Unemployment delays, part 4

Previous posts detailed the length of time and number of cases in the unemployment backlog in part 1, some of the mistakes by the Department that allow cases to be re-opened in part 2, and a place for stories and advice about how to find assistance in part 3.

Jake explains in posts on Nov. 14th and Nov. 19th that:

  • job losses are now spiking both nationally and state-wide,
  • the ensuing loss of PUA benefits at the end of 2020 is a fiscal cliff for millions, and
  • continuing claims demonstrate that long-term job losses are becoming entrenched.

Wisconsin’s own jobs report for October 2020 reinforced these conclusions, as the state unemployment rate rose markedly because of losses in leisure and hospitality and the public sector.

The actual initial claims data indicates that the pandemic has created a systemic increase in the number of new initial claims being filed every single week.

Initial claims filed in Wisconsin, Week 11-47

Since the start of the pandemic, initial claims have leveled off to around 5x what was filed for the comparable week in 2019. There are two noticeable dips where the ratio dropped significantly down below five: first for the weeks 35-37 and again for the weeks 44-47. The reason for these dips, however, are quite different. In weeks 35-37, there was an actual decline in the number of initial claims being filed in 2020. In weeks 44-47, on the other hand, the drop in the ratio is not from a decline of initial claims in 2020 but from an increase in initial claims that were filed in 2019.

w/e 2020  Week  Ratio   2020    2019 
03/14/20    11  1.02    5,698   5,587
03/21/20    12  13.29   69,342  5,216
03/28/20    13  20.51   115,679 5,640
04/04/20    14  19.95   103,226 5,173
04/11/20    15  14.21   65,654  4,619
04/18/20    16  12.12   56,038  4,624
04/25/20    17  10.64   48,630  4,570
05/02/20    18  9.47    39,278  4,146
05/09/20    19  8.73    35,134  4,026
05/16/20    20  9.21    31,851  3,460
05/23/20    21  7.28    26,384  3,626
05/30/20    22  6.16    22,835  3,709
06/06/20    23  4.90    22,497  4,592
06/13/20    24  4.51    24,226  5,373
06/20/20    25  4.31    23,773  5,514
06/27/20    26  6.00    29,727  4,956
07/04/20    27  5.35    27,619  5,159
07/11/20    28  4.93    27,774  5,631
07/18/20    29  6.14    23,396  3,808
07/25/20    30  5.94    20,951  3,530
08/01/20    31  4.76    17,702  3,717
08/08/20    32  3.79    14,467  3,816
08/15/20    33  4.75    15,484  3,262
08/22/20    34  4.29    14,092  3,287
08/29/20    35  3.44    13,122  3,818
09/05/20    36  3.48    13,025  3,742
09/12/20    37  3.44    12,432  3,619
09/19/20    38  4.40    14,012  3,186
09/26/20    39  4.86    15,225  3,131
10/03/20    40  4.41    16,876  3,824
10/10/20    41  5.38    20,985  3,904
10/17/20    42  5.06    18,113  3,577
10/24/20    43  4.44    17,731  3,990
10/31/20    44  3.62    17,961  4,956
11/07/20    45  2.90    17,136  5,911
11/14/20    46  2.66    18,500  6,951
11/21/20    47  2.49    19,967  8,031
                6.81 1,090,844  160,094

As Wisconsin still has winter, there are a host of industries (road construction, landscaping, recreation, and others) that lay off their workers on a seasonal basis, and so there is a steady rise in initial claims every year for these Wisconsin workers. As a result, this latest dip in the ratio does NOT represent an actual decline in initial claims in 2020. Rather, all that is happening is that the number of cases in 2020 is simply not rising enough to match the increases from 2019. All told, pandemic-related claims are still much higher than last year, as Wisconsin has experienced an increase of roughly 7x the initial claims from what was previously filed in 2019.

And, most of these 2020 claimants are seeing their initial unemployment claims denied. The percentage of regular unemployment claims leading to a first payment of benefits is actually down in Wisconsin from before the pandemic.

For the months of January 2018 through February 2020, there were 632,728 initial claims in Wisconsin, of which 245,558 led to first payments, a percentage of regular unemployment claims being paid of 38.81%.

Here is the monthly initial claims data for Wisconsin for the months of the pandemic:

Month      Initial  1st Pay     %
10/31/20    62,178   10,156  16.33
09/30/20    50,918    9,981  19.60
08/31/20    68,312   11,677  17.09
07/31/20    120,078  15,252  12.70
06/30/20    112,520  19,034  16.92
05/31/20    135,138  35,508  26.28
04/30/20    243,208 183,828  75.58
03/31/20    239,501  29,272  12.22
          1,031,853 314,708  30.50%

Source: https://tcf-ui-data.shinyapps.io/ui-data-explorer/

So, during this pandemic, Wisconsin is actually paying out fewer claims than it did from before the pandemic. Less than one out of three initial claims are leading to a first payment, whereas before the pandemic nearly two our of every five claims was being paid.

