Of course the unemployment phone system melted down

An audit of the unemployment phone system for Wisconsin revealed last week that from March 15th through June 30th — 3.5 months — only 0.5% of the calls to the help system managed to get through.

Not until the two additional phone call centers were up and running and the number of calls fell to 55,698 during the week ending 8/22/20 were there finally no calls blocked.

Much of the criticism concerning this collapse of the phone system has centered on the legal changes enacted by Republicans under Gov. Walker. See here and here.

Yes, the whole point of those “reforms” was to make unemployment much more difficult to claimants.

But, that criticism fails to acknowledge the real and practical problems claimants have to deal with right now, and how extensive the changes to the claims-filing process have been. So, the meltdown with the phones should not have been a surprise to anyone paying attention to the unemployment system.

First, the phone system became a useless appendage years ago. Starting in 2013 and 2014 when the Department began going to an on-line system in place of the phone system, the Department shifted the entire claims-filing system to being on-line only as of 1 Sept. 2017. In 2016, the Department had already stopped updating the claim-filing system by phone and then shut it down completely in 2017.

Second, for the last several years before the pandemic only workers who regularly filed for unemployment and so knew how to manage the claims-filing system already were filing unemployment claims. The unemployment system became specialized knowledge of a few workers rather than the mass economic engine it was originally designed to be.

Third, because the phone system had no essential purpose anymore, staffing and support for it was cut to a bare minimum. In 2019, claimants who called the phone system with their questions about their claims were often told simply to go back on-line and try again or that the information they were asking about was available on-line already. Accordingly, so few people were calling the phone system that by early 2020 restrictions by social security number on when a claimant could call the phone system were removed.

Fourth, as the on-line system gained new and more extensive warnings about how claimants should be careful in their responses, little to nothing was done to actually provide relevant information. Indeed, the Department simply added information to the claimants’ handbook when the problem was pointed out through litigation. The result was that even more folks were discouraged from filing their claims because responsibility for administering the unemployment system is being passed from the Department to them.

So, all aspects of the claims-filing process were problematic and difficult. Confronted with the on-line system as their only option but needing to ask someone what all the confusing and un-explained questions were asking them, they turned to the only other avenue available to them: the phone system. Given how bad the on-line system claim-filing system is and the wave of claims that arose because of the pandemic, it is no surprise that hundreds of thousands of people turned to the phone system with their questions. And, like the on-line system, the phone system also failed them.

But, the folks who need unemployment right now do not want to know why the system is so difficult to manage and why it became that way. All they want is a system that is easier to manage and which answers their questions, and as far as I can tell there is no law or technological hurdle mandating a difficult unemployment system.

Indeed, the Department could do much to make the system easier to navigate by simply following current legal requirements rather than ignoring those requirements.

  • Following state legal requirements rather than ignoring those requirements that expand eligibility (for example, how disabled workers report that able and available status).
  • In contrast to all other states, providing on-line guidance to claimants about the questions being asked them on their claims outside of the claim-filing process itself.
  • Making the on-line claims-filing process available in languages other than English, as required by federal law. See UIPL 02-16 (1 Oct. 2015) at 8.
  • Actually providing a viable alternative to the on-line only claims-filing process, as required by federal law. See UIPL 02-16 (1 Oct. 2015) at 11-12 (at least two distinct methods for filing unemployment claims must be available to claimants).

All of these problems existed in 2016 and in 2018. And, these same problems continue to exist today, 28 September 2020. There is no legal reason for why these problems should continue. Indeed, the “law” indicates that they should not.

There is also another reason to fix these problems with the claims-filing process in general. Claims for regular unemployment are on the upswing once again during the last few weeks, accelerating at a faster pace than for the same weeks last year.

Pandemic claims ratio in Wisconsin

And, with Covid-19 cases sky-rocketing of late, there could easily be a second wave of unemployment claims in the late fall. The Department needs to make necessary changes NOW, not keep putting those changes off for when the pandemic might be over. At this rate, the pandemic and the unemployment crisis will not be ending for maybe another year at best.

Hearing offices are already being overwhelmed with cases requiring adjudication. The system in Wisconsin cannot continue as is without significant reform now.

Update (26 Oct. 2020): Added missing word (at least two distinct methods for filing unemployment claims must be available to claimants).

When unemployment benefits fail: the bonus army protests

In 1932, WW1 veterans marched on Washington over a bonus promised them at a later date but needed now in the throes of the Great Depression. Congress refused to pay this bonus because of concerns over budget shortages and creating a moral hazard through this “free” money.

Documentary done with original footage

A quick history lesson

For a full history of the bonus army protest, see this documentary in four parts. Please watch all four parts (around 30 minutes).

Technically, the bonus army protest predates the creation of unemployment benefits. But, the idea of what the bonus army wanted — money to pay rent and buy groceries — is essentially what unemployment benefits were geared to provide. The response to the bonus army back then seems all too familiar with how government leaders are responding to the unemployment crisis today: phantom concerns over moral hazard and safeguarding a government budget.

More than a decade after these protesters were shot at and turned away, the solution for the bonus army was a GI Bill after WW2 to create a broad-based economic stimulus (though African-American service men were left out of large portions of the GI Bill).

I guess in this current pandemic we still have a long way to go.

What has been is what will be, and what has been done is what will be done; and there is nothing new under the sun. Ecclesiastes 1:9.

Update (26 Oct. 2020): Prof. Daniel Mitchell provides some additional detail:

There is a further back story to the Bonus Army. After the Civil War, disabled vets were granted pensions. Of course, they were Union vets, not Confederates. That meant that most of the money flowed into northern districts, i.e., potentially Republican districts. Over time the pensions were made more generous so that they covered all vets, not just the disabled, and eventually the wives of vets. Republicans were also the party of protection so the expense of the pension plan could be used to justify higher tariffs, a main source of federal revenue at the time. A kind of ersatz Social Security system arose but just for Union vets. The last “Civil War” widow collecting a pension died in 2003 (!). Old geezers could marry young women who were attracted by a lifetime annuity (and with the knowledge they did not have to put up with their husbands for any length of time). Some former Confederate states set up pensions for their vets, but without federal money.  

There was concern after World War I that a similar expensive pension might be in the offing so instead Congress ultimately enacted just the one-time bonus and put the date off in the future for actual distribution.
One artifact of the Civil War pension remains — the Pension Building in Washington, DC, now an architectural museum, which was built to house the bureaucrats to administer the plan. And, of course, there is the legacy of the GI Bill, passed in part to avoid another Bonus Army after World War II.

Below is a slide I used to use in class showing the last Civil War widow, her obituary, and the Pension Building.

The $600 PUC in Wisconsin

Jake has the details on the economic effect all of the additional unemployment and tax payments that came out of the CARES Act and other legislation.

Of mid-western states, Wisconsin lagged behind its neighbors of Michigan, Minnesota, Illinois, and Iowa (and the national average was 34.2%).

Percent change in personal income

Either Wisconsin has been less damaged by the pandemic than other states, or Wisconsin has been less successful than other states in paying out all of the pandemic-related unemployment benefits currently available. I am thinking the latter.

