Final concealment language approved and drafted

Today at the November 19th Advisory Council meeting, the Department presented the final concealment language that the Advisory Council previously approved at its October 29th meeting.

In this final proposal (cf. to the original proposal), claimants have “a duty of care to provide accurate and complete” responses to Department inquiries and that the following six factors will be used for determining whether a claimant intended to mislead the Department:

1. Whether the claimant failed to read or follow instructions or other Department communications,
2. Whether the claimant relied on statements or representations of non-Departmental employees,
3. Whether the claimant has a limitation or a disability and the claimant provided evidence of that limitation or disability to the Department,
4. The claimant’s claims filing experience,
5. Prior instructions or concealment determinations issued or provided to the claimant, and
6. Any other relevant factor providing evidence of the claimant’s intent.

While concealment still “means to intentionally mislead” the Department, a third sub-section declares that: “Nothing in this subsection requires the department, when making a finding of concealment, to determine or prove that a claimant had an intent or design to receive benefits to which the claimant knows he or she was not entitled.”

So, concealment is still an intentional act, but the Department does not need to demonstrate an intent to conceal. These two provisions contradict each other, and the only way to make sense of them is to ignore the contradiction and conclude that: (1) concealment is intentional in name only and (2) can be demonstrated by any claimant mistake that led to an over-payment of unemployment benefits. The only apparent way a claimant can avoid a concealment charge is if she can show that her mistake was not intended (i.e., she did not intend to answer “no” instead of “yes” in response to a question and somehow did not have the chance to review and correct that mistaken answer). Under such a framework, concealment is pretty much a guarantee for almost all claimant mistakes.

NOTE: The number of LIRC decisions overturning concealment charges showcase how claimants are already being charged with concealment for nothing more than accidental claim-filing mistakes. Under this new definition of concealment, however, the statutory basis for requiring an actual intent to deceive for a finding of concealment will no longer exist. As a result, the Commission will not have a statutory basis for overturning these concealment charges.

The Labor and Industry Review Commission previously presented to the Advisory Council a memorandum about the Department’s proposed changes to the definition of concealment (see the discussion in this post for a discussion of the Department in 2014 changed how it handled concealment cases and now seeks to cement that new practice in the statutes). This proposal essentially adopts the Department’s current practices in charging concealment against claimants. As I noted already, “Unemployment claims . . . have . . . become a vehicle for alleging concealment against claimants,” and the unemployed should now generally NOT file claims for unemployment benefits.

NOTE: Because benefit payments have plunged to record lows, it appears that many of the unemployed have already adopted this position and avoided filing claims altogether.

To compound matters, the effort to criminalize concealment has been renewed in AB533 [UPDATE 4 December 2015: companion bill SB401 has also been taken up with hearings] with the re-introduction of the criminal penalties that were removed from Governor Walker’s budget bill. The Department’s original Budget Act memo on these felony penalties for concealment details the consequences to claimants charged with concealment. So, if AB533 [or SB401] passes, prison terms will be applied to claimants who are being held strictly liable for their claim-filing mistakes. YIKES!

On-line claims filing updates

The Department of Workforce Development issued the following press release on Nov. 3rd about on-line claims filing.

UI Online Upgrades Modernize Initial Claims Filing in Wisconsin

90% of initial claims that are started online are now completed without the need to speak to a specialist

MADISON – One year after the Department of Workforce Development (DWD) rolled out a redesigned online system to help Unemployment Insurance (UI) claimants start and complete their initial claims for unemployment benefits through the Internet, over 90% of initial claimants who start the filing process online are completing their claim without the need to speak to a specialist.

“We’re pleased with the success of our new system, as evidenced by the increase in the percentage of people who are completing online initial claims without the need to speak to a specialist,” DWD Secretary Reggie Newson said. “The investments we have made in a robust, nimble and customer-friendly online claims system will pay dividends in the form of added efficiency and convenience as federal UI financial support declines due to the state’s improving economy, and as we transition to a 21st century customer-service model that more fully uses online tools.”

The November 2014 rollout of the UI initial claims redesign featured new tools to enter accurate information, the ability to save work and finish claims later, additional flexibility to resolve eligibility questions online quickly, and other enhancements that reduce the need to talk to a specialist and are prompting claimants to file online instead of by phone.

