Rep. Petryk, Rep. Penterman, and Sen. Roth have proposed a major revamp of unemployment support that would re-make the Department of Workforce Development into a government-sponsored job coach that would, presumably, guide claimants to new jobs.
In place of a free labor market, where claimants get to make their own decisions about which jobs to apply to and how to go about searching for work, these politicians want to mandate government involvement and even control of claimants’ job search efforts. Here is what they propose.
The Department must provide claimants with four potential job opportunities, one or more of which could be a temporary help company. Claimants who do not apply for work with that temp company are likely to lose their eligibility for unemployment benefits.
RESEA training will be mandatory for all claimants. This requirement is already understood as required by the Department, but this proposal removes any discretion and makes attending a job search training seminar mandatory for all claimants who seem likely to exhaust their eligibility.
That drug testing for claimants must be implemented by the Department. As previously noted, this drug testing would require the Department to provide drug treatment counseling as well for those who test positive or fail to appear for a drug test.
As of a claimant’s second weekly certification, claimants must have a resume on the Job Center of Wisconsin website. This requirement already exists for every claimant’s benefit year, however, per the job registration requirement. SeeLaura Hoffman, UI Hearing No.17002961MW (16 Nov. 2017) (claimant must complete job registration requirement within 14 days of initiating a claim for unemployment benefits). So, this proposal is nothing more than shortening the requirement to seven days.
Starting with the third week claimed, two of a claimant’s four job searches must be job applications or job interviews.
When there are three weeks of unemployment benefits left in a claimant’s benefit year, the claimant must attend a reemployment counseling session with a Department staffer.
The Department must compile reports regarding claimants’ job experience for the three years after the claimant first receives unemployment benefits. This part of the proposal is likely to run afoul of federal claimant confidentiality requirements. To the extent that this request reflects general job experience and claimant experience broken down by county or region, there is nothing preventing such a general report from being prepared by the Department right now.
* Requiring the Department of Workforce Development to engage in universal workforce assessments and reemployment services by providing individuals early access to customized workforce services to get them access to employment services at the start of the UI claim.
o This means claimants will receive an online career readiness assessment when starting their claim to identify their career skills and talents.
o DWD will then use this information to develop a personalized employment plan for the individual.
o Require the claimant to participate in services to help complete their employment plan, like resume writing workshops, soft-skills training, and employment workshops.
Perhaps the most odious change being proposed is to add the following language in a proposed Wis. Stat. § 108.01(2m) as a fundamental goal of unemployment benefits:
The Social Security Act requires that, in order for an individual to be eligible for reemployment assistance benefits, the individual must be able to work, available to work, and actively seeking work. The reemployment assistance program in Wisconsin should enact and focus on policies that complement individuals’ efforts to find employment.
There has been a great deal of litigation in other states who ended their PUC and PUA and PEUC benefits prematurely under the pretense that these programs kept the unemployed from finding jobs. Litigation has been lost in some of those states that had a reemployment provision similar to the one being proposed here. Courts found that reemployment, rather than financial support after a job loss, meant that states had to end these programs prematurely. So, this proposal in essence is to make it easier for a state to end future federal emergency benefits under the guise of reemployment.
Note: To reinforce the importance of reemployment over unemployment, the majority of the proposed bill is concerned with changing the name of unemployment to reemployment.
The only helpful change in this proposal is to expand the earnings disregard to $30 or 40% of a claimant’s weekly benefit rate, whichever is greater, for calculating a claimant’s partial benefit. For example, a claimant with a weekly benefit rate of $250 would have an earnings disregard $100 rather than the current $30. So, weekly earnings of $90 would mean the claimant would keep all $250 in unemployment benefits that week, and weekly earnings of $400 would mean the claimant would still receive $49 in unemployment benefits that week. Unfortunately, this proposal keeps the $500 wage cap in place, so a claimant still loses all eligibility when earnings wages of $500 or more.
Note: The proposal also includes bonuses to employers for hiring long term unemployed workers. Such efforts are generally considered ineffectual or even foolish.
In short, this proposal seeks to make a government agency into an entity that micro-manages claimants’ job search efforts. Free-market Republicans are certainly not behind this proposal. Rather than creating an environment by which claimants could educate themselves and improve their job skills, this proposal is mainly concerned with forcing job searches down the throats of claimants so as to create a pool of labor for temp companies to draw on. Say what you want about the big government plans of Ted Kennedy, but he never sought to turn government into a mechanism for attacking working people when they are down and jobless.
At the September 16th Advisory Council meeting, a new employer representative appeared, as David Bohl, general counsel to J. H. Findorff & Sons, replaced John Mielke of ABC-Wisconsin.
Note: As of October 18th, however, John Mielke is still listed as a council member.
At this meeting, the Department provided the following information to council members:
A letter from Secretary-designee Pechacek asking the Advisory Council to approve another program integrity assessment (estimated to be $3.3 million). Left out of this letter is that the program integrity fund, as of August 2021 (see line 228), already has $19,444,000. Regardless, the council approved of this additional assessment.
Presented SB545, a proposed bill to legalize marijuana. Under this bill, employees who test positive for marijuana use and who are then discharged would not be disqualified from receiving unemployment benefits.
Presented SB547, a proposed bill to allow people who refuse vaccinations to qualify for unemployment benefits (discussed here).
Introduced a future emergency regulation (now available as EmR2125) that extends the time for recharging of unemployment benefits to employers’ accounts or the balancing account until 30 June 2022 and continues to waive any interest charges for reimbursable employers. After caucus, Council members voiced their support for this new emergency regulation. In general, charging relief for pandemic-related job losses needs to be requested because only a few kinds of job losses are presumed to be pandemic-related. But, the deadline for those requests expired as of 14 May 2021. Only for new, back-dated pandemic-related claims are charging relief requests still viable,
The Financial Report for this month indicates that benefit payments are now around half of what they were a year ago, that the unemployment taxes employers pay continue to decline because of fewer claims being paid, and that the unemployment trust fund balance was nearly $950 million.
