By: Jennifer Miller
In 2011, the Trade Adjustment Assistance Extension Act of 2011(“TAAEA”) was signed into law. Under section 252 of TAAEA, the federal government required states to enact stricter rules for employers’ responses to requests for information regarding unemployment claims. Pursuant to TAAEA, states were to make the required changes by October 21, 2013. In Georgia, the Georgia General Assembly failed to act by this deadline, forcing the Georgia Department of Labor (“GDOL”) to take action. The result: a new rule, which the GDOL notified employers of on November 22, 2013.
The new rule can be found at Chapter 300-2-3-.05 of the Rules of Georgia Department of Labor. As explained by the GDOL here, under the new rule:
An employer’s account shall be charged and may not be relieved of charges, regardless of whether the associated determination to pay benefits is later reversed on appeal or if an overpayment is established, if the employer or an agent of the employer was at fault for failing to respond timely or adequately to a departmental request of information relating to the claim with improper benefits and the employer or an agent of the employer also failed to timely or adequately respond during the previous twelve calendar months to any requested reports with respect to three (3) individual claims established.
In simple terms: employers must respond to the GDOL’s requests for information in a timely manner and with adequate information. Failure to do so could result in an employer paying more and its experience rating, which is used to determine their tax assessment, being impacted.
Employers who are found to have violated this new rule should note that there is a small glimmer of hope as employers can appeal the GDOL’s determination that they failed to timely or adequately respond. However, the burden on an appealing employer is high. When challenging the GDOL’s determination that a response was untimely, to succeed on appeal, an employer must show: (a) the written request for information was mailed to an incorrect employer address; or (b) proof that the response was provided prior to the deadline. When challenging a determination that a response was inadequate an employer or their agent must show their response was complete and provided all information requested. Employers who establish “substantial good cause,” as explained in the new rule, can also avoid the effects of the new rule.
While employers should take this new rule seriously, it is also worth noting that this rule may not be here to stay. As even noted by the GDOL the Georgia General Assembly must enact conforming legislation in order for this rule to remain in effect. Accordingly, the Georgia General Assembly could change this rule or provide employers with more guidance during the upcoming legislative session, which is slated to start January 13, 2014. Until then, employers and their agents should be careful to provide timely and adequate responses to all requests for information from the GDOL.