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:
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.
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.
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.