The eligibility ban means that the plaintiffs in the class action and disabled workers like them are being treated differently from non-disabled workers in Wisconsin. Because of their disability, these SSDI recipients are presently ineligible for unemployment benefits. This different treatment because of their disability status is de jure discrimination against the disabled, in violation of federal laws that prohibit discrimination based on disability.
Specifically, the class action and the motion for a preliminary injunction asks the Court to stop the current enforcement of the law and instead permit otherwise eligible disabled workers to receive benefits. The lawsuit also asks the court to provide plaintiffs with the opportunity to apply for benefits at any point over the past six years during which they would have been eligible but for their receipt of SSDI benefits. Finally, some class members received benefits but were compelled by the state to repay those benefits, usually with a penalty, because they were receiving SSDI benefits. The lawsuit seeks reimbursement for the benefits and penalties. This relief is required by the Americans with Disabilities Act, the Rehabilitation Act and the Due Process Clause of the United States Constitution.
SSDI recipients who may have questions about this case can call 608-841-2150.
The US Dep’t of Labor has announced the beginning of an effort to modernize unemployment claim-filing to make the process both more equitable and less susceptible to fraud.
This effort is centered around the creation of “tiger” teams that are “composed of experts across many disciplines including fraud specialists, equity and customer service experience specialists, UI program specialists, behavioral insights specialists, business intelligence analysts, computer systems engineers/architects and project managers.” These teams will not only work on hardening a state’s claim-filing system from on-line attacks but also in the creation of modular systems that can be deployed for making claim-filing both easier to use and manage.
Wisconsin is one of six states to receive initial funding and support for these tiger team reviews (the other states are Colorado, Washington State, Kansas, Virginia and Nevada).
This funding is a BIG deal. The Secretary’s office is to be congratulated for securing this funding and the arrival of a Tiger team in Wisconsin, as it represents the first major push to revamp the claim-filing process in this state.
Obviously, neither claimants nor employers will see any immediate changes with this tiger team. But, one of the major roadblocks for reform have been the upper-level staffers decrying any changes as impossible in light of current unemployment law and regulations. Those objections lack a factual or legal basis. See, for instance, how able and available questions have become more illegal over the last 18 months in the name of simplifying claim-filing requirements.
So, this tiger team represents for the first time a group of experts who can call out the bad advice and guidance being offered from the upper-level managers inside the Department. And, there certainly is a need to identifying some of the fundamental problems that have taken root in Wisconsin.
This report finds that Michigan did exceptionally well during the pandemic through temporary measures created for dealing with the pandemic but that long-term, state-based problems continue to make regular unemployment claims in that state insufficient and inaccessible.
The comparable data on Wisconsin is NOT good, especially when considering that the folks in Michigan under-reported many of the key problems in Wisconsin. In regards to regular unemployment claim-filing access, Wisconsin scored 318.5 out of 900 possible points, a number that puts Wisconsin towards the bottom in the mid-west (as well as nationally).
New Mexico 493.0
North Dakota 463.0
South Dakota 404.0
And, the Covid-19 response in Wisconsin is probably given too much credit, as the executive orders during the pandemic were, unlike what happened in other states, quite limited and left numerous claim-filing requirements in place (like job registration and attending RESEA training) while also NOT creating the kind of blanket experience-rating waiver that occurred in other states like Michigan and North Carolina.
Even with this inflated score including an additional 200 (out of a possible 500) points for the state’s Covid-19 response, Wisconsin still ends near the bottom of all the states.
In 2007, a weekly certification for regular unemployment benefits consisted of 11 questions. Since then, the only major legal change in unemployment law that would affect claim-filing requirements was the increase in weekly job searches from two to four. Yet, now a weekly certification requires answering 120+ questions. As I wrote previously:
Today, filing an unemployment claim is the equivalent of filing a full 1040 tax return but without any instructions or advice available about how to actually provide all of the required information.
Putting in the work to see what is going on reveals just how broken the claims-filing process truly is. The Department should know better but is pretending that a few creases and some folds there will smooth over all the problems and somehow transport the state back to what existed in 2007.
Unemployment was completely undone in the 2010s in this state, and pretending otherwise provides a monumental dis-service to all involved.
So, bringing tiger teams to Wisconsin to evaluate fully and revamp the claim-filing process is an essential and welcome step. Kudos again to the Secretary’s office for getting Wisconsin into this program.
A few weeks ago there were media reports about legislators circulating a bill to allow employees who quit or are discharged for refusing a vaccine to qualify for unemployment benefits.
Well, they actually did it. Meet SB 547. The bill creates a host of exemptions for those workers who refuse vaccines and lose their jobs as a result to qualify for unemployment benefits. The legislators even included a provision automatically to waive charges to employer accounts for unemployment benefits paid out to those refusing a vaccine, something the legislators failed to do in 2020 for pandemic-related job losses.
Think of all the other issues that have been ignored by the state legislature during the past year and half that have made unemployment more difficult for Wisconsin workers.
having to quit a job for lack of childcare, like when schools close (instead, workers who lose jobs because of childcare need to argue they quit for good cause because of the illegal actions of the employer, that the employer has violated a basic term and condition of employment established for the job, or give up on claiming regular unemployment benefits and shift to PUA benefits, which end this week),
waiving requirements that employees who are quarantined or sick with Covid-19 symptoms must still be able and available for work and must still search for jobs (these requirements were part of the job search waiver emergency rule that the legislature went out of its way to nix),
granting an automatic experience rating waiver for all job losses during the pandemic (as happened in nearly all other states) and which has been so messed up in Wisconsin that few employers even know about it, and
There are so many, many issues that could and need to be addressed. Unemployment benefits for those refusing a vaccine is NOT one of them.