Highlights of the positive impact that the UI online initial claim filing system has had over the past 12 months include:

• Of those who start an initial claim online, the percentage of claimants who complete initial claims online increased from about 57 percent to 90 percent.
• The percentage of claimants who start their initial claim online has also risen. As a result of these two improvements, the percentage of people who are using online services from start to finish without needing to speak to a claims specialist has nearly doubled.
• 78 percent of claimants who are required to search for work file their weekly claims online, in part to enter their weekly searches in work search logs that now must be provided either online or by fax or mail before claimants can collect unemployment benefits.
• UI estimates 57,000 initial claims that have been completed online would have required a claim specialist’s assistance before the initial claim redesign took effect in November 2014.

While DWD’s telephone-based automated filing system will remain an option for claimants who prefer to file claims by phone instead of through the Internet, DWD is responding to customer trends toward online and helping to minimize call wait times across the week by fully implementing a call scheduling system called guaranteed call priority this month for claimants who file initial claims by phone or are calling with a general question.

Mondays, Tuesdays and Wednesdays each will be assigned to one-third of claimants who file by phone, with Thursdays and Fridays open to all claimants who file by phone. Online services will be available to all claimants seven days a week. UI is proactively notifying claimants that guaranteed call priority takes effect November 9 and will help ensure call wait times are minimized throughout the week.

Secretary Newson noted that other states have implemented assigned days to reduce wait times, and Wisconsin has done so on a voluntary basis since summer 2014. “We will continue to encourage all claimants to file online, which they can do any day of the week,” he said.

Note that telephone claim services are now being limited. Mondays, Tuesdays and Wednesdays will be limited by one-third in some way (it is unclear whether one-third of the staffers are available or one-third of the claimants can call on these days). On Tuesdays and Thursdays, however, no call-in limits will be in place.

Viva la France

The tragedy and trauma of Paris is difficult to grasp. Two articles from the New Yorker shed some light on this darkness and the difficult times ahead. George Packer, The Other France, describes how racial and religious tensions in France are longstanding and hardening of late. Philip Gourevitch, Aftermath and Prelude, describes how this kind of an attack arises from a battle between feudal and modernist notions of society.

A few verses from the Sunday lessons, however, give hope.

Let us hold fast to the confession of our hope without wavering, for he who has promised is faithful. And let us consider how to provoke one another to love and good deeds, not neglecting to meet together, as is the habit of some, but encouraging one another, and all the more as you see the Day approaching.

Hebrews 10:23-5.

I know legislators today are exclaiming how all Syrian refugees should be banned from various states. This discrimination based on national origin — probably not actionable because the states passing these resolutions have no actual authority to institute such bans — smacks of the kind of fear that we should be turning our backs on.

AB416 is now 2015 Wis Act 86

As noted previously, three DWD proposals were quickly put into a bill, AB416, and that bill was passed by the legislature, signed by the Governor on November 11th, and published that same day as 2015 Wisconsin Act 86.

The three DWD proposals that make up this bill are:

• D15-02 — adding the ability to issue determinations against out-of-state employers in combined wage claims for being at fault for an erroneous benefit payment to a claimant,
• D15-03 — applying the Treasury offset program to employers, as described previously in this post, and
• D15-07 — changes to how work share benefits are calculated so as to comply with federal requirements for work share programs.

Given the quick passage of this bill, the Treasury offset of tax refunds against employers will be in effect for the 2015 tax year. Accordingly, employers who owe money because of unpaid employer employment taxes will have any 2015 tax refunds due them intercepted by the state in order to recover unpaid taxes that are due.

In 2016, SNAP time limit should NOT be applied to UI claimants

Via NELP, Elizabeth Lower-Basch of CLASP indicates that a three-month limitation on SNAP (aka food stamp) benefits will reappear in 2016. This limitation, however, should not apply to UI claimants.

In 2016, unemployed workers without minor children in many states may be at risk of losing their Supplemental Nutrition Assistance Program (SNAP, also known as food stamps) benefits due to the return of the three month time limit for SNAP/food stamp benefits. Individuals receiving UI benefits — and many UI applicants — are supposed to be exempt from this time limit, but it is not clear that all SNAP agencies will correctly identify and exempt such individuals.Therefore, UI advocates may have an important role to play in both encouraging states to identify those who should be exempt and in assisting unemployed workers who are incorrectly denied SNAP benefits.

Since 1996, there has been a time limit on SNAP benefits of just three months during any 36-month period for working age adults without children unless they are working or participating in a qualifying work activity at least 20 hours a week.  The time limit applies to recipients who:

• Are 18-49 years of old;
• Are not determined to be medically certified as physically or mentally unfit for employment;
• Are not pregnant;
• Are not raising or residing in a household with minor children;
• Are not otherwise exempt from SNAP work requirements; and
• Are not working or participating in a qualifying activity for at least 20 hours per week.