Of course, income was still up in the second quarter of 2020 despite the pandemic because of the stimulus checks and the $600-a-week PUC add-on that did go out. Unfortunately, Lost Wage Assistance is a pale replacement for the $600 PUC, and no other stimulus appears on the horizon at the moment. As Jake explains:

For both Wisconsin and the US, much of the major increase in income in Q2 will be reversed in Q3, due to the lack of further stimulus checks and the end of the $600-a-week add-on for unemployment benefits. We already got a hint what that might look like with July’s personal income report, which showed US income was $1 trillion below April’s number (when most of the stimulus was sent out), but also was $1.3 trillion above March’s figure.

Being able and available when disabled

Just one example of where the Department ignores the unemployment law it is supposed to be following.

Numerous SSDI recipients are being denied PUA benefits because they are not answering a question the way the Department wants that question answered. The question:

Work Availability Question

Before this question and guidance is examined, let us first examine what the actual legal requirements for full-time work (aka being able and available) are for the purpose of unemployment benefits. Department regulations define being able and available as:

(3) Able to work.
(a) Able to work means that the claimant maintains an attachment to the labor market and has the physical and psychological ability to engage in some substantial gainful employment in suitable work. During any week, a claimant is not able to work if the claimant is unable to perform suitable work due to a physical or psychological condition. In determining whether the claimant is attached to the labor market and able to perform suitable work, the department shall consider all factors relevant to the circumstances of the case, which may include the following:

  1. The claimant’s usual or customary occupation.
  2. The nature of the restrictions caused by the claimant’s physical or psychological condition.
  3. Whether the claimant is qualified to perform other work within the claimant’s restrictions considering the claimant’s education, training, and experience.
  4. Occupational information and employment conditions data and reports available to the department showing whether and to what extent the claimant is able, within his or her restrictions, to perform suitable work in his or her labor market area.

(4) Available for work.
(a) Withdrawal from labor market. Available for work means that the claimant maintains an attachment to the labor market and is ready to perform full-time suitable work in the claimant’s labor market area. An individual who has a physical or psychological restriction and is found able to work under sub. (3) shall not be considered unavailable for work solely because of inability to work, provided the individual is available for suitable work for the number of hours the individual is able to work. During any week, a claimant is not available for suitable work if he or she has withdrawn from the labor market due to restrictions on his or her availability for work. In determining whether a claimant has withdrawn from the labor market, the department shall consider one or more of the following factors:

[factors skipped].

Example 1: A claimant has a number of physical restrictions due to recent surgery, including a restriction to work no more than 20 hours per week for 2 months. With the restrictions, the claimant cannot perform the duties of his or her usual occupation but is able to perform a number of jobs for which he or she has prior training and experience. The claimant is willing to do these jobs and is willing to work 20 hours per week. The claimant has no other restrictions to availability. Benefits will not be denied solely because of the inability to work full-time.

Example 2: A claimant is restricted to working 30 hours per week due to medical problems. The claimant is still able to perform the duties of his or her usual occupation. However, the claimant is unwilling to work more than 20 hours per week because the claimant is receiving Social Security benefits and more than 20 hours of work would reduce those benefits. Benefits will be denied until the claimant is available for 30 hours of work per week.

DWD 128.01(3) and (4) (emphasis supplied).

The key phrases here are “in some substantial gainful employment” and an “individual who has a physical or psychological restriction and is found able to work under sub. (3) shall not be considered unavailable for work solely because of inability to work.” As long as a person can work to what their physical and psychological limitations will allow, they are able and available for full-time work the purpose of unemployment law.

The provided examples in the regulations explain these points. In the first example, the employee’s work is limited because a recent surgery prevents him or her from working more than 20 hours in a week. That person is still able and available for full-time work of 20 hours, even though this number is less than 32 hours in a week. In the second example, the employee is limiting hours of work because of a financial consideration rather than his or her disability. So, that person is NOT able and available under these regulations. If the person worked 30 hours a week rather than limiting him or herself by choice to only 20 hours a week, then he or she would still be able and available for purposes of unemployment law.

This attention to individual workers’ own circumstances is why being able and available for full-time work varies from individual worker to individual worker. Everyone should answer YES to this question when they can work their normal hours, as set by their physical or psychological disabilities. As long as the work is, for unemployment purposes, substantial gainful employment, then that work qualifies, whether 32 hours a week or just 12 hours a week.

The Labor and Industry Review Commission has on numerous occasions reinforced this point. See Tunisha Perkins, UI Hearing No. 11605816MW (11 Jan. 2012), Kouimelis v. Dennys Restaurant 6318, UI Hearing No. 12201489EC (4 Dec. 2012), and Wright v. Independence First Inc., UI Hearing No. 09607759MW (8 March 2010). There is no legal dispute that being able and available for full-time work depends on the individual worker’s own, specific abilities and that work restrictions based on physical or psychological disabilities are NOT disqualifying.

The Department, however, does not explain any of these issues with this question. Indeed, the Department apparently does not accept these issues as actual unemployment law, as the Department-provided explanation in this question of being able and available for full-time work simply does not square at all with the state’s unemployment law: the explanation here simply offers a flat out denial of eligibility to anyone who has restrictions on his or her work. As a result, many disabled folks think, because they are disabled and so restricted in their work options, that they must answer “no” to this question.

Furthermore, when Department staffers investigate these mistaken answers to this question, they ignore the regulations cited above and tell claimants that full-time work only means working 32 or more hours in a week. Even many administrative law judges will only look at this issue in this light and in complete disregard of these regulations and Commission case law (unless this law is pointed out to them).

So, disabled folks and anyone else with physical or psychological restrictions of their work should always answer Yes to this question about being able to work full-time. If you normally work 12 hours a week because of your disability and can still work 12 hours a week when unemployed, then for the purpose of unemployment law you are able and available for full-time work.

That the Department fails to provide correct information on this issue and then enforces its own legally incorrect able and available standard against the disabled is just one more example of how the Department continues to discriminate against the disabled.

Note: As evident with the Covid-19 related explanations in this question for how to answer “yes” and hence still qualify for unemployment benefits, the Department obviously knows how to provide legally correct guidance on an issue when it wants to. The question is why the Department will not provide correct guidance to the disabled.

If unemployment in this state is going to improve, then illegal questions like this one and countless others need to be fixed. And, the Department staffers responsible for this wrong advice need to take responsibility for these mistakes. Indeed, the entire on-line filing process needs to be redone from top to bottom as well as made public to everyone and not just claimants when they file their claims. Keeping this information from public scrutiny has for too long been the priority for the Department. The Department is supposed to help claimants in their unemployment eligibility, not constantly pursue goals to keep claimants from becoming eligible in the first place.

Update (2 March 2021): added graphic for post.

Unemployment delays, part 3: your stories here

These posts — hundreds of thousands still waiting to be paid benefits and about legal obstacles being waived because of Department mishandling of claims — have led folks to contact me about their own stories of delay.

Note: The comments on numerous posts on this blog already contain dozens of stories about delays with claims. See here, here, here, and here, for example.