For comparison, here are initial claims and first payment data during the pandemic for several other states:

ST  Initial     1st Pay     %
NC  1,452,638    700,687  48.24
MI  1,997,061  1,168,887  58.53
FL  3,298,791  1,578,803  47.86
IL  2,037,211  1,063,231  52.19
AR    412,425    179,558  43.54
PA  2,233,652  1,201,647  53.80
IN  1,322,840    553,568  41.85
OR    621,445    357,489  57.53

Source: https://tcf-ui-data.shinyapps.io/ui-data-explorer/

In all these state but Illinois, the percentage of first payments is up from before the pandemic (Illinois declined slightly from a pre-pandemic percentage of 56.34%). Even Oregon, subject to a state law suit over the slow claims-processing in that state, has managed to pay out well more than half of the claims it has managed to process.

All of these claims being denied in Wisconsin has led to a staggering backlog in hearings.

Prior to the pandemic, appeal tribunals were issuing around 1,200 to 1,500 decisions a month. Here is what happened with the pandemic:

Month  Pending  Filed   Decided
Oct    12,771   4,480   3,289
Sept.  11,052   4,414   3,063
Aug     9,655   4,860   3,236
July    6,719   4,442   4,083
June    6,309   3,307   3,363
May     6,296   4,922   3,724
April   5,090   6,034   2,492
March   1,520   1,952   1,565
               34,411  24,815

In the last few months, more than 4,000 appeals of initial determinations have been filed every single month. Administrative law judges are now issuing more than 3,000 decisions these same months. But, they cannot keep up, and the backlog of pending cases is, at the end of October 2020, nearly 13,000 cases. If not a single appeal was filed after October 31st, it would still take around four months to clear the current backlog of cases that need a hearing.

For comparison, in Illinois, which has twice the number of initial claims that Wisconsin has, pending cases before an administrative law judge at the end of October numbered just 2,069. Pennsylvania has a backlog at the end of October of 3,950 pending cases — one-third of the backlog in Wisconsin — even though Pennsylvania has handled more than twice the number of initial claims than Wisconsin has.

Given the backlog of cases in Wisconsin, it is no wonder that folks should now expect to wait four to six months for their hearing. Because Wisconsin has kept every possible disqualification alive during this pandemic except for the four job searches a week and so is investigating any and all potential disqualifications — even issues going as far back as January 2019 — the system simply cannot keep up. The more people that are hired at the Department simply means more cases that have to be adjudicated.

So, if not approved for unemployment benefits soon after filing an initial claim, expect to wait several months or longer for a decision. And, if that initial determination does not go your way, expect to wait four to eight months for your hearing after filing your appeal.

All I can offer at the moment is the possible assistance described in part 3 of this series. Unemployment in Wisconsin truly is broken.

Recap of the 2020 public hearing

There is already a heart-wending report about unemployment problems described at this public hearing.

Note: The news article, however, continues to report the Department’s weekly claims data — 74,000 claimants — as the number of still outstanding claims. As many of the people who testified at the public hearing, those waiting includes those waiting for a hearing, which is a three to five month process right now (and getting longer). So, the actual number should be those who are waiting for a payment period. And, that number is at best 150,000 to 200,000.

Given that many of the issues have already been covered here, here are some links to those looking for answers raised at the hearing.

The Department’s general hostility to claimants

Numerous attendees indicated that Department staffers are hostile to claimants by always doubting what is being told to them, and that the whole process is simply dehumanizing. More than few attendees had to stifle tears in the midst of their testimony, in light of their anguish and desperation.

Questions cannot be answered, these attendees indicated, and answers when provided are too often contradictory. As one attendee described, the burden of proof is on her, and she is presumed to be attempting to scam the system until she can show by clear and convincing evidence that her claim for unemployment benefits is forthright.

The picture painted in this testimony is a Department no longer functioning as an unemployment agency but instead as a kind of welfare office trying to correct the “immorality” of claimants who want unemployment benefits rather than a job.


Numerous attendees described enormous delays of three to five months with their claims (see below for how long claimants can currently expect for their claims to be heard after appealing a denial).