Because of these rules, people subject to the time limit are sometimes referred to as “able-bodied adults without dependents” or “ABAWDs. Throughout the recent recession, many states qualified for statewide waivers of time limits due to high unemployment. But, in 2016 only a handful of states will still have statewide waivers (most states will qualify for waivers in some portions of the state, although not all states are taking the waivers for which they are eligible). The Center on Budget and Policy Priorities (CBPP) has estimated that nearly 1 million people will be cut off of SNAP in 2016 due to this time limit.

Individuals who are receiving unemployment compensation — and in many cases people who have applied for UI benefits — are exempt from SNAP work requirements, and therefore should not be subject to the SNAP time limits. The regulations include among the list of exemptions:

(v) A person receiving unemployment compensation. A person who has applied for, but is not yet receiving, unemployment compensation is also exempt if that person is complying with work requirements that are part of the Federal-State unemployment compensation application process. If the exemption claimed is questionable, the State agency is responsible for verifying the exemption with the appropriate office of the State employment services agency.

SNAP agencies should know whether recipients are getting UI benefits, as UI is countable income for SNAP, but we do not yet know whether all agencies have built this information into their processes for identifying recipients subject to the time limit. In most cases, SNAP agencies will not know that an individual has applied for UI benefits unless the caseworkers ask. For this purpose, registering for work as a condition of UI receipt is sufficient to count as “complying with work requirements.”

Questions to ask any state about this provision include:

• Is the state requesting all of the time limit waivers for which it is eligible?
• In the computer run to identify people subject to the time limit, are individuals reporting UI income automatically being excluded?
• Can the SNAP agency automatically match data with the UI agency to identify individuals who have applied for UI benefits but not yet been approved?
• In notices that are being sent to recipients regarding the time limits, are they informed that UI receipt and/or application is a basis for exemption, and asked to report if they qualify on this basis?

There are other bases for exemption from the time limit that may be of interest, including for students, those who are “physically or mentally unfit for employment” (which does not require the same level of disability as other programs), those in substance abuse treatment programs, those in workforce programs, and those working on a volunteer or in-kind basis. For more information about the SNAP time limits, see:

• One million adults to lose SNAP benefits
• Revised ABAWD Work Activities
• Implementing three month time limit

Medical marijuana UI decision in Michigan stands

The Michigan appellate court decision (previously noted here) holding that the use of medical marijuana does not qualify as misconduct in Michigan will not be reviewed by the Michigan Supreme Court. Rick McHugh of NELP has the details:

In October 2014, the Michigan Court of Appeals held that denying UI benefits to claimants who were registered medical marijuana users and who were fired when they tested positive for marijuana was a prohibited penalty under Michigan’s Medical Marijuana Act. Under the facts of this case, there was no allegation that any of the claimants were in possession of, intoxicated, or under the influence of marijuana while at work. All testified that they had used marijuana away from work pursuant to their medical marijuana cards. Despite this, the administrative appellate body, the Michigan Appellate Commission, had imposed misconduct disqualifications upon the claimants. Three separate trial courts then reversed and the cases were consolidated in the state court of appeals.

The favorable reported ruling is found in Braska v. Challenge Manufacturing, 861 N.W.2d 289 (2014). While the agency’s petition for appeal was pending, Mr. Braska passed away, so the Supreme Court order denying review last week was issued under the caption Janine Kemp v. Hayes Green Beach Memorial Hospital, one of the two remaining cases.

Here is a news article that gives further background about the case.

NELP had filed an amicus brief with the Michigan ACLU and Michigan UI Program in the Court of Appeals. The favorable holding is based upon explicit language contained in the Michigan Medical Marijuana Act — which was passed as a result of a voter referendum. And the act was very skillfully drafted.

Krugman: Heartland of Darkness

From Paul Krugman’s Conscience of a Liberal blog

This graphic paints a sharp rise in death rates from before 2000 for middle-aged white folk. It’s a startling reversal of what many expect, especially when compared to the continued declines in numerous European countries. As Krugman notes in his post:

This picture goes along with declining labor force participation and other indicators of social unraveling. Something terrible is happening to white American society. And it’s a uniquely American phenomenon; you don’t see anything like it in Europe, which means that it’s not about a demoralizing welfare state or any of the other myths so popular in our political discourse.

There’s a lot to be said, or at any rate suggested, about the politics of this disaster. But I’ll come back to that some other time. For now, the thing to understand, to say it again, is that something terrible is happening to our country — and it’s not about Those People, i’’s about the white majority.