These stories need to be consolidated in one place. Why not right here with this post?

So, if you have a story about a delay, please add it to the comments below. Update your story, if possible. You can include any personal details you want or leave your story anonymously. While wordpress requires you to include an e-mail address when posting a comment, only I will know about that e-mail address. And, frankly, I do not have the time to follow-up with you directly about your story. So, I will not be sharing your information with anyone.

Note: Despite the urge, please refrain from profanity or personal attacks against identifiable people. And, do try to include paragraph breaks so that your story is easier to read.

To kick off these stories, here is one I received last night from an attorney:

I helped my stepson apply in April. He has yet to see a dime. They’re waiting on adjudication on a job that he had for a couple months that he quit to take a better job.

I called two days ago and talked to someone who was utterly clueless. She was only able to tell me that the holdup is because the employer isn’t responding. I said well then make a determination based on the information you have! This is being held up for five months now because the employer didn’t respond.

She said the law requires them to send a certain number of letters out to the employer before they can make a decision without employer’s statement. She said that they’re too busy to send out all those letters. She said they’re working as fast as they can blah blah blah. She didn’t even know what a weekly certification was or where we go in the portal to change his address. It’s ridiculous! His claim is held up because of an issue that would clearly qualify him.

But [that issue] doesn’t matter because he lost his job before that due to misconduct (absenteeism). He was only at his most recent job for 2 or 3 weeks before they closed due to covid. So, he’s not going to qualify for regular UI and will qualify for PUA. However they still haven’t made decisions on his regular UI after five months!

[To get by financially, he] did do a few weeks covid testing with the national guard and is now working through a temp agency, but when he was unemployed and had no income my wife and I were supporting him which we cannot afford to do either. Like we are all hurting badly, and there are even more people out there who don’t have family to help them out.

Even if you have already posted your story in the comments on this blog, I urge you again to include your story here on this post. In this way, there will be a central location for all of these stories about the delays Wisconsin has wrought.

Update (21 Sept. 2020): Updated post title with “your stories here.”

Update (19 Oct. 2020): Fox6 has a great story from Department insiders themselves complaining about the delays: “Since the spring, DWD has hired hundreds of additional employees to help process unemployment claims. But claims specialists say the system itself has not fundamentally changed, allowing the backlog to continue.”

And, here is some tips and places for assistance for those losing hope right now.

Don’t despair
There is something else to say about these delays. Several comments on this blog over the past few weeks are comments of despair, no hope, and even thoughts of suicide. I know finances can be a mess after months and months of no income. As a kid, I moved three times in one six month period. At times, I have struggled for work as an adult, and I have made some terrible career choices at other points in my life.

But, life is always more than your finances. Despite all the pain of the moment, please keep the folks you love in mind right now. They matter. And, they will want you around after all of this current catastrophe has passed.

  • For help with your unemployment issue, contact your state representative or senator (use this link to find out who your state representative is).
  • IMPORTANT: If you have unpaid food, housing, or medical bills, tell the representative that and ask that your claim be expedited because of that financial emergency. Provide an initial determination number or hearing number if you have one. Do not talk about weeks at issue (that is the substance; before you can talk substance you need to explain the procedural status of your case).
  • You will also probably need to provide a social security number (last four digits at least), birth date, phone number, e-mail address, and your mailing address to your state representative.
  • Do NOT provide screen shots or discuss issues with the on-line portal (short answer: everything in the portal is pending until resolved; see this post for help with navigating the portal). Just tell the representative the problem you are having: I’m being denied benefits because DWD is looking into why I was laid off, why I quit a job in 2019, why I answered no on question X on my weekly claim, why I had just less work because of the pandemic and did not lose all work, etc. In most cases, there will be NO factual explanation for why your case is on hold or being denied because the Department itself has made a mistake in processing your claim.
  • If you do not know what the issue is holding up your claim, call either the regular unemployment assistance line at 414-435-7069 or 844-910-3661 or the PUA assistance line at 608-318-7100, depending on whether you have a regular unemployment or a PUA unemployment claim. You can get more information from these folks than from your portal. If there is nothing new, then there probably is nothing new. Claims and hearings processing are gummed up mightily, and all kinds of problems are popping up and leading to further delays.
  • Wait 4-5 days and then follow-up with the legislator about the status of your request to have your case expedited.
  • While waiting, call 211, the United Way help line for your county and ask about the emergency help you need.
  • If close to Madison, here is a link to programs that provide emergency financial assistance in small amounts (usually $25-$100) and housing help.
  • Finally, think about what happened in the past when government likewise tried to pretend economic problems and dire need did not exist.

Update (21 Oct. 2020): Fixed some of the formatting for the Oct. 19th update. Also, The Fox6 open record podcast has an episode on the unemployment chaos in the state that deserves a listen.

Update (2 Dec. 2020): Courtesy of Hawks Quindel and others, here are some additional resources:

Update (4 Dec. 2020): added Wisconsin Judicare.

Update (29 Jan. 2021): clarified the above advice about getting help from state legislators.

Statewide

  • Wisconsin Dep’t of Health Services ACCESS: On-line application for Wisconsin benefits and programs relating to Medicaid (and BadgerCare) coverage, paying for groceries (SNAP) and child care, and other issues. There is an application guide is available in English, Spanish, and numerous other languages at the ACCESS link.
  • St Vincent de Paul (find the location nearest to you): Food pantry, charitable pharmacy, clothing, furniture, bedding and household goods, housing programs, and storage programs.
  • Contact your local county Dep’t of Human Services for numerous support services for older adults, health care options, after school programs, support for disabled individuals, transportation assistance, and numerous other kinds of support.
  • Update (3 Feb. 2021): Finding AA meetings in Wisconsin
  • Update (10 March 2021): Rental Assistance Program beginning February 2021. Go to the Wisconsin Community Action Program Association website and then click on your county on the map to take advantage of this rental assistance program.

Dane County and Madison

  • Community Action Coalition for South Central Wisconsin: Clothing center, community gardens, financial assistance, housing case management and assistance, Koats for Kids, serving area food pantries, gleaners perishable food recovery program, and FoodShare at the Farmers’ Market. Active in Jefferson and Waukesha counties as well.
  • Community Justice, Inc.: Non-profit law firm in which legal fees are proportional to your income. The legal services include family law, restraining orders, housing, including landlord/tenant issues, mental health, employment, discrimination, consumer fraud & scams, criminal, personal bankruptcy, SSDI, basic estate planning, defense litigation of personal injury, property damage, and consumer cases, small claims cases, insurance disputes.
  • Freedom Inc.: Numerous youth support programs as well as support programs for Hmong and Black adults and elders.
  • Homeless Services Consortium of Dane County: Housing Resource Line, coordinated intake, housing resource desk, family shelter (Salvation Army), single women’s shelter (Salvation Army), single men’s shelter (Porchlight), domestic abuse helpline (DAIS), and Youth Services Crisis Hotline (Briarpatch).
  • Neighborhood Law Clinic: UW Madison law school clinic where law students provide a broad range of legal services in rental housing, employment, and public benefits law.

