[Federal Register Volume 62, Number 78 (Wednesday, April 23, 1997)]
[Notices]
[Pages 19813-19814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10466]
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DEPARTMENT OF LABOR
Employment and Training Administration
Federal-State Unemployment Compensation Program: Unemployment
Insurance Program Letters Interpreting Federal Unemployment Insurance
Law
The Employment and Training Administration interprets Federal law
[[Page 19814]]
requirements pertaining to unemployment compensation as part of its
role in the administration of the Federal-State unemployment
compensation program. These interpretations are issued in Unemployment
Insurance Program Letters (UIPLs) to the State Employment Security
Agencies (SESAs). The UIPL described below is published in the Federal
Register in order to inform the public.
UIPL 22-97
Several questions have arisen concerning the coverage of certain
governmental services performed as a result of natural disasters. These
questions have concerned Section 3309(b)(3)(D) of the Federal
Unemployment Tax Act, which permits the exclusion from coverage of
temporary governmental services performed ``in case of * * *
emergency''. This UIPL is issued to restate the Department's
interpretation concerning what services are performed ``in case of * *
* emergency'' and to provide the Department's position on the
distinction between emergencies and disasters. This UIPL does not
represent a change to the Department's interpretation of Federal law.
Dated: April 17, 1997.
Raymond J. Uhalde,
Acting Assistant Secretary of Labor.
U.S. Department of Labor
Employment and Training Administration, Washington, DC 20210
Classification, UI
Correspondence Symbol, TEUL
Date, April 14, 1997
Directive: Unemployment Insurance Program Letter No. 22-97
To: All State Employment Security Agencies
From: Grace A. Kilbane, Director, Unemployment Insurance Service
Subject: Exclusion of Governmental Services Performed ``In Case of
Emergency''
1. Purpose. To restate a Departmental interpretation of a
Federal law exclusion from unemployment compensation (UC) coverage
for governmental services performed in case of emergency and to
provide the Department's position on the distinction between
emergencies and disasters.
2. References. The Federal Unemployment Tax Act (FUTA); Draft
Language and Commentary to Implement the Unemployment Compensation
Amendments of 1976--P.L. 94-566 (1976 Draft Language).
3. Background. In the past year, several questions have arisen
concerning the coverage of certain governmental services performed
as a result of natural disasters. These questions have concerned
Section 3309(b)(3)(D), FUTA, which permits the exclusion from
coverage of temporary governmental services performed ``in case of *
* * emergency''. This UIPL is issued to restate the Department's
interpretation concerning what services are performed ``in case of *
* * emergency'' and to provide the Department's position on the
distinction between emergencies and disasters.
Rescissions, None
Expiration Date, Continuing
4. Federal Law Requirements. The Department has long taken the
position that, because FUTA is a remedial statute aimed at
overcoming the evils of unemployment, it is to be liberally
construed to effectuate its purposes and exceptions to its coverage
requirements are to be narrowly construed. This rule of construction
avoids ``difficulties for which the remedy was devised and adroit
schemes by some employers and employees to avoid the immediate
burdens at the expense of the benefits sought by the legislation.''
\1\ As such, provisions requiring coverage of services are construed
broadly, while exceptions to required coverage are construed
narrowly.
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\1\ This rule of construction was set forth on page 5 of
Supplement #5--Questions and Answers Supplementing Draft Language
and Commentary to Implement the Unemployment Compensation Amendments
of 1976--P.L. 94-566, dated November 13, 1978. Several Federal court
decisions, including two involving Federal UC law, United States v.
Silk, 331 U.S. 704, 712 (1947) and Farming, Inc. v. Manning, 219
F.2d 779, 782 (3d Cir., 1955), state this principle. More recently
this principle was stated in UIPL 30-96, dated August 8, 1996.
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Among other things, Section 3304(a)(6)(A), FUTA, requires
coverage of services performed for certain governmental entities.
Specifically, it requires coverage of services to which Section
3309(a)(1) applies. Among these services are those excluded from the
term ``employment'' solely by reason of Section 3306(c)(7). Section
3306(c)(7) applies to services performed for a ``State, or any
political subdivision thereof'' and instrumentalities of these
entities. Exceptions to this required coverage are permitted only
when specified by Federal law.
Section 3309(b)(3) excludes from required coverage services
performed for the above governmental entities if such service is
performed by an individual in the exercise of his duties--
(d) as an employee serving on a temporary basis in case of fire,
storm, snow, earthquake, flood, or similar emergency. * * *
[Emphasis added.]
5. Discussion. In his remarks on the legislation which created
the emergency exclusion, Representative Corman, the acting chairman
of the responsible subcommittee, stated that--
A similarly worded exclusion is also contained in the Social
Security Act and in the unemployment compensation program for
Federal employees. This exclusion has the purpose of excluding only
those individuals hired or impressed into service to deal directly
with an emergency or urgent distress associated with an emergency.
[122 Cong. Rec. 35131 (1976). Emphasis added.]
In 1976 the Department quoted the above language and stated
that--
[T]he exclusion applies to individuals who are hired or
impressed to assist in emergencies and includes such tasks as fire-
fighting, removal of storm debris, restoration of public facilities,
snow removal, road clearance, etc. [1976 Draft Legislation, page 27.
Emphasis added.]
The FUTA exclusion applies only to services performed ``in case
of'' fire, storm, snow, earthquake, flood, or similar emergency.
``Emergency'' is defined in the Second College Edition of the
American Heritage Dictionary as ``an unexpected situation or sudden
occurrence of a serious and urgent nature that demands immediate
action.'' The FUTA language ``in case of'' indicates that it is the
emergency itself--or the urgent distress caused by the emergency--
which must directly cause the need for the services to be performed.
Therefore, for the services to be performed ``in case of * * *
emergency,'' a direct relationship must exist between the services
and the emergency, as defined above.
Whether services performed as a result of a disaster are also
performed ``in case of * * * emergency'' must be determined on a
case-by-case basis. ``Disaster'' is defined in the Second College
Edition of the American Heritage Dictionary as ``an occurrence
causing widespread destruction and distress.'' Since disaster-
related services may be performed after the need for immediate
action has passed, they are not necessarily performed ``in case of *
* * emergency.'' For example, services performed removing hurricane
debris to gain access to a hospital are performed ``in case of * * *
emergency'' when there is an immediate need to obtain access to the
hospital. However, when the removal of hurricane debris from the
roadside does not require immediate action, services are not
performed ``in case of * * * emergency'' and may not be excluded
from coverage on that basis.
Conversely, an emergency situation does not always rise to the
level of a disaster. For example, an emergency situation need not be
widespread. Thus, even in the absence of a disaster, services may be
performed ``in case of * * * emergency'' and the services may be
excluded from coverage.
Each State is responsible for obtaining sufficient facts to
support a determination under provisions of State law corresponding
to the FUTA exclusion that the services were performed ``in case of
* * * emergency.''
6. Action required. State agency administrators are requested to
provide this UIPL to appropriate staff.
7. Inquiries. Direct questions to your Regional Office.
[FR Doc. 97-10466 Filed 4-22-97; 8:45 am]
BILLING CODE 4510-30-M
