Month: August 2019

Labor and employment documents and databases

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Courtesy of Stuart M. Basefsky at Cornell University:

National Conference of State Legislatures (NCSL)

LABOR AND EMPLOYMENT [DOCUMENTS & DATABASES] as of 15 August 2019

http://www.ncsl.org/searchresults/issearch/false/kwdid/400.aspx

Disability Employment Legislation

NCSL’s Disability Employment Database tracks current bills and legislation in all 50 states addressing employment opportunities for people with disabilities. It includes accessible transportation, inclusive hiring, special education, subminimum wage, and other disability employment issues.

Labor & Employment: Bill Summaries/Databases | August 14, 2019

National Employment Monthly Update

Approximately 164,000 jobs were created in July 2019, and the national unemployment rate remained at 3.7%, according to the Bureau of Labor Statistics. Employment increased in professional and technical services, health care, social assistance, and financial activities.

Labor & Employment: Reports | August 02, 2019

Occupational Licensing Legislation Database

This page contains a database that include occupational licensing legislation from all 50 states.

Labor & Employment: Bill Summaries/Databases | July 31, 2019

Disability Employment

NCSL offers a number of resources on employment policy for people with disabilities. This includes state laws relating to state hiring practices, accessible transportation policy, inclusive apprenticeships, and workers’ compensation laws.

Labor & Employment: Articles/Briefs/Newsletters | July 16, 2019

State Unemployment Rates | May 2019

Unemployment rates in May were significantly lower in six states (Colorado, New Jersey, Ohio, Oregon, Texas, and Vermont), higher in two (Nebraska and South Carolina),and were generally stable for the rest of the 42 states and the District of Columbia, according to the Bureau of Labor Statistics.

Labor & Employment: Reports | July 05, 2019

The National Occupational Licensing Database

A national database of state regulations developed to contribute to the understanding of the variation in occupational licensing burdens across the country and particularly among professions for which these laws may pose unnecessary barriers to employment.

Labor & Employment: Bill Summaries/Databases | June 19, 2019

2019 NCSL Legislative Summit Pre-Conference: Implications of Living to 100: Preparing State Policymakers

Join policy innovators as we take stock of demographic changes and discuss how systems and supports may need to change to sustain a 100-year life. Explore topics including health and long-term care, employment and retirement savings opportunities, and designing physical communities and facilities that are inclusive for people of all ages.

Labor & Employment: Meetings | June 11, 2019

[LegisBrief] Boosting America’s Rural Workforce

Rural counties across the U.S. continue to suffer from a shrinking population and workforce. To keep rural communities and economies thriving, state policymakers are experimenting with a variety of different policy solutions to attract and retain residents.

Labor & Employment: LegisBrief | June 06, 2019

2019 Western States Policy Meeting Resources

Information and resources presented by experts from the 2019 Western States Policy Meeting: Barriers to Employment for People with Disabilities

Labor & Employment: Meetings | June 05, 2019

Workers’ Compensation: Keeping Injured and Ill Workers in the Workforce

When workers are injured on-the-job, workers’ compensation provides insurance coverage for their treatment and wage replacement benefits. When workers have extended absences from work they are less likely to ever return to work and often turn to federal disability benefits.

Labor & Employment: Reports | May 24, 2019

Beres, absenteeism, and a temporary change of heart

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In 2018, unemployment and absenteeism were intertwined with a legal attack on agency deference that were described in a series of five posts about three cases: Tetra Tech, Beres, and Wisconsin Bell.

On 26 June 2018, the Wisconsin Supreme Court delivered its decision in DWD v. LIRC (Beres), 2018 WI 77, 382 Wis.2d 611, 914 N.W.2d 625. In a short and unanimous opinion, the state supreme court overturned the appeals court and accepted the argument of the Department of Workforce Development that this new misconduct provision added over the objection of the Unemployment Insurance Advisory Council allowed employers to set their own disqualification standard in regards to absenteeism for the purposes of misconduct.

an employer can opt out of the statutory definition of “misconduct” by absenteeism and set its own absenteeism policy, the violation of which will constitute statutory “misconduct.”

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We conclude that the word “unless” in the “unless otherwise specified” clause of Wis. Stat. § 108.04(5)(e) means that an employee will be considered to have been terminated for “misconduct,” and thus disqualified from obtaining unemployment compensation benefits, if the employee violates the statutory definition of absenteeism, except if the employee adheres to the employer’s absenteeism policy specified in the employment manual of which the employee acknowledged receipt with his or her signature in accordance with the statute.

Beres, 2018 WI 77 at ¶19 and ¶23.