North Central Wisconsin

Northern Wisconsin

  • Wisconsin Judicare: represents low income individuals for no fee in: unemployment appeals, evictions, foreclosures, some tax issues, and who are victims of domestic violence and elder abuse in the 33 northern counties and 11 federally recognized tribes.

Unemployment delays, part 2

Previously, I reviewed the initial claims numbers and how hundreds of thousands of claimants in Wisconsin are still waiting for their unemployment checks.

Here, I am reviewing what these delays mean legally to claimants and how the Department continues to make things worse.

Late appeals

By law, claimants only have 14 days to file an appeal of an initial determination.

Far too many claimants are looking to their unemployment portals to get a handle on what is happening with their claims. Unlike the employer-side portal, the claimant-side portal is still a confusing mess to navigate and actual documents like initial determinations, benefit year calculations, and appeal tribunal decisions are lacking (especially if more than a few months old).

Note: The utter lack of any help guides or assistance to claimants in how to navigate and find information on their portal is inexcusable. Hundreds of claimants have been sending me screenshots that are generally useless for understanding what the Department is actually deciding with their unemployment claims. They do not know what to look for because the Department provides no information to them about how to find information on the portal or an explanation of what the available information indicates.

The main purpose for the claimant portal remains having claimants sign off on warnings about not making any mistakes when filing their claims. More on that issue below.

Instead of reading documents like initial determinations, they are looking to their portal for an explanation of what is going on with the claims. If they do read those initial determinations, they are too often confused by the legalisms or factual craziness in these documents (e.g., denying a claimant eligibility because he was not laid off for a pandemic-related reason when both the employee and employer indicated he was laid off because of the pandemic).

Accordingly, they have been trying to talk to a Department staffer about those denials, not getting through to anyone or not getting a cogent explanation of what is going on, and subsequently missing the deadline to file their appeal.

In Martin v. SL Bayshore Oshkosh LLC, UI Hearing No. 20401617AP (7 August 2020), the Commission found that the claimant’s delay in filing a timely appeal because of Department communication breakdowns was for a reason beyond her control:

The employee states that she has spent a considerable amount of time trying to reach the department. However, because of the pandemic, she was unable to speak to a claims specialist until July 28, 2020. After speaking with the claims specialist, the employee was able to understand the issue involved and filed a late petition. The difficulty in reaching the department, given the pandemic and its impact upon the volume of unemployment claims, was beyond the employee’s control.

So, claimants who miss an appeal deadline because their efforts to reach someone by phone were fruitless until too late, should have their cases re-instated under Martin.

Missed job center registration

Even though the requirement to do four job searches a week has been suspended because of the pandemic, the Department has still required folks to register at the jobcenterofwisconsin.com website if they have not already done so. See the sentence marked with an arrow on the second page of these warnings screens that claimants must acknowledge when filing their initial unemployment application.

Note: Notice that there is no link to the jobcenterofwisconsin.com website in these warnings. To make sense of this warning in the first place, claimants must already know about this requirement and what it entails and understand that it is separate from the four job searches a week requirement. As most claimants new to unemployment have no idea what this requirement is, this one sentence warning is essentially gibberish.

To make matters worse, the Department is still sending out the same claim confirmation that mandates four job searches a week. As claimants do not understand how a requirement to do four job searches a week can be waived but a requirement to register at a website for those same job searches is NOT waived, especially since both provisions are based on state law, this claim confirmation notice is doing nothing but add additional confusion.

And, the Commission agrees.

To be eligible for benefits in a week, a claimant must register for work unless the work registration requirement is waived. [Wis. Stat. § 108.04(2)(a)2 and Wis. Stat. § 108.04(2)(b)] . . .

The claimant in the present case reasonably believed that the information provided by the department was outdated as she was aware that she did not need to perform a work search, yet the instructions told her to immediately perform the work search. The claimant was told not to contact the department’s help line unless instructed to do so by the department. In this case, the claimant was not told by the department to call the help line. Given the circumstances of this case, the claimant’s failure to register for work was due to circumstances beyond her control.

Katie Treu, UI Hearing No. 20601752MW (21 Aug. 2020) (footnote replaced with reference to state statutes).

The claimant in the present case believed she was not required to register for work because of the pandemic. The work search requirement was waived because of the pandemic. The department’s instructions told the claimant, incorrectly, to immediately perform the work search. The instructions also indicated no benefits would be paid until she registered for work. The commission concludes that the claimant reasonably misunderstood the work registration requirement. Given the circumstances of this case, the claimant’s failure to register for work was due to circumstances beyond her control.

Debra Reynolds, UI Hearing No. 20200850MW (21 Aug. 2020).

Here, the claimant’s failure to register for work was due to circumstances beyond her control. The claimant was confused about whether she was required to register for work based on the fact that she was still employed and was provided information that she did not have to search for work. The requirement to register for work is separate from the requirement to search for work. Normally, the claimant would be expected to contact the department to clarify her responsibilities. However, in this time of pandemic the claimant was unable to do so.

Kathryn Thom, UI Hearing No. 20200847MW (31 August 2020).

As it seems (from what I am hearing from the unemployment clinic and state advocates) that at least one-third of claimants in Wisconsin have likely failed to register at the job center website because of the Department’s poor and inadequate guidance, there are hundreds of thousands of claimants who have lost unemployment benefits as a result. Luckily, the few that manage to appeal their cases to the Commission are getting those denials over-turned.

But, these cases also reveal that administrative law judges and the Department are still denying unemployment benefits to these claimants and others despite the Department’s own misguided and confusing guidance on this issue.

These cases started in March and are only being corrected by the Commission at the end of August after TWO appeals (one appeal to an administrative law judge and another appeal to the Commission). It should not take such litigation to correct such a basic problem. The Department needs to provide updated and correct guidance to claimants, to waive any denials of benefits for this reason because of its own departmental error, or to waive this unnecessary website registration altogether through executive order or emergency rule. Instead, the Department is doing its best to keep unemployment benefits out of the hands of claimants.

Note: Both Legal Action of Wisconsin and myself have brought this problem to the attention of the Department. The Department has yet to even respond to these concerns.

Appeal withdrawals because of incorrect Department advice

Because the Department is making claimants liable for possible over-payments connected to two separate unemployment benefit programs — regular and PUA — and because the Department has been so slow to process these claims, claimants are caught between not knowing how or when to accept benefits under one option while giving up on benefits connected to the other program.

In other words, claimants have to chose. Do I continue to pursue a claim for regular unemployment benefits and not file a PUA claim? Or, do I drop that regular unemployment claim and hope that the PUA claim will work out?

In Lexi Schroeder v. BWW Resources LLC, UI Hearing No. 20601748MW (21 Aug. 2020), the claimant was confronted with this exact dilemma.

