. Because there is no state sharing under this subchapter, the
taxed employer charging provisions are not necessary.
This section further clarifies that charges to governmental employers
(§209.084 of the Act) and Indian tribes (§209.0845 of the
Act) shall apply.
The effective date of these rules shall be immediate upon the date
of filing the adoption with the Secretary of State pursuant to Texas
Government Code §2001.036(a)(2).
These rules are adopted on an emergency basis pursuant to:
Texas Government Code §2001.034, which provides the Commission
with the authority to adopt rules on an emergency basis;
Texas Government Code §2001.036, which provides the Commission
with the authority to adopt rules with an expedited effective date;
Texas Labor Code §301.0015(a)(6) and §302.002(d), which
provide the Commission with the authority to adopt, amend, or repeal
such rules as it deems necessary for the effective administration
of Agency services and activities; and
Texas Labor Code §301.062, which provides the Commission with
the power to make findings and determine issues under Title 4 of the
Texas Labor Code.
§815.170.State "On" and "Off" Indicator Weeks: Conditional Trigger.
(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) 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) of this section result in an "on" indicator.
(c) 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 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 shall pay unemployment compensation benefits under
other emergency unemployment compensation programs that may be in
effect prior to paying extended benefits under this subchapter.
§815.173.Eligibility Requirements during a Period of 100 Percent Federally Shared Benefits.
(a) Notwithstanding other eligibility provisions for
extended benefits in the Act, an individual's eligibility period shall
include any eligibility period provided for in P.L. 111-5, Division
B, Title II, §2005(b).
(b) This section applies as long as §815.170 of
this subchapter is in effect.
§815.174.Financing of Extended Benefits.
(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.
This agency hereby certifies that the emergency adoption
has been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office of the Secretary of State on July 21, 2009.
TRD-200902974
Reagan Miller
Deputy Division Director, Workforce Policy and Service Delivery Branch
Texas Workforce Commission
Effective Date: July 21, 2009
Expiration Date: November 17, 2009
For further information, please call: (512) 475-0829