In Stangel v. Spancrete Inc., UI Hearing No.17402720MW (20 July 2018), the Commission applied the matter-of-fact holding of Beres to find that an employee whose absences led to too many points in violation of the employer’s attendance was disqualified for misconduct. The employee’s absences led to too many points under the employer’s attendance policy (regardless of reason for that absence), the Commission found, and so the employee was disqualified from receiving unemployment benefits. The Commission explained:

it makes no sense to allow the employer to adopt its own attendance policy different from the policy set forth in the statute, as described in Beres, but then limit its ability to define the contours of that policy. As an example, it is common for employers to adopt “no-fault” attendance policies, allocating to employees a large number of occurrences intended to cover both traditionally excused absences (e.g., sick days) and unexcused absences. It would greatly undermine the logic of such policies to hold the employer and employee accountable for the number of absences defined in the policy but to then consider only the “unexcused” absences when analyzing the employee’s termination for absenteeism. Thus, when applying the misconduct standard of Wis. Stat. § 108.04(5)(e), any notice and valid reason limitations will be as defined under the employer’s policy, and so long as the termination comports with the terms of that policy the employee’s violation of the policy will constitute misconduct pursuant to Wis. Stat. § 108.04(5)(e).

Stangel.

As noted by the Commission in its briefing in Beres, this employer-determined misconduct for non-intentional absences (in both Beres and Stangel, the employees were absent because of illnesses over which they had no control) ran the risk of Wisconsin being found by the US Department of Labor to no longer be in compliance with federal requirements for unemployment. That lack of compliance could well lead to Wisconsin employers losing a tax credit and seeing their federal unemployment taxes jumping from a 0.5% to 7.0% tax rate — quite a jump.

And, it seems that this risk finally caught the Department’s attention. In January 2019, the Department petitioned for review in an absenteeism case and filed a brief in March reversing its prior position. In this new case, the employee had acquired too many points under the employer’s no-fault absenteeism policy because of injuries related to a car accident and illnesses. Now, the Department argued that because the employee had provided the employer with notice for his valid (i.e., non-intentional absences), the employer’s absenteeism policy did not completely control in determining whether misconduct had occurred.

In Miller v. FEDEX Ground Package System, Inc., UI Hearing No.18005890MD (29 March 2019), the Commission accepted the Department’s argument (footnote omitted):

The commission has come to the conclusion that its reasoning in Stangel was incorrect, because that reasoning does not comport either with the plain language or with the structure of the statute. The notice and valid reason clause addresses absenteeism without qualification; it does not distinguish between absenteeism pursuant to the statutory standard and absenteeism pursuant to an employer’s policy. As for structure, the general statutory construction rule is that qualifying or limiting clauses in a statute are to be referred to the next preceding antecedent, unless the context or plain meaning dictates otherwise. The alternative of an employer’s policy is a limiting clause immediately following the statutory standard clause, though, and so is not properly read as an independent par.(5)(e) misconduct standard that is not subject to the notice and valid reason clause. The latter clause, by contrast, without question applies to the first clause, the statutory standard, and to the third clause, excessive tardiness. There is no legitimate basis not to apply it to the second clause, employers’ attendance policies, as well.

The commission’s reasoning in Stangel also does not comport with all the other categories of “misconduct,” whether the other specific categories enumerated in Wis. Stat. § 108.04(5)(a)-(g) or the general standard of Wis. Stat. § 108.04(5)(intro.). As the department points out in its brief, all of these standards incorporate intent, recklessness, or some other willful behavior on an employee’s part. To limit the scope of notice and valid reason to how those terms are defined in an employer’s policy would allow, as the instant case shows, the denial of unemployment benefits when the employee has engaged in no culpable behavior.

While this result is laudatory for both employers (no longer facing the risk of losing their federal tax credit) and employees (no longer being disqualified for misconduct when they provide notice of their non-culpable absences), the reasoning seems to contradict the holding in Beres. After all, the Commission made similar if not identical arguments in its briefing in Beres against the Department’s claims in favor of this harsh and unforgiving application of whatever the employer’s own absenteeism and tardiness policy required. See Commission’s brief at 36-43; see also the appeals court decision in Beres, 2017 WI App 29 at ¶¶16-20, 275 Wis.2d 183, 895 N.W.2d 77 (Department’s position would lead to disqualification for innocent absenteeism, and so cannot qualify as misconduct when unemployment presumes eligibility when there is no employee fault regardless of how valid the employer policy is). Yet, the Wisconsin Supreme Court rejected that argument for the holding spelled out above (and what the Department then advocated): the employer’s absenteeism policy governs in toto once the employee acknowledges that policy.

In addition, the scope of Miller in over-turning Beres is limited. Miller only applies to the employees who give notice of their absences. Employees unable to provide notice will still be disqualified even if they are absent through no fault of their own (e.g., a car accident or illness that render them unconscious).