Finally, there is a claim-filing snafu on the portal today. Claimants are being told that they have already filed their weekly certification for PUA benefits for the week ending 9/4/2021 on Sept. 3rd.
Normally, the laws of time are that future events need to occur in the future, not in the past. But, for some unknown reason, the claim portal is telling PUA claimants that they have already filed their weekly certification for a week not yet over — the last week PUA benefits are available.
The support for D21-01 through D21-08 is disappointing, as basic questions remain unanswered about why these proposed changes are needed, including:
Why are penalties against employers increasing so much in the last four years that the separate fund proposed in D21-01 is now needed?
Why is the Department in D21-06 re-writing unemployment law to its benefit when it loses key court cases?
Why the Department in D21-06 is allowing administrative law judges to ignore Commission precedent and unemployment law and regulations without any consequences?
How will an option to be a fiscal agent in D21-08 actually fix the confusing mess of excluded employment and unemployment taxes that currently exists when a family member cares for another?
In financial news, the unemployment trust fund has $977.5 million as of August 7th.
The Department introduced to council members SB485/AB487, a bill that would exclude uber and lyft drivers from regular unemployment benefits. Strangely, the Department has yet to introduce AB394, a bill that would revamp the over-payment waiver standard to add an equity and good conscience standard to whether an over-payment is affordable or not.
Indeed, there is some interesting data and issues with this latter bill. The Department’s fiscal estimate for AB394 indicates that in the 2018 and 2019 calendar years combined there were only around 350 no-fault over-payments (lack of fault is a precondition for an equity and good conscience waiver). Given that there were 41,197 non-fraud over-payment decisions in 2019 and 44,634 non-fraud over-payment decisions in 2018 (for a combined total of 85,831 non-fraud over-payment decisions, seethe 2020 Fraud Report at 9), this number of around 350 is just unbelievable. Less than 0.5% (1 out of every 200 who allegedly made a non-fraudulent mistake) of these cases are without claimant fault?
This conclusion makes even less sense when comparing the number of non-fraud decisions in these years relative to the number of initial claims filed and the number of claimants actually paid unemployment benefits in these years.
That is, in 2018 and 2019 non-fraud mistakes are around one out of every seven initial claims and one out of every three paid claims. If non-fraudulent mistakes are truly this high (and in years when claim-filing was at an all-time low), then the Department’s guidance to claimants and the claim-filing process are themselves completely broken and inadequate. Claimants are making claim-filing mistakes because the Department is completely inadequate in assisting claimants when they are filing unemployment claims.
But, since the pandemic started there have been no questions or discussion over the claim-filing process at an Advisory Council meeting.
Labor’s proposed increase in the weekly benefit rate attracted a great deal of attention from the management side. The Department presented three different scenarios of what the proposed increase would mean, depending on low, medium, and high unemployment — based on the number of weeks of unemployment paid per a typical claim. The management reps, however, want to know an additional variable — what changes in the unemployment rate itself would mean under this proposed weekly benefit rate. The staffer for the Department tried to explain that the three scenarios necessarily implicated a change in unemployment rates (more unemployment claims is correlated with longer periods of unemployment), but the management reps were insistent on seeing numbers directly rated to unemployment rates.
The problem with management representatives’ demand for unemployment rates is that those rates are no longer correlated with the number of unemployment claims filed or paid in Wisconsin. In 2007, the unemployment rate in Wisconsin was 4.8%, but 638,548 initial claims were filed that year and 332,982 of those initial claims (52.15%) were paid.
In 2019, the unemployment rate in Wisconsin was down to 3.3%, roughly 68% of the unemployment rate from 2007. Yet, initial claims in 2019 were down even further to 287,043, and paid claimants were down still more to 129,888. Those 2019 numbers are 45% and 39% of comparable 2007 numbers. In other words, claim-filing has declined to such an extent that it no longer has an historical connection to unemployment rates.
One tidbit in the Department’s research response that went without comment was the disclosure that 2,167 claimants in a typical year win approval of benefits under the 30-day quit to try a new job provision. Since 130,710 claimants were paid unemployment benefits in 2018, this 2,167 figure means that roughly 1 out of every 100 claimants received their unemployment benefits because of this quit exception.
Note: In its research response, the Department reports that 3,425 claimants received unemployment benefits in 2019 under the 30-day quit provision, but that this number was higher than expected because the number of claims being filed increased that year. The number of initial claims in 2019 was up slightly to 287,043 from 279,912 in 2018, hardly a major increase. Moreover, the claimants who were paid benefits in 2019 was actually down in 2019, at 129,888, from 130,710 in 2018. So, it appears that the 30-day quit exception is actually more significant in allowing claimants to receive unemployment benefits that what the Department is reporting.
The other research response that drew ire from management representatives was that the Department indicated that the ability of temp companies to immediately challenge claimant eligibility about missed interviews, declined job offers, and job search contacts was problematic during the initial modernization process. The Department indicated that these management proposals could eventually be implemented and indeed voiced support for them, but that the initial modernization effort could not include them because the modernization request for proposals had already been written and because claimant confidentiality issues would need to be addressed to allow employers to respond in the desired ways. Management reps, however, were unhappy with even this kind of delay. They want to object to claimant eligibility immediately.
At the 15 July 2021 council meeting, labor and management representatives exchanged their own proposals. Labor representatives in general attempt to make unemployment somewhat financially viable in Wisconsin. Management representatives build on prior “reforms” to make unemployment even more difficult and rare. Here is a rundown of those proposals.
