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:
- Whether the claimant failed to read or follow instructions or other Department communications,
- Whether the claimant relied on statements or representations of non-Departmental employees,
- Whether the claimant has a limitation or a disability and the claimant provided evidence of that limitation or disability to the Department,
- The claimant’s claims filing experience,
- Prior instructions or concealment determinations issued or provided to the claimant, and
- 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!
Is this new language retroactive? What if the investigation is started well before the changes were ratified? What standards are then used?
The proposed legislation only provides an effective date. Certainly, this new definition will apply if no initial determination has issued when the changes become effective. And, keep in mind that this proposal really reflects current DWD practices. So, the real impact will be in how LIRC reviews concealment charges.
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