Retroactive SSDI

The Department of Workforce Development continues to pursue its cause celebré of keeping recipients of Social Security Disability Income (“SSDI”) from receiving unemployment benefits based on their work. As noted previously, the number of claimants affected by this issue keeps increasing (originally 50 and now numbering around 3,500 claimants), a recent court case agreed with the Department about the prohibition on receiving all unemployment benefits allegedly set forth in current unemployment law, and new legislation accomplishing this complete ban on unemployment benefits that will be retroactive to 5 January 2014 has been adopted by the Advisory Council and the Department.

At the 18 June 2015 Advisory Council meeting, a draft of Department-sponsored legislation (see pp. 7-9) was distributed. In this draft legislation, Wis. Stat. § 108.04(12)(f)1 is re-numbered (f)3 and amended to read:

(f)3. a. Any Except as provided in Subd. 3. b. to d., an individual who actually receives social security disability insurance benefits under 42 USC ch. 7 subch. II in a given week is ineligible for benefits paid or payable in that same week under this chapter for each week in the entire month in which a social security disability insurance payment is issued to the individual.

Wis. Stat. § 108.04(12)(f)1m is created and reads:

The intent of the legislature in enacting this paragraph is to prevent the payment of duplicative government benefits for the replacement of lost earnings or income, regardless of an individual’s ability to work.

Wis. Stat. § 108.04(12)(f)2 is re-numbered (f)4 and amended to read:

Information that the department receives or acquires from the federal social security administration that an individual is receiving regarding the issuance of social security disability insurance benefits under 42 USC ch. 7 subch. II in a given week payments is considered conclusive, absent clear and convincing evidence that the information was erroneous.

Wis. Stat. § 108.04(12)(f)2m is created and reads:

In this paragraph,”social security disability insurance payment” means a payment of social security disability insurance benefits under 42 USC ch. 7 subch. II.

Wis. Stat. § 108.04(12)(f)3, with sub-sections b, c, and d, are created and read:

b. In the first month a social security disability insurance payment is first issued to an individual, the individual is ineligible for benefits under this chapter for each week beginning with the week the social security disability insurance payment is issued to the individual and all subsequent weeks in that month.

c. Following a cessation of social security disability insurance payments to an individual and upon the individual again being issued a social security disability insurance payment, the individual is ineligible for benefits under this chapter for each week beginning with the week the social security disability insurance payment is issued to the individual and all subsequent weeks in that month.

d. Following cessation of social security disability insurance payments, an individual may be eligible for benefits under this chapter, if otherwise qualified, beginning with the week following the last Saturday of the month in which the individual is issued his or her final social security disability insurance payment.

As evident in this draft language, the general prohibition current set forth in unemployment law and based on “receiving” SSDI benefits (see Kluczynski) is replaced with specific language that applies SSDI monthly benefits across all weeks of unemployment eligibility. While not the most artful , this proposed language most likely will accomplish its goal of making SSDI recipients ineligible for any unemployment benefits for as long as they are receiving monthly SSDI checks.

NOTE: Obviously, this proposal still does nothing to address the problem on the employer end that will make them immune to any unemployment-related consequences — i.e., changes to their experience ratings — when laying off SSDI recipients. Moreover, this change is still making an artificial distinction between SSDI benefits and regular social security benefits. For instance, SSDI recipients have their SSDI benefits become regular social security benefits upon reaching retirement age and no longer receive “SSDI” benefits.

Finally, this draft language contains the startlingly retroactive application to 5 January 2014 of this prohibition (see pp.14 and 13):

(1) CONCURRENT RECEIPT OF SSDI AND UI BENEFITS. The treatment of section 108.04(2)(h) and (12)(f)1., 1m., 2., 2m., and 3. b. to d. of the statutes and SECTION 27(2) of this act take effect retroactively to January 5, 2014.

[SECTION 27] (2) CONCURRENT RECEIPT OF SSDI AND UI BENEFITS. The treatment of section 108.04(2)(h) and (12)(f)1., 1m., 2., 2m., and 3. b. to d. of the statutes first applies retroactively to determinations issued under section 108.09 of the statutes on the effective date of this subsection.

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One thought on “Retroactive SSDI

  1. Pingback: SSDI budget cuts in Trump’s proposed budget | Wisconsin Unemployment

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