Apparently forgotten by everyone is the Supreme Court decision in Cal. Dep’t of Human Resources Development v. Java, 402 U.S. 121, 91 S.Ct. 1347, 28 L.Ed.2d 666 (1971). Java concerned a hold placed on payment of unemployment benefits when an employer contested claimant eligibility. First, the court described the investigatory process:

A claimant, appearing at an unemployment insurance office to assert a claim initially is asked to fill out forms which, taken together, indicate the basis of the claim, the name of the claimant’s previous employer, the reason for his unemployment, his work experience, etc. The claimant is asked to return to the office three weeks later for the purpose of receiving an Eligibility Benefits Rights Interview. The issue most frequently disputed, the claimant’s reason for termination of employment, is answered on Form DE 1101, and the Department immediately sends copies of this form to the affected employer for verification. Meanwhile the employer is asked to furnish, within 10 days, ‘any facts then known which may affect the claimant’s eligibility for benefits.’ Cal.Unemp.Ins.Code §§ 1327, 1030. If the employer challenges eligibility, the claimant may then be asked to complete Form DE 4935, which asks for detailed information about the termination of claimant’s previous job. The interviewer has, according to the Local Office Manual (L.O.M.) used in California, the ‘responsibility to seek from any source the facts required to make a prompt and proper determination of eligibility.’ L.O.M. s 1400.3(2). ‘Whenever information submitted is not clearly adequate to substantiate a decision, the Department has an obligation to seek the necessary information.’ L.O.M. § 1400.5(1)(a). This clearly contemplates inquiry to the latest employer, among others.

The claimant then appears for his interview. At the interview, the eligibility interviewer reviews available documents, makes certain that required forms have been completed, and clarifies or verifies any questionable statements. If there are inconsistent facts or questions as to eligibility, the claimant is asked to explain and offer his version of the facts. The interviewer is instructed to make telephone contact with other parties, including the latest employer, at the time of the interview, if possible. L.O.M. § 1404.4(20). Interested persons, including the employer, are allowed to confirm, contradict, explain, or present any relevant evidence. L.O.M. § 1404.4(21).

The eligibility interviewer must then consider all the evidence and make a determination as to eligibility. Normally, the determination is made at the conclusion of the interview. L.O.M. § 1404.6(2). However, if necessary to obtain information by mail from any source, the determination may be placed in suspense for 10 days after the date of interview, or, if no response is received, no later than claimant’s next report day. L.O.M. § 1400.3(2)(a).

Java, 402 US at 126-7. Obviously, claimants in Wisconsin are reporting an investigatory process that is nothing like what is described here. Few claimants are having any contact with the Department adjudicators before their claims are denied. And, claimants then have to wait until a hearing and getting a hearing packet in the mail to learn why the Department actually decided to deny their unemployment benefits in the first place.

Note: Indeed, most claims denied in Wisconsin have nothing to do with an employment separation. Rather, the main reason are the claimants’ failure to satisfy Department mandated claim-filing requirements, as non-separation denials have sky-rocketed over the past decade, even as separation denials have declined to under 20% of all claims filed:

Wisconsin denial rates

The Court then went on to explain why unemployment was started and how the requirement for paying benefits “when due” in federal law was set:

On the basis of 1922-1933 statistics, it was estimated that 12 weeks of benefits could be paid with a two-week waiting period at a 4% employer contribution rate. The longest waiting period entering into the estimates was four weeks, indicating an intent that payments should begin promptly after the expiration of a short waiting period.

Other evidence in the legislative history of the Act and the commentary upon it supports the conclusion that ‘when due’ was intended to mean at the earliest stage of unemployment that such payments were administratively feasible after giving both the worker and the employer an opportunity to be heard. The purpose of the Act was to give prompt if only partial replacement of wages to the unemployed, to enable workers ‘to tide themselves over, until they get back to their old work or find other employment, without having to resort to relief.’ Unemployment benefits provide cash to a newly unemployed worker ‘at a time when otherwise he would have nothing to spend,’ serving to maintain the recipient at subsistence levels without the necessity of his turning to welfare or private charity. Further, providing for ‘security during the period following unemployment’ was thought to be a means of assisting a worker to find substantially equivalent employment. The Federal Relief Administrator testified that the Act ‘covers a great many thousands of people who are thrown out of work suddenly. It is essential that they be permitted to look for a job. They should not be doing anything else but looking for a job.’ Finally, Congress viewed unemployment insurance payments as a means of exerting an influence upon the stabilization of industry. ‘Their only distinguishing feature is that they will be specially earmarked for the use of the unemployed at the very times when it is best for business that they should be so used.’ Early payment of insurance benefits serves to prevent a decline in the purchasing power of the unemployed, which in turn serves to aid industries producing goods and services. The following extract from the testimony of the Secretary of Labor, in support of the Act, describes the stabilization mechanism contemplated:

I think that the importance of providing purchasing power for these people, even though temporary, is of very great significance in the beginning of a depression. I really believe that putting purchasing power in the form of unemployment-insurance benefits in the hands of the people at the moment when the depression begins and when the first groups begin to be laid off is bound to have a beneficial effect.

Not only will you stabilize their purchases, but through stabilization of their purchases you will keep other industries from going downward, and immediately you spread work by that very device.’