1.Fix the funding for the unemployment trust fund by changing how tax schedules are applied. Currently, the tax schedule to be applied to employers is based on the amount of money in the trust fund (which was $919.2 million as of 10 July 2021). This labor proposal would change the criteria to using an unemployment trust fund health number called an Average High Cost Multiple or AHCM.
Schedule A = When UI Trust Fund is below .5 AHCM
Schedule B = When UI Trust Fund is between .5 – 1.0 AHCM
Schedule C = When UI Trust Fund is between 1.0 – 1.25 AHCM
Schedule D = When UI Trust Fund is above 1.25 AHCM
Prior to the pandemic, when the trust fund had nearly $1.7 billion, the average high cost multiple was just under 1. In April 2021, when the trust fund still had slightly over $1 billion, the multiple was around 0.5.
2021 Wis. Act 59 is unnecessarily keeping unemployment tax rates at Schedule D for 2021 and 2022, and this labor proposal would also keep the tax rates at Schedule D. Per Wis. Stat. § 108.18(3m), tax schedules are based on the following trust fund balances (as of June 30th of the preceding calendar year):
Schedule A: less than $300 million
Schedule B: less than $900 million
Schedule C: less than $1.2 billion
Schedule D: more than $1.2 billion
In general, the actual tax rates for Wisconsin employers continued to fall in 2021 from 2020 tax rates because of fewer claims being paid to employees of Wisconsin employers. With fewer claims being paid, employers’ account balances are growing. As a result, employers have been moving to lower tax brackets within Schedule D.
2.Gradually Increase the maximum weekly benefit rate for unemployment benefits to $450 per week.
This proposed change would not take effect for another two years, however.
Current weekly maximum UI benefit $370
2023 Benefit Year $20 increase $390
2024 Benefit Year $20 increase $410
2025 Benefit Year $20 increase $430
2026 Benefit Year $20 increase $450
This increase is half of what the Department proposes in D21-22 and needs to include a repeal of the $500 or more earnings prohibition to be effective, which the Department also proposed in D21-21. For further explanation, see the examination of these Department proposals here. As already noted, Wisconsin’s weekly benefit rate is the second lowest in the mid-west:
State Max. WBR Max. w/ dependents
IL $484 $667
IN $390 $390
IA $481 $591
MI $362 $362
MN $740 $740
OH $480 $647
WI $370 $370
3.Eliminate the one-week waiting period, which is also included in Department proposal D21-19 and previously discussed here.
4.Expand worker mis-classification to all industries and make the penalties identical to claimant fraud. Here, labor representatives support adoption of Department proposal D21-26 and the recommendations of the governor’s misclassificaton task force. As noted in this discussion of the Department’s 2021 proposals, there are administrative and criminal penalties for claimant fraud as well as a different standard of proof for claimant fraud versus mis-classification by employers. It is not clear what the labor representatives are referring to with their proposal about identical penalties.
5.Request the Department to review tax schedules to assess the tax equity of those schedules.
What the labor representatives mean by tax equity is unknown.
1. When upgrading the Department’s mainframe, make sure employers have the ability to verify immediately any work search information that refers to that employer as well as the ability to report immediately any kind of work refusal, a missed job interview, or a decline of a job offer.
Also, job search audits done pursuant to Wis. Stat. § 108.14(20) catch the interview and job offer information. This proposal would essentially give employers a direct avenue for challenging claimant eligibility when those claimants are NOT their former employees. For temp companies that have already seen their unemployment tax bills markedly reduced, this proposal secures an additional tool for cutting that tax bill even further. When claimants cannot collect unemployment benefits, then unemployment tax bills decline even further.
2.End the exclusion of union members from weekly job search requirements. Claimants who are working part-time, starting a new job in four weeks or less, will return to their current employer in the next eight weeks or so, AND union members who register on their union’s out-of-work list are exempt from doing four job searches per week. This proposal would require union hiring halls and union members who are on out-of-work lists with their unions to do four job searches per week through the union hiring hall.
This proposal does not make sense in light of how union hiring halls work. Hiring halls function based on the employers who contact them for available workers. But, that is not the point. Rather, this proposal is to draw media attention to this benefit union members enjoy and thereby create a further divide between them and most other workers in the state.
3.Redefine who an employee and independent contractor is for all fields of law to apply a single, common definition built around gig-work.
This proposal would completely upend almost all workplace law in Wisconsin, as one of the main changes being proposed is a person would be an independent contractor whenever a person signs a contract with an employer that states it is their intent to be independent contractor. In contrast to current law that specifies that such an arrangement can NOT be decided subjectively by the parties to the agreement, the proposal here is to give the parties the unilateral authority to create an independent contractor relationship on their own through a services contract.
Note: In practical terms, this authority is unilateral in the sense that individual employees have little to no bargaining power to set the terms and conditions of their employment.
Various “factors” are proposed to assess if a person is an independent contractor or not, but these factors are written so broadly and with so many loopholes that independent contractor status is all but assured. For instance, the services contract can still include a final schedule for delivery and a range of work hours as long as the time personally spent on providing services is left open. And, if costs for licenses, insurance, and certifications are borne by the person, then all is dandy with this gig-worker arrangement. In short, these criteria are not limitations but a road map for how to craft this independent contractor agreement.
Moreover, only four out of ten of these “factors” are needed for an independent contractor relationship to be established. So, an employer can make plenty is mistakes and still succeed on making their employees into gig-workers. A garbage truck driver, a machinist in a metal shop, and even a police officer could easily meet at least four of these factors and so be classified as independent contractors under this proposal.
Finally, this proposal also contains a poison pill that prevents any county or municipality from limiting this sweeping change to employment status in Wisconsin.
