1. WIOA and UI Confidentiality: What States Should Know About the Recent Amendments to 20 CFR 603
11/22/2016

2. Today’s Moderator Suzanne Simonetta Chief, Division of Legislation
Office of Unemployment Insurance
USDOL

3. Pam Mertens Agnes Wells Supervisory UI Program Specialist USDOL

4. WIOA 101 Signed into law on July 22, 2014 Took effect July 1, 2015
First major legislative reform of the public workforce system in 15 years
Supersedes the Workforce Investment Act of and amends the Adult Education and Family Literacy Act, the Wagner-Peyser Act, and the Rehabilitation Act of 1973

5. WIOA 101
Designed to help job seekers access employment, education, training, and support services to succeed in the labor market and to match employers with the skilled workers they need to compete in the global economy
Reaffirms the role of the customer-focused one-stop delivery system
Mandates enhanced and increased coordination among key employment, education, and training programs
Focuses on performance accountability for WIOA core programs

6. Performance accountability and use of wage records
Access to wage records has great priority under WIOA
Use of wage records is mandatory for WIOA core program performance and eligible training provider performance reporting purposes
Disclosure of wage records for certain DOL and ED evaluations is mandatory under WIOA 116(e)(4)

7. Reconciling 20 CFR Part 603 with WIOA
States are prohibited from disclosing confidential UC information, except as permitted in 20 CFR 603
BUT
WIOA requires the use of wage records for program accountability and evaluations
How can states comply with WIOA requirements and 20 CFR Part 603?

8. UI Confidentiality 101
DOL’s confidentiality and disclosure regulations at 20 CFR Part 603 govern the disclosure of confidential UC information by States and State UC agencies
Final rule published on September 27, 2006
Based on “methods of administration” requirement in Federal law

9. UI Confidentiality 101
States must maintain the confidentiality of “any UC information which reveals the name or any identifying particular about any individual or any past or present employer or employing unit, or which could foreseeably be combined with other publicly available information to reveal any such particulars.”
Confidential UC information, including wage records, may not be disclosed except as permitted by 20 CFR Part 603

10. Changes to 20 CFR Part 603
Essential for state UI agencies to coordinate disclosure of wage records for WIOA performance accountability and program evaluations
On August 19, 2016, the Department of Labor published the final rule for WIOA in the Federal Register – became effective October 18, 2016
Contains several clarifications to the UI confidentiality regulation to make it easier for states to comply with WIOA requirements:
Required disclosures
Definition of public official
Performance of official duties

11. Mandatory disclosures
Listed in 20 CFR 603.6
States are required to disclose all information necessary for the proper administration of the UC program – includes disclosures to claimants, employers, the IRS, and USCIS
States are also required to disclose confidential UC information to the Railroad Retirement Board, SNAP, TANF, HUD, and other Federal programs

12. A new mandatory disclosure
WIOA requires states to cooperate, “to the extent practicable”, in the following types of evaluations conducted by DOL and ED:
Evaluations of core programs under WIOA;
Evaluations under section 169, WIOA, to evaluate :
Workforce Development Activities under WIOA Title 1;
Other federally funded employment-related programs and activities authorized under other provisions of law;
Evaluations under section 242(c)(2)(D), and sections 12(a)(5), 14, and 107 of the Rehabilitation Act of 1973 (applied with respect to programs carried out under Title I of that Act); and
Evaluations under section 10(b) of the Wagner-Peyser Act.

13. A new mandatory disclosure
Cooperation in these evaluations includes, in part, the timely provision of data and responses to surveys, and allowing site visits for the Secretary of Labor, the Secretary of Education, or their agents
These disclosures must be done in accordance with appropriate privacy and confidentiality protections outlined in 20 CFR Part 603
“To the extent practicable’’ means that the disclosure would not interfere with the efficient administration of State UC law

14. Permissive disclosures
Permissive disclosures – 20 CFR 603.5
The regulation permits disclosure under certain circumstances as long as the disclosure does not interfere with the proper and efficient administration of the UC program
Three types of disclosures relevant to WIOA
Disclosures on the basis of informed consent
Disclosures to public officials for use in the performance of official duties
Disclosures to agents or contractors of public officials

15. Informed consent
States may disclose confidential UC information on the basis of informed consent
The entity requesting the information must obtain a written, signed release from the individual or employer whose information is being sought
The release must include a statement specifically identifying the information to be disclosed, the specific purpose for the disclosure, and all parties who may receive the information
The purpose for the disclosure must be limited to providing a service or benefit to the individual, or carrying out administration or evaluation of a public program to which the release pertains

