During the coronavirus (COVID-19) pandemic and related economic downturn, businesses that have laid off workers may be more likely to receive a request for business information from the US Department of Labor in connection with a Trade Adjustment Assistance petition.
The Trade Adjustment Assistance (TAA) for Workers Program is a federal program that provides reemployment services and benefits to workers who have lost jobs or experienced reduced hours and wages due to increased imports or shifts in production outside the United States. The TAA for Workers Program is administered by the Office of Trade Adjustment Assistance (OTAA) within the US Department of Labor (DOL). The TAA Program has undergone changes through periodic Trade Act amendments,  resulting in different funding levels, program benefits and services, and performance and reporting requirements.
Requests for benefits and services under the program are initiated when a TAA petition is filed with the DOL. Petitions may be filed by three workers from a company, a company official, a union or other duly authorized representative, a state workforce official, or an operator of an American Job Center (AJC). DOL then investigates whether foreign trade was a contributing cause of the job losses. If DOL certifies a group of workers under the petition, the workers are individually eligible to apply for a number of benefits and services, at no expense to the workers’ firm.
The benefits and services aim to help participants obtain new jobs and earn wages comparable to their prior employment, and include employment and case management services (such as career counseling), training, apprenticeship programs, income support to workers who are enrolled in full-time training and have exhausted their unemployment insurance, job search and relocation allowances, a wage supplement, and a health coverage tax credit.
For a worker to be eligible to apply for TAA Program benefits and services, the worker must have been part of a group of workers that was the subject of a petition filed with and certified by DOL. The worker group eligibility requirement requires that a significant number or proportion of the workers in the workers’ firm, or a subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated, due to the following “foreign trade” criteria:
The petition is filed simultaneously with both DOL and the governor of the state in which the workers’ firm is located. Upon receiving a TAA petition, a DOL program analyst is assigned to investigate whether foreign trade was a contributing cause of the workers’ job loss or threat of job loss. Under the applicable statute, DOL is required to issue a determination on a TAA petition as soon as possible but no later than 40 days following the filing date of the petition. 
The program analyst collects information from the workers’ company (the subject firm) as well as from customers that used the products or services of the subject firm, and then analyzes the data and other facts to determine whether increased imports or shifts in production or services contributed to the layoffs or work reductions. The program analyst must also determine whether the required minimum proportion of the workforce either has been laid off or is threatened with layoffs.
The DOL program analyst typically sends an email to the subject firm or customer, providing the applicable DOL form that the business needs to complete, along with the specific date ranges at issue, and the deadline to respond. This is usually the first time the business becomes aware of the petition, and oftentimes the receiving company official does not know what the form is, why the data is being requested, or whether they must respond.
Responding to the forms is mandatory and the Secretary of Labor is authorized to obtain this information through issuance of a subpoena if the recipient fails to comply with the data requests.  Although it is not clear how often DOL uses this subpoena power, it is a sufficient incentive to most companies to provide the information. DOL data requests fall into the following categories:
DOL publishes basic information regarding petitions, investigations, and determinations in the Federal Register and on its website, but a major concern for responding businesses is the confidential, proprietary, or otherwise sensitive nature of company data requested by DOL. Each of the DOL data collection forms contain assurances that DOL “will protect the confidentiality of the information provided to the full extent of the law,” including under the Trade Secrets Act and the Freedom of Information Act (FOIA).
DOL is required by Executive Order 12600 to notify the submitting entity prior to FOIA disclosure of its data. Notably, DOL frequently receives FOIA requests for the data provided by firms and will disclose two pieces of data: the estimated number of allegedly affected workers and the countries impacting workers. DOL notifies the business of this disclosure when it sends the data request. If DOL receives a FOIA request for the entire form, it will separately notify the company. The respondent may object to public disclosure within 14 calendar days of notice by providing a detailed statement indicating why it believes that disclosure of the information could cause competitive harm. DOL will disclose the information if the firm fails to provide a timely objection to disclosure.
If DOL certifies the TAA petition, the business may then be contacted for additional information by the relevant state agency that administers the benefits and services. The state agency should only need the names and mailing addresses of the affected workers—if the agency asks for more detailed information, the business should consult with legal counsel as to what is required under the federal law.
As is clear from the TAA Program’s eligibility criteria, COVID-19’s impact is not, standing alone, a basis for TAA certification, but workers may still be eligible to apply for TAA if their firm is impacted by a closure or work stoppage.
Regardless of whether DOL ultimately grants or denies the petition, it seems likely that many workers or unions will file petitions without fully understanding whether and how the criteria apply to COVID-19-related job losses. Perhaps in recognition of this, DOL has published a Fact Sheet explaining the TAA Program’s eligibility criteria under the banner of a COVID-19 response, which states that workers may be eligible to apply.
Collecting responsive information was a time-consuming process even before the ongoing disruption caused by COVID-19, but DOL is still subject to the statutory deadline and will expect businesses to respond within the allotted timeframe. Businesses that have recently laid off workers, or may do in the near future, can get ahead of responding to a TAA petition information request by building this possibility into workforce change planning.
Navigating the TAA process is beneficial to your employees and helpful in maintaining a stronger workforce. Responding to DOL’s inquiry can have downstream effects before other government agencies, so a coordinated and measured approach to preparing any submission to DOL is beneficial.
We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.
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 TAA programs are also administered by the US Department of Commerce (DOC) and US Department of Agriculture (USDA). The DOC program, TAA for Firms, provides financial assistance to manufacturers and service firms affected by import competition. The USDA administers TAA for Farmers, whereby certain agricultural producers can receive payments if a decline in prices for their commodity were caused at least partly by imports.
 The Trade Act of 1974 established the Trade Adjustment Assistance for Workers, Alternative Trade Adjustment Assistance (ATAA), and the later Reemployment Trade Adjustment Assistance (RTAA) programs. The Trade Adjustment Assistance Reauthorization Act of 2015 (TAARA 2015) (Pub. L. No. 114-27, Title IV), enacted on June 29, 2015, reauthorized and changed key provisions of the Act.
 19 U.S.C. § 2273(a).
 See 19 U.S.C. §§ 2272(d)(3)(B) and 2321.