Note: The comments on numerous posts on this blog already contain dozens of stories about delays with claims. Seehere, here, here, and here, for example.
These stories need to be consolidated in one place. Why not right here with this post?
So, if you have a story about a delay, please add it to the comments below. Update your story, if possible. You can include any personal details you want or leave your story anonymously. While wordpress requires you to include an e-mail address when posting a comment, only I will know about that e-mail address. And, frankly, I do not have the time to follow-up with you directly about your story. So, I will not be sharing your information with anyone.
Note: Despite the urge, please refrain from profanity or personal attacks against identifiable people. And, do try to include paragraph breaks so that your story is easier to read.
To kick off these stories, here is one I received last night from an attorney:
I helped my stepson apply in April. He has yet to see a dime. They’re waiting on adjudication on a job that he had for a couple months that he quit to take a better job.
I called two days ago and talked to someone who was utterly clueless. She was only able to tell me that the holdup is because the employer isn’t responding. I said well then make a determination based on the information you have! This is being held up for five months now because the employer didn’t respond.
She said the law requires them to send a certain number of letters out to the employer before they can make a decision without employer’s statement. She said that they’re too busy to send out all those letters. She said they’re working as fast as they can blah blah blah. She didn’t even know what a weekly certification was or where we go in the portal to change his address. It’s ridiculous! His claim is held up because of an issue that would clearly qualify him.
But [that issue] doesn’t matter because he lost his job before that due to misconduct (absenteeism). He was only at his most recent job for 2 or 3 weeks before they closed due to covid. So, he’s not going to qualify for regular UI and will qualify for PUA. However they still haven’t made decisions on his regular UI after five months!
[To get by financially, he] did do a few weeks covid testing with the national guard and is now working through a temp agency, but when he was unemployed and had no income my wife and I were supporting him which we cannot afford to do either. Like we are all hurting badly, and there are even more people out there who don’t have family to help them out.
Even if you have already posted your story in the comments on this blog, I urge you again to include your story here on this post. In this way, there will be a central location for all of these stories about the delays Wisconsin has wrought.
Update (21 Sept. 2020): Updated post title with “your stories here.”
Previously, I reviewed the initial claims numbers and how hundreds of thousands of claimants in Wisconsin are still waiting for their unemployment checks.
Here, I am reviewing what these delays mean legally to claimants and how the Department continues to make things worse.
By law, claimants only have 14 days to file an appeal of an initial determination.
Far too many claimants are looking to their unemployment portals to get a handle on what is happening with their claims. Unlike the employer-side portal, the claimant-side portal is still a confusing mess to navigate and actual documents like initial determinations, benefit year calculations, and appeal tribunal decisions are lacking (especially if more than a few months old).
Note: The utter lack of any help guides or assistance to claimants in how to navigate and find information on their portal is inexcusable. Hundreds of claimants have been sending me screenshots that are generally useless for understanding what the Department is actually deciding with their unemployment claims. They do not know what to look for because the Department provides no information to them about how to find information on the portal or an explanation of what the available information indicates.
The main purpose for the claimant portal remains having claimants sign off on warnings about not making any mistakes when filing their claims. More on that issue below.
Instead of reading documents like initial determinations, they are looking to their portal for an explanation of what is going on with the claims. If they do read those initial determinations, they are too often confused by the legalisms or factual craziness in these documents (e.g., denying a claimant eligibility because he was not laid off for a pandemic-related reason when both the employee and employer indicated he was laid off because of the pandemic).
Accordingly, they have been trying to talk to a Department staffer about those denials, not getting through to anyone or not getting a cogent explanation of what is going on, and subsequently missing the deadline to file their appeal.
In Martin v. SL Bayshore Oshkosh LLC, UI Hearing No. 20401617AP (7 August 2020), the Commission found that the claimant’s delay in filing a timely appeal because of Department communication breakdowns was for a reason beyond her control:
The employee states that she has spent a considerable amount of time trying to reach the department. However, because of the pandemic, she was unable to speak to a claims specialist until July 28, 2020. After speaking with the claims specialist, the employee was able to understand the issue involved and filed a late petition. The difficulty in reaching the department, given the pandemic and its impact upon the volume of unemployment claims, was beyond the employee’s control.
So, claimants who miss an appeal deadline because their efforts to reach someone by phone were fruitless until too late, should have their cases re-instated under Martin.
Missed job center registration
Even though the requirement to do four job searches a week has been suspended because of the pandemic, the Department has still required folks to register at the jobcenterofwisconsin.com website if they have not already done so. See the sentence marked with an arrow on the second page of these warnings screens that claimants must acknowledge when filing their initial unemployment application.
Note: Notice that there is no link to the jobcenterofwisconsin.com website in these warnings. To make sense of this warning in the first place, claimants must already know about this requirement and what it entails and understand that it is separate from the four job searches a week requirement. As most claimants new to unemployment have no idea what this requirement is, this one sentence warning is essentially gibberish.
To make matters worse, the Department is still sending out the same claim confirmation that mandates four job searches a week. As claimants do not understand how a requirement to do four job searches a week can be waived but a requirement to register at a website for those same job searches is NOT waived, especially since both provisions are based on state law, this claim confirmation notice is doing nothing but add additional confusion.
The claimant in the present case reasonably believed that the information provided by the department was outdated as she was aware that she did not need to perform a work search, yet the instructions told her to immediately perform the work search. The claimant was told not to contact the department’s help line unless instructed to do so by the department. In this case, the claimant was not told by the department to call the help line. Given the circumstances of this case, the claimant’s failure to register for work was due to circumstances beyond her control.
Katie Treu, UI Hearing No. 20601752MW (21 Aug. 2020) (footnote replaced with reference to state statutes).
