After a break for the November elections, the Advisory Council met on January 17th to meet the new secretary, Caleb Frostman, and review events of the last few months.
The financial report was eye-popping and will be addressed in its own post. Here is what was covered outside of the financial report.
Mis-classification of employees
Mike Myszewski reported on the Department’s efforts in preventing the mis-classification of employees.
Note: These reports continue to be made orally and have NEVER appeared in writing. Given the Department’s annual report on alleged claimant fraud and the numerous charts and reports on alleged claimant fraud that appear at these meetings, it begs the question why the Department cannot at a minimum put down on paper in some way what it is doing to combat alleged employer unemployment fraud.
In any case, given that this report consists entirely of what was said, some of my numbers may be off. In addition, the exact nature and scope of this data is unknown, as this data is simply not available to the public and the Advisory Council apparently does not ask for it.
Mr. Myszewski reports that the Department has recovered $2.1 million in unemployment taxes from employers because of mis-classification for 1222 employees, or about $347 per mis-classified employee.
This recovery arose from 511 investigations in the last fiscal year, and there had been 145 investigations so far in the current fiscal year.
There were NO questions from the Advisory Council about this report.
The 15 Nov. 2018 public hearing
As compared to the public hearing in November 2016 in which there were 300+ comments from 295 individuals, at the 2018 public hearing there were only 21 comments in toto. Given these few comments, the summary presented to the council at this meeting included not only a summary but the actual 21 comments that were made.
Not surprisingly, work search waivers were again the hot topic. Here are some of those work search comments as well as others:
Karen, HR manager
“Moving onto the standpoint of someone who worked for UI, I think that customer service should be more of a priority for claimants and employers alike, but especially claimants. I get that there are some people that play the system, but overall, the claimants are not the enemy. The poor customer service is evidenced by the outrageous wait times when claimants call in, (but the employer hotline is answered in a couple of rings), not being clear on the number to call to get assistance, not posting the adjudication centers’ phone numbers or street addresses, and the legalese that is not easily understood by the average person in documents (which would not present as much of a problem if the claimants could easily contact someone who could help explain it to them).”
“[After describing various education and training actions that should count as job searches:] I understand that the State wants people off UI and back onto to work as soon as possible, but sometimes education and building of new skills are needed before people can do that. Just because it isn’t an application to a job, it does not make these actions any less of a job search function.”
“[After requesting that property liens that the Department uses for its debt collection efforts no longer be visible to the public via court records, she explains:] I have my Masters degree in Business. I have an undergraduate degree in Nursing. The ridiculous time consuming hoops I jump through to ‘prove’ I’m looking for a job are ridiculous. $370/wk doesn’t cover my bills and no one is looking harder for my job than me. As opposed to making people sit in some 4 hour class — where I can assure you that people like myself who have been working since 14 will get nothing from it.”
United Migrant Opportunity Services
“Over 11,000 claimants were accused of concealment in 2014. When appealed, over 70% were overturned, and another 8% remanded, It would appear that the Department is alleging concealment in many cases where a more thorough review of the evidence does not support that finding.”
Scott, building services employer
Unemployment benefits should be limited to 4 to 8 weeks. [Note: Currently, claimants are eligible for up to 26 weeks of benefits, and winter usually lasts a minimum of 14-18 weeks for those who go through seasonal layoffs.]
She is upset with: (1) having to wait 21 days for an adjudicator to be assigned to her case and (2) the extremely limited access to phone support when the number of unemployment claims are much less than what occurred in 2010, when she last filed for unemployment benefits.
Upset with having to wait 21 days for a decision on her claim.
The penalties for unemployment concealment are much too harsh.
Get rid of work search requirements for employees who experience seasonal layoffs and return to the same employer and eliminate the waiting week.
Get rid of work search requirements for employees who experience seasonal layoffs.
Get rid of work search requirements for employees who experience seasonal layoffs.
Get rid of work search requirements for employees who experience seasonal layoffs. And, the claim-filing process is extremely difficult for the employees handling snow removal during the winter months.