Java, 402 US at 131-3 (footnotes omitted). Accordingly, the court held:

Paying compensation to an unemployed worker promptly after an initial determination of eligibility accomplishes the congressional purposes of avoiding resort to welfare and stabilizing consumer demands; delaying compensation until months have elapsed defeats these purposes. It seems clear therefore that the California procedure, which suspends payments for a median period of seven weeks pending appeal, after an initial determination of eligibility has been made, is not ‘reasonably calculated to insure full payment of unemployment compensation when due.’

Java, 402 US at 133 (footnote omitted). Notice that, for the court, “delaying unemployment compensation until months have elapsed defeats” the purpose of unemployment. So, these months-long delays in payment of unemployment benefits in Wisconsin is, under Java, a violation of federal law.

Covid-19 quarantine

A few attendees spoke about having trouble getting benefits after being told to stay home because of concerns with Covid-19. Others talked about child-care problems created by the pandemic.

The main point of PUA benefits is the pandemic, and there are specific provisions that allow benefits in the following circumstances:

  • (aa) the individual has been diagnosed with COVID–19 or is experiencing symptoms of COVID–19 and seeking a medical diagnosis
  • (bb) a member of the individual’s household has been diagnosed with COVID–19
  • (cc) the individual is providing care for a family member or a member of the individual’s household who has been diagnosed with COVID–19
  • (dd) a child or other person in the household for which the individual has primary caregiving responsibility is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency and such school or facility care is required for the individual to work

These are all simple and obvious criteria. But, the Department is NOT applying this criteria in a simple, open, and straightforward fashion or contacting claimants with helpful inquiries that would allow the immediate payment of benefits. Rather, what is happening is that these claims are being heavily scrutinized for any discrepancy or misstatement that allow for a denial of benefits. So, folks end up having to appeal and wait. And wait. And wait some more for a now backlogged hearing process.

Note: In September, I indicated that the hearing process was then taking a month just to process an appeal of an initial determination. That delay is now around six weeks. The actual hearing is now taking another three to four months. In other words, getting a claim denied (which has been taking several months to begin with), will as of mid-November 2020 take another four to six months to correct. I know of claimants that have been waiting since March 2020 for their unemployment benefits, and many still do not even have a hearing scheduled.

And, for those that are getting their claims denied right now: after waiting eight months, you can expect to wait another four to six months for a hearing on your unemployment claim. Not good at all.

Language and technology barriers

A few attendees described the access barriers to claims-filing in Wisconsin. UIPL 02-16 (1 Oct. 2015) indicates that Wisconsin should have at a minimum more than one way to file a claim (phone, on-line, and in-person are the options) and that multiple languages need to be available when the working population depends on multiple languages.

Wisconsin for some years now has been in violation of these standards. Current claim-filing processes and questions are available here.

Again, in a state where broadband access is extremely limited, it makes absolutely no sense to have an on-line only claim-filing system. And, the fact that this system is inaccessible because of language barriers as well as to those with other disabilities have been longstanding problems.

SSDI and how to report eligibility for full-time work

One SSDI recipient testified about how she cannot work full-time and so was being wrongly denied when she answered a claims question truthfully by saying she cannot work full-time.

Obviously, she considered full-time work to be akin to 40 hours in a week. But, for unemployment purposes, full-time work varies from worker to worker.

As noted here, the question is legally wrong, as eligibility for full-time work is defined by how much work an individual is actually capable of doing. So, this attendee should have answered “yes” to being available for full-time work, if she could do what she was physically capable of, even if that work was only ten hours a week. As the question does not actually follow state law, however, it does not provide correct legal guidance.

Winter work search waivers

A few attendees testified about the lack of winter work search waivers. Given how the Department has previously ignored this concern, do not expect a sudden change now.

The PUA vs. regular UI problem

Several attendees described being tossed back and forth between regular unemployment benefits and PUA benefits. Those approved for PUA benefits are now being told by the Department to repay those benefits because they potentially qualify for regular unemployment benefits.

This problem is one issue that is not unique to Wisconsin, as it is present in most states at the moment.

By law, PUA benefits are only supposed to be paid out if a claimant has no eligibility for regular unemployment of any kind (which includes PEUC and EB benefits, as well as regular unemployment benefits that could potentially exist in another state).

The Department, however, is doing little to nothing to educate claimants about these issues. In the midst of this pandemic and with no work or income in sight, folks are simply desperate for any kind of unemployment assistance and do not have the time or legal expertise to decipher the kind of support they are receiving — regular, PUA, PEUC, or EB — and when or how that support should switch over to another program.

But, the Department is making claimants responsible for all of this information by determining at some later date when and how an alternative benefit source should have been applied and demanding immediate re-payment of the thousands of dollars under the prior unemployment program/benefit.