Regardless of any state law, however, this proposal if implemented would be a massive headache for employers, as federal wage and hour law, discrimination law, and collective bargaining law would still classify numerous “independent contractors” as employees for federal purposes. This proposal, in other words, is just plain silly and not serious at all.
4.End the 30-day quit-to-try a new job provision.
This proposal is another change that would greatly benefit temp companies by eliminating one of the main mechanisms employees may still qualify for unemployment benefits after trying out a job and quitting within the first 30 days.
By eliminating this provision, employees of temp companies would have to remain at every assignment regardless of fit, skill, wage, and working conditions until the assignment is ended by the employer to retain any hope of qualifying for unemployment benefits at some future date. Indentured servitude, in short, is making a comeback with this proposal.
5.Link the number of weeks of unemployment benefits available to the unemployment rate.
This proposal has been a bugaboo since 2010, as it essentially undermines the ability and scope of unemployment programs to respond in times of crisis. States that have implemented this linkage, like Florida and North Carolina, have been unemployment disaster zones, in part, because regular unemployment benefits were cut off prematurely during the pandemic.
6.Numerous misconduct and substantial fault modifications.
For misconduct, management representatives want to add additional disqualifications concerning employer or customer information while also removing a requirement that employees act intentionally for any alleged “violation.” Absenteeism and tardiness violations will also be both more stringent and applicable regardless of actual reason for the absence or tardiness. Finally, employees would be strictly liable for a violation of an employer’s social media policy, once the employees are made aware of that policy.
As previously noted, these changes would directly run afoul federal requirements and loose Wisconsin employers their federal unemployment tax (FUTA) credit.
Note: A state’s administration of unemployment is funded through the Federal Unemployment Tax Act on their payroll (the first $7000 paid to each employee) that employers pay, called FUTA. Should a state be found to be applying the loss of claimant wage credits for “unintentional” misconduct, Wisconsin employers would lose their FUTA tax credit and be subject to the full 6.0% unemployment tax rate rather than just 0.6%.
In regards to substantial fault, management reps want to undue the court decisions in Operton v. LIRC, 2017 WI 46, and Easterling v. LIRC, 2017 WI App 18, by redefining inadvertent error into harmless error that does not also violate an employer’s written policies. In other words, any error that does not qualify as misconduct would now almost assuredly qualify as substantial fault.
Insofar as state UC law provides for claims to be backdated, the state must continue to take new applications for MEUC as provided in their state law for late filing of claims after the date of termination or expiration (whichever comes first).
While not addressed so far in federal guidance, it seems that a claimant, who suddenly becomes eligible for possible MEUC benefits after Sept. 4th, should have the option of applying for and receiving MEUC benefits. The original post follows.
MEUC (Mixed Earners Unemployment Compensation) benefits have been over-shadowed by PUA, PEUC, and PUC benefits. But, many self-employed individuals who also engage in regular wage work may be eligible for this benefit that originated with the Continued Assistance Act.
MEUC benefits pay an additional $100 per week from the week ending 1/2/2021 thru the week ending 9/4/2021. You are eligible for MEUC benefits if:
you receive regular unemployment benefits or PEUC benefits (receiving PUA benefits would mean that you have insufficient wage earnings from covered employment to establish a benefit year and so you are receiving those PUA benefits in large part based on your self-employment income), and
you have $5000 in self-employment earnings in either 2019 or 2020.
The Department has created a FAQ for MEUC benefits. The problem is that the application for MEUC benefits is not available. Apparently, the application only becomes available to claimants on the portal when the Department concludes they might be eligible for MEUC benefits.
The Department’s own data indicates that very few MEUC applications have been filed and very little in MEUC benefits have been paid out. From the amount paid and the number of applications and the set amount of MEUC benefits at $100 per week, I can estimate the number of successful MEUC applications each week (presuming that prior approved applications continue to be paid).
From this data, out of 264 applications (i.e., initial MEUC claims) for MEUC benefits, around 64 claimants have been successful, an approval rate of only 24.25%. Obviously, a denial of MEUC eligibility can be appealed and probably should be.
But, those who might be eligible for MEUC benefits need to hurry. After September 4th, initial claims for MEUC benefits will no longer be possible. So, if you have self-employment income and regular wage work that should make you eligible for regular unemployment benefits or the PEUC extension,then you should apply for MEUC benefits.
Unfortunately, getting that MEUC application is difficult. You need to call a claims specialists at 414-435-7069 and ask to file a MEUC initial claim.
Call every few days with this same request until you get to file a MEUC initial claim. If the staffer does not know what you are talking about, then call again to connect with another staff. Repeat until you get to file a MEUC initial claim. Seethis post about my own experience with phone support.
Finally, I have already seen several self-employed individuals who are mistakenly reporting their self-employment income as regular wages on their weekly certifications. When receiving regular unemployment benefits, self-employment income and hours are reported separately from regular wage work. Hours spent in self-employment, if 16 or more hours in a week, will automatically disqualify you completely from receiving any unemployment benefits that week. But, self-employment income does NOT count at all against your weekly benefit rate (Wisconsin may be the only state that does NOT offset self-employment income from weekly benefits). As stated in the employers’ handbook:
Note: When receiving PUA benefits, self-employment income is handled in completely opposite manner. This is one reason why PUA benefits are only available when not eligible at all for regular unemployment benefits.
So, people who list their self-employment income as regular wages are seeing that self-employment income mistakenly offset against their weekly benefit rate. And, because of that mistaken treatment, the Department cannot see that they might be eligible for MEUC benefits because they have self-employment income.
These folks need to call a claims specialist as well to correct their weekly certifications. Before making that call/calls, list out the new hours and earnings that need to entered for each weekly certification that needs to be corrected.