One thing to note that in Wisconsin employment has been largely stagnant since the Great Recession. Compare employment data from the September 2007, September 2008, and the September 2011 monthly jobs reports with the September 2015 monthly jobs report. In all of these reports, the August data has been revised and is considered final. Here are the differences from the August 2015 employment data in 2011, 2008, and 2007:

So, in August 2015 the civilian labor force was only 16,100 individuals larger than what it was in August 2011 and still slightly smaller from what it was in August 2008 (when the recession was kicking in) or just slightly larger than in August 2007. Actual employment in August 2015 is just under 120,000 more than what existed in August 2011 but just 15,600 more than the 2,918,900 in August 2008. Private and government employment figures are likewise relatively flat. Yes, 76,100 private sector jobs have been added to Wisconsin’s economy from August 2011 to August 2015. But, August 2015 private sector jobs are still 8,600 less than what existed in August 2008 and just 3,600 more than what existed in August 2007.

In short, the jobs picture in Wisconsin is just awful: the state is just now getting back to a level of jobs that existed in 2008, nearly seven years later. Given that economic growth in the early 2000s was poor to begin with, it is not at all surprising that too many have been caught in the kind of despair that the lack of good, paying jobs brings.

UPDATE (9 Nov. 2015): Krugman has a follow-up in his column today:

So what is going on? In a recent interview Mr. Deaton suggested that middle-aged whites have “lost the narrative of their lives.” That is, their economic setbacks have hit hard because they expected better. Or to put it a bit differently, we’re looking at people who were raised to believe in the American Dream, and are coping badly with its failure to come true.

That sounds like a plausible hypothesis to me, but the truth is that we don’t really know why despair appears to be spreading across Middle America. But it clearly is, with troubling consequences for our society as a whole.

Drug testing for Temporary Assistance for Needy Families (TANF) recipients

UPDATE (9 Nov. 2015): The new drug testing regulations actually only apply to Temporary Assistance for Needy Families (TANF) programs. Food stamp recipients may be covered at some later date if Wisconsin wins a law suit against the federal government to allow drug testing in food stamp programs.

Emergency regulations that were only recently proposed on October 19th have this week been quickly approved by the governor (the comment period closed this week on Monday, November 2nd) and will take effect this upcoming Monday, November 9th.

While this drug testing has nothing to do with unemployment benefits (unemployment testing cannot even be considered for implementation until federal authorities issue final regulations and then state regulations for the testing pass federal review), this testing of food stamp Temporary Assistance for Needy Families (TANF) recipients includes some wrinkles — or rather a lack of specificity — that everyone should take note of.

In particular, the criteria and the nature of the drug testing that will be used is essentially “to be determined.”

NATURE OF TESTING REQUIRED. Testing shall consist of laboratory analysis of a specimen collected from an individual. The department shall provide to each administering agency a list of all controlled substances or metabolites of controlled substances that must be included in the test and cutoff levels for the test and any confirmation test that may be used. The department may add or delete controlled substances or metabolites that must be included in the laboratory test to reflect changes in pre-employment drug testing practices of Wisconsin employers. Any positive test shall be confirmed through a confirmation test from the original specimen collected from the individual. Methods of analysis for the confirmation test may include quantification by gas chromatograph-mass spectrometer, liquid chromatography-mass spectrometry, tandem mass-spectrometry, or another analytical method approved by a medical review officer for the drug testing vendor.

ADM DCF 105.05(2) [pp.8-9 of the emergency regulation].

What information about the drug testing standards at issue here indicate that open-ended criteria will be used to determine both what kinds of tests will be used as well as the criteria at issue in those tests. Rather than the urine testing that is standard in most workplace drug testing, the Department of Children and Families could well order up saliva, sweat, blood, or even hair testing (see, for instance Brandt v. Scot Forge Co., UI Hearing No. 09006150MD (18 July 2013) for a discussion of some of the problems with hair testing). At present, the federal agency responsible for drug testing has still only approved of urine or blood tests as legitimate tests for use of illegal drugs. In addition, this new regulation allows the Department of Children and Families to set cutoff levels for revealing drug use that may differ or even conflict with federal requirements for establishing a positive test result. It is the “drug testing practices of Wisconsin employers” rather than established scientific standards that will govern what cutoff levels will be used for a positive test result.

Finally, these regulations are completely silent about inspection and certification requirements for the drug testing laboratories themselves. The federal standards for drug testing and certification are thorough and fair. Other standards for drug testing laboratories, however, can leave out quite a bit. And so, any lab that is not federally certified might not have much validity at all to its tests. But, without a thorough understanding of the science and laboratory techniques at issue with that test and the lab conducting the test, a challenge about a fake-positive will be difficult if not impossible to mount.