This penalizing of claimants for not switching from PUA to EB or PEUC benefit programs at the right time by ordering repayment of all benefits shocks and confuses claimants who receive these notices and stifles the very goal of economic stimulus at the heart of these programs.

Yet, these repayment demands are essentially administrative accounting problems inherent with the state unemployment agency that ultimately is responsible for adjusting the source or category of an individual’s benefit payments.

Essentially, because the state is responsible for transferring the claimant from one benefit program to another, claimants should not be on the hook for repayments connected to these administrative accounting issues. Instead, states should be responsible for these administrative transfers themselves, and any amounts due because of states’ failure to act promptly on these issues should be forgiven as far as claimants are concerned. At the very least, the Department should be explaining that, for example: while PUA benefits need to be repaid, the claimant will instead receive regular unemployment benefits for the same weeks, resulting in no over-payment or an over-payment of just $X amount, which will be recovered in installments against future unemployment benefits paid out.

But, that kind of advice would probably be deemed as being too helpful.

Don’t despair

This advice about how to get actual information about your claim and financial help should continue to be relied on.

For claimants, the Department’s portal continues to be less than useful except for two issues. See this post about how to get the two useful kinds of info — actual decision documents and payment benefit history — out of your portal.

Note: Do NOT ever conclude that your portal sets forth an accurate and historical record of activity relating to your claim. Department reports regarding your claim WILL change based on how the Department staffers characterize events, and so even claim approvals can “disappear” from your claim-history. Get PDFs when they appear in your document history or your benefit payment history and hand on to those documents. A year from now, the Department may deny, for instance, that you were ever approved for unemployment benefits and that you falsely claimed being laid off when your employer says you quit. If you did not retain that initial determination originally approving your claim for being laid off, you will no longer find that document when now being charged with fraud for claiming a layoff when you supposedly quit. Again, get PDFs of your unemployment documents and hang on to them for dear life. The Department, after all, has a profit incentive in turning the tables on you at some future date.

Pandemic (PUA) claims are being denied for invalid reasons

Pandemic Unemployment Assistance (PUA) benefits are the creation of the CARES Act and completely federally funded. Their purpose is to get unemployment benefits to groups of workers who are not eligible for regular unemployment for various reasons.

Note: for an explanation of all the different kinds of unemployment benefits connected to this pandemic, see this lengthy table.

Numerous attorneys and claimants are reporting that the Department is denying most PUA benefit claims. And, the claims-filing data backs up that observation.

ST  Initial Appl'ns  First Paym'ts    % Paid
WI      112,114        35,889         32.01%
NC      332,287       211,528         63.66%
MN      110,781        98,217         88.66%
FL      329,289       292,779         88.91%
IL      351,628       155,822         44.31%
MA      755,979       580,111         76.74%
NJ      657,341       490,282         74.59%

Source: TCF unemployment data explorer covering PUA claims filed April through September. Note, the Florida and Illinois PUA claims data is missing for August and September 2020.

As this data indicates, only one-third of PUA claims in Wisconsin are leading to an actual payment of PUA benefits. Other states are not only processing many more claims than Wisconsin, but they are also paying more of those claims. Massachusetts, a state generally recognized as doing well with PUA claims, has paid nearly 77% of 756,000 PUA claims filed in that state. New Jersey, a state saddled with an older mainframe system based on COBOL like Wisconsin, has paid nearly 75% of the 657,000 PUA claims filed in that state. Even in Illinois PUA claims fare better than in Wisconsin, as more than 44% of them have been paid.

To understand what is going on in Wisconsin, here are four examples of PUA claimants.

Example 1: Claimant does not qualify for regular unemployment because of insufficient benefit year earnings. But, job hours are reduced because of the pandemic, and he applies for PUA benefits because of those reduced hours.

Example 2: Claimant receives SSDI benefits and so is not eligible for regular unemployment. In early March 2020 (before any shutdown order), she quits her job because of egregious sexual harassment from employer and applies for PUA benefits. Normally, quitting a job because of sexual harassment qualifies a claimant for regular unemployment benefits, but she is ineligible for those because she receives SSDI benefits.

Example 3: Claimant has been working part-time for several years despite receiving SSDI benefits because of emotional disabilities. But, those emotional disabilities become worse and prevent regular work for most of 2019. Thanks to effective treatment and management, he begins looking for work again just before the pandemic strikes. Because of the pandemic, however, he cannot find work and applies for PUA benefits.

Example 4: Claimant who receives SSDI benefits approved for PUA benefits after a pandemic-related layoff from her employer. Later, when she returns to work and accrues two consecutive weeks of work, the Department declares her PUA claim is over, even though she is still working a reduced schedule because of the pandemic.

In two of these four examples, Wisconsin is denying the PUA claim for illegitimate reasons.