UPDATE (18 Sept. 2021): Federal guidance, UIPL No. 16-20 Change 6 (3 Sept. 2021) at 11, has been issued which allows claimants to file PUA initial claims until 30 days after the program’s expiration — i.e., 4 October 2021.
This federal guidance also spells out that:
States must notify every individual who had previously filed a PUA claim at any time while the PUA program was in effect and was denied for any week because they were not unemployed, partially unemployed, or unable or unavailable to work for one of the COVID-19 related reasons available at the time. Below are some examples of who is included in this population.
o If the individual selected “none of the above” or skipped selecting a COVID-19 related reason and was denied only for this reason, they are included in this population.
o If a state offered a free-form text box and, upon evaluation against the COVID-19 related reasons available at the time, the state determined that the individual was not unemployed, partially unemployed, or unable or unavailable to work for one of the listed reasons, thus denying them – then the individual is included in this population.
o If an individual was denied for a reason other than failure to self-certify to a COVID-19 related reason(s), they are not included in this population (e.g., if the individual was denied because they were eligible for regular UC instead, they are not included in this population).
PUA claims previously denied. In addition, states MUST re-assess and likely approve PUA claims that were previously denied for reasons now covered.
Processing certifications returned from previously denied PUA weeks. An individual must be found eligible for a previous week if they: (1) were previously denied for a week only because they did not self-certify to one or more of the COVID-19 related reason(s) available at the time; (2) upon receiving notification of the expanded eligibility list of COVID-19 related reasons, self-certified that they were unemployed, partially unemployed, or unable or unavailable to work due to one or more of the COVID-19 related reasons; and (3) meet all other eligibility requirements for the program.
UIPL No. 16-20 Change 6 at 6. This mandate applies to PUA claims denied after an appeal tribunal decision and even a decision by the Labor and Industry Review Commission. Id. at 7.
Back-dating of claims. Good cause for back-dating a PUA initial claim or weekly certification is unnecessary. UIPL No. 16-20 Change 6 at 7.
Back-dating of PUA claims is possible well after October 2021 if possible eligibility for PUA is not established until later. Because of claims-processing delays (far too many Wisconsin claimants are still waiting for weekly certifications dating back to March 2020 to be paid), claimants may not have a definitive answer about their eligibility for regular unemployment benefits until well after October 4th of 2021:
if they: (1) filed a regular UC claim prior to the end of the 30-day required period for accepting new PUA applications after the date of state termination or program expiration (whichever comes first) and (2) are found ineligible for regular UC (or PEUC or EB) after the end of the 30-day required period. However, such an individual must file the PUA claim within 21 days of the determination of ineligibility for regular UC. The state must notify affected individuals of this PUA filing deadline, which may be done as part of the notification that their UC (or PEUC or EB) claim was denied or in a separate notification.
Which state to file a PUA initial claim? Claimants should file their PUA initial claim in the state where they suffered their pandemic-related job loss. UIPL No. 16-20 Change 6 at 8.
PUA documentation requirements. The documentation requirements instituted by the Continued Assistance Act remain in place. But, for claimants filing a second PUA initial claim (for instance, they caught Covid-19 in the summer of 2021 after returning to work earlier in the year), “the state must obtain such documentation substantiating employment or self-employment (or the planned commencement of such) prior to releasing payment on the new claim.” UIPL No. 16-20 Change 6 at 10.
A complete description of all the pandemic-related job loss reasons that qualify for PUA benefits are listed in attachment I to this federal guidance. If you need any assistance or guidance concerning these pandemic job-loss reasons, read this description. The original post follows.
Given the delays in getting cases heard (for the week ending 7/31/2021, 4,732 hearings were scheduled, but the number of hearings still waiting to be scheduled stood at 13,151, up from 12,780 as of 5/1/2021 despite over 4000 hearings be scheduled each week), hundreds if not thousands of claimants will not find out about their eligibility for regular unemployment benefits or their PUA eligibility until well after September 4th, when PUA benefits expire. After that date, filing an initial claim for PUA benefits will likely NOT be possible. So, claimants need to consider filing an initial claim for PUA benefits while they still can.
Note: While the Labor and Industry Review Commission is correcting many of the bad decisions by the Department, the sheer number of bad decisions has led to a crushing caseload at the Commission. Simple errors by appeal tribunals concerning wrong dates or the failure to apply federal guidance, for example, are not being corrected. And so, appeals to the Commission are needed. The result is that an appeal filed today may take a year to be decided by the Commission.
Furthermore, the Department is currently re-investigating all paid claims. Should the Department conclude that you were not eligible for the unemployment benefits paid to you, you will likely face an over-payment of at least $20,000 when all the additional PUC and LWA benefits are added up (and amounts up to $40,000 or more are possible). Without the option of possibly re-qualifying for PUA benefits, those amounts will be owed without any ability to collect under the program specifically designed to help those who do not normally qualify for regular unemployment benefits — PUA benefits.
Wisconsin: where initial claims go to die
Very few initial PUA claims in Wisconsin — just one out of four — have led to the payment of PUA benefits. Here is how Wisconsin compares to its neighbors and other key states in regards to PUA claims and weekly benefits paid.
ST Ini. Claims First Paymts Percent Weeks Comp.