The claimant in the present case believed she was not required to register for work because of the pandemic. The work search requirement was waived because of the pandemic. The department’s instructions told the claimant, incorrectly, to immediately perform the work search. The instructions also indicated no benefits would be paid until she registered for work. The commission concludes that the claimant reasonably misunderstood the work registration requirement. Given the circumstances of this case, the claimant’s failure to register for work was due to circumstances beyond her control.
Here, the claimant’s failure to register for work was due to circumstances beyond her control. The claimant was confused about whether she was required to register for work based on the fact that she was still employed and was provided information that she did not have to search for work. The requirement to register for work is separate from the requirement to search for work. Normally, the claimant would be expected to contact the department to clarify her responsibilities. However, in this time of pandemic the claimant was unable to do so.
As it seems (from what I am hearing from the unemployment clinic and state advocates) that at least one-third of claimants in Wisconsin have likely failed to register at the job center website because of the Department’s poor and inadequate guidance, there are hundreds of thousands of claimants who have lost unemployment benefits as a result. Luckily, the few that manage to appeal their cases to the Commission are getting those denials over-turned.
But, these cases also reveal that administrative law judges and the Department are still denying unemployment benefits to these claimants and others despite the Department’s own misguided and confusing guidance on this issue.
These cases started in March and are only being corrected by the Commission at the end of August after TWO appeals (one appeal to an administrative law judge and another appeal to the Commission). It should not take such litigation to correct such a basic problem. The Department needs to provide updated and correct guidance to claimants, to waive any denials of benefits for this reason because of its own departmental error, or to waive this unnecessary website registration altogether through executive order or emergency rule. Instead, the Department is doing its best to keep unemployment benefits out of the hands of claimants.
Note: Both Legal Action of Wisconsin and myself have brought this problem to the attention of the Department. The Department has yet to even respond to these concerns.
Appeal withdrawals because of incorrect Department advice
Because the Department is making claimants liable for possible over-payments connected to two separate unemployment benefit programs — regular and PUA — and because the Department has been so slow to process these claims, claimants are caught between not knowing how or when to accept benefits under one option while giving up on benefits connected to the other program.
In other words, claimants have to chose. Do I continue to pursue a claim for regular unemployment benefits and not file a PUA claim? Or, do I drop that regular unemployment claim and hope that the PUA claim will work out?
On March 30, 2020, the department issued a determination that found that the employee was not available for suitable work because she was attending school but was not in approved training. The employee filed a request for hearing. The employee then withdrew her appeal at her May 11, 2020, hearing. The employee told the ALJ she was going to qualify for the Pandemic Unemployment Assistance (PUA) instead of proceeding with the hearing. She informed the ALJ she had already applied for PUA and expected to be receiving benefits under that program. On May 11, 2020, the department issued an appeal tribunal decision which granted the request to withdraw the employee’s appeal. The employee filed a timely petition for commission review requesting that her appeal be reinstated. The employee states that she was given inconsistent information from department workers. She states she withdrew because she received information from the department that she relied upon to her detriment.
Wisconsin Admin. Code § DWD 140.05 addresses withdrawals of appeals. The rule provides, in relevant part, as follows:
(2) An appellant may submit a request to retract its withdrawal and reinstate its appeal. The retraction request shall be in writing and state a reason for the request. The administrative law judge may not grant a request to retract a withdrawal unless the request establishes good cause for the retraction and is received within 21 days after the withdrawal decision was mailed to the appellant.
* * *
The employee withdrew her appeal based upon information given to her by the department that she later determined was incorrect. The employee has established good cause for retracting the withdrawal of her appeal.
I too have had these cases, even for folks like SSDI-recipients who should now be eligible only for PUA benefits (but the Department is still denying their claims because they supposedly should file claims for regular unemployment benefits or because they lack earnings from regular work in 2019). It is a confusing mess to withdraw an appeal because someone from the Department says another kind of claim should be filed, only then to have to retract that appeal withdrawal because the Department staffer’s advice was incomplete or wrong.
So, the key to preserving your rights as a claimant is to document what Department staffers are telling you (both what is said and when it is said).
Being forced to chose one kind of benefit only to learn later you made the wrong choice based on bad advice from the Department should not foreclose you from re-opening that claim when you learn the Department’s advice was wrong from the get go.
As noted here, the trick is for claimants to keep records of that bad advice. Sadly, unemployment is broken in this state, so do not think you can rely on it.
Regular UI claims during the pandemic (March-Aug. 2020)
Initial claims First payments Percentage
918,757 294,571 32.06%
Regular UI claims prior to the pandemic (Jan. 2018-Feb. 2020)
Initial claims First payments Percentage
632,728 245,558 38.81%
So, Wisconsin is actually paying fewer initial claims during the pandemic than before the pandemic. It appears that no other state has a similarly significant decline in claims being paid out during the pandemic.
For comparison, here is what has happened in other states in regards to how many initial applications for regular unemployment benefits are being paid for the same time periods:
State Pre-pandemic Pandemic
NC 45.25% 50.27%
MI 54.70% 60.53%
FL 45.36% 49.76%
AR 39.60% 45.98%
IN 47.78% 46.77%
IL 56.34% 57.72%
Indiana shows a 1% decline during the pandemic, but at least around half of its initial claims are ending up with payment of benefits. Even Florida (!) has managed to pay out more claims during the pandemic than before the pandemic.
These numbers also reveal that the number of claimants receiving regular unemployment in Wisconsin is much lower than in other states, the same states that are decried in the national press as having terrible unemployment systems. During this pandemic in Wisconsin, less than one-third of initial claims have actually led to a payment of regular unemployment benefits. This decline is from roughly 39% of initial claims from before the pandemic. And, unlike all other states, including those who had massive problems with administering all of their pandemic claims, Wisconsin’s handling of these claims is trending down rather than up.
