Confusion abounds about what qualifies for a job search

For six or more months now, the Department of Workforce Development (DWD) has new job search requirements. There are both new regulations and forms for tracking your job search efforts. Yet, at the jobs group where I volunteer, numerous folks have asked questions this January and February about what actions qualify as a job search. They are right to be confused.

The UCB-12 form the Department has been providing explains that:

Follow the guidelines below when making your work search:

In person contacts are preferred. Telephone or mail contacts are acceptable only if the employer cannot be contacted in person or this is the customary method of applying for this type of work.

Registration with a public or private placement agency is an acceptable contact only on the first visit to that agency or when you are asked to return by the agency.

If during a week you attend an employment workshop which offers instruction to improve your skills toward finding and obtaining work, report the name and telephone number of the organization sponsoring the workshop, the location of the workshop, the name of the workshop leader and the date(s) you attended on your work search record. This is acceptable work search activity and counts as an employer contact.

This form was drafted in July 2013. New emergency regulations implemented in October 2013, however, set forth the following criteria for job searches:

Section 11. DWD 127.01 (1), (2) (intro.) and (a) are amended to read:

DWD 127.01 Work search; policy; requirements. (1) Under s. 108.04 (2), Stats., a A claimant shall be eligible for unemployment benefits for any given week only when the department finds, among other things, that the claimant has within that week made a reasonable completed at least 4 actions to search for suitable work within that week. The search for suitable work shall include at least 2 actions by the claimant each week that are reasonably designed to secure work. Mere registration Upon request of the department, a claimant may be required to provide verification of conducting at least 4 work search actions that are reasonably designed to secure work. Registration for work under ch. DWD 126 does not establish that the claimant is making a reasonable search for suitable work. It is essential that the claimant personally and diligently search for suitable work on his or her own behalf. The reasonableness of a search for work will, in part, depend on the employment opportunities in the claimant’s labor market area. A work search which may be appropriate in a labor market area with limited opportunities may be totally unacceptable in an area with greater opportunities. Unreasonable limitations by a claimant as to salary, hours or conditions of work indicate that a claimant is not making a reasonable search for suitable work. The department expects each claimant to conduct himself or herself themselves as would a prudent person who is out of work and seeking work.

(2) The department shall consider All of the following actions to by a claimant shall constitute a reasonable work search for suitable work under the facts and circumstances of each claimant’s situation action:

(a) Making applications Applying for work with employers who may reasonably be expected to have openings for suitable work;, except that applications submitted to the same employer more than once in a 4-week period are not credited as a work search action unless a new job is posted or available, or the employer’s customary practices or circumstances encourage the submission of additional applications.

Section 12. DWD 127.01 (2) (b) is repealed.

Section 13 . DWD 127.01 (2) (c) and (d) are amended to read:

DWD 127.01 (2) (c) Making applications or taking.

(cm) Taking examinations for suitable work in the civil service of a governmental unit;.

(d) Registering for suitable work with a public or private placement facility, including a union referral or hiring hall and complying with the various union registration requirements and job referral procedures;.

Under these regulations, only actual job applications qualify as a work search. Informational interviews do not qualify, and setting up accounts and profiles on services such as LinkedIn are very questionable (registration at Job Center of Wisconsin does qualify, however, and, as described in this post, is now mandated by DWD). In other words, there is an obvious conflict between what activity the job search form has described as conduct that qualifies as a job search and the actual regulations now in effect for what legally constitutes a job search.

Last week, DWD updated its job search form (the form is now dated February 2014 on the bottom left hand corner and meta data for the English PDF version indicates it was created on 11 February 2014) with a new description of job search activity:

The following actions may be considered one reasonable work search action:

• Applying for work with employers who are reasonably expected to have openings for work suitable for you;
• Taking an exam for work that is suitable to you in the civil service of a governmental unit;
• Registering for work with a public or private placement facility; including a union or your professional organization;
• Following the recommendations of a public employment office or similar reemployment service, including participating in reemployment services

Applications submitted to the same employer within a 4-week period do not count as a work search action unless a new job is posted or available.

Viewing job leads (via jobcenterofwisconsin.com, classified ads or another source) does not count as a work search action.

No notice of this updated form, however, has appeared. From DWD’s unemployment page for workers, here is the list of the latest unemployment news for claimants as of 11 AM on February 17th:

So, those claimants relying on the July 2013 form have been getting wrong advice for some time, and DWD does not appear to have even noted that these folks might want to check out a new job search form DWD has finally updated.

Finally, whether these new job search regulations accomplish much is also subject to debate. Analysis of these emergency regulations and the proposed permanent job search regulations (which closely mirror the emergency regulations) is available here.

Reporting offers of work and alleged concealment

LIRC has recently added a 1992 decision to its public database about an employee’s failure to report an offer of work on his weekly claim certification.

The offer was a temporary recall that the claimant turned down because he did not want a gap in pay for a few weeks after he returned to work. That is a problem, because when receiving unemployment benefits you need to accept any and every bona fide offer of work.

The issue in this case is whether the claimant is also guilty of concealment because he never reported the job offer. As the job offer was temporary and withdrawn so that someone else could receive it, the administrative law judge reasoned, the job offer no longer existed. As a result, there was nothing to conceal, the administrative law judge concluded. The Commission agreed, and its explanation is worth quoting in full:

Briefly, the employe had worked for approximately three and one-half years as a press operator for the employer, when he was indefinitely laid off on November 1, 1991. On or about November 15, 1991, the employer’s plant manager telephoned the employe and said he would like the employe to come back to work. The employe asked whether the recall was temporary or permanent; the plant manager indicated that it was temporary, for two or three weeks. The employe asked whether he had to return, indicating that his return would “mess up” his unemployment compensation eligibility. The employe was concerned that there would be a time period during which he would have no income because of the delay in receiving his first check upon his return to work. The plant manager told the employe it was not mandatory that the employe return. The employe asked the manager whether he could call the employe back when full-time, permanent work were available; the plant manager said he would, that it was all right for the employe to turn down the job because he (the plant manager) could call someone else.

