Wisconsin now has disaster unemployment assistance available to folks who have lost work because of the recent flooding and rains. For residents of Crawford, Dane, Juneau, La Crosse, Monroe, Richland, Sauk, and Vernon counties, the deadline for applying for such assistance is 23 November 2018. And, such assistance is available to self-employed folks as well.
Be careful, however. The Department of Workforce Development will charge you with criminal fraud for any claim-filing mistakes you make, no matter how unintentional those mistakes might be.
As I have indicated repeatedly (here, here, and here, for instance), filing an unemployment claim today is a BIG risk because of the Department’s zealousness for charging fraud when making non-intentional claim-filing mistakes.
The fact that the Department features three publications (and only these three) that generally (the claimant’s handbook) or only warn against claimant fraud (DUA rights and responsibilities and Notice to all DUA applicants) reinforces this warning. These documents represent the Department’s way of explaining to you that the Department will hold you strictly liable for your claim-filing mistakes.
In other words, do NOT file a claim for unemployment benefits unless you absolutely have to. And even then, double-check everything you write down and take notes of everything you do and of every interaction you have with the Department.
The current administration is trying to bring back drug testing. As of Oct. 24th, the Office of Management and Budget has approved new, proposed regulations:
As indicated here, these proposed regulations are strangely NOT economically significant, do NOT affect small entities, and have NO federalism impacts (i.e., state sovereignty remains intact). The whole point of drug testing the unemployed was to reduce the “terrible” effects of drug use on workplace productivity and safety, that this federal drug testing requirement would empower small businesses to take up this testing and thereby get a drug-free workforce at much lower costs, and that the regulation would allow states the “freedom” to implement specific drug-testing requirements. Essentially, this conclusion of NO effect on these issues is proclaiming that drug-testing the unemployed is of no importance, financially or otherwise.
The new, proposed regulations should appear in the Federal Register in the next few weeks. Only then will we know what the substance of these new requirements are.
As I noted previously here and here, there are serious problems with any new drug testing regulations given how Congress nixed the prior regulations via the Congressional Review Act. Under that law, new regulations are verboten if they are in “substantially the same form” as the disapproved regulations unless they are specifically authorized by a subsequent federal law.
In other words, these new, proposed regulations MUST be substantially different from the prior drug-testing regulations, as Congress has passed no law authorizing new regulations.
The Department of Workforce Development has another newsletter for employers (here is a link to a PDF version). Understandable, the Department lets employers know about the deep decline in unemployment taxes for employers the last few years, pushes its new on-line portal for employers, publicizes the upcoming public hearing, and other employer-centric issues.
Surprisingly, the Department also states:
Pre-Employment Drug Testing Program Helps Strengthen Wisconsin’s Workforce
With a record low unemployment rate, the prevalence of substance abuse is a growing problem for employers who are already struggling to find qualified workers. As part of DWD’s commitment to ensuring no talent is left on the sidelines, the Department’s Pre-Employment Drug Testing Program is a way employers can help grow Wisconsin’s pool of work-ready job seekers while fostering a drug free workplace within their business.
Provisions included in the UIAC agreed-upon bill, effective April 1, 2018 provide that an employer that submits the results of a positive test or notifies DWD of an individual’s refusal to take a pre-employment drug test is immune from state civil liability for its acts or omissions with respect to the submission of the reported information (Wis. Stat. § 108.133(4)(c)). Go to https://dwd.wisconsin.gov/ui/pre_employment_drug_testing to find additional information, forms, and resources on how to participate in the program.
This advice is plain silly and borderline malpractice. Immunity from civil liability in state law is basically meaningless in the area of medical privacy law. Almost any and every law suit a person might file will be based on federal laws that protect an individual’s medical privacy. Obviously, federal law against disability discrimination may apply in these situations. While HIPAA does not cover employers, it does cover health care providers and all of the entities that contract with those providers, including drug-testing labs. Moreover, a self-insured employer who has an ERISA plan (which pretty much covers all large employers in the state) will mean that employer liability can probably ONLY occur through an action based on federal law. Finally, an employer who fails to follow federal drug-testing requirements will most-likely open themselves up to liability and even bars against future contracts for federal work.
In other words, state law has limited relevance here, and so an immunization from civil liability in state law simply does not mean all that much. Any employer that thinks otherwise is being misled. In actuality, no matter what might be said in state law, an employer essentially has NO immunity from a law suit alleging an invasion of medical privacy at the federal level.
NOTE: drug tests of employees or potential hires are usually NOT an invasion of medical privacy because of federal laws that allow such testing or waivers that the employees sign as part of their employment contract. The problem with reporting failed drug tests of applicants, however, is that neither probably applies. After all, an applicant is not yet an employee and has received nothing of consequence accept a contingent offer of employment.
The Department of Workforce Development has announced as of 27 Sept. 2018 improved on-line access for employers to their unemployment accounts.
Department of Workforce Development Announces Upgraded Unemployment Insurance Employer Online Services
MADISON (9/27/18) – Today, the Department of Workforce Development announced enhancements that will make it easier for employers to interact and correspond with the Department’s Unemployment Insurance program.
The first improvement is a streamlined and an easy to use UI Employer Online Services and SIDES E-Response sign-on. The second improvement permits employers to view benefit determinations and to file benefit appeals electronically.
“Wisconsin was the first state in the nation to offer unemployment insurance benefits,” said Secretary Ray Allen. “Now, we are leading again as the first state to provide an electronic method for employers to appeal benefit cases through the SIDES Exchange.” Allen noted that unemployed workers already have the ability to appeal such cases electronically.
Unemployment Insurance (UI) SIDES E-Response is a web-based system that allows electronic transmission of information requests from UI agencies to employers and/or Third-Party Administrators (TPAs), as well as transmission of replies containing the requested information back to the UI agencies.
Prior to the enhancements, employers had to use different login credentials for each response sent through SIDES. Employers are now able to use their UI Employer Online Services credentials to respond to inquiries through SIDES. This enhancement makes the system more user-friendly, saving employers time and money.
Newly Upgraded UI Employer Online Services include:
- Single sign-on for UI Employer Online Services and SIDES E-Response – saves time, reduces complexity
- Employer appeals can be filed online – view and print benefit determinations, file appeals, amend appeal responses and send attachments
Additional employer benefits include:
- Safe and secure online services are available to employers for free
- Eliminates delays and save money on employer paper mailings
- Reduces improper payments and employer charging, keeping tax rates as low as possible
To sign-up, log-in, or learn more, visit https://dwd.wisconsin.gov/ui/sides
Essentially, these changes expand what is currently available to employer representatives via SIDES to allow all employers to have the same kind of access to their accounts. For small employers who do not have an agent handling their unemployment accounts, this added access is an obvious improvement.
The changes, however, will not be obvious without some exploring of the employer accounts by the employer. So, employers: log into your accounts at the link in the press release above and do some exploring.