Get rid of work search requirements for employees who experience seasonal layoffs. For employers in Northern Wisconsin, work searches during winter months are a waste of time for both employees and employers, as there no jobs available then.
End the ban on unemployment benefits for those who are working while also receiving SSDI benefits. [Note: the Department currently eliminates unemployment benefits because these claimants have a disability that qualifies them for SSDI benefits. Wisconsin is the only state to have instituted this ban. Other states have only applied an offset to unemployment benefits for the SSDI benefits being received.]
Get rid of work search requirements for employees who experience seasonal layoffs and return to the same employer. She explains: “Our seasonal employees are returning to our business which they have been at for several years!! Why take the chance with this job-search stuff, which we could lose our valuable employee that we rely on returning. Now days’ finding someone to work is very hard.”
Get rid of work search requirements for employees who experience seasonal layoffs and expect to return to the same employer year-in and year-out,
Complaining about being denied benefits because a medical disability limits work availability. *Note: the description offered presents an obvious violation, as claimants are still eligible for unemployment benefits when work availability is limited to part-time work only because of a medical condition. See CITE.
Hawks Quindel law firm
Undo the damage to the unemployment system created in DWD v. LIRC (Beres), 2018 WI 77, 382 Wis.2d 611, 914 N.W.2d 625, that allows an employer to discharge an employee for a single absence (regardless of why the employee was absent) as misconduct and end the work search requirements for employees who undergo seasonal layoffs and expect to return to the same employer.
After presenting numerous ways to make job search information more user-friendly to claimants, she requests that job search criteria be expanded to include the actions claimants actually need to undertake when searching for a new job — such as networking events and informational interviews — and for the Department to allow training opportunities that currently prevent claimants from receiving any unemployment benefits.
Lame duck legal changes
Because Act 370 codified current administrative rules and Department practices, claimants and employers should not expect any changes to the unemployment insurance program under this Act.
So, Republican legislators have taken ownership of the job search requirements that nearly no one — I repeat, nearly no one, if the public comments in 2016 and again in 2018 are any indication — thinks are doing anything useful except to make unemployment claims more difficult. Everyone in rural Wisconsin should be asking their state representative and senator why — WHY — they think these job search requirements make sense.
The Department indicated that its own proposed changes to unemployment law will be introduced at the February meeting of the Advisory Council (why the Department continues to introduce its own substantive changes to unemployment law remains a mystery ever since the Department proposed its own substantive changes to unemployment law in November 2012).
Scott Manley of Wisconsin Manufacturers & Commerce also made two research requests. First, he wanted the Department to revisit its definition of independent contractor work in light of growing employment through TaskRabbit, Mechanical Turk, and other on-line business operations.
Note: the Labor and Industry Review Commission has already determined that a Lyft driver is NOT an employee for the purpose of unemployment benefits. See Ebenhoe v. Lyft, Inc., UI Hearing No.16002409MD (20 Jan. 2017). Currently, Lyft’s responsibility for paying unemployment taxes is being litigated. See Lyft, Inc., UI Hearing Nos. S1500424MW and S1800091MW (26 Oct. 2018).
Second, Mr. Manley wanted to know what the Department could do to expand its program integrity efforts for bringing criminal charges against claimants for their alleged unemployment fraud. For how the criminal charges that have already been filed are hugely disproportionate according to the race of claimants (75% of the cases are against African-Americans), see this post.
Mark Reihl of the Carpenters made a third request. He wanted a comparison of how Wisconsin’s weekly benefit rate (the average received and the maximum available) compare to the other fifty states and territories.
Note: Wisconsin’s maximum available weekly benefit rate is $370. The average weekly benefit being paid out in 2017 was $317.14. See this 2017 4Q report (this data is for all fifty states, Wisconsin is on p.64 of the pdf). Data for the 3Q of 2018 indicates that the average for the last four quarters was $320.03. The average duration of unemployment benefits for these last four quarters was 12.7 weeks. See p.63 of the pdf for this data.
Data on the financing for all fifty states for 2017 (the most recent year available) can be found here (Wisconsin is on p.60 of the pdf).