Because there are errors in the data states report, some of this data is incomplete. For instance, Minnesota reports weekly claims being paid sizable amounts, nearly 91% of all pandemic claims. But, Minnesota also reports only 1.36% of initial claims being paid out. So, first payment data for Minnesota is in error. Another example of an error is the PUA data for Michigan. Even though Michigan is widely-acknowledged leader in paying out PUA benefits, this data for Michigan has zero PUA claims and payments.
These data errors do not appear to explain the claims-filing problems in Wisconsin. The numbers being reported here approximately match what Wisconsin itself is reporting. Moreover, the percentages or proportions of weeks claimed to weeks paid, for instance, match what the Department itself reported on Sept. 1st. So, there do not appear to be errors in what Wisconsin is reporting to the US Dep’t of Labor. The numbers for Wisconsin indicate a very real problem.
Wisconsin’s handling of PUA claims is even worse. Here is Wisconsin and a few other states for which data is available.
State Month Init App First Payment
WI Jul 13,298 17,269
WI Jun 13,044 6,286
WI May 23,887 709
WI Apr 43,585 0
WI totals 93,814 24,264 25.86%
NC Jul 49,478 27,948
NC Jun 54,338 35,799
NC May 111,094 95,538
NC Apr 42,808 32,582
NC totals 257,718 191,867 74.45%
MN Jul 2,877 4,251
MN Jun 4,353 10,089
MN May 14,908 26,682
MN Apr 64,350 46,589
MN Mar 21,622 6,304
MN totals 108,110 93,915 86.87%
FL Jun 133,501 126,769
FL May 126,334 105,885
FL Apr 18,273 338
FL totals 278,108 232,992 83.78%
These numbers are staggeringly awful for Wisconsin. Wisconsin is failing to process these claims even though Wisconsin has the fewest number of claims to process among these states. By the end of July, just a quarter of PUA applicants in Wisconsin had their claims paid out. This number is roughly three times less than what is happening in these other states.
Notably, even Florida managed to pay out some PUA claims in April, whereas Wisconsin did not significantly start processing PUA claims until June of this year. No wonder folks in Wisconsin are still waiting on their PUA claims: Wisconsin is doing very little to process these claims and, unlike other states, is not paying out these claims in any way comparable to what is happening in those other states.
No action whatsoever for almost 300,000 claims
Via its weekly data reports, Wisconsin has been reporting on “weeks compensated” rather than initial claims being paid. As a result, those reports say nothing about the experience of individual claimants who are still waiting for any payments. This ‘data’ being reported by the Department is covering up the significant administrative problems that are going on.
But, some actual data can be gleaned from these reports. The Sept. 14th report, for instance, reveals that there have been 902,717 initial applications for regular unemployment benefits during the pandemic, that 98,309 of these are in adjudication, and that 513,870 of these claimants have received regular unemployment benefits. So, based on these numbers, there are 290,538 initial applications that have yet to have ANY action taken whatsoever — no denial, no approval, no nothing.
Note: Above, over 600,000 Wisconsin claimants are reported as still waiting on first payments. Whereas in these weekly data releases, the Department is reporting only around 300,000 still waiting.
The first page of the August 2020 financial report to the Advisory Council seems to confirm that more than 500,000 claimants have been paid regular unemployment benefits in 2020. But, this report also indicates that “in calendar year 2018 and 2019, the number of claimants paid were [only] 130,710 and 129,888, respectively.” That number matches almost exactly what the Department reported to the US Dep’t of Labor prior to the pandemic.
It appears that for its weekly data reports, the Department is including some data as a payment where no actual payment is occurring. The benefit amount reduction, or BAR, comes to mind as a possible explanation. The Department has been illegally using this program to deny $600 PUC benefits to claimants because of prior concealment. Furthermore, the Department typically still counts regular unemployment benefits as paid to these claimant even though they are receiving nothing because of a BAR.
In any case, the Department’s own data indicates that just under 300,000 Wisconsin employees are still waiting on their claims to be paid as of mid-September.
Given that the workforce in Wisconsin is around 3 million workers, this number of 290,538 initial applications indicates that roughly one out of ten Wisconsinites are still waiting on the Department to do something with their claim.
And, as the number of claims being adjudicated has been declining on average by around 407 a week during this pandemic according to the Department’s own numbers of claims awaiting adjudication, the unemployed are going to wait for a long, long time until the Department actually processes their claims. No wonder the average number of days from application to payment or denial is increasing in this state rather than declining.
Breakdowns in claims administration
All of these delays create an additional problem for claimants — the claims-processing procedures are even further clogged.
On May 12th, as the claims piled up, processing delays were enormous: a month was needed just to process a faxed or mailed document for an unemployment claim and more than a week just to get a document recognized by the hearing office after being received.
Now in mid-September it still takes around 30 days for a claim document sent by mail or fax to be processed. And, information sent to a hearing office still takes 5+ days to be processed. Furthermore, while the clogged phone lines to reach a claim specialist have been opened up, it is now incredibly difficult to contact the hearing office by phone. In my experience, it takes numerous phones calls over a day or two and then a hold of 30 to 70 minutes or more before I can get through to a hearing office staffer.
Update (17 Sept. 2020): The NYTimes has an excellent primer on unemployment data and the hazards of drawing conclusions from continuing claims (which the Department itself has featured in its weekly data reports). The focus above in this post is on initial claims and first payments, not continuing claims and total number of unemployed or total amounts paid out. Initial claims and first payments should be relatively straight forward numbers.
Besides regular unemployment benefits, there are now the $600 PUC benefits, Pandemic Emergency Unemployment Compensation (PEUC) benefits, Pandemic Unemployment Assistance (PUA) benefits, Extended Benefits (EB), and now Lost Wages Assistance (LWA) assistance.
This table explains the ins and outs of these various programs. Print it up and read carefully.
For Wisconsin, only those who receive $100 or more in unemployment benefits of some kind will be eligible for the additional $300 in Lost Wage Assistance. As a result, the working poor are left out of this program. Luckily, because the minimum weekly benefit rate for PUA in Wisconsin is $163, those claimants will be eligible for Lost Wage Assistance benefits.