As previously noted, the absenteeism provision at issue here arose under suspicious circumstances. A legislative fix through the Advisory Council needs to be taken up if an actual fix for this problem is to take hold. The Commission’s decision in Miller is at most partial and temporary.

Non-acquiescence: Employer aiding and abetting

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Besides the personal liability non-acquiescence tax cases discussed in a previous post, the Department also declared on 21 December 2017 that it was “non-acquiescing” to a Labor and Industry Review Commission decision holding that an employer did not aid and abet claimant concealment: In the Matter of National Security and Investigations LLC, UI Hearing No. S1500384AP (6 Dec. 2017) (non-acquiescence 21 Dec. 2017).

NOTE: During the last few years, the Department has been eager to find an aiding and abetting case against an employer. See “Concealment problems for employers too” (15 April 2015) (no aiding and abetting found, in part, because employer unaware of unemployment claims at issue) and Gussert v. Springhetti Landscaping and DWD, UI Hearing Nos. 16400598AP-16400609AP (27 January 2017) (no claimant concealment found in case where Department was alleging aiding and abetting by employer). This case represents the third unsuccessful attempt by the Department at such a case.

In this case, the small employer could not pay the employee anymore because of a shortage of revenue and a lack of timely payment of bills from clients. Given the slow business, the employer told the employee to file a claim for unemployment benefits, and the employee did so.

In those claims, the employee did not report any work for the employer since he was not getting paid for his work. During these weeks, the employer provided alternative compensation to the employee: a canoe, a car for a spouse, cash, use of a debit card, and use of a company vehicle.

The employee eventually quit because of a lack of work. He then filed a wage complaint for unpaid wages against the employer, and a settlement was eventually worked out. After the settlement and resolution of the wage case, the employer informed the Department of unreported wages during the weeks the employee had filed claims for unemployment benefits.

The Department charged the employee with concealment, and no appeal of that charge was filed. The Department also charged the employer with aiding and abetting claimant concealment because the employer told the employee to file a claim for unemployment benefits as work was slow and revenue was behind.

NOTE: That aiding and abetting charge was for $9320 (for what appears to be 25 weeks of benefits at $373 per week) plus another $12500 in additional penalties ($500 for each week of the alleged 25 weeks of concealment) for a total liability to the employer of $21,820.

This accusation was not enough to demonstrate aiding and abetting for the Commission, however. The Commission explained (footnote omitted):

The record shows that the department’s initial finding of aiding and abetting was based on the adjudicator’s impression that the employer instructed [the claimant] not to report hours and wages to the department when filing for unemployment benefits. The employer clearly told [the claimant] to file for benefits while work was slow, but there is no objective evidence in the record that an agreement existed between the employer and [the claimant] to conceal work and wages from the department.

The distinction noted by the Commission here is vitally important. Claimants are entitled to benefits when available work has declined, and so there is nothing wrong with a claimant filing for partial unemployment benefits because of a decline in available work. Indeed, the formula for partial unemployment benefits encourages claims for unemployment benefits by making employees eligible for those benefits even when working numerous hours and receiving substantial pay in a given week.

This basic eligibility criteria certainly casts some shade on what the Department is alleging in this case. Because the Department in this case is essentially claiming that an employer encouraging an employee to file for unemployment benefits because of a lack of available work constitutes aiding and abetting, the Department is turning a basic eligibility issue into a point of liability for both employer and employee whenever there is cooperation between the two.

There is an additional problem with this case for employers: the employer, angry at having to settle a wage case, tried to turn the tables on its former employee by informing the Department about the former employee’s prior unemployment claims. Because the employer and employee were at one time friendly with each other, however, the Department turned their initial lack of hostility into a kind of conspiracy charge about unemployment benefits being paid in lieu of regular wages.

Luckily for the employer, the Commission saw through the dubious nature of this claim (footnote omitted):

Under the facts in this case, the commission finds that the most reasonable inference to draw is that [the claimant] intentionally withheld his time sheets in January, February, March, and April 2014 because it was to his advantage to do so. It was [the claimant’s] understanding, or justification, that he could claim unemployment benefits because he was not getting a paycheck. The unemployment benefits [the claimant] received provided him with money “to live on” and satisfied, at least in part, his child support obligation. Later, after he quit his employment with the employer, [the claimant] attempted to get paid for the hours listed on his time sheets, which had not been previously submitted, by filing a complaint with the state.

