Rule-Making Notices (Hearing Notices)

The department may provide records made or maintained by the department in connection with the administration of the unemployment insurance program to any government unit, corresponding unit in the government of another state, or any unit of the federal government. No such unit may permit inspection or disclosure of any record provided to it by the department unless the department authorizes the inspection or disclosure.

Section 108.24 (4), Stats., provides that any person who, without authorization of the department, permits inspection or disclosure of any unemployment insurance record shall be fined not less than $25 nor more than $500 or may be imprisoned in the county jail for not more than one year or both. Each such unauthorized inspection or disclosure constitutes a separate offense.

Section 108.14 (2), Stats., provides that the department may adopt and enforce all rules which it finds necessary or suitable to carry out Chapter 108, Stats.

Summary of the proposed rule

Federal requirement. The U.S. Department of Labor issued its final rule regarding Federal-State Unemployment Compensation Program: Confidentiality and Disclosure Requirements of State UC Information on September 27, 2006. (71 Fed. Reg. 56830; codified at 20 CFR Part 603) States must amend their laws, rules, procedures, and existing agreements to comply with the federal rule by October 27, 2008.

The first federal Notice of Proposed Rulemaking concerning confidentiality and disclosure of state unemployment insurance information was issued in 1992. (57 Fed. Reg. 10064) In 1993, the Department of Workforce Development promulgated Chapter DWD 149, regarding disclosure of unemployment insurance records, based on the 1992 proposed federal rule. Chapter DWD 149 is being updated and reorganized to reflect the requirements of the final federal rule issued September 2006.

Records confidential. The proposed rules provide that unemployment insurance records made or maintained by the department are confidential and not open to public inspection or disclosure, except as specified. The department may disclose the following unemployment insurance records if the disclosure is in the interest of the unemployment insurance program and does not interfere with the efficient administration of the program: (1) public domain information; (2) appeals records and decisions with social security numbers redacted; (3) any unemployment insurance record that has been screened to prevent identification of the worker or employing unit that is the subject of the record or which could foreseeably be combined with other publicly available information to reveal any identifying particulars of an individual or employing unit; (4) unemployment insurance records to claimants, employing units, their agents, and authorized third parties and the permissive disclosure of records. The department shall disclose unemployment records required by federal and state law.

Notice to claimants and employers. The department shall notify every claimant at the time of application and periodically thereafter that confidential unemployment insurance information pertaining to the claimant may be requested and used for other governmental purposes, including verification of eligibility for other government programs. The department shall notify every employer subject to ch. 108, Stats., annually that wage information and other confidential unemployment insurance information may be requested and used for other governmental purposes, including verification of an individual's eligibility for other government programs.

Disclosure to claimants, employing units, their agents, and authorized third parties. An unemployment insurance record concerning a claimant is available to that claimant. A record concerning a claimant's work for an employing unit, an identification of the employing unit as a party of interest, or a record concerning status or liability under Chapter 108, Stats., is available to an employing unit.

The department may disclose a record to an attorney or agent of a claimant or employing unit only if the attorney or agent furnishes a written statement authorizing release or if the department verifies that the attorney or agent represents the claimant or employing unit. An elected official is an agent when acting in response to a constituent's inquiry about an unemployment insurance issue. A union representative is an agent when acting for a claimant.

The department may disclose an unemployment insurance record to an authorized third party that is not an agent of an individual or employer if the third party provides a written release containing specified information and signed by the individual or employer to whom the information pertains. The department may disclose an unemployment insurance record if the purpose specified either provides a service to the individual such that the individual expects to receive a benefit as a result of signing the release or carries out administration or evaluation of a public program to which the release pertains.

Mandatory disclosure of records. The proposed rules list federally-mandated disclosures. These federal mandates include information necessary for the proper administration of the UI program, such as the Internal Revenue Service for purposes of unemployment tax administration, the U.S. Citizen and Immigration Services for purposes of verifying a claimant's immigration status, federal officials for purposes of oversight of the UI program, and any other state to properly administer its UI program. Some of the federal-mandated disclosures are included in a system of required information sharing primarily among state and local agencies administering several federally-assisted programs.