Note: WPR reports that 15,000 claimants are likely to lose out on Lost Wage Assistance when it becomes available because their weekly benefit rate is less than $100.
Still, with Wisconsin in such an administrative mess regarding unemployment, the Department does not expect to pay out any Lost Wage Assistance until late October 2020 at the earliest for benefits tied to the first three weeks of August 2020. That is, there is a three month wait before any Lost Wage Assistance benefits will actually be paid out.
As usual, Wisconsin also is pursuing an extremely limited and narrow reading of this benefit program. Here is the new welcome screen a claimant sees after connecting to his or her portal:
First, claimants need to indicate they have lost work because of the pandemic to be potentially eligible for Lost Wage Assistance benefits. But, the Department is implying in this threshold question that only those who have lost work after August 1st for a specific Covid-19 related reason qualify. So, folks who lost work before August 1st are likely to answer “no” and be declared ineligible for this program when they should answer “yes.”
Note: how does a claimant change his or her answer to this question? I have no idea.
Second, the Department will apply a very restrictive view of the pandemic-related reasons for being eligible for this benefit. Basically, the Department is requiring one of the reasons specified in this chart to exist, and a general loss of work — either wholly or partially — is not listed here. As a result, the Department is denying numerous claims even though both employer and employee indicate the layoff is pandemic-related.
Finally and most problematic, clicking “yes” or “no” does nothing but bring the claimant to his or her regular portal welcome screen. There are no additional questions or information about the Lost Wage Assistance program. Hence, the claimant has no idea what the answer meant or how and why it is recorded. This question and warning screen is essentially meaningless to the claimant.
Indeed, the Department’s guidance about the Lost Wage Assistance program offers absolutely no description of this question and why it is being asked or how to answer it. As usual, claimants need to guess at what the Department wants from them.
Update (10 Sept. 2020): Added info from WPR about the number of people in Wisconsin who will not be eligible for Lost Wage Assistance because their weekly benefit rate is less than $100.
Update (14 Sept. 2020): USA Today has a feature article about Wisconsin’s demand to recoup the yet unpaid LWA benefits. As Pam Herd explains, this effort is “asinine.”
Update (15 Sept. 2020): For a run-down of what other states are doing and how the Lost Wage Assistance falls far short of the $600 PUC, seethis post. WPR reports that FEMA is indicating Wisconsinites may receive six weeks of LWA benefits. These benefits still not due until the end of October, however, and no explanation yet from the Department about its repayment demand.
Update (16 Sept. 2020): WPR reports that the Department is removing the payback requirement and that it is up claimants to fix “wrong” answers about their LWA eligibility by contacting the Department by phone. Some key quotations:
Inaccurate guidance On Friday, FEMA updated its guidance to DWD, saying the language the department included was “not entirely inaccurate,” but they added that the agency does not believe Congress will pass additional legislation that will create duplicative benefits.
Only pandemic job loss needed But in guidance to states about who is eligible under the program, FEMA states specifically “the most recent job separation does not need to be directly related to COVID-19.”
The guidance from FEMA goes on to say “at the time of self certification for the program, the individual must be unemployed or partially unemployed due to disruptions caused by COVID-19.”
Correcting a LWA claim mistake In an email Tuesday evening, Jedd said DWD plans to reach out to LWA program applicants in an attempt to catch those who may have answered the question incorrectly. He also said that individuals who answered the question incorrectly can call DWD’s help center and ask a staff member to change their answer to the question.
One of the requirements of the Families First Coronavirus Response Act, Pub. L. 116-127, was that states require employers to provide individualized notification of the availability of unemployment benefits to employees at the time of their separation from employment. This requirement was essential for some of the administrative funding available from the Families First Act.
States that did not yet have this requirement, like Wisconsin, were to implement this requirement by emergency rule within 60 days of the passage of the Families First Act. SeeUIPL 13-20 (22 March 2020) at 3-4.
The Families First Act was signed into law on 18 March 2020. So, Wisconsin needed to have an emergency rule implementing this requirement no later than 17 May 2020.
There is so far no emergency rule (Wisconsin did issue a scope statement, 018-20, on 30 March 2020 for such a rule). At the last two meetings of the Unemployment Insurance Advisory Council, there has been vigorous debate about creating the needed emergency rule.
The big questions: Why this delay and such debate?
What currently exists
It helps to know what is currently required for notice of unemployment benefits, a poster:
Notice-posters as to claiming unemployment benefits. Each covered employer shall keep employees informed about unemployment insurance under ch.108, Stats., by posting appropriate notice-posters supplied by the unemployment insurance division. The notices shall be permanently posted by each such employer at suitable points in each of the employer’s work-places and establishments in Wisconsin. Suitable points for posting the notices include: on bulletin boards, near time clocks, and other places where all employees will readily see them
Failing to provide this poster allows an employee to backdate a claim for unemployment benefits.
The administrative rules provide for a waiver of the notification requirement if exceptional circumstances exist. An exceptional circumstance exists if the employe was not aware of the duty to notify the department of her intent to initiate a claim and her most recent employer failed to post or maintain a notice as to claiming benefits. Wis. Admin. Code § DWD 129.01(4)(c). It is the employer’s obligation to post UI posters at suitable points where all employes will readily see them. See Wis. Admin. Code § DWD 120.01.
So, it would seem that all the Department needs to do is create an additional requirement for employers to provide individualized notice about unemployment benefits to employees at the time of their separation.
For some reason, however, the Department did not get around to even presenting a proposed emergency rule until the July 16th meeting of the Advisory Council, well after the May 17th deadline.
Note: Other emergency rules, like job search changes, EmR2006, not charging employers interest for delayed tax contributions, EmR2011, and waiving experience rating changes for employers for their pandemic-related layoffs, EmR2018, were all done without waiting for the Advisory Council.