On March 30, 2020, the department issued a determination that found that the employee was not available for suitable work because she was attending school but was not in approved training. The employee filed a request for hearing. The employee then withdrew her appeal at her May 11, 2020, hearing. The employee told the ALJ she was going to qualify for the Pandemic Unemployment Assistance (PUA) instead of proceeding with the hearing. She informed the ALJ she had already applied for PUA and expected to be receiving benefits under that program. On May 11, 2020, the department issued an appeal tribunal decision which granted the request to withdraw the employee’s appeal. The employee filed a timely petition for commission review requesting that her appeal be reinstated. The employee states that she was given inconsistent information from department workers. She states she withdrew because she received information from the department that she relied upon to her detriment.

Wisconsin Admin. Code § DWD 140.05 addresses withdrawals of appeals. The rule provides, in relevant part, as follows:

(2) An appellant may submit a request to retract its withdrawal and reinstate its appeal. The retraction request shall be in writing and state a reason for the request. The administrative law judge may not grant a request to retract a withdrawal unless the request establishes good cause for the retraction and is received within 21 days after the withdrawal decision was mailed to the appellant.

* * *

The employee withdrew her appeal based upon information given to her by the department that she later determined was incorrect. The employee has established good cause for retracting the withdrawal of her appeal.

I too have had these cases, even for folks like SSDI-recipients who should now be eligible only for PUA benefits (but the Department is still denying their claims because they supposedly should file claims for regular unemployment benefits or because they lack earnings from regular work in 2019). It is a confusing mess to withdraw an appeal because someone from the Department says another kind of claim should be filed, only then to have to retract that appeal withdrawal because the Department staffer’s advice was incomplete or wrong.

So, the key to preserving your rights as a claimant is to document what Department staffers are telling you (both what is said and when it is said).

Being forced to chose one kind of benefit only to learn later you made the wrong choice based on bad advice from the Department should not foreclose you from re-opening that claim when you learn the Department’s advice was wrong from the get go.

As noted here, the trick is for claimants to keep records of that bad advice. Sadly, unemployment is broken in this state, so do not think you can rely on it.

Update (8 Feb. 2021): Attending RESEA (aka, job search training seminars)

In Daniel Kick, UI Hearing No. 20005817MD (10 Dec. 2020), the Department mailed a letter directing the claimant to attend a job search training seminar (also known as “RESEA” or “RES”). But, the claimant never received that letter. Prior to 16 May 2020, the claimant on his initiative:

went to the job website and did what he thought he was supposed to do. However, it was not clear to him what the requirements were and he did not successfully complete the RES requirements. The [on-line portal] system did not inform him that he still needed to complete a required task. The claimant [subsequently] realized he was not receiving benefits and on May 19, 2020, successfully completed the RES requirements.

The issue for the Commission was whether the claimant had good cause (good cause here is defined as having reasons beyond the claimant’s control) for delaying his completion of this RESEA requirement for a few days after the deadline (and thus denying him unemployment benefits for several weeks). The Department said “No,” and an administrative law judge, not surprisingly, affirmed that denial of benefits, as Department notices are presumed received and understood when mailed.

The Commission disagreed and concluded that the actual circumstances of the notice were beyond the claimant’s control for complying with this requirement.

In this case the department mailed the claimant a letter informing him of the requirements but he did not receive the letter.

Note: Department records reflect that the claimant changed his address to his username, rather than his street address. Department records further reflect that department mailed correspondence to the incorrect “address” given by the claimant and that correspondence was returned to the department.

That letter informed the claimant that he was required to complete both an online orientation and assessment. The letter further indicated that this was to be completed by May 16, 2020 and that he would be ineligible for benefits if he did not complete the task by the deadline. The letter also directed him to the site to complete the task. The letter contained information regarding the need to complete the task, the deadline and the manner in which he could begin to complete the task. Because he never received the letter, his failure to complete the RES requirements in a timely manner was for a reason beyond his control. The commission did not obtain the demeanor impression of the ALJ prior to reversing his decision. The claimant was the only witness at the hearing so there was no disputed testimony.

There are several lessons from this Commission decision. First, review by an appeal tribunal is typically perfunctory and will almost always affirm the Department unless the specific legal issue — here the faulty mailing notice — is spotted by a party. Second, Department communications that legally matter typically occur by regular mail, and so it is important that claimants make sure their mailing address is correct and to read that actual correspondence immediately when received, It is these letters and NOT the portal that legally matter. Third, the on-line portal remains a confusing mess to claimants, with most actual information about their claims unavailable, confusingly presented, and difficult to navigate in light of the portal’s poor design and misleading links.

Unemployment delays, part 1

There has been an unemployment meltdown in Wisconsin. Claimants wait and wait and wait for their cases to be decided, but no one is asking about the extent of these delays or why they are occurring.

Here are some answers.

Longer times

First, take note of a statistic the Department has been reporting after the pandemic had been underway for a few months: the average number of days from initial application to first payment (or initial determination denying benefits). Rather than decreasing as the number of initial claims and PUA claims have declined and the number of staffers have more than tripled, this number has actually been increasing, going from 19 days to 24 days.

Average days to pay an initial claim

In other words, the Department’s ability to process unemployment applications has gotten worse over the course of this pandemic, not better.

Fewer regular UI claims being paid

Using the federal unemployment data that all states report and which is available for analysis at Unemployment Insurance Data Explorer and based on this federal unemployment data, Wisconsin is actually paying out fewer unemployment claims on a percentage basis during the pandemic than from before the pandemic.

Wisconsin

Regular UI claims during the pandemic (March-Aug. 2020)
Initial claims   First payments    Percentage
918,757          294,571           32.06%

Regular UI claims prior to the pandemic (Jan. 2018-Feb. 2020)
Initial claims   First payments    Percentage
632,728          245,558           38.81%

So, Wisconsin is actually paying fewer initial claims during the pandemic than before the pandemic. It appears that no other state has a similarly significant decline in claims being paid out during the pandemic.

For comparison, here is what has happened in other states in regards to how many initial applications for regular unemployment benefits are being paid for the same time periods:

State   Pre-pandemic  Pandemic
NC      45.25%        50.27%
MI      54.70%        60.53%
FL      45.36%        49.76%
AR      39.60%        45.98%
IN      47.78%        46.77%
IL      56.34%        57.72%

Indiana shows a 1% decline during the pandemic, but at least around half of its initial claims are ending up with payment of benefits. Even Florida (!) has managed to pay out more claims during the pandemic than before the pandemic.

These numbers also reveal that the number of claimants receiving regular unemployment in Wisconsin is much lower than in other states, the same states that are decried in the national press as having terrible unemployment systems. During this pandemic in Wisconsin, less than one-third of initial claims have actually led to a payment of regular unemployment benefits. This decline is from roughly 39% of initial claims from before the pandemic. And, unlike all other states, including those who had massive problems with administering all of their pandemic claims, Wisconsin’s handling of these claims is trending down rather than up.

Wisconsin payment of initial claims

Note: Here is the spreadsheet that has this data.

Because there are errors in the data states report, some of this data is incomplete. For instance, Minnesota reports weekly claims being paid sizable amounts, nearly 91% of all pandemic claims. But, Minnesota also reports only 1.36% of initial claims being paid out. So, first payment data for Minnesota is in error. Another example of an error is the PUA data for Michigan. Even though Michigan is widely-acknowledged leader in paying out PUA benefits, this data for Michigan has zero PUA claims and payments.