Other required disclosures include disclosure to the state lottery board, upon request, information regarding any delinquency in the payment of contributions under ch. 108, Stats., by any person who desires to contract with the lottery board for the retail sale of lottery tickets and information to any government unit in the administration of a program of general relief or general assistance.

Permissive disclosure of records. If the department approves the purposes for which unemployment insurance records are requested, the records may be disclosed to the U. S. Department of Labor, the Unemployment Insurance Advisory Council, a government official with authority to obtain the information pursuant to a subpoena or court order, a public official or its agent or contractor for use in the performance of official duties, and any other disclosure as provided in these rules.

Confidentiality safeguard requirements. Third party recipients of unemployment insurance records must comply with all of the following confidentiality safeguard requirements:

•   Safeguard disclosed information against unauthorized access or redisclosure.

•   Use the disclosed information only for the purposes authorized by law and consistent with any applicable record disclosure agreement.

•   Store disclosed information in a safe place physically secure from unauthorized access.

•   Store and process information in electronic format in a way that unauthorized persons cannot obtain the information by any means.

•   Ensure that only authorized persons are given access to disclosed information stored in a computer system.

•   For third parties authorized to receive information by a claimant or employer maintain a copy of the written release authorizing each access and ensure that access to disclosed information will be only to those authorized under the release.

•   Instruct all persons having access to disclosed information of the confidentiality requirements and the penalties for unauthorized disclosure, and have these persons sign an acknowledgement that they have been so instructed and agree to report any infraction promptly.

•   Dispose of all disclosed records and copies after the purpose for which the information disclosed has been served or when the department considers appropriate, except for disclosed information possessed by any court.

•   Allow the department to conduct on-site inspections of the disclosed records and to audit for compliance with this section.

No person, government unit, or other entity to which the department discloses an unemployment insurance record may redisclose information obtained from that record without the prior written approval of the department.

Record disclosure agreement. The proposed rules include provisions from the federal regulation regarding when a record disclosure agreement shall be in effect before disclosure of unemployment insurance records, other circumstances when a record disclosure agreement may be required, and what must be in the agreement.

Fee for disclosing unemployment insurance records. The federal regulation requires and the proposed rules provide that the department shall charge a fee for disclosing an unemployment insurance record when the disclosure is for a third party, government unit, or entity that requests the record and disclosure is not necessary for the proper administration of the unemployment insurance program, unless only incidental staff time and nominal processing costs are involved in making the disclosure. The department may charge a fee for disclosures in certain other circumstances. The fee may not exceed the actual, necessary, and direct costs of location and disclosure.

Comparison with federal regulations

The proposed rules are being updated to comply with the federal regulation regarding state disclosure of unemployment insurance records.

Comparison with rules in adjacent states

The adjacent states either have or will be updating their statutes and rules on disclosure of unemployment insurance records to comply with the federal regulation by October 27, 2008.

Summary of factual data and analytical methodologies

The proposed rules update the department's rules on disclosure of unemployment insurance records to comply with 20 CFR Part 603.

Initial Regulatory Flexibility Analysis

The rule will affect small businesses but will not have a significant economic impact on a substantial number of small businesses. The Department's Small Business Regulatory Coordinator is Elaine Pridgen, [e-mail]. wi.us, [phone].

Analysis used to determine effect on small businesses

The proposed rules may affect small business as employing units who may request records, but the rules have no financial impact on these businesses and does not change the types of records they may access. There are no reporting, bookkeeping, or other procedures required for compliance with the proposed rule and no professional skills are required of small businesses.

Fiscal Estimate

The proposed rules have no fiscal effect because most disclosures of unemployment insurance records involve only incidental staff time and nominal processing costs.

State fiscal effect

None.

Local government fiscal effect

None.

Long-range fiscal implications

None.