Criminalizing unemployment benefits

The Department of Workforce Development has not only been extremely aggressive on charging claimants with concealment (aka fraud) for unintentional claim-filing mistakes, but it has also pushed criminal penalties for that concealment. I noted previously that the state’s Department of Justice has been only too eager to follow up with that criminal prosecution for those mistakes.

Since then, the state Justice Department hired Jake Westman specifically to prosecute these cases, and he has been busy. Here are his 2016 cases (11 filed that year), his 2017 cases (45 filed that year), and his 2018 cases (37 filed so far). Since he switched in October 2018 to a job at the Division of Hearings & Appeals, Shelly Rusch has taken over his case load. Here are her 2017 (1 case from Westman) and 2018 cases (11 switched from Westman so far).

All of these 93 cases charge claimants criminally with unemployment fraud. None so far have gone to trial, and almost all have ended with plea bargains. One case, 2018-CF-129, was dismissed on Ms. Rusch’s motion after a competency hearing.

Here is a breakdown of the claimants charged in these criminal cases based on race, gender, and initial address information available in these court records.

Here, we see that all 11 of the 2016 cases were against African-Americans living in Milwaukee. In 2017, African-Americans were defendants in 32 of 45 cases, or 71%. All of those cases were against Milwaukee residents. Of the remaining 13 cases in 2017, seven were against Caucasians, three against Latinos/as, and two against Native Americans. In 2018, the cases against African-Americans finally expanded beyond Milwaukee with 24 based there and four based in other cities. For 2018, African-Americans constitute 75.7% of the defendants (28 out of 37). The remaining nine cases consist of Caucasian defendants.

More Caucasian men are being criminally charged than Caucasian women (nine to seven). Among African-Americans, however, more women are being charged: 38 women to 34 men.

As noted here, the Department of Workforce Development considers concealment to be an unintentional claim-filing mistake. The Department claims otherwise, but the cases brought by the Department and appealed to the Labor and Industry Review Commission show that the Department presumes claimant’s mistakes are intentional and then places the burden of proof on claimants to demonstrate that their mistakes were accidental for some reason. Without knowledgeable help from someone who knows how complicated the unemployment claim-filing process has become or how aggressive the Department is on this issue and a Commission that insists on following unemployment law as written, it can be difficult for someone to explain his or her confusion and get a concealment charge overturned.

What makes this criminal prosecution of claimants for their mistakes even worse is that the Commission has NOT applied the strict liability for mistakes standard that the Department wanted with the 2016 changes in the definition of unemployment concealment. Section 18 of 2015 Wis. Act 334 left intact the requirement that unemployment concealment means “to intentionally mislead.” And so, the Commission has affirmed that unemployment concealment still requires a finding of intent. See Domingo Ramos, UI Hearings Nos. 16606402MW and 16606403MW (23 Feb. 2017) (applying new concealment definition, Commission finds that claimant’s job search mistakes were not intentional and so not concealment).

The Department of Workforce Development, however, has consistently ignored this requirement for unemployment concealment to be intentional and continues to charge concealment against claimants for their unintentional claim-filing mistakes.

And, now the Department of Workforce Development has been combining with the state Department of Justice to bring criminal charges against claimants for those same accidental mistakes. The plea bargains in many of these cases involve little more than paying back the alleged concealment penalties DWD first charged against these claimants in unemployment proceedings. In several, those monies have already been paid back, and so claimants are simply stuck with an additional $500 to $1000 in court costs as part of their plea bargain. In some other cases, it appears that the criminal case was nothing more than an additional mechanism with which to pursue collection against claimants for whom prior collection efforts had been unsuccessful.

That DWD and the state DOJ is targeting folks by race is obvious from this data. Here are the number of “fraud” cases by year:

2013 -- 14,682
2014 -- 13,034
2015 -- 9,793
2016 -- 8,438
2017 -- 5,132

From Addendum A of the 2017 Fraud Report at 11. So, of the thousands of fraud cases per year that DWD is pursuing, it is only bringing 30-50 criminal cases a year, and 70-80% of those criminal cases are against African-Americans. This result simply stinks to high heaven.