Example 1: loss of some work because of the pandemic

This claimant filed an application for PUA benefits because, he explained:

Job has experienced a decline in available hours because of the pandemic. I do not qualify for regular UI because my benefit year earnings are insufficient to establish a benefit year. Reduction in available hours has dropped from on average 30 per week to on average 12 per week.

Three months later, the Department approved this PUA claim in a determination dated July 24th. No PUA benefits were paid, however, because the Department indicated on his “portal” that his eligibility was being investigated because of a quit in 2019. Then, in a determination dated October 28th, his PUA claim was now denied because the claimant’s place of employment was NOT closed as a direct result of the Covid-19 public health emergency.

Note: This example of the portal NOT indicating what is going on with his claim is additional proof for why the claimant portal in Wisconsin is essentially useless to claimants in describing what actually is going on with their claim. To claimants, getting access to decision documents and benefit payment history is about the only useful features available to them on the on-line portal.

Obviously, what is going on here is that the Department is now re-investigating PUA claims to determine if those claims can subsequently be denied (as noted previously, the Department has a policy of re-investigating approved claims). Given how slow the Department has been to pay out claims, this re-investigation is leading to denials of the same claim before any unemployment benefits are ever paid out.

The other issue is why Wisconsin is even denying PUA benefits at all. Here is what Wisconsin now posts on its website FAQ for PUA benefits.

DWD PUA FAQ-Partial loss of work

The federal CARES Act provision at issue is the list of specific pandemic-related job-loss reasons in Section 2102(a)(3)(A)(ii)(I)(aa)-(kk) of the CARES Act. Business closure is listed under sub-section (jj):

the individual’s place of employment is closed as a direct result of the COVID–19 public health emergency[.]

The initial determination denying eligibility, however, does NOT include sub-section (kk) as one of the applicable reasons for which PUA benefits could be approved (it stops at the business closure provision). Noticeably, this sub-section states:

the individual meets any additional criteria established by the Secretary for unemployment assistance under this section

That additional criteria is what has emerged in Unemployment Insurance Program Letters for PUA benefits, UIPL No. 16-20 (5 April 2020), UIPL No. 16-20 Change 1 (27 April 2020), UIPL No. 16-20 Change 2 (21 July 2020), and UIPL No. 16-20 Change 3 (27 August 2020).

The CARES Act and the relevant program letters explicitly provide that PUA benefits are available to those who certify being “unemployed, partially unemployed, or unable or unavailable to work” because of the pandemic. Section 2102(a)(3)(A)(ii)(I) (emphasis provided). So, partial unemployment is explicitly provided for in this statute.

In regards to this claimant’s specific circumstances — insufficient benefit year earnings — UIPL 16-20 Change 1 at I-6 provides (emphasis supplied):

21. Question: When an individual has insufficient wages (or no wages) during the PUA base period, how is the PUA WBA calculated?

Answer: If an individual has insufficient wages (or no wages) from employment or insufficient net income (or no net income) from self-employment in the applicable PUA base period to compute a WBA, the individual is entitled to the minimum PUA WBA.

Even with no wages in the base period, the individual must meet the requirements under section 2102(a)(3)(A)(ii)(I) of the CARES Act — he or she must be unemployed, partially unemployed, or unable or unavailable to work because of one of the COVID-19 related reasons. The individual must have an attachment to the labor market and must have experienced a loss of wages and hours or was unable to start employment following a bona fide job offer.

This broad language led states like Massachusetts to include specific PUA eligibility for those who had their hours reduced as a result of COVID-19.

Q. My hours have been reduced. Can I collect benefits under PUA?

A. If you are working fewer hours due to COVID-19 and it has resulted in a loss in income, and you are not eligible for regular unemployment benefits, you may be eligible for PUA.

Mass. Pandemic Unemployment Assistance Benefits at 6.

Finally, the Department also seems to be ignoring Disaster Unemployment Assistance (DUA) regulations (an irony, given how the Department originally asserted that DUA regulations allowed the state to deny PUA benefits to SSDI recipients). Section 2102(f) of the CARES Act specifically states:

RELATIONSHIP BETWEEN PANDEMIC UNEMPLOYMENT ASSISTANCE AND DISASTER UNEMPLOYMENT ASSISTANCE. — Except as otherwise provided in this section or to the extent there is a conflict between this section and section 625 of title 20, Code of Federal Regulations, such section 625 shall apply to this section as if —

(1) the term “COVID–19 public health emergency” were substituted for the term “major disaster” each place it appears in such section 625; and

(2) the term “pandemic” were substituted for the term “disaster” each place it appears in such section 625.

And, DUA regulations define a week of unemployment to include:

any week during which the individual is totally, part-totally, or partially unemployed. . . . A week of partial unemployment is a week during which the individual works less than regular, full-time hours for the individual’s regular employer, as a direct result of the major disaster, and earns wages not exceeding the maximum earnings allowance prescribed by the applicable State law.

