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.
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.
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.
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.