The employer unquestionably could have been more diligent in analyzing its unemployment insurance reserve fund balance statements, but the fact that the employer failed to do so does not prove that the employer willingly assisted [the claimant in concealing work and wage information from the department. The employer did not know how partial benefits are calculated and believed that any weekly amount less than $360 was a partial benefit. [The claimant’s] co-worker claimed unemployment benefits during the first four months of 2014, and he reported working for and earning wages from the employer. There is no sound reason why the employer would aid and abet [the claimant] in concealing work and wages from the department while, at the same time, allowing [the claimant’s] co-worker to report work and wage information to the department.

But, any employer should take away from this case the fact that the Department is refusing to accept it as precedent. The Department believes that cooperation between employer and employee about eligibility for unemployment benefits could easily be the basis for an aiding and abetting charge against the employer. As the employer was originally charged with over $21,000 in liability for that alleged aiding and abetting, the danger being created by the Department here is much more than a speculative problem for small employers.

The Department essentially wants to punish employers who think their employees should be eligible for unemployment benefits. Should employers change their mind about that “cooperation,” they face a very real risk of being targeted by the Department.

Non-acquiescence: Employer tax cases

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First, some apologies for the title to this post. Non-acquiescence is a ten-dollar word for disagree. Essentially, the Department has the ability per Wis. Stat. § 108.10(7)(b) to declare publicly that it disagrees with a decision of the Labor and Industry Review Commission but will not appeal that decision into the courts. The Department has this option because an appeal of a decision into the courts faces the risk of the Commission’s decision being affirmed. That affirmation would then turn that case into a precedent the Department would be required to follow.

NOTE: The Department is supposed to follow Commission decisions as precedent. This non-acquiescence process provides a mechanism for the Department to declare officially that it will NOT follow a Commission decision as precedent.

Second, from May 2018 to January 2019, the Department began regularly issuing notices of non-acquiescence in employer tax cases where personal liability for those taxes were at issue. In all of these cases, the Commission found that personal liability was NOT justified largely because the individuals being pursued were not actually the owner/controlling person of the employing entity. These fact specific inquiries, however, somehow led the Department to believe that the Commission was not applying unemployment law in the way the Department wanted these cases decided. Here are the cases:

In almost all of these decisions, the Commission found that there was NO personal liability for unpaid employer unemployment taxes because the person targeted in these cases essentially did not qualify as the owner or manager responsible for those unemployment taxes.

NOTE: Keep in mind that corporate protection and limited liability does NOT apply to unpaid unemployment taxes. See, e.g., EOG Environmental Inc., UI Hearing No. S1100346MW (27 Aug. 2013) (the Department filed a notice of non-acquiescence in this case as well) and Henry Warner, UI Hearing No. S9100679MW (16 July 1993) for excellent descriptions of the personal liability issues that attach to individuals regardless of incorporation when unemployment taxes go unpaid.

In other words, the Department is pursuing in these cases additional liability for unpaid unemployment taxes. The Department is arguing that the named person is the manager or owner responsible for paying unemployment taxes and that he or she failed to meet that responsibility. The Corley case provides an excellent example of what is going on with these cases (I spoke with the attorney who represented the defendant individual in that case).

In Corley, a father had sold his trucking business decades before to his son who took over day-to-day management of the operation, The father remained a figurehead director of the company, however, for the sake of assuring customers and others that the father’s experience and judgment were available to the son. The father had little to any active involvement with management by 2008 or so but continued to staff office and personnel matters as a favor to his son.

With the great recession, the company came on hard times and went under by 2011 or 2012. During the course of going under, unemployment taxes went unpaid. Collection efforts by the Department ensued against the son (not mentioned in the Commission’s decision, as the collection efforts at issue here were against the father).

Apparently, those collection efforts were not going as well as the Department wanted, so it targeted the father, who at the time was working as a trucker again and living out of his tractor-trailer cab because of the economic losses and debts he had incurred from the recession. This targeting of the father for additional revenue/collection explains why the record is so spotty about the father’s actual role and involvement in the company’s unpaid unemployment taxes and what was allegedly owed by the father.

The Commission in its decision essentially finds that there is no proof of any unpaid debts for which the father was responsible. This lack of factual evidence in the record about the father’s personal liability, however, is a principle the Department does not want to accept as a limit on personal liability. So, the Department filed its notice of non-acquiescence in this matter. The Department does not want “actual evidence” to serve as a limit on its claims of personal liability. On that basis, this declaration by the Department is shocking.

So, in this light this flurry of non-acquiescence declarations by the Department signals a state agency targeting small employers and the individuals connected to them in any way possible as sources for continued and never-ending debt collection. Claimants in concealment cases are not the only folks who have experienced the unforgiving and relentless push by the Department to collect no matter what and to collect even and ever again simply because the Department asserts that monies are owed. Should another recession occur, there are many, many employers who will feel this bite from the Department and face the unending and pervasive debt collection the Department wants.