20 CFR 625.2(w)(1).

Finally, Wisconsin is applying a conception of business closure that changes with the circumstances. Schools that go virtual are considered closed even though they are still teaching the same number of students. But, businesses like restaurants that partially close so that only outdoor dining was offered or which only provide take-out only offerings are not considered closed at all. If the PUA benefits are supposed to be available under explicit statutory language regarding partial unemployment, then partial closures that led to partial unemployment under sub-section (jj) allows for PUA benefits.

So, in this question of federal law — not state unemployment law — Wisconsin is NOT following that federal law. Where other states are approving PUA benefits, Wisconsin is denying PUA eligibility despite what federal law requires.

The claimant in this example, according to federal law, is eligible for PUA benefits because he has experienced a partial loss of work directly connected to the pandemic, as spelled out in UIPL 16-20 Change 1, DUA regulations that control where there is a conflict between the CARES Act and DUA regulations, and a pandemic-related business closure that has reduced his hours of work.

Update (11 Jan. 2021): UIPL No. 16-20 Change 4 (8 Jan. 2021) has the following information regarding the business shutdown issue:

If a business has multiple parts and one or some of those parts is shut down due to restrictions imposed by COVID-19, affected staff from the parts of the business that shut down may be eligible for PUA. For example, a business may include both a restaurant and a brewery. If the individual’s place of employment is the restaurant and the restaurant is shut down because of the COVID-19 pandemic, even if the brewery continues to operate, the individual who was employed in the restaurant may be eligible for PUA. An individual who is working reduced hours while his or her place of employment continues to operate does not satisfy the conditions to self-certify under item (jj).

UIPL No. 16-20 Change 4 at I-8 (emphasis supplied). So, the worker here in Example 1 who is working reduced hours is now NOT eligible for PUA benefits.

Example 2: non-pandemic loss of work

This claimant quit a job for non-pandemic related reasons that would normally constitute good cause for receiving regular unemployment benefits. But, because she also receives SSDI benefits she is at this moment NOT eligible for regular unemployment benefits. So, until the discriminatory ban on regular unemployment benefits is overturned, PUA benefits may be her only option.

UIPL No. 16-20 Change 2 (21 July 2020) at I-5 for Q12 addresses the situation of an employee quitting a job and possibly being eligible for PUA benefits.

Stated another way, if the individual is disqualified from regular UC because of the prior separation issue, but is currently unable or unavailable to work for one of the listed COVID-19 related reasons in Section 2102(a)(3)(A)(ii)(I) of the CARES Act, then the individual may be eligible for PUA.

But, because this claimant is ineligible for regular unemployment benefits not because she quit but because she receives SSDI benefits, this UIPL guidance does NOT apply to her. Rather, she is one of the classes of employees who are eligible for PUA benefits because they are ineligible for regular unemployment benefits, like Americorps volunteers or church employees.

UIPL No. 16-20 Change 1 specifically provides that full-time students who lose part-time work related to the pandemic ARE eligible for PUA benefits. Q28 at I-7. So too are Peace Corps and Americorps volunteers eligible for PUA benefits if they are “no longer volunteering because their volunteer sites are closed due to COVID-19.” Q29 at I-8.

As a result, she needs to show that she has a loss of work connected to the pandemic. Unfortunately, since she quit her job because of sexual harassment and not the pandemic, she is NOT eligible for PUA benefits. Her loss of work is NOT related to the pandemic, and so she cannot qualify for PUA benefits despite it being her only option at the moment.

Example 3: cannot find work

Here, the claimant has returned to the labor market just when the pandemic started. Unfortunately, that lack of work along with a lack of pandemic-related job loss means he is NOT eligible for PUA benefits.

14. Question: If an individual becomes unemployed for reasons unrelated to COVID-19, and now is unable to find work because businesses have closed or are not hiring due to COVID-19, is he or she eligible for PUA?

Answer: No. An individual is only eligible for PUA if the individual is otherwise able to work and available to work but is unemployed, partially unemployed, or unable or unavailable for work for a listed COVID-19 related reason under Section 2102(a)(3)(A)(ii)(I) of the CARES Act. Not being able to find a job because some businesses have closed and/or may not be hiring due to COVID-19 is not an identified reason.

UIPL No. 16-20 Change 2 at I-6.

Moreover, Pennsylvania provides the following guidance on this very issue:

Q. I have never worked before. Am I eligible for PUA?
A. You may be eligible for PUA even if you have never worked before and

- you were scheduled to commence employment and do not have a job or are unable to reach the job as a direct result of the COVID-19 public health emergency; OR

- your job offer was rescinded because of COVID-19; OR

- you have become the breadwinner or major supporter for a household because the head of the household has died as a direct result of COVID-19.