WI 177,745 43,838 24.66% 1,373,636
IA 98,863 38,926 39.37% 1,089,524
IL 651,856 274,512 42.11% 14,443,527
IN 691,499 299,076 43.25% 7,233,059
MA 984,279 631,681 64.18% 17,709,893
MI 1,782,454 1,001,341 56.18% 29,078,945
MN (State's initial claim data is n/a) 3,081,476
NC 502,777 268,930 53.49% 8,396,506
NJ 800,024 593,233 74.15% 20,375,078
OR 346,410 115,293 33.28% 4,124,322
PA 2,402,228 1,297,421 54.01% 39,283,873
Of these states, Wisconsin has by far the lowest percentage of PUA initial claims leading to the payment of benefits. As a consequence, very few PUA weekly certifications in Wisconsin are leading to the payment of PUA benefits. The weeks compensated in Wisconsin are significantly lower than all other states but Iowa, and Iowa is only lower than Wisconsin because the PUA initial claims filed in Iowa are 56% of the already low number of PUA initial claims filed in Wisconsin.
Outside of Iowa (in general a rural state), these other states are seeing both much higher numbers of PUA initial claims being filed and a much higher percentage of those PUA initial claims being approved.
Data for initial claims for regular unemployment benefits in Wisconsin is not much better. Here is the percentage of initial claims for regular unemployment benefits that have been paid since the pandemic started in March 2020.
ST Ini. Claims First Paymts Percent
WI 1,503,897 415,110 27.60%
AR 529,685 209,554 39.56%
CO 1,508,834 646,831 42.87%
IA 668,514 344,746 51.57%
IL 4,051,684 1,513,292 37.35%
IN 2,128,074 663,556 31.18%
MN (State's initial claim data is n/a)
MI 2,594,914 1,386,616 53.44%
NC 1,903,903 788,429 41.41%
NJ 2,297,069 902,070 39.27%
OR 914,583 497,657 54.41%
PA 3,230,852 1,500,655 46.45%
Again, Wisconsin has the lowest percentage of initial claims for regular unemployment benefits being paid. Prior to the pandemic, initial claims for regular unemployment benefits were being paid at a 38.81% clip, over 10% higher than what is happening since the pandemic started. Only Indiana, another state that like Wisconsin has made claim-filing extremely difficult, is the percentage of initial claims for regular unemployment being paid under 32%.
I have been diagnosed with COVID-19 or am experiencing symptoms of COVID-19 and am seeking a medical diagnosis.
A member of my household has been diagnosed with COVID-19.
I am providing care for a family member or a member of my household who has been diagnosed with COVID-19.
A child or other person in my household for which I am the primary caregiver is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency and such school or facility care is required for me to work.
I am unable to reach my place of employment because of a quarantine imposed as a direct result of the COVID-19 public health emergency.
I am unable to reach my place of employment because I have been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
I was scheduled to commence employment and do not have a job or am unable to reach the job as a direct result of the COVID-19 public health emergency.
I have become the breadwinner or major support for my household because the head of the household has died as a direct result of COVID-19.
I quit my job as a direct result of COVID-19.
My place of employment is closed as a direct result of the COVID-19 public health emergency.
I am self-employed (including an independent contractor and gig worker) and experienced a significant reduction of my customary or usual services because of the COVID-19 public health emergency.
I was denied continued unemployment benefits because I refused to return to work or accept an offer of work at a worksite that, in either instance, is not in compliance with local, state, or national health and safety standards directly related to COVID-19. This includes but is not limited to, those related to facial mask wearing, physical distancing measures, or the provision of personal protective equipment consistent with public health guidelines.
I provide services to an educational institution or educational service agency and am unemployed or partially unemployed because of volatility in the work schedule that is directly caused by the COVID-19 public health emergency. This includes, but is not limited to, changes in schedules and partial closures.
I am an employee and my hours have been reduced or I was laid off as a direct result of the COVID-19 public health emergency.
If one of these pandemic job-loss reasons applies to you, then a backup PUA initial claim is possible.
If none of these pandemic job-loss reasons apply to you, then you probably do NOT qualify for PUA benefits and a backup PUA initial claim would be pointless.
In selecting one or more reasons, there should be little to no ambiguity or question for why that reason applies to you. If you need to explain the reason selected, then it probably does NOT apply. For example:
The restaurant either closed to the public or it did not close (note, a dining room closed to the public is closed, even if the restaurant still serves take-out customers).
A medical provider wanting you quarantined — period — is needed for the quarantine reason. Deciding to quarantine yourself out of your own personal health concerns does not count, unless you are a medical provider yourself.
There must be an actual and significant reduction in work hours tied to Covid-19. If you normally worked around 20 hours a week, and you worked 18 hours a week here and there but 21 and 22 hours on other weeks, there does not seem to be an actual reduction in work hours tied to the pandemic even if you are making less money.
You must be caring for someone in your household or sick yourself from Covid-19 or waiting on a test result for Covid-19. Just being sick and thinking the illness is related to Covid-19 is not enough.
In other words, select the reason or reasons that apply. You should not need to provide any kind of elaboration. And, if you only check the box for “none of the above,” then the Department will automatically deny your PUA initial claim because you have not identified a valid reason for granting you PUA benefits.
Identify the start date for the backup PUA initial claim
The second key piece of information you need is the date of your pandemic-related job loss. From the reasons listed above, identify the specific date that the event occurred.
If multiple reasons apply on different dates, then you will need to file separate initial PUA claims for each separate date.
If there are multiple reasons that apply for the same date, then select all of those reasons for the date. For instance, if your workplace closed on the same day that the childcare provider closed, then both the business closure reason and the primary caregiver because of closed childcare reason apply, and both should be selected. As long as the reasons occur in the same calendar week, they will apply for the same PUA initial claim.
How to file a backup PUA initial claim
First, try to file this new/backup PUA claim on the portal. Once you login to the portal, be careful where you click.
The Department has instituted a set of screening questions as well. Depending on how you answer these questions, you may end up in two options that prevent you from filing a new/backup PUA initial claim.
In option one, you want to avoid having a pending initial claim for regular unemployment benefits that keeps you from filing a PUA initial claim, especially since the Department is unlikely to have that initial claim for regular unemployment resolved before September 4th.