This proposal creates a new DWD 120.02. The Department explains that:
(14) Summary of Rule’s Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State’s Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred) The proposed rule is expected to have an economic impact on employees, who may be more likely to file timely claims for unemployment insurance. The proposed rule is expected to have an economic impact on employers because employers will need to provide notice of the availability of unemployment insurance at the time of separation of employment. However, employers may provide notice to employees electronically, so employers may be able to limit the fiscal impact of this rule to minimal staff time to send an e-mail or text message to the separating employee.
(15) Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule The benefits of implementing this rule are that claimants who are separated from employment will have timely notice of the availability of unemployment insurance, so that they will be less likely to attempt to backdate their claim. The department may save staff time under this rule if more unemployment insurance claims are timely filed and fewer claimants seek to backdate claims.
(16) Long Range Implications of Implementing the Rule The long range implications of this rule are that more employees will have timely notice of the availability of unemployment insurance benefits so they will be more likely to file their claims timely and less likely to seek to backdate their claims.
At the July 16th meeting of the Advisory Council, only one management representative was present (and so the council lacked a quorum). This management representative, moreover, voiced heated opposition to this change, as it would potentially give employees a few more weeks of unemployment benefits when the required notice was lacking.
The proposed rule states:
DWD 120.02 Notice at Separation. (1) Each employer shall provide notification of the availability of unemployment insurance to employees at the time of separation from employment by at least one of the following methods: (a) Letter. (b) E-mail. (c) Text message. (d) Flyer. (e) Any other department-approved method designed to give immediate notice to employees of the availability of unemployment insurance at the time of separation.
(2) If the circumstances of the separation make immediate notice under this section impossible, the employer shall provide notice to the employee as soon as possible.
(4) An employer’s failure to comply with this section constitutes exceptional circumstances over which the claimant has no control under s. DWD 129.01 (4) (f) unless the employee was aware of the availability of unemployment insurance.
Note: The effective date of this proposed emergency rule is 2 Nov. 2020, in order to allow time for employers to comply with this requirement.
The August 20th meeting continued with these concerns. Management representatives questioned why this change needed to be permanent (there was no sunset provision and the Department intended the emergency rule to eventually become a permanent rule). The Department explained that federal law and guidance mandated this permanent change.
As set forth in the rule, this notice could easily be included in a final paycheck, the Department explained. If done that way, at most an employee could claim would be one, two weeks at the most (because of delays in the final paycheck).
Janell Knutson and Andy Rubsam tried to calm management representatives’ anxiety by explaining that claimants who tried to get their claims back-dated would face a high hurdle for accomplishing that task. If the person had ever filed for unemployment before or if the claimant acknowledged seeing the employer’s unemployment poster (even a poster that might exist), then the Department would find that there was no basis — no exceptional circumstance — to allow the claim to be back-dated despite the requirement for individualized notice in this proposed rule.
Note: This legal “application” of the individualized notice requirement essentially makes the whole issue moot except in very rare circumstances — i.e., the Department’s motivating goal for several years now.
Management representatives were not satisfied with this legal narrowing of the proposed notice requirement (which in any case will be applied by the Department and drew no response from labor representatives). So, into caucus to discuss this proposal the Department, management representatives, and labor representatives went.
The solution they reached was to append a sentence to the end of sub-section (4) of the proposed emergency rule:
If the employer meets the requirements of s. DWD 120.01, the employee is deemed to be aware of the availability of unemployment insurance for the purposes of this subsection.
In other words, the poster requirement will satisfy the requirement for individualized notice. Huh?
Apparently, the US Dep’t of Labor is not happy with this change to the proposal, as the Department has yet to actually introduce this proposal as an emergency rule (the Dep’t of Labor needs to approve proposed changes in law as being in compliance with federal requirements).
Note” I am speculating here, but the lack of approval is not surprising. UIPL 13-20 Change 1 (4 May 2020) at I-1 states:
Question: My state law already includes a requirement that employers post a notice at their worksite that informs workers of the availability of UC. Is this sufficient?
Answer: No. Under Section 903(h)(2)(A), notice to workers must be provided individually and at the time of separation. As discussed in UIPL No. 13-20, the state does have significant flexibility in the method of communicating this requirement to employers, as well as the form in which employers provide the notice to employees (such as letters, emails, text messages, or flyers given or sent to the individual receiving the information).
In situations where the existing state law does not already satisfy this requirement, the state may have to amend its statute or issue regulations. The Department recommends that the state consider issuing emergency regulations to satisfy this requirement for Allotment I funds in light of the statutory requirement that these grant payments be made within 60 days of the enactment of EUISAA.
So, nothing is happening just yet on something so minor as providing employees notice of unemployment benefits when there is an employment separation. This episode says much about the actual agenda of the Department during this economic crisis, and that agenda certainly is not all that concerned with the needs of employees.
Indeed, because of its inaction, the Department may well need to repay administrative funding it has already received. Sigh, still more policy choices that ultimately hurt workers.
In this article, the delays that now stretch on for months as well as denials are described in detail.
WPR and Wisconsin Watch spoke to nine disability recipients who applied for PUA months ago. DWD as of Tuesday had yet to deliver on eight of their claims. But Wickman [the only one of the nine to receive any benefits] on Tuesday [that is, yesterday] woke up to six months of backpay in her bank account, following a four-month wait — capped by two weeks of lengthy phone calls, technology glitches and 32 emails to agency administrators.
The article does a good job describing the delays and denials the disabled are continuing to experience.
But, the article seems to accept at face value the explanations put forward by the Department for why these delays and denials are not really its fault.
The agency employs 1970s-era technology to process unemployment insurance claims, and PUA claims are particularly taxing on an already backlogged system, [DWD spokesman Ben Jedd] said.