Simply entering the workforce and having trouble finding work is NOT enough to qualify for PUA benefits. There still needs to be some pandemic-related reason for why the claimant has a loss of work in some way.

Note: As an independent contractor, however, he could be eligible for PUA benefits. As explained in UIPL No. 16-20 Change 1 for Q42 at I-11, “an independent contractor who experiences a significant diminution of work as a result of COVID-19” may be eligible for PUA benefits.

Example 4: a partial return to work

This claimant is the converse of what happened in the first example. After a complete layoff and several weeks of no work, the claimant is haltingly returned to work. Once two weeks of consecutive work occur, however (the weeks ending 7/4/2020 and 7/11/2020), the Department concludes that the claimant’s PUA claim is over and all payments after those weeks are held up, even through the claimant continues to experience numerous weeks of reduced work. This benefit payment history details that work history.

The initial determination denying PUA eligibility for this claimant has the exact same wording as the denial for the claimant in the first example.

The fundamental problem here, as discussed above, is that PUA benefits are explicitly available for a partial loss of work and there is no statutory provision or advisory letter setting forth a timeline for returning to work and cutting off PUA benefits. The Department appears to be making up a two weeks of work criteria for disqualifying someone.

UIPL 16-20 Change 1 at I-11 specifically states that eligibility is a weekly issue:

44. Question: Is PUA eligibility determined on a weekly basis like DUA?

Answer: Yes.

See also:

17. Question: Under DUA, an individual is no longer eligible for benefits when the conditions caused by the disaster no longer exist. When does an individual’s eligibility for PUA end?

Answer: To be eligible for benefits, the individual must meet the requirements to be a covered individual under section 2102(a)(3)(A) of the CARES Act, including that the person must be unemployed, partially unemployed, or unable or unavailable to work because of a listed COVID-19 related reason in Section 2102(a)(3)(A)(ii)(I) of the CARES Act. As discussed in Question 45 of Attachment I to UIPL No. 16-20, Change 1, eligibility is determined on a weekly basis and the individual must certify for an identified COVID-19 related reason each week to receive payment. The individual ceases to be eligible when he or she no longer meets the requirements to be a covered individual in a given week.

UIPL 16-20 Change 2 at I-8.

There simply is no reason for why the Department is cutting off PUA eligibility because of a partial return to work.

Final thoughts

Out of four examples here, the Department is violating federal law regarding PUA benefits in two of these examples.

The second example, while within what federal law allows, also demonstrates how morally and legally bankrupt the ban on regular unemployment for SSDI recipients is. Here, a woman victimized by sexual harassment cannot collect regular unemployment benefits because Wisconsin is denying those benefits based on her disability. She is essentially being victimized twice, once by her employer and again by Wisconsin.

Wisconsin should be doing better.

Update (11 Jan. 2021): As noted above, a new program letter indicates that the claimant in Example 1 is now NOT eligible for PUA benefits.

Unemployment public hearing in 2020

The last public hearing in 2018 was a tepid affair, and the 2016 public hearing led to an avalanche of testimony about winter work search waivers but no changes in unemployment whatsoever.

So, a public hearing in the midst of this pandemic is nothing to be excited about. In light of the pandemic, this hearing is split across two days and takes place via webex, a difficult on-line conferencing tool that is great in corporate environments but a pain to use across numerous platforms and technologies, especially where broadband access is limited. Here, for example, is the help Department offers for the toll-free number.

Today’s session was less than remarkable. Besides myself, there were about 25 observers and 12 witnesses (a 13th never managed to get her computer audio working, a common issue with webex). In lieu of providing basic information about the claim-filing process or even some sympathy to those describing their frustration, the Department’s representatives maintained that they could provide no information in response to such queries, even general queries, and was solely there to listen to public testimony.

And, if participants did not connect on right at 2pm (the scheduled start of today’s hearing, which was supposed to last until 4pm), they may have found no connection whatsoever. The Department abruptly ending the public hearing at 2:49pm when there no more speakers who had not yet testified.

Note: There does NOT appear to be any legal basis for ending a public hearing simply because no one from the public is currently in attendance. In-person public hearings continue for the entire scheduled time, as participants may well have planned to arrive at a certain time rather than appear immediately at the beginning. By ending this hearing prematurely before the scheduled ending time of 4pm, the Department violated its own notice for this meeting.

You can still register for the session tomorrow, Nov. 10th, from 4:30-6:30pm.

At the very least, you can voice your displeasure at the crazy delays in processing claims, the problematic portal the Department provides to claimants, continuing discrimination against the disabled, or the Department’s failure to provide the actual questions you are asked when filing a claim.

Just do not expect at the moment that someone will respond to those concerns.