Section 108.04(11)(a) of the Statutes prohibits benefit claimants from concealing from the Department refusals of job offers or any other material facts relating to the employe’s eligibility for benefits. Concealment consists of a suppression of a fact and implies a purpose or design. Kamuchey v. Trzesniewski, 8 Wis. 2d 94, 99, 98 N.W.2d 403 (1959), citing 23 Am. Jr., Fraud and Deceit, p. 851, sec. 77. There must be the intent to receive benefits to which the individual knows he or she is not entitled. Krueger v. LIRC, Rock County Court, Case No. 81-CV-559 A, December 3, 1982, 1982-85 U.C. Digest at 235. The bulk of the relevant case law supports the general proposition that the failure to report to the Department a withdrawn offer of work is not a concealment. In a 1959 case, for example, the employe, after layoff from his Wisconsin employer, had obtained work in Illinois to commence August 29. See 59-A-2191, 1976 U.C. Digest BR at 24. The employe accepted the Wisconsin employer’s August 18 offer of re-employment, but indicated he would not work beyond the starting date of his Illinois employment, whereupon the Wisconsin employer withdrew its offer. It was held that the employe’s failure to report the offer of work arose from an honest mistake and misunderstanding, and not from any intentional plan to withhold information for a fraudulent purpose. In a 1974 case, likewise, the employer had recalled the employe but withdrawn the offer in the same conversation. See 74-A-1567 X, 1976 U.C. Digest BR at 27. It was held there that the employe reasonably concluded that no offer of work was made, and that he did not knowingly or deliberately conceal a material fact relating to his eligibility.

As indicated above, the Commission conferred with the Administrative Law Judge in this matter, primarily to determine his assessment of the credibility of the employe’s assertion that he did not believe himself to have concealed a job offer from the Department because of the employer’s withdrawal of that offer. The Administrative Law Judge found the employe’s assertion in this regard to be credible; the Commission agrees. Even though the Commission has determined that an offer of work in fact was made, it nevertheless was reasonable for the employe, under the circumstances, to believe the offer of work had been withdrawn. Given that belief, the employe cannot be said to have had a purpose or design to suppress a fact which the Department was entitled to knowledge of, or to have intended to receive benefits to which he knew he was not entitled. The Commission therefore finds that, in week 47 of 1991, the employe did not conceal an offer of work, within the meaning of section 108.04(11)(a) of the Statutes.

UPDATE to Independent contractors in Wisconsin UI proceedings

Back in June 2013, there was a post about independent contractors issues in Wisconsin unemployment law. The brief included in that post went through the various factors used in determining independent contractor status for unemployment purposes as well as why that status is at issue in two separate proceedings — one proceeding to determine the claimant’s eligibility for benefits and another proceeding to determine whether the employer is responsibile for paying unemployment taxes for that claimant.

LIRC issued a decision in that case in August. In regards to the factors, there are two points of disagreement. First, the brief used the old office test. Under the current office test, this factor is satisfied “if the individual uses his own equipment and materials in performing the services, and either maintains his own office or performs most of his services in a location he chooses” (see p.11 of the LIRC decision). The old test described in the brief is only applicable in the following circumstances (see n.7 at p.11 of the LIRC decision):

If an individual does not choose where to perform his services, it must be determined whether he maintains his own office. In such a case, the analysis would proceed utilizing the longstanding interpretation that the term “office” has received in cases involving condition 3 in the pre-2011 law, albeit without reference to a “separate business.”

Second, LIRC disagrees with the position in the brief that graphic layout work is not the same as translation work. In this case, the claimant has done translation work in the past but had not done translation work which also required him to do graphic layout of the translation using certain software in order to prep the document for final publication. LIRC lumped the graphic layout work as similar to the prior translation work.

Despite these differences, a finding of employee status was still an easy call.

Since this decision, LIRC has issued another interesting independent contractor decision involving a freelance for Madison’s major newspapers. In the Martin v. Madison Newspapers, Inc., Hearing No. 13001922MD (10 October 2013) decision, LIRC offers another extensive overview of how to apply independent contractor factors for unemployment purposes.

These two situations reinforce the notion put forward in the brief that employers who hope to avoid unemployment taxes need to think strategically in these kinds of cases and perhaps not contest an employee eligibility determination pursuant to Wis. Stat. § 108.09, especially since the matter of employer tax liability will be determined in a separate proceeding under Wis. Stat. § 108.10.

Notwithstanding the difficult burden employers have in initially establishing the factors specified in sub-section (bm), employers are also faced with the added difficulty in these matters that much of the information needed in regards to these factors is in the hands of claimants and not employers. While employees and employers are in theory opposed to each other in these unemployment cases, they also depend on each other to bring forth evidence that the other side needs in order to succeed in its claims. Employers, after all, likely do not have any direct knowledge about how individual claimants qua independent contractors market their services to others, account for their business expenses and income, manage their own place of business, obtain their own liability insurance, pay for their recurring operational costs, and how many other clients they might or might not have. As a result, employers who actually hope to avoid payment of unemployment taxes for the services at issue are dependent on the claimant’s cooperation in the Wis. Stat. § 108.10 proceeding to determine whether the claimant is an employee or independent contractor.

Keep in mind as well that good guidance from DWD on independent contractor issues is available at this website. Here, you can explore the factors pursuant to the various tests in unemployment law, workers’ compensation, wage law, and equal rights law whether an individual qualifies as an independent contractor or employee.