16. Disclosures to public officials
Under 20 CFR 603.5(e), disclosure of confidential UC information to a public official for use in the performance of his or her official duties is permissible when authorized by State law
“Public official” is defined as “an official, agency, or public entity within the executive branch of Federal, State, or local government who (or which) has responsibility for administering or enforcing a law, or an elected official in the Federal, State, or local government”

17. Expanded definition of “public official”
Under the revised regulation, the definition of “public official” specifically includes:
Public postsecondary educational institutions which are part of the State's executive branch
Public postsecondary educational institutions which are independent of the State’s executive branch
Publicly governed, publicly funded community and technical colleges
Performance accountability and customer information agencies (PACIAs)
The chief elected official of a local Workforce Development Area
A State educational authority, agency, or institution, as those terms are used in FERPA, to the extent they are public entities

18. What are “official duties?”
“Official duties” is defined in 20 CFR 603.5(e)(1) to mean administration or enforcement of law, or the execution of the official responsibilities of a Federal, State, or local elected official
Administration of law includes research related to the law administered by the public official
Execution of official responsibilities does not include solicitation of contributions or expenditures to or on behalf of a candidate for public or political office or a political party

19. What are “official duties?”
Under the revised regulation, the term “official duties” now includes the use of confidential UC information for the following limited purposes:
State and local performance accountability under WIOA sec. 116, including eligible training provider performance accountability under WIOA secs. 116(d) and 122;
The requirements of discretionary Federal grants awarded under WIOA; or
As otherwise required for education or workforce training program performance accountability and reporting under Federal or State law.

20. What about non-public service providers?
Only public postsecondary educational institutions that fit the definition of public official may receive confidential UC information
All other education service providers may receive only aggregate information, unless they obtain a written, signed informed consent for each individual whose information is being sought

21. Disclosures to agents or contractors
20 CFR 603.5(f) permits disclosure of confidential UC information to an agent or contractor of a public official
The data sharing agreement must hold the public official responsible for ensuring that the agent or contractor complies with all safeguards and security requirements
The agent or contractor may not redisclose the information except as permitted by 20 CFR 603.9(c)

22. Agreements
Before any disclosures take place, 20 CFR requires the State UC agency to enter into a written, enforceable agreement with the agency or entity requesting confidential UC information
This is required for disclosures on the basis of informed consent and for disclosures to public officials and their agents or contractors

23. Requirements for agreements
Agreements must include:
A description of the specific information to be furnished and the purposes for which the information is sought
Provision for paying the State or State UC agency for the costs of furnishing the information – see 20 CFR 603.8
Provision for safeguarding the information disclosed – see 20 CFR 603.9
Provision for on-site inspections of the agency, entity, or contractor to ensure that the requirements of the agreement are being met

24. Overlap with FERPA requirements
requirements are similar to requirements under FERPA for disclosures to authorized representatives – see Attachment 2 in joint guidance
Agreement between state UI agency and education authority must contain all of the elements required under FERPA and

25. Safeguards and security requirements
The state UC agency must require the recipient to:
Use disclosed information only for purposes authorized by law and consistent with the agreement
Store information in such a way that unauthorized persons cannot access it
Undertake precautions to ensure that only authorized personnel are given access
Sign an acknowledgment that all personnel have been instructed about confidentiality requirements and penalties specified in state law for unauthorized disclosure
Dispose of information when the purpose for disclosure is finished
Maintain a system sufficient to allow an audit of compliance with safeguards and security requirements

26. Payment of costs
In general, states may not use grant funds to pay any of the costs of making any disclosure of confidential UC information
Grant funds may only be used to pay the costs of only those disclosures that are necessary for the proper administration of the UC program
Costs must be paid by the recipient of the information, either in advance or by way of reimbursement
Agreement must include provision for payment of costs

27. DOL final rule issued August 19, 2016 UIPL No
DOL final rule issued August 19, 2016 UIPL No – Unemployment Insurance and the Workforce Innovation and Opportunity Act of 2014 TEGL No – Data Matching to Facilitate WIOA Performance Reporting WIOA Resource page: WIOA Advisories Quick Link: uick_Link_to_WIOA_Advisories_and_Directives

28. Office of Unemployment Insurance Agnes Wells Telephone:
Family Policy Compliance Office Telephone: Website: ww.ed.gov/fpco