But for a new governor who may or may not think of unemployment in the same way as his predecessor, things would be getting even more dire. Rep. Kerkman managed to get criminal penalties for unemployment substantially increased via 2017 Wis. Act 147. As detailed in the Legislative Council memo, fines are substantially increased (usually now up to $10,000 or more) and prison time is increased substantially as well (now from nine months to ten years) depending on the amount of “concealment” at issue.

The current practices of DWD are making unemployment not only impossible to receive but damn near dangerous. Something needs to change in 2019.

Drug testing is making a comeback

Brand new proposed regulations are now available. Here is the initial reaction from NELP:

Washington, D.C. — Following is a statement from Christine Owens, Executive Director, National Employment Law Project:

“Today, the Trump Department of Labor (DOL) released a proposed rule giving states fairly broad authority to conduct mandatory drug testing of unemployment benefit claimants and recipients. The proposal not only suffers from a number of fatal legal flaws, but more to the point, drug testing of UI applicants–when there is no basis for suspicion–is a gross insult to unemployed Americans everywhere, and a costly solution in search of a non-existent problem. Clearly, this proposal is designed to stigmatize use of an important layer of our social safety net.

“As part of a bipartisan compromise to pass the Middle Class Tax Relief and Job Creation Act of 2012 (MCTRA), Congress agreed to allow states to conduct drug testing of unemployment insurance claimants under two exceedingly narrow circumstances: if a worker was discharged for use of controlled substances, or when a worker is only available for work in professions that regularly conduct drug testing. The Obama Department of Labor crafted a regulation that closely adhered to the statutory language, but upset with the bargain it struck, Congress then used the Congressional Review Act to repeal this regulation, arguing that in spite of the very narrow language in the MCTRA, states should be allowed to drug test in broader circumstances.

“State-mandated drug testing may well violate the Fourth Amendment’s prohibition of unreasonable searches and seizures. The mere act of applying for a government program does not provide grounds to reasonably suspect a person of drug use. Indeed, when states such as Michigan and Florida tried to impose mandatory suspicion-less drug testing on all TANF applicants and recipients, federal courts intervened to stop them, finding such testing unconstitutional.

“In addition, when Congress passed the MCTRA, it not only articulated very narrow circumstances under which drug testing could be conducted, but it delegated to DOL the authority to define which occupations were covered under the law. The Trump DOL has instead essentially granted states broad authority to determine which occupations regularly conduct drug testing beyond that which is required by law, a delegation of authority not authorized by the MCTRA.

“As the proposed regulation acknowledges, the expense of such drug testing is considerable, while states’ funding to run their UI programs is at a historic low. Expanding drug testing would drain critical resources from programs that are already strapped for funds. In 2015, for example, states spent more than $850,000 on testing TANF applicants, and 321 people tested positive–a cost of approximately $2,650 per positive test. Indeed, all testing regimes yield positive results at rates substantially below the Centers for Disease Control’s estimate of 8.5 percent drug-use rate in the general population.

“Finally, this misguided proposal represents a not-so-subtle attack on the character of unemployed Americans. This intrusion into the privacy of Americans who just happen to be unlucky enough to lose their job seems rooted in a blanket assumption that unemployed workers are to blame. Drug testing is simply a lazy way of blaming the victims of larger economic trends or corporate practices such as downsizing, outsourcing, and offshoring.

“Unemployment insurance is an important economic tool to help workers, their families, and their communities deal with involuntary job loss. And NELP will lead the fight to stop this expensive, illegal, ill-conceived effort to erode this safety net.”

As noted in this newly proposed rule, Wisconsin, Texas, and Mississippi are the only states that have passed drug-testing laws for unemployment claimants that seek to implement drug-testing of some kind. The proposed rule also “claims” that drug testing will have minimal costs. Really?

If this new proposal survives court challenges, expect Wisconsin to expand drug-testing for any job sector for which the state thinks drug-testing is important in some way. I fully expect Gov. Walker to expand testing to include school employees whenever they apply for unemployment benefits. Indeed, I would not be surprised if Gov. Walker determined that every unemployment claimant should be drug-tested. After all, such tests would simply be one more obstacle claimants would have to jump through as part of the initial claim-filing process.