Advisory Council Meeting — 1 April 2013

It was a busy day.  Council members pretty much went into caucus mode from 10:15 until 3 in the afternoon, when they emerged with a deal on the remaining DWD proposals.

D12-01 — revised misconduct and new substantial fault
The council declined to adopt the proposed substantial fault standard but did recommend adding examples of misconduct relating to:

– alcohol and illegal use of drugs
– larceny of property or services
– conviction for a crime substantially related to the job
– intentional acts that jeopardize an employer license or certification of some kind

For the most part, it appears that these provisions codify current LIRC case law.  Until actual language is drafted by LRB and DWD, however, the specific impact is hard to predict.  The alcohol and drug testing provision, for example, may not include employees being under the influence of legal drugs while at work.  Furthermore, the conviction provision could be problematic, especially since Wisconsin specifically prohibits discrimination of employees because of arrest or conviction. As a result, employers may still be liable for back pay awards for discrimination when acting in ways that they think are covered by this misconduct language.  This conviction provision may lead employers to think, for example, that a discharge based on arrest is covered here. And, determining whether there is a substantial relationship between a conviction and a discharge is probably something an employer should not make without solid legal advice, lest the employer open itself up to a discrimination charge and potential backpay damages.

The absence and tardy provision in § 108.04(5g) remains in place, though there are a few modifications.  The triggers are reduced, from 6 tardies in 12 months to 4 tardies in 120 days and from 5 absences in 12 months to 2 absences in 120 days.  There is also new language about how an employer’s policy must, in regard to tardies but not absences, set forth reasonable notice requirements that allow for notice as soon as practical (in any case, the employer’s policy must still set forth what is adequate notice for tardiness and absences).  It is not clear why this requirement only applies to tardies and not absences.  I’ve had cases, for instance, where the claimant missed work because of a car accident, called the employer on her cell while firefighters were using the jaws of life to free her, and the employer still fired the employee for missing work.  In this scenario, the employee’s phone call, while done as soon as possible, may still not satisfy the employer’s requirements for adequate notice.

D12-19 — Quit exceptions
Most of the proposed eliminations of the quit exceptions were rejected.  Two modifications are adopted.  First, exception (7)(e) — quitting a job that an employee could reasonably refuse to accept when offered — is modified.  Instead of ten weeks for an employee to decide whether to quit the ill-suited job, the employee will have 30 days.  Second, exceptions (7)(L) and (p) are combined so that an employee who leaves one job for better prospects in another still qualifies.

One exception is eliminated by the council: (7)(m) — loss of union employment.

Finally, the council agreed that the number of re-qualification weeks be expanded from four to six.

D12-30 — Declining suitable work offers
As with quits, the re-qualification weeks are expanded from four to six.

D12-31 — Benefit rate change
The maximum weekly benefit rate increased to $270, but the minimum WBR unchanged

D12-03 — claimant PINs
Adopted by the council.  If passed by the legislature, claimants will be strictly liable for any overpayments of benefits if they disclosure their PIN numbers or fail to provide adequate safekeeping of their PIN numbers.

The council declined to adopt the following proposals:
– D12-06 — Dep’t error redefined to exclude computer error / new COA for collection
– D12-08 — Claimants providing DWD with information
– D12-20 — Weekly filing via telephone

One Department proposal —  D12-09, Technical change: correction of prior drafting errors — has yet to be considered, as there was no mention of that proposal by the council or DWD.  It seems likely that the council wiil approve of this proposal at a subsequent meeting.

Finally, there was continued discussion of proposal D12-05 — SSI disability and UI benefits.  DWD complained to the council that its decision to allow UI benefits and SSI disability at the same time was raising problematic drafting issues and concerns from LRB.  The council emphasized to DWD that the tests for whether someone is able and available for unemployment purposes is different from the disability criteria for social security disability (ed. note here: this issue of different laws having different tests is not new in employment law; for example, there are different tests for independent contractor status in tax law, labor law, common law, and Wisconsin UI law — to name a few, and there are different tests for showing discrimination in federal law, state law, or in the City of Madison).

For the council, it makes no sense in light of those different tests to prohibit receipt of unemployment benefits when someone has simply applied for social security disability and does not know if or when that application for disability benefits will be approved.  The only change in the law adopted by the Council is that if the individual eventually succeeds in obtaining social security disability, then that individual can no longer receive unemployment benefits, and the Department can recover any benefits paid to that individual after the time when the disability application is granted.  Because of federal law that prohibits states from recovering debts against social security benefits, the Council explained, DWD cannot seek to recovery UI benefits that were paid for the time from when the application was filed to when it was finally approved.

The legislators’ letter regarding their support for the Department’s proposals and additional changes to unemployment law was formally given the council after they came out of caucus.  So, there was no opportunity to consider the letter in detail.

The council next meets on April 18th.