Section 472.12 of the Regulations of the Industrial Commissioner was recently repealed and replaced with a new version.  This section governs employer responses to requests from the New York Department of Labor (“DOL”) for employee information in connection with a pending unemployment insurance application.  This memorandum summarizes the changes to Section 472.12.

Deadline to Respond

The prior version of Section 472.12 set forth the time frame for an employer’s response to a DOL request for employee information, as well as when an employer could be excused from the requirement.  The new Section 472.12 continues to permit an employer 10 calendar days from the date of the claim notice to respond to a notice of potential charges.  All other information pertaining to an unemployment insurance claim must now be received by the DOL “within the number of days specified in the request for the information,” as opposed to the previous deadline of 10 calendar days.  As a result of this modification, employers must carefully review each request for information to determine the deadline to submit a response. 

The new Section 472.12 also adds provisions discussing the permissible methods by which the DOL can communicate its request for information, as well as the methods by which an employer may respond to the request.  The DOL may now communicate its request for information by letter, electronic communication, fax, telephone, through the State Information Data Exchange System (“SIDES”) (if the employer agrees), or any other DOL approved method.  Employers may respond to these requests by fax, electronic communication, SIDES, U.S. Postal Service, private delivery service, telephone (if the request requires), or any other DOL approved method.  The regulation also now imposes an obligation on employers to notify the DOL of any changes in the employer’s contact information.  If the employer fails to alert the DOL of those changes, a request for information sent to the last known address, phone number, fax number, or email address will be deemed to have been sent to the correct address.  This could result in an employer missing the deadline to submit requested information.

The DOL’s Receipt of a Response

An employer’s response to a DOL request will be deemed received on the date indicated by the date stamp on an incoming document.  If the DOL did not date stamp the response, the receipt date will be deemed to be two days prior to the date the document was entered into the DOL’s imaging system.  If an employer disputes the receipt date, the employer has the burden of providing proof that the response was timely.  This may include a confirmation of delivery, stamped receipt by an agent of the Commissioner of Labor, or an affidavit of personal service on the Commissioner or his/her agent.

Adequacy of Employer Response

The new Section 472.12 also sets forth new criteria regarding the contents of an employer’s response to information requests.  In order for an employer’s response to be considered “adequate,” the response must:  (i) specify the reason for the issue affecting the claimant’s eligibility for or entitlement to unemployment insurance benefits; (ii) answer all questions in good faith and in detail; and (iii) provide all relevant information and documentation that would assist the DOL in making a determination regarding the claimant’s eligibility for or entitlement to benefits.

Potential Consequences of an Untimely Response

If the Commissioner determines that overpayment of benefits occurred due to the employer’s failure to timely or adequately respond to a claim notice or other request for information, the employer’s account will nonetheless be charged for the overpayment.  These charges will continue through the date on which the DOL makes a determination that the claimant is no longer eligible for or entitled to benefits. 

There are, however, exceptions to this rule.  If it is the first time that an employer fails to timely respond, the employer will be relieved of charges relating to the overpayment of benefits if it demonstrates good cause for its untimely response.  The Commissioner determines whether an employer’s excuse constitutes good cause; however, the regulation states that “good cause” includes any event that the employer could not have reasonably anticipated and that affected its ability to timely respond.  Any subsequent untimely responses will result in an employer being charged for overpayments unless the lateness was due to DOL error or a disaster emergency.

Please contact us if you have any questions about this new regulation and its requirements.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW.  IT IS NOT TO BE REGARDED AS LEGAL ADVICE.  THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP, 2013