“The payment of PUA is extremely manual and depends on qualifying for the program, addressing any associated eligibility issues, and how quickly that person files weekly claims after their PUA (qualification) is established,” Jedd wrote in an email.
* * *
Jedd said his agency will prioritize claims from SSDI recipients who were already denied regular unemployment aid. But the agency does not track how many PUA claims it has processed from people on disability.
DWD can’t just rubberstamp those claims, Jedd added. Staffers must ensure applicants meet a range of eligibility requirements. But that human review is not foolproof, applicants say.
REALLY? Mistakes being made because the system is not foolproof is an acceptable explanation?
Let’s look at one of the claimants featured in the article: Duane Adams. He applied for regular unemployment benefits and was denied because he receives SSDI benefits. He applied for PUA benefits, and nothing happened with that application for months.
But, that same week, Mr. Adams also received an initial determination denying his claim for PUA benefits, explaining:
The claimant has not exhausted all unemployment insurance, pandemic, emergency unemployment compensation, and extended benefits payable for the benefit year ending 05/02/2020.
In other words, according to the Department Mr. Adams cannot receive PUA benefits until he has received all of the regular unemployment benefits he cannot under state law actually receive. Huh? According to the Department, Mr. Adams is NOT eligible for regular unemployment benefits in the first place because of his disability. How can he be expected to exhaust regular unemployment benefits that he cannot legally receive? This denial makes absolutely no sense. Legally, it is idiotic.
And, Mr. Adams is not alone. Other disabled folks are being denied their PUA claims for the same reason — failing to exhaust their regular unemployment benefits — or because they do not have a Covid-19 related reason for their layoff despite losing work because of the pandemic.
So, as the article makes clear, the Department is NOT following through on what happened on July 27th: the disabled are NOT receiving PUA benefits even after the policy that denied those claims has changed. De jure discrimination may no longer be Department policy, but de facto discrimination continues.
As evident in the article, reporters should NOT be accepting claims about the process not being fool-proof while also not wanting to “rubber-stamp” claims in light of a heavy workload. The “carefulness” being claimed by the Department is in reality a defense of idiocy. And, when confronted by idiotic decision-making, most people conclude the idiocy is hiding something more sinister. In this case, the idiocy is emblematic of continued hostility towards the disabled.
If there is some other viable explanation for continuing to deny claims for idiotic reasons other than discrimination, then the Department needs to be pushed to provide that explanation. As it stands now, the only viable explanation is continued discrimination against the disabled.
Putting the disabled in a catch-22 is exactly the kind of double-standard that has been the earmark of discrimination for centuries. All of us should know better by now to push back almost immediately against such double-standards.
And, certainly Wisconsin should not be continuing with this discrimination against the disabled. That this discrimination is continuing is the story.
The President directs FEMA to create a new program using $44 billion in Disaster Relief Funds that would allow states to send an additional $400 per week to people receiving UC, PUA, or other public unemployment benefits. To participate in this program, states — which already face $555 billion in budget shortfalls as well as demands to help struggling local governments — would have to pay one-quarter of benefit costs as well as, apparently, the full administrative cost. The President arbitrarily disqualifies the poorest of the unemployed: those receiving less than $100 per week in regular benefits. Once the program has spent the $44 billion, it would shut down.
Prof. Super then runs through all the problems in this proposal. The biggest problem:
Last, and certainly not least, the President’s actions are unlawful. The Stafford Disaster Relief and Emergency Assistance Act does provide for spending Disaster Relief Fund to pay “Disaster Unemployment Assistance” (DUA). That section, however, comes with two conditions that the President’s program violates. First, FEMA may only provide DUA to those who are not eligible for any other form of unemployment compensation. The President’s program, by contrast, is limited to those who are receiving other unemployment benefits. And second, the statute caps DUA benefits at the amount that state UC programs would allow. The whole point of the President’s program is to pay $400 per week more than those (inadequate) benefits. Thus, DUA would probably be a plausible means of replacing PUA should it expire at the end of the year (if any funds remain) but it cannot replace FPUC.
This executive order is likely going to make it harder now and in the future to address economic disasters. “Weaponizing the Disaster Relief Fund in a political struggle with Congress all but assures that similar funds will not be appropriated in the future — with the result of slower disaster responses and more unnecessary hardship,” concludes Prof. Super. Sigh. He’s right.
For Immediate Release: August 8, 2020
National Employment Law Project
Contact: Amy Lebowitz, email@example.com
Following Insufficient Memorandum, NELP Urges Administration to Get Serious About the $600 Lifeline and Comprehensive Unemployment Fixes
Following is a statement from Rebecca Dixon, executive director of the National Employment Law Project:
“Today, the President signed a memorandum claiming to allow states to add $400 to existing unemployment benefits. This is an empty promise to unemployed people. What we had was working for millions of people and supporting our struggling economy – and the support needed to be expanded to cover all unemployed workers. What workers need is for the President to call for legislation that will continue the $600 Federal Pandemic Unemployment Compensations (FPUC) benefits as well as the other federal funds to serve as a lifeline inclusive of all workers, their families, and their communities. This is particularly true for underpaid Black, Latinx, and Indigenous workers, most of all women, who don’t have wealth or savings to cover the basics, much less emergency expenses. And this will harm Black workers who disproportionately live in states with the lowest UI benefit levels..
“NELP also urges the Administration and Congress to, in addition to these essential unemployment benefits, create a relief package that will provide support inclusive of all workers excluded in previous bills, namely immigrants and their families regardless of status. Throughout this crisis people have counted on the essential labor of all workers including undocumented people – exclusion of any worker from the benefits they need to survive is inexcusable.
“First and most importantly, states cannot use their current Unemployment Insurance infrastructure to pay a benefit that is not authorized by Congress. The language in the memorandum says that these benefits must be paid “in conjunction with the State’s unemployment insurance system” which means that states will have to set up a new way to add these payments to existing benefits. As we know, states have been straining under the weight of the surge of applications, setting up a whole new Pandemic Unemployment Assistance (PUA) program, battling an international fraud ring, and dealing with ever increasing directives from the Employment and Training Administration and the Office of Inspector General. Setting up a new system entirely will be difficult, if not impossible.