These data errors do not appear to explain the claims-filing problems in Wisconsin. The numbers being reported here approximately match what Wisconsin itself is reporting. Moreover, the percentages or proportions of weeks claimed to weeks paid, for instance, match what the Department itself reported on Sept. 1st. So, there do not appear to be errors in what Wisconsin is reporting to the US Dep’t of Labor. The numbers for Wisconsin indicate a very real problem.

PUA claims

Wisconsin’s handling of PUA claims is even worse. Here is Wisconsin and a few other states for which data is available.

State   Month   Init App  First Payment
WI      Jul     13,298    17,269
WI      Jun     13,044     6,286
WI      May     23,887       709
WI      Apr     43,585         0
WI    totals    93,814    24,264    25.86%

NC      Jul     49,478    27,948
NC      Jun     54,338    35,799
NC      May    111,094    95,538
NC      Apr     42,808    32,582
NC    totals   257,718   191,867    74.45%

MN      Jul     2,877      4,251
MN      Jun     4,353     10,089
MN      May    14,908     26,682
MN      Apr    64,350     46,589
MN      Mar    21,622      6,304
MN    totals  108,110     93,915    86.87%

FL     Jun    133,501    126,769
FL     May    126,334    105,885
FL     Apr     18,273        338
FL    totals  278,108    232,992    83.78%

Note: Here is the spreadsheet for this PUA claims data. And, here is the raw PUA claims data from the US Dep’t of Labor.

These numbers are staggeringly awful for Wisconsin. Wisconsin is failing to process these claims even though Wisconsin has the fewest number of claims to process among these states. By the end of July, just a quarter of PUA applicants in Wisconsin had their claims paid out. This number is roughly three times less than what is happening in these other states.

Notably, even Florida managed to pay out some PUA claims in April, whereas Wisconsin did not significantly start processing PUA claims until June of this year. No wonder folks in Wisconsin are still waiting on their PUA claims: Wisconsin is doing very little to process these claims and, unlike other states, is not paying out these claims in any way comparable to what is happening in those other states.

No action whatsoever for almost 300,000 claims

Via its weekly data reports, Wisconsin has been reporting on “weeks compensated” rather than initial claims being paid. As a result, those reports say nothing about the experience of individual claimants who are still waiting for any payments. This ‘data’ being reported by the Department is covering up the significant administrative problems that are going on.

But, some actual data can be gleaned from these reports. The Sept. 14th report, for instance, reveals that there have been 902,717 initial applications for regular unemployment benefits during the pandemic, that 98,309 of these are in adjudication, and that 513,870 of these claimants have received regular unemployment benefits. So, based on these numbers, there are 290,538 initial applications that have yet to have ANY action taken whatsoever — no denial, no approval, no nothing.

Note: Above, over 600,000 Wisconsin claimants are reported as still waiting on first payments. Whereas in these weekly data releases, the Department is reporting only around 300,000 still waiting.

The first page of the August 2020 financial report to the Advisory Council seems to confirm that more than 500,000 claimants have been paid regular unemployment benefits in 2020. But, this report also indicates that “in calendar year 2018 and 2019, the number of claimants paid were [only] 130,710 and 129,888, respectively.” That number matches almost exactly what the Department reported to the US Dep’t of Labor prior to the pandemic.

It appears that for its weekly data reports, the Department is including some data as a payment where no actual payment is occurring. The benefit amount reduction, or BAR, comes to mind as a possible explanation. The Department has been illegally using this program to deny $600 PUC benefits to claimants because of prior concealment. Furthermore, the Department typically still counts regular unemployment benefits as paid to these claimant even though they are receiving nothing because of a BAR.

In any case, the Department’s own data indicates that just under 300,000 Wisconsin employees are still waiting on their claims to be paid as of mid-September.

Given that the workforce in Wisconsin is around 3 million workers, this number of 290,538 initial applications indicates that roughly one out of ten Wisconsinites are still waiting on the Department to do something with their claim.

And, as the number of claims being adjudicated has been declining on average by around 407 a week during this pandemic according to the Department’s own numbers of claims awaiting adjudication, the unemployed are going to wait for a long, long time until the Department actually processes their claims. No wonder the average number of days from application to payment or denial is increasing in this state rather than declining.

Breakdowns in claims administration

All of these delays create an additional problem for claimants — the claims-processing procedures are even further clogged.

At the end of March, some major problems and bottlenecks in the claims-filing process were identified. Other than what was noted then, many of those bottlenecks continue to exist.

On May 12th, as the claims piled up, processing delays were enormous: a month was needed just to process a faxed or mailed document for an unemployment claim and more than a week just to get a document recognized by the hearing office after being received.

Now in mid-September it still takes around 30 days for a claim document sent by mail or fax to be processed. And, information sent to a hearing office still takes 5+ days to be processed. Furthermore, while the clogged phone lines to reach a claim specialist have been opened up, it is now incredibly difficult to contact the hearing office by phone. In my experience, it takes numerous phones calls over a day or two and then a hold of 30 to 70 minutes or more before I can get through to a hearing office staffer.

Because Wisconsin (unlike all other states) has done little to nothing to change the claims-filing process in light of the pandemic, these kind of delays and obstacles remain. Appeals of benefits being denied for illogical reasons which are filed in August will likely not be heard at a hearing until October or maybe even early November.

The unemployment system in this state is broken.

Update (17 Sept. 2020): The NYTimes has an excellent primer on unemployment data and the hazards of drawing conclusions from continuing claims (which the Department itself has featured in its weekly data reports). The focus above in this post is on initial claims and first payments, not continuing claims and total number of unemployed or total amounts paid out. Initial claims and first payments should be relatively straight forward numbers.

Update (25 Sept. 2020): The Economic Policy Institute provides an explanation of about how pandemic claims data is inflated in some states and how unemployment rates under-report actual unemployment and both under-employment.

There is no reason to think that Wisconsin is over-reporting its claims data, however, or that Wisconsin’s unemployment rate (which is based on a national survey) is somehow not also under-reporting unemployment and under-employment in this state.

Explaining pandemic unemployment programs

Besides regular unemployment benefits, there are now the $600 PUC benefits, Pandemic Emergency Unemployment Compensation (PEUC) benefits, Pandemic Unemployment Assistance (PUA) benefits, Extended Benefits (EB), and now Lost Wages Assistance (LWA) assistance.

This table explains the ins and outs of these various programs. Print it up and read carefully.

Major thanks for Monica Halas of Greater Boston Legal Services for creating an initial draft of this table for Massachusetts and for Jenifer Bizzotto of Wisconsin Judicare for essential advice and edits.

Lost Wage Assistance: More problems for claimants

As previously noted, the executive order that created this program is full of problems. Further commentary has continued to remark about the suspect legality of this program. See here and here.

But a possible something is better than nothing, and so Wisconsin has applied for benefits under this program.