So, if you end up with this option, you need to select “yes” for being denied regular unemployment insurance benefits even if the regular UI initial claim is still pending (since only 27% are being paid, your initial claim for regular unemployment benefits will likely be denied).
For option two, make sure the pandemic-related reasons for your PUA initial claim have changed from what you previously filed. A second reason in addition to the original reason is a legally sufficient change.
Finally, if manage to get through this screening process, here is what the on-line PUA initial claim form looks like.
If the on-line/portal option is not available, call the PUA support line at 608-318-7100 to see if you can file the PUA initial claims with a staffer. The staffer will likely take you through the same set of screening questions listed above.
Second, if the staffer refuses to take your initial claim over the phone, fill out the new PUA form and mail it and supporting documents to:
Pandemic Unemployment Assistance (PUA) Program PO Box 7905 Madison WI 53707
Make sure to note the date you mail in this application and to keep copies of whatever you send in or submit.
As usual, look for paper copies in the mail about any decisions. Messages on the portal are generally NOT helpful.
A backup PUA claim only applies to those currently receiving regular unemployment benefits or PEUC benefits, those who have had their PUA initial claim denied, or those whose initial PUA claim has yet to be approved.
Those currently receiving PUA benefits should probably NOT file a backup PUA claim.
Those whose PUA claims were denied, and those denials are currently in litigation (either with a hearing before an administrative law judge or an appeal before the Labor and Industry Review Commission) should consider filing a backup PUA claim on the chance that they lose their current case.
Those who filed late appeals for PUA claims being denied or who did not appeal those denials should consider filing a backup PUA initial claim if the original PUA initial claim cannot be revived. See the discussion of late appeals in the unemployment primer and the discussion of bad advice allowing late appeals or withdrawn appeals to be re-activated in delays, part 2 about how to revive these kinds of claims. If you can revive your claim in the next few weeks, do NOT file a backup PUA initial claim.
For claimants receiving PEUC benefits who do not have a pandemic-related job loss (see above), then a backup PUA claim is not an option. You cannot extend your benefits past the week ending 9/4/2021 with PUA benefits. Any benefits paid after Sept. 4th will depend on whether you can establish a new benefit year based your prior wage earnings. For what is a benefit year, see the discussion of benefit year eligibility in the unemployment primer.
As previously described, the premature end for PEUC benefits and other federal supplements like PUC and PUA will have problematic economic consequences for everyone.
PUA (unemployment for those that do not qualify for regular unemployment benefits), PEUC (extensions for those eligible for regular unemployment benefits), and PUC (the $600/$300 supplement being paid out to those receiving either regular UI/PEUC or PUA) benefits are currently slated to expire on Sept.5th/6th. So, the last week of these benefits available will be the week ending Sept. 4th.
“The report, authored by TCF senior fellow and unemployment expert Andrew Stettner, who correctly forecasted two previous UI cliffs (Dec 26 and March 14), finds that, based on rates of reemployment and when workers entered federal programs, there will be 7.5 million workers remaining on PUA + PEUC when benefits are eliminated on Labor Day. This includes:
4.2 million workers on the PUA program. - The largest group is in California (more than 1M workers), but there are more than 150,000 individuals impacted in Indiana, Maryland, Massachusetts, Michigan, New Jersey, New York, Ohio, and Pennsylvania each.
3.3 million workers on the PEUC program. - California is again the largest impacted state (900,000), but Florida, Illinois, Massachusetts, Michigan, New Jersey, New York, and Pennsylvania also each have 125,000 workers subject to the loss. - TCF projects that only 4 states will be able to transition recipients exhausting PEUC onto state EB, meaning that just 170,000 of the 7.5M workers (2 out of 100) cut-off on Labor Day will continue receiving any assistance.
These figures are on top of the 1.25 million workers that have already been cutoff from benefits in 26 states and who will remain unemployed by Labor Day, TCF estimates.
Additionally, there are still nearly 3 million workers receiving the $300 boost to state UI through FPUC, all of whom will lose this aid come Labor Day, stripping $3.5 billion per month from the economy.
The 7.5 million cutoff is far larger than recent historical precedent following recessions, when only 1.3 million workers were cut off in 2013 and 800,000 were cut off in 2003.
The unemployment rate is 1.7 times higher than it was at the start of the pandemic (3.5 percent) and the Black unemployment rate is still a sky-high 9.2 percent.
“TCF’s projections come as yet further data demonstrate that unemployment benefits are not hindering, but rather helping, the nation’s economic recovery. A recent report from Homebase found that states that announced an early end of federal UI benefits saw employment decline by roughly 1 percent, while states that did not end benefits early saw employment growth of 2.3 percent.
“This week’s unemployment data continue to show that, while the jobs market is recovering, the level of unemployment claims remains historically high, and is unlikely to return to normal levels any time soon, especially as the Delta variant rages. In the week ending July 30, there were still over 400,000 new weekly claims for benefit (324,000 state NSA and 94,000 PUA). Most importantly, there are a whopping 12.5 million continuing claims for benefits, including 5.16 million on PUA (down 89,000) and 4.25 million on PEUC (up 12,000), nearly all of whom reside in states where benefits will end on September 6.
For claimants in Wisconsin, this cutoff means many will need to file initial claims in the next week or so (i.e., this August) IN CASE their current initial claim is reversed or denied. As far too many initial claims are still waiting to be decided now for a year or longer, claimants still have no idea how or why which program — PUA or regular UI/PEUC — is right for them.
More on when and what to include in a backup PUA initial claim in another post or an MEUC initial claim if self-employed but receiving receiving regular or PEUC benefits (updated 11 August 2021).