“Second, in order to be able to pay the benefit, states would have to partially match the federal funds with state allocations that have largely already been spent, according to an analysis by the Center on Budget and Policy Priorities. Indeed, the EO would require many states to go further into debt in order to pay and administer their share of the limited $400 benefit. And at a time when states are in desperate need for federal state and local aid.
“This new $44 billion allocation of federal funding from the Disaster Relief Fund will not go far. Between its inception and August 1, FPUC has paid out nearly $247 billion. Even with a reduced federal cost of $300 per claimant per week, this amount will be exhausted within a few weeks of states even getting a system up and running to pay it.
“Given a finite pool of funds and administrative hurdles to get the benefit running, this will further exacerbate the inequality between states. States that have the most sophisticated systems may be able to stand up this program eventually, but those states that have been faltering due to decades of neglect or outright sabotage will be less likely to see any of this money. As NELP has repeatedly pointed out, the states with the most unstable and impenetrable systems also tend to be states with the highest populations of Black and Latinx workers, as the charts below demonstrate.
“In addition to being impossible to administer, simply adding $400 at this point ignores the need for important corrections to the underlying program. There are a number of technical fixes that Congress must implement immediately just to maintain smooth administration of benefits that workers have waited so long to get. Preserving access and eligibility will depend on a more comprehensive legislative fix.
“This is not a serious approach to solving a very serious problem. We urge the Administration to get back to real negotiations with Congress on a comprehensive and operable approach that will ensure people have the resources they need to survive for the duration of this crisis.”
In other words, trying to fix things with duct tape does not actually work.
Others have focused on the total number of claims being filed. What may be more useful is comparing this increase in claims to what occurred when there was no pandemic — aka last year — and how the claims data has varied over time.
So, what makes sense, then, is a ratio of new claims being filed for the equivalent week last year when there was no pandemic. This ratio would indicate both how these new claims compare to when there was no pandemic AND how the unemployment picture is changing over time.
Unfortunately, this picture is unsettling to say the least.
In week 11 of this year, claims in 2020 were equivalent to the same week of claims in 2019: 1.02 to be exact. Then the pandemic struck the next week, and unemployment claims skyrocketed to 13x what was filed in 2019. For the next two weeks, the number of claims continued to increase to around 20x what was filed in 2019.
Even when the number of new claims began declining, they continued at more than 10x the number of claims filed in 2019 for the next three weeks. Then, for another three weeks, initial claims continued to run at around 9x or 10x the number from 2019.
Only by week 21 did the number of initial claims come down to over 7x the number of 2019 claims. Since then, the number of initial claims has continued to hover around 6x the number of unemployment claims filed for the equivalent week in 2019. And, it seems that this trend will continue at least for the next several months.
So, in the best circumstances this pandemic has led to new unemployment claims continuing to be filed at 6x the rate of unemployment claims in 2019.
Note: This data is only for regular unemployment claims. Independent contractors and those with insufficient earnings to qualify for unemployment in the first place likely have never filed a claim for regular unemployment benefits in the first place and so are excluded from this data. In other words, the unemployment picture is being under-reported with this data.
At this rate, the question will soon be who in Wisconsin has NOT filed an unemployment claim, as the state’s workforce is only around 3 million in toto. I hate to say it, but these numbers are approaching Great Depression levels of joblessness. There is no indication — especially with Covid-19 cases on the rise — of any possible turn around with the economy any time soon. So, new unemployment claims will likely continue to be much higher than last year for months to come.
Note: In a robust economic recovery, we should expect the ratio of 2020 to 2019 claims to go smaller than 1.0. Pent up economic demand would lead companies to increase hiring to meet the accelerating demand for their product. Does anyone even pretend to talk about that kind of economic activity right now?
Second, all of us need to understand that this unemployment problem is not going away anytime soon. With so many initial claims now in the system, it will take months just for the folks currently with claims to find the same work they had before the pandemic. And, with new initial claims continuing to be filed at a record pace, the number of unemployed is now probably equal to the number of workers in this state who are outside the unemployment system. When winter arrives and many seasonal employees are laid off, the state’s economy will take another tremendous hit.
Accordingly, the economic stimulus that unemployment offers is currently an essential component of the economy and is keeping what economic activity that currently exists afloat. The loss of the $600 PUC benefit this week is going to have dire consequences, even in Wisconsin when too few have managed to receive any unemployment benefits at all. The end of 2020 when many if not all of the current CARES Act benefits expire could become a fiscal cliff for Wisconsin and the nation if nothing is done to extend these programs into 2021.
Third, this continued number of initial claims at roughly 6x the rate of last year indicates that the Department’s strategy of simply hiring more people to process these claims is unworkable. The Department’s July 13th news release about having 1884 staffers (1380 more than the 504 the Department had prior to the pandemic) is still wholly inadequate to handle the deluge of initial claims being filed.
Even with new initial claims now settled at 6x what was being filed before the pandemic, the Department’s increase in staff is only 3.75x what existed prior to the pandemic. To properly staff up for the number of initial claims currently being filed, the Department needs to have 3024 staffers on hand. And, that level of staffing would only work if initial claims remain at only 6x and do not rise any further from 2019 levels.
The Department cannot fix this unemployment problem in this state by hiring all of Wisconsin to process all of the unemployment claims. The Governor and the Department need to start talking now about some new policy choices to make the unemployment claim-filing process easier and more manageable. And, a jobs programs like the Civilian Conservation Corps are probably in order as well.
I know broadband access is a state-wide problem. Getting cheap and effective Internet access to folks in this state would do everyone a world of good, both in the short-term (jobs) and the long-term (more jobs). A British village can do it. Why not Wisconsin?