For Wisconsin, only those who receive $100 or more in unemployment benefits of some kind will be eligible for the additional $300 in Lost Wage Assistance. As a result, the working poor are left out of this program. Luckily, because the minimum weekly benefit rate for PUA in Wisconsin is $163, those claimants will be eligible for Lost Wage Assistance benefits.

Note: WPR reports that 15,000 claimants are likely to lose out on Lost Wage Assistance when it becomes available because their weekly benefit rate is less than $100.

Still, with Wisconsin in such an administrative mess regarding unemployment, the Department does not expect to pay out any Lost Wage Assistance until late October 2020 at the earliest for benefits tied to the first three weeks of August 2020. That is, there is a three month wait before any Lost Wage Assistance benefits will actually be paid out.

As usual, Wisconsin also is pursuing an extremely limited and narrow reading of this benefit program. Here is the new welcome screen a claimant sees after connecting to his or her portal:

Lost Wage Assistance question and warning

First, claimants need to indicate they have lost work because of the pandemic to be potentially eligible for Lost Wage Assistance benefits. But, the Department is implying in this threshold question that only those who have lost work after August 1st for a specific Covid-19 related reason qualify. So, folks who lost work before August 1st are likely to answer “no” and be declared ineligible for this program when they should answer “yes.”

Note: how does a claimant change his or her answer to this question? I have no idea.

Second, the Department will apply a very restrictive view of the pandemic-related reasons for being eligible for this benefit. Basically, the Department is requiring one of the reasons specified in this chart to exist, and a general loss of work — either wholly or partially — is not listed here. As a result, the Department is denying numerous claims even though both employer and employee indicate the layoff is pandemic-related.

Finally and most problematic, clicking “yes” or “no” does nothing but bring the claimant to his or her regular portal welcome screen. There are no additional questions or information about the Lost Wage Assistance program. Hence, the claimant has no idea what the answer meant or how and why it is recorded. This question and warning screen is essentially meaningless to the claimant.

Indeed, the Department’s guidance about the Lost Wage Assistance program offers absolutely no description of this question and why it is being asked or how to answer it. As usual, claimants need to guess at what the Department wants from them.

Update (10 Sept. 2020): Added info from WPR about the number of people in Wisconsin who will not be eligible for Lost Wage Assistance because their weekly benefit rate is less than $100.

Update (14 Sept. 2020): USA Today has a feature article about Wisconsin’s demand to recoup the yet unpaid LWA benefits. As Pam Herd explains, this effort is “asinine.”

Update (15 Sept. 2020): For a run-down of what other states are doing and how the Lost Wage Assistance falls far short of the $600 PUC, see this post. WPR reports that FEMA is indicating Wisconsinites may receive six weeks of LWA benefits. These benefits still not due until the end of October, however, and no explanation yet from the Department about its repayment demand.

Update (16 Sept. 2020): WPR reports that the Department is removing the payback requirement and that it is up claimants to fix “wrong” answers about their LWA eligibility by contacting the Department by phone. Some key quotations:

Inaccurate guidance
On Friday, FEMA updated its guidance to DWD, saying the language the department included was “not entirely inaccurate,” but they added that the agency does not believe Congress will pass additional legislation that will create duplicative benefits.

Only pandemic job loss needed
But in guidance to states about who is eligible under the program, FEMA states specifically “the most recent job separation does not need to be directly related to COVID-19.”

The guidance from FEMA goes on to say “at the time of self certification for the program, the individual must be unemployed or partially unemployed due to disruptions caused by COVID-19.”

Correcting a LWA claim mistake
In an email Tuesday evening, Jedd said DWD plans to reach out to LWA program applicants in an attempt to catch those who may have answered the question incorrectly. He also said that individuals who answered the question incorrectly can call DWD’s help center and ask a staff member to change their answer to the question.

 Update (24 Sept. 2020): Marketplace has an update on the status of Lost Assistance benefits. As expected, these funds are running out, and Wisconsin may not get funding for six weeks. Also, note that nine other states have finished paying out six weeks of LWA benefits and 30 other states are in the process of distributing six weeks of LWA benefits.

Update (22 Oct. 2020): The Department announced yesterday that it has started paying out Lost Wage Assistance benefits: $300 for up to six weeks.

“Payments from the LWA program will be made retroactively to eligible claimants for up to six weeks: the weeks ending August 1, August 8, August 15, August 22, August 29, and September 5, 2020. FEMA will not fund any weeks after September 5, 2020. DWD estimates up to 220,000 claimants may be eligible for LWA.”

Employers’ proposed notice to claimants

One of the requirements of the Families First Coronavirus Response Act, Pub. L. 116-127, was that states require employers to provide individualized notification of the availability of unemployment benefits to employees at the time of their separation from employment. This requirement was essential for some of the administrative funding available from the Families First Act.

States that did not yet have this requirement, like Wisconsin, were to implement this requirement by emergency rule within 60 days of the passage of the Families First Act. See UIPL 13-20 (22 March 2020) at 3-4.

The Families First Act was signed into law on 18 March 2020. So, Wisconsin needed to have an emergency rule implementing this requirement no later than 17 May 2020.

There is so far no emergency rule (Wisconsin did issue a scope statement, 018-20, on 30 March 2020 for such a rule). At the last two meetings of the Unemployment Insurance Advisory Council, there has been vigorous debate about creating the needed emergency rule.

The big questions: Why this delay and such debate?

What currently exists

It helps to know what is currently required for notice of unemployment benefits, a poster:

Notice-posters as to claiming unemployment benefits. Each covered employer shall keep employees informed about unemployment insurance under ch.108, Stats., by posting appropriate notice-posters supplied by the unemployment insurance division. The notices shall be permanently posted by each such employer at suitable points in each of the employer’s work-places and establishments in Wisconsin. Suitable points for posting the notices include: on bulletin boards, near time clocks, and other places where all employees will readily see them

DWD 120.01.

Failing to provide this poster allows an employee to backdate a claim for unemployment benefits.

The administrative rules provide for a waiver of the notification requirement if exceptional circumstances exist. An exceptional circumstance exists if the employe was not aware of the duty to notify the department of her intent to initiate a claim and her most recent employer failed to post or maintain a notice as to claiming benefits. Wis. Admin. Code § DWD 129.01(4)(c). It is the employer’s obligation to post UI posters at suitable points where all employes will readily see them. See Wis. Admin. Code § DWD 120.01.

Gadzinski v. Thomson Newspapers Inc., UI Hearing No. 00401683AP (7 Sept. 2000).

What the Department has done

So, it would seem that all the Department needs to do is create an additional requirement for employers to provide individualized notice about unemployment benefits to employees at the time of their separation.

For some reason, however, the Department did not get around to even presenting a proposed emergency rule until the July 16th meeting of the Advisory Council, well after the May 17th deadline.

Note: Other emergency rules, like job search changes, EmR2006, not charging employers interest for delayed tax contributions, EmR2011, and waiving experience rating changes for employers for their pandemic-related layoffs, EmR2018, were all done without waiting for the Advisory Council.