If unsure of the status of your PUA claim, call the Department’s special PUA help line at 608-318-7100, available from 7:30 AM to 4:30 PM, Monday through Friday.
If you have trouble understanding the on-line filing process or have difficulty connecting to the Internet and completing the on-line process, call the PUA help line at 608-318-7100, available from 7:30 AM to 4:30 PM, Monday through Friday, to file your claim over the phone.
If you need to submit any documents in support of your claim, mail those documents to:Pandemic Unemployment Assistance (PUA) Program
PO Box 7905
Madison WI 53707
There is, as of July 29th, a 10+ day wait for the Department to process any paperwork the Department receives. So, there is nothing gained by faxing a document to the Department. Send the paperwork by mail and wait. First-class, regular mail is sufficient and reliable.
If you have any regular wage work that is covered under regular, normal unemployment, you need to apply and have your claim for regular unemployment benefits denied.If you are only an independent contractor, you do NOT need to file a claim for regular unemployment benefits.
If you are not sure of your status as an independent contractor, file a claim for regular unemployment benefits.
Once your claim for regular unemployment benefits is denied because you receive SSDI benefits, call the 608-318-7100 number and ask that your PUA claim be immediately processed.If an appeal of that initial determination regarding a claim for regular unemployment benefits has been filed, withdraw that appeal by calling the hearing office at 608-266-8010. Then call the PUA hotline at 608-318-7100 and ask that your PUA claim be immediately processed. The Department has explained that it will not wait for any appeal periods to run before it can start processing your PUA claim.
Note: The Labor and Industry Review Commission has held that the statutory ban on regular unemployment benefits to the disabled will remain in place for the time being.
CAUTION: Do NOT automatically withdraw an appeal/request for a hearing or automatically decide NOT to appeal all initial determinations you receive. The only issue you should NOT be appealing is a denial of regular unemployment because you receive SSDI benefits. I have seen several initial determinations involving disabled folks that deny them benefits because they reported not being available for full-time work. See below for more information.
If you have doubts about the issue in question, call the hearing office at 608-266-8010 and ask one of the staff to explain what the issue is. The hearing office staff are generally knowledgeable and helpful.
If you were told by anyone not to file a claim because your SSDI benefits make you ineligible, file your claim for regular unemployment and a claim for PUA benefits, if any of those claims still needs to be filed.
Wait for a notice about your PUA claim application being approved to arrive in the mail. That notice will include a calculation of your weekly benefit rate for PUA benefits.Your weekly benefit rate is based on this formula. If your wages are insufficient to qualify for a weekly benefit rate that is less than $163, then you will be paid the minimum PUA weekly benefit rate in Wisconsin of $163.
Filing weekly certifications
If you filed a claim for regular unemployment benefits, you also had to file weekly certifications with that claim. Those weekly claim certifications should automatically transfer over to your PUA claim.
If you stopped filing those weekly certifications because of the delays or eligibility denials by the Department, call the PUA hotline at 608-318-7100 and ask to file those missing weekly certifications. Explain that the certifications are missing because the Department had originally denied your eligibility for all unemployment benefits because you were receiving SSDI benefits.
On those weekly certifications, report that you are available for full-time work. Even though all SSDI recipients typically work part-time jobs, for purposes of unemployment law you need to report that you are potentially available for full-time work (which the Department considers to be 32 or more hours per week).
Note: this issue of availability when disabled is examined in detail in Tunisha Perkins, UI Hearing No. 11605816MW (11 January 2012). Unfortunately, the Department does not apply Perkins and will find you ineligible for failing to answer yes to being available for full-time work, causing an unnecessary hearing and delay in your benefits.
If you have already filed weekly certifications that indicated you were not available for full-time work, submit a copy of the Perkins decision for your hearing.
If you have not filed weekly certifications (because you have only filed a PUA claim and are waiting for the Department to approve your PUA claim), you can file those weekly certifications once the Department acts on your PUA claim.
When reporting wages for independent contractor work on your PUA weekly certification, you report your profits minus your expenses when a wage payment is made to you.
I still do not know when or how you report the hours worked for those wages as an independent contractor.
You will only receive PUA benefits for each weekly certification you file. If you do not file a weekly certification for a week, you will NOT receive any PUA benefits for that week.
If you return back to your job (or any job), you should probably skip filing a weekly certification if your work hours and pay are similar to what your were earning prior to the pandemic.
For instance, if you averaged 15 hours a week at $10 per hour at your job prior to the pandemic, you should file weekly certifications when your hours of work are significantly less than 15 hours a week. But, once your hours approach 15 hours a week again (with similar pay), then you should skip filing your claim for that week.
If you have trouble understanding the on-line filing process or have difficulty connecting to the Internet and completing the on-line process, call the PUA help line at 608-318-7100, available from 7:30 AM to 4:30 PM, Monday through Friday, to file your weekly certification over the phone.
Once your weekly certifications are processed, the Department will begin paying out PUA benefits based on those certifications. The PUA benefits will come either by debit card or direct deposit into a bank account, depending on which payment method you selected.
Your PUA claim will start on the week you lost work because of the pandemic (in Wisconsin, probably sometime in March) and will be backdated to include all weeks from that starting week.
You will also receive the $600 PUC for all weeks claimed for weeks in April, May, June, and July (until the week ending July 25th).
Do not expect the Department to be mistake-free in processing these claims. I have received word already of an SSDI recipient having her PUA claim denied because she filed a claim for regular unemployment benefits for the same weeks of her PUA claim. Such a denial runs counter to the very procedure the Department is requiring claimants to follow for PUA claims.
The process outlined above is what the Department has explained it wants to follow for these claims. It is your best bet for getting PUA benefits as quickly as possible. Still, it is likely going to be at least another week to 3-4 weeks before you actually receive the PUA benefits due you.