This proposal creates a new DWD 120.02. The Department explains that:

(14) Summary of Rule’s Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State’s Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
The proposed rule is expected to have an economic impact on employees, who may be more likely to file timely claims for unemployment insurance. The proposed rule is expected to have an economic impact on employers because employers will need to provide notice of the availability of unemployment insurance at the time of separation of employment. However, employers may provide notice to employees electronically, so employers may be able to limit the fiscal impact of this rule to minimal staff time to send an e-mail or text message to the separating employee.

(15) Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
The benefits of implementing this rule are that claimants who are separated from employment will have timely notice of the availability of unemployment insurance, so that they will be less likely to attempt to backdate their claim. The department may save staff time under this rule if more unemployment insurance claims are timely filed and fewer claimants seek to backdate claims.

(16) Long Range Implications of Implementing the Rule
The long range implications of this rule are that more employees will have timely notice of the availability of unemployment insurance benefits so they will be more likely to file their claims timely and less likely to seek to backdate their claims.

At the July 16th meeting of the Advisory Council, only one management representative was present (and so the council lacked a quorum). This management representative, moreover, voiced heated opposition to this change, as it would potentially give employees a few more weeks of unemployment benefits when the required notice was lacking.

The proposed rule states:

DWD 120.02 Notice at Separation.
(1) Each employer shall provide notification of the availability of unemployment insurance to employees at the time of separation from employment by at least one of the following methods:
(a) Letter.
(b) E-mail.
(c) Text message.
(d) Flyer.
(e) Any other department-approved method designed to give immediate notice to employees of the availability of unemployment insurance at the time of separation.

(2) If the circumstances of the separation make immediate notice under this section impossible, the employer shall provide notice to the employee as soon as possible.

(3) Notice under this section shall include content approved by the department. Note: Approved content for the notice under this section is available online at https://dwd.wisconsin.gov/dwd/publications/ui/notice.htm.

(4) An employer’s failure to comply with this section constitutes exceptional circumstances over which the claimant has no control under s. DWD 129.01 (4) (f) unless the employee was aware of the availability of unemployment insurance.

Note: The effective date of this proposed emergency rule is 2 Nov. 2020, in order to allow time for employers to comply with this requirement.

The August 20th meeting continued with these concerns. Management representatives questioned why this change needed to be permanent (there was no sunset provision and the Department intended the emergency rule to eventually become a permanent rule). The Department explained that federal law and guidance mandated this permanent change.

As set forth in the rule, this notice could easily be included in a final paycheck, the Department explained. If done that way, at most an employee could claim would be one, two weeks at the most (because of delays in the final paycheck).

Janell Knutson and Andy Rubsam tried to calm management representatives’ anxiety by explaining that claimants who tried to get their claims back-dated would face a high hurdle for accomplishing that task. If the person had ever filed for unemployment before or if the claimant acknowledged seeing the employer’s unemployment poster (even a poster that might exist), then the Department would find that there was no basis — no exceptional circumstance — to allow the claim to be back-dated despite the requirement for individualized notice in this proposed rule.

Note: This legal “application” of the individualized notice requirement essentially makes the whole issue moot except in very rare circumstances — i.e., the Department’s motivating goal for several years now.

Management representatives were not satisfied with this legal narrowing of the proposed notice requirement (which in any case will be applied by the Department and drew no response from labor representatives). So, into caucus to discuss this proposal the Department, management representatives, and labor representatives went.

The solution they reached was to append a sentence to the end of sub-section (4) of the proposed emergency rule:

If the employer meets the requirements of s. DWD 120.01, the employee is deemed to be aware of the availability of unemployment insurance for the purposes of this subsection.

In other words, the poster requirement will satisfy the requirement for individualized notice. Huh?

Apparently, the US Dep’t of Labor is not happy with this change to the proposal, as the Department has yet to actually introduce this proposal as an emergency rule (the Dep’t of Labor needs to approve proposed changes in law as being in compliance with federal requirements).

Note” I am speculating here, but the lack of approval is not surprising. UIPL 13-20 Change 1 (4 May 2020) at I-1 states:

Question: My state law already includes a requirement that employers post a notice at their worksite that informs workers of the availability of UC. Is this sufficient?

Answer: No. Under Section 903(h)(2)(A), notice to workers must be provided individually and at the time of separation. As discussed in UIPL No. 13-20, the state does have significant flexibility in the method of communicating this requirement to employers, as well as the form in which employers provide the notice to employees (such as letters, emails, text messages, or flyers given or sent to the individual receiving the information).

In situations where the existing state law does not already satisfy this requirement, the state may have to amend its statute or issue regulations. The Department recommends that the state consider issuing emergency regulations to satisfy this requirement for Allotment I funds in light of the statutory requirement that these grant payments be made within 60 days of the enactment of EUISAA.

So, nothing is happening just yet on something so minor as providing employees notice of unemployment benefits when there is an employment separation. This episode says much about the actual agenda of the Department during this economic crisis, and that agenda certainly is not all that concerned with the needs of employees.

Indeed, because of its inaction, the Department may well need to repay administrative funding it has already received. Sigh, still more policy choices that ultimately hurt workers.

Update (1 Oct. 2020): The proposed emergency rule is in effect starting on Nov. 2nd. Any employer that has an unemployment poster in the workplace or a virtual unemployment poster will NOT be subject to this requirement of providing an employee individualized notice at the time of separation or reduced hours. As Department attorneys advised (see above), all that an employer needs to do is provide notice of this poster at some point during the employment relationship. Really, why have a rule when it does not matter.

Update (6 Oct. 2020): As expected, the fiscal impact of this new non-requirement is minimal. The Department explains (emphasis supplied):

“Consistent with the new federal law, this rule adds a requirement that employers must also notify employees of the availability of unemployment insurance at the time of separation. Employers who fail to provide this notice may have additional benefits charged to their unemployment insurance account in the Trust Fund if the employee is given additional time to file an initial claim due to the employer’s failure to give notice. Additional time to file an initial claim is only given to claimants who were unaware of the requirement to file for unemployment insurance benefits, so it is expected that the fiscal effect on employer unemployment insurance accounts will be minimal.

“Employers may incur an additional expense in providing notice under this rule if they elect to provide notice in paper form by, for example, mailing a letter to the employee. However, employers may provide electronic notice, such as e-mail or text message, to employees. Electronic notice is not expected to create new out-of-pocket costs for employers.”

Update (13 Oct. 2020): Here is the official page for the emergency regulation.

Update (14 Oct. 2020): Employer counsel agree that a poster in the break room satisfies this requirement.

Update (4 Nov. 2020): Another employer-side counsel agrees that this notice requirement is in reality inconsequential:

What Are the Consequences for Not Giving Immediate Written Notice?

The DWD did not create a penalty to the employer for noncompliance with the new rule. However, failure to comply may provide “exceptional circumstances over which the claimant has no control,” allowing a separated former employee to file backdated or otherwise untimely applications for unemployment insurance benefits. However, it appears this is only true if the employer is also violating the poster requirement of DWD §120.01.

As this post also notes, there is no new poster or poster requirement alongside this new regulation. So, this new requirement does not actually mean anything.